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|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
1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hoffmann. I agree with it, and for the reasons he gives I would dismiss the appeal. I also agree with the observations which have been added by my noble and learned friend Lord Scott of Foscote.
2. Mr Nasseri is an Afghan national who crossed into Greece in December 2004 and claimed asylum. The application was rejected on 1 April 2005. By then he may already have been on his way to the United Kingdom, which he entered on 5 September 2005 concealed under a lorry. When detected he again claimed asylum.
3. Council Regulation (EC) No 343/2003 (the Dublin II Regulation) provides in article 10 that if an asylum seeker has crossed the border from a third country into a Member State, that Member State, and only that Member State, shall be responsible for examining his application. Pursuant to the Regulation, the Home Office asked the Greek authorities to accept responsibility for determining Mr Nasseris application. The Greek authorities agreed to do so and he was notified that he would be removed to Greece.
4. Mr Nasseri objected on the ground that there was a real risk that, if sent to Greece, he would be returned to Afghanistan to face inhuman or degrading treatment, contrary to article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. He adduced evidence, to which I shall return later, for the purpose of showing that his application for asylum would not be properly considered in Greece. In TI v United Kingdom  INLR 211, the European Court of Human Rights (ECHR) decided that the Dublin II Regulation did not absolve the United Kingdom from responsibility to ensure that a decision to expel an asylum seeker to another Member State did not expose him, at one remove, to treatment contrary to article 3 of the Convention.
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.
5. The Secretary of States response was that by virtue of paragraph 3 of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, a return to Greece is deemed not to be incompatible with 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 persons 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.
6. By paragraph 2, Part 2 applies to a list of countries which include Greece. Paragraph 3(2)(b) therefore creates an irrebuttable presumption that Greece is not a place from which Mr Nasseri will be sent to another State in breach of his Convention rights.
7. Mr Nasseris answer was that paragraph 3(2)(b) was incompatible with his Convention right under article 3 and the Court should therefore make a declaration of incompatibility under section 4(2) of the 1998 Act. He applied by way of judicial review to quash the decision or, in the alternative, for a declaration of incompatibility. But there is no dispute that, by virtue of paragraph 3(2)(b), the Secretary of States decision is lawful and cannot be quashed. The only question in issue is whether the Court should make a declaration of incompatibility.
8. The Secretary of State adduced evidence about the way in which asylum seekers returned under the Dublin II Regulation might expect to have their applications considered in Greece, with a view to demonstrating that there was no real risk that Mr Nasseri would be returned to Afghanistan in breach of his article 3 rights. She argued that although (as she freely admitted) the conclusive presumption in paragraph 3(2)(b) might in some other case be incompatible with an asylum seekers Convention rights, that was irrelevant (academic", the judge recorded) in the instant case because the presumption coincided with reality. Greece was a place from which he would not be sent to another State in contravention of his Convention rights. Accordingly there was no incompatibility.
9. The judge rejected this submission because in his opinion the mere fact that the Secretary of State was precluded from considering whether there was a risk of unlawful refoulement from Greece was in itself a breach of Convention rights. Mr Nasseri accepted, he said,  2 WLR 523, para 33, that the deeming provision precluded the Secretary of State and the court
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.
10. The judge accepted this submission and said, at para 39:
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.
11. He therefore declined to go into the question of whether there was actually a risk of unlawful refoulement and made a declaration of incompatibility.
12. In my respectful opinion the judge was wrong in saying that article 3 creates a procedural obligation to investigate whether there is a risk of a breach by the receiving state, independently of whether or not such a risk actually exists. In making this mistake the judge was in good company, because it seems to me that he fell into the same trap as the English Court of Appeal in R (SB) v Governors of Denbigh High School  1 WLR 3372;  1 AC 100 and the Northern Irish Court of Appeal in Belfast City Council v MissBehavin Ltd  1 WLR 1420. It is understandable that a judge hearing an application for judicial review should think that he is undertaking a review of the Secretary of States decision in accordance with normal principles of administrative law, that is to say, that he is reviewing the decision-making process rather than the merits of the decision. In such a case, the court is concerned with whether the Secretary of State gave proper consideration to relevant matters rather than whether she reached what the court would consider to be the right answer. But that is not the correct approach when the challenge is based upon an alleged infringement of a Convention right. In the Denbigh High School case, which was concerned with whether the decision of a school to require pupils to wear a uniform infringed their right to manifest their religious beliefs, Lord Bingham of Cornhill said, in para 29:
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 applicants Convention rights have been violated.
