QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN (on the application of)
JWYTAR ANWAR MOHAMMED
- and -
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Alan Payne and Jack Anderson (instructed by The Government Legal Department) for the Defendant
Hearing dates: 4th and 5th May 2016
Crown Copyright ©
Mr Justice Irwin :
"Ground 3: In refusing to consider the claimants' asylum claims and in seeking to remove them to Austria, the Defendant acts in breach of Article 18 (read with Articles 41 and 47) of the Charter of Fundamental Rights of the European Union."
Jamal Abdulkadir – the Facts
Jwytar Anwar Mohammed – the Facts
"I suffer from feelings of anxiety and depression and do not feel as though I have been mentally stable since I left Iraq. I feel very anxious and find myself thinking a lot about what has happened. I am currently taking tablets to help me sleep and to medicate me for my anxiety and depression."
Conditions for Asylum Seekers in Austria – Factual Material
"Austria has faced equally demanding challenges in view of the large number of arriving asylum seekers. As a "last stop before Germany", the country has witnessed hundreds of thousands travelling from East to West to cross its borders, with over 500,000 persons entering since August 2015. At the same time, over 68,000 persons had registered applications for international protection in Austria until the end of October, while more are facing obstacles to formally accessing the asylum procedure. In light of the challenges faced by the country, the European Commission visited Austria in September 2015 and announced the disbursement of €5,030,000 in emergency assistance under the Asylum, Migration and Integration Fund (AMIF).
At the same time, however, the volume of arrivals and applications seems to have exposed and exacerbated deeper shortcomings in the Austrian asylum system. The procedural complexity of asylum registration and the pressing issues of homelessness, housing in inadequate conditions and obstacles to accessing protection including the application of the Dublin III Regulation, leave many asylum seekers in a state of legal limbo and intensify risks of destitution."
"Two visits, on 6 and 19 August respectively, have revealed an immediate need for action. Current conditions upon arrival in Traiskirchen not only violate the rights, but the dignity of asylum seekers in this country. Medical and psychosocial care for people arriving in the centre is completely inadequate and needs to be extended without further delay. Housing conditions and sanitary facilities may be described as harmful to human health. This report summarizes the results and recommendations obtained in Traiskirchen in detail."
"This could mean that they have not submitted their application for international protection at the competent first instance authority."
This last point is potentially relevant to the procedural complaint made by these claimants which I address below. Ms Kessler goes on to state that the reception situation for refugees has "deteriorated lately due to a rise in the numbers of refugees". Apart from Traiskirchen, the information available to Caritas was that all reception centres run by the central Austrian immigration authorities are "currently overcrowded and do not take any more [new] asylum seekers". Ms Kessler confirmed that the non-governmental organisation Diakonie had confirmed that "since last weekend persons who are currently applying for asylum are not sheltered by the MOI anymore and do not have access to the services under the basic welfare system, including health insurance". Asylum seekers have been so informed by the Austrian immigration authority, the "Bundesamt für Fremdenwesen und Asyl" ["BFA"]. Leaflets issued by the BFA requested asylum seekers to inform the BFA about where they were staying.
"( You claimed international protection at a security agency or at the public security service. You are now in the registration procedure. Your application will be checked now with regards to your travelling route and whether Austria is in charge of your application.
- On this occasion we are sorry to inform you that it is currently not possible to provide you with a place in a care facility in one of the federation's distribution facilities. According to [Regulation] there will not be the possibility of a free of charge transport to one of the care facilities of the federation or to introducing you at a initial reception centre.
- Regardless of the above, your application for international protection has been registered and will be processed in due form. The current situation will have no influence at all on your application of asylum.
- With regards to your obligation to cooperate … we would like to ask you to be present and available for the "Bundesamt für Fremdenwesen" in order to proceed with your application. Please also inform them straight away about your current place of residence."
