|Judgments - Secretary of State for the Home Department (Respondent) v Nasseri (FC)(Appellant)
HOUSE OF LORDS
 UKHL 23
on appeal from:  EWCA Civ 464
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Secretary of State for the Home Department (Respondent) v Nasseri (FC)(Appellant)
Lord Hope of Craighead
Lord Scott of Foscote
Lord Brown of Eaton-under-Heywood
Lord Neuberger of Abbotsbury
Rabinder Singh QC
(Instructed by Bhatt Murphy)
Robert Jay QC
(Instructed by Treasury Solicitors)
16 MARCH 2009
WEDNESDAY 6 MAY 2009
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Secretary of State for the Home Department (Respondent) v Nasseri (FC) (Appellant)
 UKHL 23
LORD HOPE OF CRAIGHEAD
3. Mr Nasseri submitted that section 6(1) of the Human Rights Act 1998 required the Secretary of State not to act incompatibly with Convention rights and his return to Greece would be incompatible with his rights under article 3.
3 (1) This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made an asylum claim or a human rights claim may be removed
(a) from the United Kingdom, and
(b) to a State of which he is not a national or citizen.
(2) A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place
(a) where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion,
(b) from which a person will not be sent to another State in contravention of his Convention rights, and
(c) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention.
"from considering whether there is a risk of unlawful refoulement on removal of an asylum applicant to Greece. He merely claims a declaration that preclusion of such consideration is incompatible with the Human Rights Convention."
"Failure to conduct an adequate investigation of the risks of loss of life or torture or inhuman and degrading treatment is a breach of the substantive article and it is that investigation that the deeming provision impedes."
"the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant's Convention rights have been violated."
"In domestic judicial review, the court is usually concerned with whether the decision-maker reached his decision in the right way rather than whether he got what the court might think to be the right answer. But article 9 is concerned with substance, not procedure. It confers no right to have a decision made in any particular way. What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under article 9(2)?"
"the task of the appellate immigration authority, on an appeal on a Convention ground against a decision of the primary official decision-maker refusing leave to enter or remain in this country, is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful. It is not a secondary, reviewing, function dependent on establishing that the primary decision-maker misdirected himself or acted irrationally or was guilty of procedural impropriety. The appellate immigration authority must decide for itself whether the impugned decision is lawful and, if not, but only if not, reverse it."
"the list system renders the United Kingdom's compliance with article 3 of the [Convention] fragile. In the absence of individual examinations of the merits of individual cases by those responsible for specific executive and judicial decisions in those cases, the whole weight of compliance falls on the measures and systems in place for monitoring law and practice in the listed states, and does so in circumstances where government has no discretion to take a state off the list, but must seek main legislation."
"On the evidence before it, Greece does not currently remove people to Iran (or Afghanistan, Iraq, Somalia or Sudan - see Nasseri above) so it cannot be said that there is a risk that the applicant would be removed there upon arrival in Greece"
"the Court would also note that the Dublin Regulation, under which such a removal would be effected, is one of a number of measures agreed in the field of asylum policy at the European level and must be considered alongside Member States' additional obligations under Council Directive 2005/85/EC and Council Directive 2003/9/EC to adhere to minimum standards in asylum procedures and to provide minimum standards for the reception of asylum seekers. The presumption must be that Greece will abide by its obligations under those Directives. In this connection, note must also be taken of the new legislative framework for asylum applicants introduced in Greece."
"[T]here is nothing to suggest that those returned to Greece under the Dublin Regulation run the risk of onward removal to a third country where they will face ill-treatment contrary to Article 3 without being afforded a real opportunity, on the territory of Greece, of applying to the Court for a Rule 39 measure to prevent such."
LORD SCOTT OF FOSCOTE
" The European Council at its special meeting in Tampere agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention , thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement. In this respect, and without affecting the responsibility criteria laid down in this Regulation, Member States, all respecting the principle of non-refoulement, are considered as safe countries for third-country nationals."
"(1) Schedule 3 (which concerns the removal of persons claiming asylum to countries known to protect refugees and to respect human rights) shall have effect" (emphasis added).
It explains, also, why the countries listed in paragraph 2 of Schedule 3 as "safe countries" are so listed. All are signatories to the Convention. And all EU Member States, including of course Greece, have obligations binding on them under international and domestic law to observe the human rights guaranteed by the Convention to those within their respective territories.
"from which a person will not be sent to another state in contravention of his Convention rights"
the paragraph is stating no more than the 2003 Council Regulation takes for granted and that the Secretary of State, too, is in my opinion entitled to take for granted. If there were convincing evidence indicating that, in breach of its obligations under the Convention or as an EU member, Greece was not a "safe country" to which an asylum seeker from Afghanistan could be removed, the Secretary of State would have to consider whether to remove Greece from the "safe country" list. But unless and until that were done the legal efficacy of the removal provisions in Schedule 3 would remain, although a court before which a challenge to a removal direction was brought might have to consider whether a section 4 declaration of incompatibility should be made. And for that purpose, in full agreement with the reasoning of my noble and learned friend, the judge would be entitled and bound to consider any evidence adduced in support of the incompatibility contention. The contention could not be based simply on the statutory requirement that, in effect, it be assumed that Greece, or any other EU Member State, was a safe country.
LORD BROWN OF EATON-UNDER-HEYWOOD
LORD NEUBERGER OF ABBOTSBURY