13. Likewise, I said, in para 68:
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)?
14. The other side of the coin is that, when breach of a Convention right is in issue, an impeccable decision-making process by the Secretary of State will be of no avail if she actually gets the answer wrong. That was the basis of the decision of the House of Lords in Huang v Secretary of State for the Home Department  2 AC 167, in which the question was whether the removal of a migrant would infringe his right to respect for family life under article 8. The Appellate Committee said, in para 11:
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.
15. There is accordingly, as Laws LJ said in this case in the Court of Appeal ( 3 WLR 1386, para 18) no freestanding duty to investigate. It is true that in Jabari v Turkey  INLR 136, para 39 the ECHR said that when an individual claims that his deportation will infringe his rights under article 3, a rigorous scrutiny must necessarily be conducted of his claim and a similar statement was made (with a reference to Jabari) in Kandomabadi v The Netherlands (29 June 2004) (Application Nos 6276/03 and 6122/04). But the impersonal passive construction used by the ECHR was in my opinion intended to mean that the ECHR will conduct a rigorous scrutiny of the claim and that unless a Member State has done so, it runs the risk of being held in breach: see the previous authorities of Chahal v United Kingdom (1996) 23 EHRR 413 at paragraph 96 and Vilvarajah v United Kingdom (1991) 14 EHRR 248 at paragraph 108. It did not mean that even though there is actually no real risk of treatment contrary to article 3 in the receiving state, a Member State will be in breach because it did not adequately investigate the matter.
16. McCombe J said (at para 36) that he could not understand how it could be permissible for a court to investigate whether it was safe to return Mr Nasseri to Greece when such an investigation is the very thing which paragraph 3(2)(b) is intended to prevent. Mr Rabinder Singh QC also claimed that this was an inconsistency in the argument of the Secretary of State. But in my opinion there is no paradox or inconsistency. Paragraph 3(1) says that the irrebuttable presumptions in sub-paragraph (2) apply for the purpose of a determination of whether a person such as Mr Nasseri may be removed from the United Kingdom to Greece, that is to say, may be lawfully removed. There is no dispute that the presumption applies and that accordingly he may lawfully be removed. But the presumption does not preclude an inquiry into whether his article 3 rights would be infringed for the different purpose of deciding whether a provision which makes such a removal lawful would be incompatible with his Convention rights. The declaration of incompatibility has no effect upon the lawfulness of the removal, which is the only purpose for which the statute precludes an inquiry.
17. McCombe J said, in para 36, that the legislation is either compatible with Convention rights or it is not". It cannot, he said, be incompatible if there is in fact a risk that Greece will return asylum seekers in breach of article 3 rights but compatible if there is no such risk. I do not agree. Section 4 of the 1998 Act provides that a declaration of incompatibility may be made if a provision is incompatible with a Convention right". That will normally mean a real Convention right in issue in the proceedings, not a hypothetical Convention right which the claimant or someone else might have if the facts were different.
18. The structure of the 1998 Act suggests that a declaration of incompatibility should be the last resort in a process of inquiry which begins with the question raised by section 6(1), namely whether a public authority is acting in a way which is incompatible with a Convention right. If the answer is no, that should ordinarily be the end of the case. There will be no need to answer the hypothetical question of whether a statutory provision would have been incompatible with a Convention right if the public authority had been infringing it. On the other hand, if the answer is yes, the next question is whether, as a result of primary legislation, the public authority could not have acted differently or was acting so as to give effect to or enforce such primary legislation: see section 6(2). If the answer is yes, the public authority will not be acting unlawfully. In answering this question, the court is required by section 3 to interpret the primary legislation, so far as it is possible to do so, in a way which is compatible with Convention rights. If, despite such interpretation, the primary legislation makes the infringement of Convention rights lawful, the court may then make a declaration of incompatibility under section 4(2).