"As reported by NGOs persons currently expressing the wish to apply for asylum in Vienna are given appointment dates for the Erstbefragung in February 2016. Unaccompanied children experience even greater delays with some cases being called for appointments as late as May or June 2016. Until that point the asylum seeker has no documentation certifying his or her status and cannot have access to basic services as a result. Lately, thanks to a "Vienna refugee aid" card, a document with a social insurance number issued by the city of Vienna - unrelated to registration by the BFA - asylum seekers in Vienna can access healthcare and other services. However, this has not been witnessed in other regions in Austria at the time of writing."
"the circularity of the registration procedure, whereby an asylum seeker left homeless by the unavailability of reception places in practice cannot lodge an application until he or she communicates a registered address."
The report suggests this "poses a critical obstacle to access to protection in most parts of Austria". The report points out that a number of NGOs make their best efforts to fill this gap by allowing their offices to be used as a registered address for newly arrived asylum seekers.
"… would not be treated more or less preferentially than other applicants in the country. The conditions facing returnees would also depend on whether the person in question have (sic) already had prior access to the asylum system in Austria, for instance by obtaining a white card and entering an accommodation structure at the regional level … in any case, given the general deficiencies in access to the procedure and reception conditions documented in chapter II and chapter III, it is arguable that Dublin returnees would run risks of destitution and undue delays with regard to registering an asylum application in Austria. These risks need to be closely scrutinised by member states issuing outgoing Dublin requests to Austria in order to ensure that the application of the Regulation does not result in exposing asylum seekers to risks of destitution."
"It could mean that, to keep to the upper limit, people arriving at the state's borders will be sent back to secure neighbouring countries, even if they apply for asylum."
"If there is no room within Vienna for incoming asylum seekers to stay in government-provided accommodation, they will be moved to a Bundesland where accommodation is available or should be available according to a quota being agreed between federal and provinces governments. If there is no room in government-provided accommodation in another province, then they will be placed in emergency or temporary accommodation… This emergency or temporary accommodation is predominantly provided by and run by Austrian civil society."
"This therefore means that there is no guarantee of accommodation, despite the entitlement under [Austrian law]. If the goodwill of the people of Austria diminishes, there will be fewer people willing to help and provide accommodation to asylum seekers … There are no provisions to keep this system of emergency accommodation running. The asylum system would have collapsed in an even more dramatic fashion than it already has had non-governmental organisations and civil society not made efforts to cover the government's failings. The sheer number of asylum applications in 2015 has meant that many NGOs have been overwhelmed."
"In the cases where return is not possible under Articles 2, 3 or 8 ECHR, or where an appeal against the return decision before the Administrative Court is successful, the asylum application shall be processed. Yet, it remains unclear how appeal rights can effectively be exercised if asylum seekers are removed to the countries from where they entered Austria."
Article 3 Claims, said to be "clearly unfounded": the law
"(4) … if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify human rights claim to which this – paragraph applies unless satisfied that the claim is not clearly unfounded."
These cases have, of course, been so certified.
"31. The aim behind the CEAS was the establishment of a complete body of rules, founded on respect for international law, including the principle of non-refoulement. The examination of an asylum claim is restricted to one member state, and transfer of the asylum seeker to the state responsible for processing the claim, if asylum is sought elsewhere… There are common basic standards, and an important aim is to reduce secondary movements caused by disparities in standards."
"40. The need for a workable system to implement Dublin II is obvious…. The recognition of a presumption that members of an alliance of states such as those which comprise the European Union will comply with their international obligations reflects not only principle but pragmatic considerations. A system whereby a state which is asked to confer refugee status on someone who has already applied for that elsewhere should be obliged, in every instance, to conduct an intense examination of avowed failings of the first state would lead to disarray."
"41. …should not extinguish the need to examine whether in fact those obligations will be fulfilled when evidence is presented that it is unlikely that they will be. There can be little doubt that the existence of a presumption is necessary to produce a workable system but it is the nature of a presumption that it can, in appropriate circumstances, be displaced. The debate must centre, therefore, on how the presumption should operate. Its essential purpose must be kept clearly in mind. It is to set the context for consideration of whether an individual applicant will be subject to violation of his fundamental rights if he is returned to the listed country. The presumption should not operate to stifle the presentation and consideration of evidence that this will be the consequence of enforced return."
