Judgments - Secretary of State for the Home Department (Respondent) v Nasseri (FC)(Appellant)

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31.  In November 2004 the UNHCR issued a note drawing attention to these procedures and expressing anxiety that their application might lead to the removal of asylum seekers without any examination of their claims on the merits and contrary to the principle of non-refoulement. It recommended that sending States first obtain assurances from the Greek authorities that applicants in “interrupted” cases would be permitted to continue the procedure and that in any event they would be entitled to have their applications examined on the merits and if necessary to appeal.

32.  The UNHCR returned to the same issue on 30 November 2005, when it recorded that the Greek authorities appeared to have done nothing to improve their procedure for dealing with “interrupted” claims. The situation continued to deteriorate. In February 2008 Norway suspended removals to Greece under the Dublin II Regulation. In March 2008 the European Commission commenced infraction proceedings against Greece for failing to comply with its obligations under the Dublin II Regulation by refusing to process the applications of returned migrants. On 15 April 2008 the UNHCR issued a statement of position, advising governments to refrain from returning asylum seekers to Greece under the Dublin II Regulation until further notice. In April 2008 Finland suspended removals to Greece.

33.  In response to this barrage of criticism, Greece enacted a new refugee law on 11 July 2008 which allowed asylum seekers returned under the Regulation to reopen their cases. It also transposed the Procedures and Qualifications Directives.

34.  These domestic legislative changes had not yet taken place when this appeal was before the Court of Appeal in March 2008 or the reserved judgment given in May 2008. Laws LJ described the evidence available at that time as somewhat exiguous. He had the UNHCR note of November 2004 and a report from Amnesty International in February 2008. The court was told of the suspension of Dublin returns by Norway. After the argument, the Court received a copy of the April 2008 UNHCR report. Laws LJ said that there were clearly concerns about the conditions in which asylum seekers might be detained in Greece but it was not suggested that they amounted to ill-treatment of such severity as in themselves to involve a breach of article 3 by a returning State. The relevant legal procedures were also “to say the least, shaky” but the important question was their practical outcome. The critical point in his opinion was that there had been no actual deportations or removals to Afghanistan, Iraq, Iran, Somalia or Sudan and no reports of unlawful refoulement to any destination. Accordingly there appeared to be no real risk that Mr Nasseri would be returned to Afghanistan contrary to his Convention rights under article 3.

35.  On 2 December 2008, after the judgment of the Court of Appeal, the European Court of Human Rights delivered judgment in KRS v United Kingdom (Application no 32733/08). KRS was an Iranian national who entered the United Kingdom on 11 November 2006 and claimed asylum. He had travelled through Greece and the Greek authorities notified the United Kingdom authorities under the Dublin II Regulation that they accepted responsibility for dealing with his case. The Secretary of State ordered his removal. He applied for judicial review of this decision and on 16 June 2008 the High Court, following the decision of the Court of Appeal in this case, dismissed the application. KRS then applied to the ECHR for an indication under Rule 39 of its Rules of Court, requesting that he not be returned to Greece until his claim for a breach of article 3 had been determined by the ECHR. The United Kingdom applied for the indication to be lifted on the ground that the application was “manifestly ill-founded".

36.  The ECHR referred to the UNHCR position of 15 April 2008, reports from Norwegian and Greek human rights non-governmental organisations and the February 2008 report from Amnesty International. It reaffirmed the decision in TI v United Kingdom [2000] INLR 211 that Member States are obliged, notwithstanding the Dublin II Regulation, to ensure that removal does not expose the migrant to torture or inhuman or degrading treatment. But the Court nevertheless concluded that the Rule 39 indication should be lifted and the application declared to be manifestly ill-founded. It gave four principal reasons. The first was the one which Laws LJ had regarded as critical:

“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”

37.  Secondly, account had to be taken of the new Greek asylum law and the European directives which had been transposed into Greek law:

“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.”