19. The making of a declaration of incompatibility, like any declaration, is a matter for the discretion of the court: see R (Rusbridger) v Attorney-General  1 AC 357. I would not therefore wish to exclude the possibility that in a case in which a public authority was not, on the facts, acting incompatibly with a Convention right, the court might consider it convenient to make a declaration that if he had been so acting, a provision of primary legislation which made it lawful for him to do so would have been incompatible with Convention rights. But such cases, in which the declaration is, so to speak, an obiter dictum not necessary for the decision of the case, will in my opinion be rare. In the present case, such a declaration is quite unnecessary because the Secretary of State admits that if removal to Greece would infringe Mr Nasseris rights under article 3, the conclusive presumption in paragraph 3(2)(b) would be incompatible.
20. The judge, as I have said, refused to accept the Secretary of States invitation to examine the evidence and decide whether removal to Greece would actually infringe Mr Nasseris article 3 rights. That was done for the first time by the Court of Appeal, ( 3 WLR 1386), which rejected the judges reasoning that the Secretary of State had infringed a freestanding duty to investigate". Mr Nasseri submitted to the Court of Appeal that if it was against him on this point, it should remit the question of fact to the Administrative Court. But the Secretary of State did not agree to this course. She argued that the judge should have resolved the question and that the Court of Appeal was in as good a position as the Administrative Court to do so. Laws LJ (who gave the only substantive judgment, with the concurrence of Sir Anthony Clarke MR and Carnwath LJ) accepted this submission, examined the evidence and decided that removal to Greece would not infringe Mr Nasseris rights. The Court therefore allowed the appeal and discharged the declaration of incompatibility.
21. This finding of fact appears to me to have been the basis upon which the Court of Appeal decided that no question of incompatibility arose. But there was also some discussion in the judgment of Laws LJ as to whether the Secretary of State had the power, or perhaps the duty, to keep the situation under review in order to decide whether to promote primary legislation to have Greece taken off the list in Part 2 of Schedule 3. So far as it might be suggested that the Secretary of State was under a legal duty to do so, I would not agree. Neither the Secretary of State nor anyone else can be under a justiciable duty to promote primary legislation: see section 6(6) of the 1998 Act. But I do not understand Laws LJ to have said this. He ended by saying, in para 42:
the list system renders the United Kingdoms 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.
22. I read this not as a statement of law but as a comment on the practical realities. The list system means that unless the Secretary of State chooses to keep an eye on what is happening in listed countries and, if appropriate, invite Parliament to amend the list, she runs the risk of a declaration of incompatibility if the presumption produces the wrong result. But Parliament was entitled to create a system of adjudication under which she took her chance that this might happen. Parliament must have been aware when it passed the 2004 Act that TI v United Kingdom  INLR 211 created such a possibility. Furthermore, Laws LJ was by no means the first to point it out. At first instance, McCombe J drew attention to a warning given by Ouseley J in evidence to the Select Committee on Constitutional Affairs and a similar warning by the Joint Committee of both Houses on Human Rights: see  2 WLR 523, 531. But Parliament must have decided that the administrative convenience of having the list in primary legislation, to avoid administrative law challenges to the procedure for consideration of article 3 rights, or to the non-exercise of a discretionary power to remove a country from the list, outweighed the risk that there might be cases in which a court found that a listed country was in fact unsafe and made a declaration of incompatibility. It removed the decision-making process from administrative law and left only the bare Convention question of whether article 3 would in fact be infringed.