"64. There is, however, what Sales J described in R (Elayathamby) v Secretary of State for the Home Department  EWHC 2182 (Admin), at para 42(i) as "a significant evidential presumption" that listed states will comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory. It is against the backdrop of that presumption that any claim that there is a real risk of breach of article 3 rights falls to be addressed."
"3. The parties are also agreed that the test laid down in Soering v United Kingdom (1989) 11 EHRR 439 on this issue continues to hold the field. That case had established that the removal of a person from a member state of the Council of Europe to another country is contrary to the European Convention…
"where substantial grounds have been shown for believing that the person concerned ... faces a real risk [in the country to which he or she is to be removed] of being subjected to [treatment contrary to article 3 of the Convention]" – para 91 of Soering."
"115. While the structure and overall situation of the reception arrangements in Italy cannot therefore in themselves act as a bar to all removals of asylum seekers to that country, the data and information set out above nevertheless raise serious doubts as to the current capacities of the system. Accordingly, in the Court's view, the possibility that a significant number of asylum seekers may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, cannot be dismissed as unfounded."
"120. In the present case, as the Court has already observed (see paragraph 115 above), in view of the current situation as regards the reception system in Italy, and although that situation is not comparable to the situation in Greece which the Court examined in M.S.S., the possibility that a significant number of asylum seekers removed to that country may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, is not unfounded. It is therefore incumbent on the Swiss authorities to obtain assurances from their Italian counterparts that on their arrival in Italy the applicants will be received in facilities and in conditions adapted to the age of the children, and that the family will be kept together."
The Court thus ruled that, although there was no bar to all removals of asylum seekers to Italy, appropriate individual guarantees must be obtained from the Italian authorities before the particular applicants in Tarakhel could be removed there.
Conclusions on Ground 1
"subject's email containing more photographs has been intercepted by security department. They have referred the case to Counter Terrorism Unit and have requested that the detainee not be released/transferred until CTU have investigated".
Mr Morris confirms that after a period of time the CTU confirmed the claimant was not of interest.
"Assessed as a detained TCU definite runner to Austria under Article 18.1b of Dublin III regs. CIO (Chief Immigration Officer) Crooks has authorised TCU detention based on CTU's interest …"
"Subject was encountered in the UK on 18/8/2015 after entering clandestinely. Subject was served with an IS.96ENF and detained on the same date, and claimed asylum. Subject is a single male with no known family or close ties in the UK. No known medical conditions or special needs. Cat. 1 EURODAC hit to Austria for 16/07/2015. FR made to Austria on 06/09/2015 under Article 18.1(b) of the Dublin III Regulation – response awaited. In view of subject's previous disregard for immigration law and method of entry, the risk of absconding is high. There are no compassionate factors or exceptional reasons to justify release at this time and as subject has already demonstrated a disregard for immigration law, there is no reason to expect that he will now comply with any conditions or not abscond if released. Subject has no family or close ties in the UK so there is no incentive for him to remain in one place, and no one to influence him to comply with any conditions if he were to be released. A reply is expected from Austria by 21/09/2015 and should acceptance be received, RDs are estimated to be set within two to three weeks. Subject's removal from the UK is considered a realistic prospect so to facilitate this and to prevent absconding prior to removal, detention should be maintained."
"Subject a UK illegal entrant and failed asylum seeker who has shown complete disregard for UK and EU immigration laws. Subject has no close family/relationship/friendship ties to the UK and has no legal basis of stay in the UK."
The Claimants' Submissions
"1. Member States shall not hold a person in detention for the sole reason that he or she is subject to the procedure established by this Regulation.
2. When there is a significant risk of absconding, Member States may detain the person concerned in order to secure transfer procedures in accordance with this Regulation, on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively.
3. Detention shall be for as short a period as possible and shall be for no longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence until the transfer under this Regulation is carried out."
"makes no reference … to the express requirement of the Regulation that persons subject to its procedures are not to be detained in the absence of a specific and significant absconding risk."
"55.3.1. Factors influencing a decision to detain
All relevant factors must be taken into account when considering the need for initial or continued detention, including:
- What is the likelihood of the person being removed and, if so, after what timescale?
