QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| ESMAIEL MOHAMMED POUR (1)
SEID JAFAR HASINI HESARI (2)
MAJID GHULAMI (3)
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
David Manknell, Matthew Donmall and Robert Harland (instructed by Government Legal Department) for the Defendant
Hearing dates: 16, 17, 18 and 19 June 2016
Crown Copyright ©
MR JUSTICE OUSELEY :
The legal framework: domestic
The legal framework: EU
"60. … the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systematic deficiencies in the asylum procedure and in the conditions for the reception of the 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."
"23. I turn to the Secretary of State's third submission. It is not in dispute that the purpose of the Dublin II Regulation is to introduce a clear division between a responsible state (France in this case) and a non-responsible state (the UK in this case) for managing the asylum claims of third country national asylum seekers. Mr Manknell submits that (i) it would be inconsistent with the policy of the Dublin II Regulation if a non-responsible state (the UK in this case) were required to assess Convention challenges to the legislation of a responsible state (in this case France); and (ii) it is clearly established in the relevant EU, ECtHR and domestic case law that a Convention challenge to the legislation of a Dublin II Regulation state must be brought in the responsible state, save in exceptional circumstances."
"31. EM (Eritrea) was an article 3 case as was NS. It is, of course, binding on this court. It is difficult to avoid the conclusion that, although the Supreme Court was purporting to apply and explain NS, it was to some extent departing from it. At the very least, EM (Eritrea) gives less weight than NS to the mutual confidence in Member States and the presumption of their compliance with EU law and fundamental rights. The reason for this may be that complaints of violations of article 2 and 3 are rightly regarded as more serious and treated differently from complaints of violations of other articles of the Convention. That is why the threshold for a successful complaint in the former in a foreign case is substantially lower than for a successful complaint in the latter. As we have seen, the "flagrancy" threshold is so stringent that successful complaints in "foreign cases" based on violations of Convention rights other than articles 2 and 3 are very rare.
32. Even is the EM (Eritrea) approach falls to be applied in the present case, I have no doubt that, for the reasons given at paras  above, the appellants come nowhere near rebutting the presumption that France would comply with its obligation to respect the rights enjoyed by the appellants under articles 8, 9 and 14 of the Convention."
"The Luxembourg Court returned to the topic of systematic failings in Abdullahi and appeared unequivocally to state that only systematic deficiencies would do: para 60 (quoted above). Neither court had the benefit of the other's reasoning because of the timing of their respective hearings. The Luxembourg Court has not yet been faced with a case which is not squarely based upon systematic failings. It is unnecessary to explore in these proceedings whether there remains a tension between the approach in Luxembourg and the decision of the Supreme Court. The risk in play in this claim arises from the personal circumstances of the first claimant but his real complaint is that the systems in place in Sweden for dealing with fresh claims after an initial refusal are not sensitive enough to enable full arguments to be deployed before removal from Sweden."
The risk of refoulement from Cyprus to Iran
"Member States shall ensure that applicants have the right to an effective remedy before a court or tribunal, against … (a) a decision taken on an application for international protection, including a decision: … (ii) considering an application to be inadmissible pursuant to Article 33(2)…."
"In the case of a decision: (a) considering an application to be manifestly unfounded in accordance with Article 32…;(b) considering an application to be inadmissible pursuant to Article 33(2)…(d); a court or tribunal shall have power to rule whether or not the applicant may remain on the territory…if such a decision [under (d)] results in ending the applicant's right to remain in the Member State and where in such cases the right to remain in the Member State pending the outcome of the remedy is not provided for in national law."
"42. A number of important points can be made by reference to this extended passage [from MSS v Belgium ECtHR Grand Chamber]:
'… (vi) The Grand Chamber considered the possibility of asylum seekers in Greece applying for interim measures from the ECtHR under Rule 39 to protect them against removal to a third country where they might be killed or suffer ill-treatment, but concluded that this potential layer of protection was illusory because of difficulties facing asylum seekers in Greece: paras. -. This conclusion is founded on findings at paras. - that there are major difficulties for asylum seekers in gaining access to the asylum procedure in Greece (including being deprived of all information about asylum procedures and how to make an application for asylum and in some cases being tricked by the police to discourage them from following the procedures), leading to the assessment at para. …'
There is no evidence of an equivalent pattern of conduct by the Cypriot authorities to deprive potential asylum seekers of all information about their rights or how to apply for asylum. There is no good basis in the evidence available about Cyprus for concluding that applications to the ECtHR for interim measures under Rule 39 are "almost impossible". This is a significant point, since the possibility of having access to the ECtHR to secure interim relief is an important safeguard against the possibility of refoulement to another country where there is a real risk for the individual of death or ill-treatment.