23. All of this is however irrelevant to the question in this appeal, which is whether the Court of Appeal was right in the reason it gave for discharging the declaration of incompatibility, namely, that removal to Greece would not infringe Mr Nasseris article 3 rights.
24. The Dublin II Regulation, pursuant to which the Secretary of State proposes to remove Mr Nasseri, is part of an attempt by the European Union to co-ordinate its asylum laws with the eventual objective of having a Common European Asylum System, under which there will be a common procedure and uniform status, valid throughout the Union, for those granted refugee status: see recitals (2) and (5) of the Regulation. A key provision of the Regulation is that whichever Member State an asylum seeker first enters, whether by land, sea or air, is responsible for examining his application. If he moves on to another Member State, he may be sent back without substantive consideration of his case. There is a fingerprinting system (Eurodac) to enable the authorities of Member States to detect multiple applications.
25. In addition to the Dublin II Regulation, the Council of Ministers has issued several directives intended to introduce greater uniformity into the treatment of asylum seekers. Directive 2003/9/EC (the Reception Directive) lays down minimum standards for the reception of asylum seekers: the information with which they should be provided, documentation they must be given, material reception conditions and so on. Directive 2004/83/EC (the Qualification Directive) concerns the minimum standards for the qualification and status of applicants as refugees and Directive 2005/85/EC (the Procedures Directive) prescribes minimum standards for the procedures for granting and withdrawing refugee status.
26. In the case of Greece, the effect of the wars in Afghanistan, Iraq and various parts of Africa has been greatly to increase the numbers of migrants entering its territory. In its report Stuck in a Revolving Door (November 2008), p 19, Human Rights Watch said that Turkey effectively funnels migrants travelling overland from the Middle East and South Asia to Greece, while Africans are increasingly coming into Greece via Egypt. The choice of Greece by migrants is partly the result of more effective coastal surveillance by other Mediterranean Member States such as Italy and Spain. Irregular boat arrivals in Spain in 2007 were half what they had been in the previous year, while those in Greece, which has 18,400 kilometres of coast line, including islands close to Turkey, increased by 267%.
27. Many such arriving migrants do not claim asylum, either because they are confessedly economic migrants or, more usually, because they want to move on and apply in another Member State without the fingerprinting which would provide evidence that they first entered through Greece. In recent years, however, stricter controls by other Member States have reduced these possibilities and increasing numbers of migrants have, for want of other options, applied for asylum in Greece. The number of applications increased from 4,500 in 2004 to over 25,000 in 2007.
28. The effect of these changes in patterns of migration and the Dublin requirement that Greece should be responsible for all asylum seekers who enter the European Union through its territory has placed a considerable strain upon its administrative and humanitarian resources. Its procedures for dealing with asylum seekers have for the past few years been troubling the United Nations High Commission for Refugees (UNHCR), the European Commission (which is responsible for the enforcement of the Dublin II Regulation and the various asylum directives) and non-governmental human rights organisations, both Greek and international.
29. In the period between 2005 and 2008 there was particular concern about the treatment of asylum seekers returned under the Dublin II Regulation. Article 20.1 of the Procedures Directive provides that a Member State may assume that an applicant has abandoned his application for asylum if he has left without authorisation the place where he lived without contacting the competent authority within a reasonable time or has not complied with reporting duties. Paragraph 2 provides that an asylum seeker who reports again to the competent authority after a decision to treat his application as abandoned is entitled to request that his case be reopened, but Member States may impose a time limit for such an application. There is also a general requirement that Member States must ensure that such a person is not removed contrary to the principle of non-refoulement.
30. In Greece the relevant domestic law until last year was Article 2 of Presidential Decree no 61/1999, which provided that in the case of the arbitrary departure of an asylum seeker from his stated or assigned place of residence, a decision could be made declaring the procedure for examination of his claim interrupted". If he reappeared within 3 months of the decision and proved that his absence was due to force majeure, his claim would be examined on the merits. Otherwise it would remain dismissed. In the case of most applicants sent back under the Dublin II Regulation, the three month period had expired by the time they were returned to Greece.