- Is there any evidence of previous absconding?
- Is there any evidence of a previous failure to comply with conditions of temporary release or bail?
- Has the subject taken part in a determined attempt to breach the immigration laws? (For example, entry in breach of a deportation order, attempted or actual clandestine entry).
- Is there a previous history of complying with the requirements of immigration control? (For example, by applying for a visa or further leave).
- What are the person's ties with the UK? Are there close relatives (including dependants) here? Does anyone rely on the person for support? If the dependant is a child or vulnerable adult, do they depend heavily on public welfare services for their daily care needs in lieu of support from the detainee? Does the person have a settled address/employment?
- What are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which might afford more incentive to keep in touch than if such factors were not present? (See also 55.14).
- Is there a risk of offending or harm to the public (this requires consideration of the likelihood of harm and the seriousness of the harm if the person does offend)?
- Is the subject under 18?
- Does the subject have a history of torture?
- Does the subject have a history of physical or mental ill health?
(See also sections 55.3.2 – Further guidance on deciding to detain in criminal casework cases, 55.6 - detention forms, 55.7 – detention procedures, 55.9 - special cases and 55.10 – persons considered unsuitable for detention).
Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified."
Article 18 of the Charter of Fundamental Rights of the European Union
"Right to Asylum
The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union. (hereinafter referred to as "the Treaties")."
"The principle of non-refoulement forms the essence of the fundamental right to asylum guaranteed in article 18 of the Charter and article 78(1) FEU. These provisions do not create for the asylum seekers a subjective substantive right to be granted asylum, but a right to fair and effective examination of the application for asylum, together with the right not to be transferred to countries or territories in breach of the principle of non-refoulement."
"seek to ensure full observance of the right to asylum guaranteed by Article 18 of the Charter … This Regulation should therefore be applied accordingly."
1. The applicant or another person as referred to in Article 18(1)(c) or (d) shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal."
"9. …ECHR Article 3 aside, what if any is the scope for challenge to the removal of the affected individual to another Member State following a decision under Dublin II that the other State is responsible for the examination of his asylum claim? The issue is one of principle because its resolution requires the court to find an accommodation between two competing legal imperatives: (1) the vindication of Dublin II as a regime for the distribution at an inter-State level between the Member States of responsibility for the determination of asylum claims, and (2) the vindication of individual claims of right which might be denied by a rigorous enforcement of the inter-State regime. Miss Rowlands says the first of these predominates; Mr Ó Ceallaigh the second. The learning, unfortunately, swims between the two."
"25. …a non sequitur which needs to be exposed: the proposition that Dublin II confers no right on the affected individual to challenge a decision as to which Member State is responsible for the determination of his asylum claim does not entail the further proposition that the decision to remove him to the responsible State may not be challenged on grounds other than the terms of Dublin II."
"60. In the present case, the decision at issue is the decision of the member state in which Ms Abdullahi's asylum claim was lodged not to examine that claim and to transfer her to another member state. That second member state agreed to take charge of Ms Abdullahi on the basis of the criterion laid down in article 10(1) of Regulation No 343/2003 , namely, as the member state of Ms Abdullahi's first entry into EU territory. In such a situation, in which the member state agrees to take charge of the applicant for asylum, and given the factors mentioned in paras 52 and 53 above, the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that latter member state, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of article 4 of the Charter: see the NS (Afghanistan) case, paras 94 and 106, and Federal Republic of Germany v Puid (Case C-4/11)  QB 346, para 30.
61. However, as is apparent from the documents placed before the court, there is nothing to suggest that that is the position in the dispute before the referring court.
62. Having regard to the foregoing considerations, the answer to question (1) is that article 19(2) of Regulation No 343/2003 must be interpreted as meaning that, in circumstances where a member state has agreed to take charge of an applicant for asylum on the basis of the criterion laid down in article 10(1) of that Regulation—namely, as the member state of the first entry of the applicant for asylum into the European Union—the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that member state, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of article 4 of the Charter."
Postscript to Judgment