43. The contrast between the position of the Claimant in the present case at the time of the hearing before me and the position of the applicant in M.S.S. in relation to the possibility of making an application under Rule 39 is particularly stark. ….[The position of the applicant in M.S.S.] is not the position of the Claimant in this case as things now stand. In the circumstances which now apply, the Claimant is represented by lawyers and is known to KISA, a local non-governmental refugee organisation, which –if he is sent to Cyprus –will be in a position to assist him in making a Rule 39 application to the ECtHR should the need arise.
44… But it does seem to me to be relevant that the statistics for Cyprus for successful asylum applications at first instance as compared with total applications considered at first instance (as published by the Eurostat agency of the European Commission) appear to be respectable or even good by comparison with those of other countries whose proper compliance with their international obligations has not been in question in any way (such as France, Ireland and the United Kingdom),and appear to be very much better than the statistics for Greece. The number of positive decisions as compared with the number of total decisions for these countries for 2010 were: Cyprus 425 out of 2,440; France 5,115 out of 37,620; Ireland 25 out of 1,600; United Kingdom 6,440 out of 26,690; and Greece 105 out of 3,455. This is not indicative of a situation in which asylum seekers in Cyprus are in practice unable to vindicate their rights to protection against refoulement in appropriate cases.
46. Overall, the picture one gets from the reports from international organisations in relation to Cyprus which have been put before the court is that certain criticisms may certainly be made about aspects of the asylum procedures in Cyprus, but these are advanced with a view to promoting improved practice in this area and not to condemn Cypriot procedures as clearly inadequate or in breach of its international obligations. It seems likely that a broadly similar picture, where criticisms may be made of asylum procedures in an effort to encourage improvements, could be drawn in relation to the asylum procedures of most, if not all, the ECHR Contracting States (and by way of example I was shown reports critical of aspects of the United Kingdom's asylum procedures). But in such reports it is not suggested that such criticisms as are made show that there is any substantial failure on the part of Cyprus (or the United Kingdom, or any other state subject to similar criticisms) to comply with its international obligations with respect to protecting asylum seekers against refoulement to countries where they may be at risk; nor is it suggested that asylum seekers cannot safely be sent to Cyprus (or, as the case may be, the United Kingdom or any other state subject to similar criticisms) under the Dublin Regulation procedures.
49. The absence of adverse comment by the UNHCR regarding Cyprus's asylum procedures is very telling. According to the ECRI report of 23 March 2011 there is close co-operation between the Cypriot authorities and the UNHCR, "which has unrestricted access to files and can present its views on cases". So if the UNHCR had significant concerns about Cyprus's procedures, he would be in a position to inform itself and to articulate such concerns. He has not raised any significant problems with Cyprus which might suggest that individuals could not be sent there under the Dublin Regulation procedures –by contrast with the position he adopted in relation to Greece, as set out by the Grand Chamber in M.S.S.. Local refugee support organisations such as KISA and Future Worlds Centre (which received funding from the UNHCR) are also well placed to present any criticisms they have of procedures in Cyprus to the UNHCR for his assessment. The UNHCR has not endorsed the criticisms which they make, as relied on by the Claimant (see below -the same point may be made in relation to the US State Department: it is clear from its 2010 Report that KISA communicates concerns it may have to the State Department, but the State Department reports that overall Cyprus does provide practical protection against refoulement).
55. In my judgment, the Claimant gets little or no support for his refoulement argument from the reports from international organisations. Indeed, the overall impression from those reports is that Cyprus is not regarded by those organisations as having problems in relation to its asylum procedures which are in any way comparable with the position in Greece reviewed in M.S.S.. Accordingly, Ms Physsas was obliged to submit that the court should treat certain reports from local Cypriot refugee support organisations (KISA -an acronym for its Greek name, which in translation is Action for Equality, Support, Antiracism; Symfiliosi; and Future Worlds Centre, which has been funded by the UNHCR to implement a project entitled "Strengthening Asylum for Refugees and Asylum-seekers in Cyprus") as having greater weight. The reports from these organisations which she relied on were: a KISA report dated May 2011 entitled "Asylum procedures and conditions of Asylum Seekers in Cyprus" (which those acting for the Claimant had asked KISA to provide as an expert opinion in the Claimant's case), a report by Symfilosi of 2009 for the Jesuit Refugee Service in Europe; a questionnaire return on Cyprus by Future Worlds Centre to Refugee Council Hesse dated 4 January 2011; the "Report on the Asylum Procedure in Cyprus –2011" by Future Worlds Centre dated 8 June 2011; a KISA report entitled "Migrants' detention and ill treatment in Cyprus" dated 25 May 2008; a KISA report entitled "Reception Conditions of Asylum Seekers" dated 25 May 2008; a KISA report entitled "KISA's positions on the Fifth periodic report submitted by the Government of Cyprus on the implementation of the International Covenant on Economic, Social and Cultural Rights" dated 24 October 2008; a KISA report entitled "Asylum Procedures in Cyprus" dated January 2009; and a KISA report entitled "The Right to an effective remedy in the context of asylum procedures in Cyprus" dated 29 June 2009.
56. In my assessment, although the reports of these local organisations which are produced for publication in the public domain are entitled to weight (as equivalent reports from local organisations in Greece were taken into account in M.S.S. alongside reports from international organisations), they carry considerably less weight than the considered reports of bodies such as the UNHCR, the ECRI, LIBE and the US State Department. Local organisations such as KISA do not have the resources nor the general perspective on acceptable standards of protection for asylum seekers which those other bodies have. Nor is it apparent that the local organisations are engaged in a process of dialogue with the Cypriot authorities in the way that the UNHCR, the ECRI and LIBE appear to be, in the course of which the authorities are given an opportunity to comment on possible criticisms. Therefore, the reports of the local organisations risk being rather one-sided in the picture they present.
57. Moreover, looking at the specific comments in the published reports from local organisations, I do not think that they provide especially compelling evidence to support the Claimant's refoulement argument. For example, in KISA's report entitled "Reception Conditions of Asylum Seekers" dated 25 May 2008, it refers to an "improvement of access to asylum procedures" which it acknowledges has taken place, and although it refers to continuing problems with the procedures its comment is: "In very rare occasions asylum seekers are arrested and deported instead of given access to the Asylum procedure". In its report of January 2009 it again referred to "the improvement of access to asylum procedures in the last few years", while referring to continuing problems. These materials cannot outweigh the general impression which emerges strongly from the reports of international organisations, as referred to above.
58. I consider that the other materials produced by the local organisations on which the Claimant sought to rely carry considerably less weight than their published reports, since they do not afford any opportunity for assessment by neutral outsiders such as the UNHCR or for response by the Cypriot authorities. The Grand Chamber in M.S.S. does not give any indication that it would be inclined to give significant weight to unpublished materials of this kind.
59. In particular, I should comment on the Claimant's use of what purported to be an expert report from KISA commissioned by the Claimant's lawyers for the purposes of this case. In my view, this was an unsatisfactory document which should be given comparatively little weight: …
(vii) Still more fundamentally, there is nothing in the Grand Chamber's judgment in M.S.S.to lend support to the idea that claims regarding potential violation of Convention rights on the basis of a refoulement argument should be determined by reference to expert opinions obtained for the purposes of court proceedings regarding the claims in question. The materials relied on by the Grand Chamber were not of that character. They were published reports from highly regarded bodies, of which the Greek government would obviously have been aware and in respect of which it would have had a full opportunity over several years to answer (if it could) any of the criticisms levelled against it. A private expert report of the kind commissioned from KISA by the Claimant is, in my view, in a completely different category. Other than in exceptional cases, I do not think it is appropriate for a refoulement argument of the kind made in M.S.S. and in this case to be mounted by reference to private expert reports. They will not usually carry significant weight, when compared with the sort of materials to which the Grand Chamber had regard in M.S.S., and are more likely to add disproportionately to the time, effort and expense involved in determining the proper outcome on such an argument. I do not think that M.S.S. type claims should be converted into trials by way of consideration of opposing expert reports.
68. Although in the various reports of international organisations there are, at some places, some criticisms of the detention conditions in which asylum seekers are held, they are comparatively muted in tone. They fall a long way short of the sort of material which could support a claim that the Defendant would act in violation of the Claimant's rights under Article 3 by sending him to Cyprus to face detention there. The overall picture is very different from the sorry state of the Greek detention facilities assessed in M.S.S."
"18. I accept the need for great caution here. The court should be very slow to decide that the legislation of a democratically-elected legislature of a member state of the European Union is incompatible with the Convention. But I do not consider that our courts are powerless to assess the compatibility with the Convention of legislation enacted by a foreign legislature. There might be exceptional circumstances in which it would be appropriate for such an assessment to be made. But I am not persuaded that such circumstances exist here. I emphasise that the Dublin II Regulation issue (the Secretary of State's third submission) is a distinct submission."
Conclusions on detention
EP's individual claim