38.  Thirdly, an asylum seeker faced with the possibility of unlawful refoulement could apply for a Rule 39 indication directed to the Greek government rather than the United Kingdom government:

“[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.”

39.  Fourthly, if the complaint was not about refoulement but about the conditions under which a returned asylum seeker would be held in Greece, that should be taken up with the Greek authorities and, if unsuccessful, before the ECHR by way of complaint against Greece. It was not a basis for proceedings against the United Kingdom.

40.  Mr Rabinder Singh submitted that little weight was to be attached to the KRS decision because the ECHR did not invite submissions from his client and the UK government did not inform the Court that this case was under appeal to the House of Lords. I cannot see how either of these matters can affect the validity of the Court’s reasoning. The Court said that it was aware that rule 39 indications had been given in 80 cases of migrants which the United Kingdom proposed to remove to Greece. It is not the practice in this House to invite representations by the parties to other cases which may be affected by one of its decisions and I cannot see why the ECHR should have done so. KRS was represented by London solicitors and the ECHR presumably received submissions on his behalf. It is not suggested that they could have adduced any evidence which has not been put before the House on Mr Nasseri’s behalf. As for the appeal to this House, there seems to me nothing which the ECHR could have gained from waiting for its decision.

41.  The KRS case appears to me to confirm the validity of the conclusions reached by Laws LJ in the Court of Appeal, which rested principally upon the fact that there was no evidence that anyone returned under the Dublin II Regulation had been removed to Iran, Afghanistan, Iraq, Somalia or Sudan. The ECHR also appears to have been of the opinion that there are limits to the extent to which one Member State of the European Union can be expected to police the asylum policy of another. The European Commission is responsible for enforcing the obligations of Member States under the Dublin II Regulation to process asylum applications which are their responsibility and to give effect to the asylum directives. Other Member States are entitled to assume - not conclusively presume, but to start with the assumption - that other Member States will adhere to their treaty obligations. And this includes their obligations under the European Convention to apply article 3 and give effect to the Rule 39 indications. There is no evidence that in respect of applicants returned under the Regulation, Greece has not done so.

42.  Mr Rabinder Singh said that although asylum seekers in Greece may have rights under domestic law, European law and the Convention, it is in practice difficult to enforce them. Lawyers prepared to act for asylum seekers are few and there is a shortage of interpreters. In a recent report dated 4 February 2009 which Mr Rabinder Singh applied for leave to introduce as additional evidence, Mr Hammarberg, the Commissioner for Human Rights of the Council of Europe, said (in paragraph 10) that despite the new legislation of July 2008, he regretted to have to express “serious concern at the lack of evidence indicating any positive developments in the practice relating to refugee protection.”

43.  The position in Greece appears to be, as Laws LJ suggested, that the practice for dealing with asylum applications may leave something to be desired and very few applicants are accorded refugee status. If, as is usually the case, their applications are rejected, they are given a document directing them to leave the country and their continued presence there is uncomfortable. But there is no evidence, either in the documents before the Court of Appeal or the new evidence tendered to the House, that any Dublin returnee is in practice removed to another country in breach of his article 3 rights. Even if the rights of a person in such a situation to apply for a Rule 39 direction are regarded as a mere make-weight, I agree with Laws LJ that the absence of any evidence that such removals occur is of critical importance.

44.  Mr Rabinder Singh said that the Secretary of State was wrong to rely upon the fact that returned asylum seekers, directed to leave Greece, might stay there contrary to Greek law. I do not know whether the status of the Convention, the Regulation and the directives in Greek domestic law would make staying there a breach of Greek law or not. It may be that the asylum seeker would be entitled to say that the refusal of his application is contrary to European and Convention law and that his failure to remove himself is not unlawful. But the Secretary of State is not concerned with Greek law. Like the operation of the Greek system for processing asylum applications and the conditions under which asylum seekers are kept, that is a Greek problem. The Secretary of State is concerned only with whether in practice there is a real risk that a migrant returned to Greece will be sent to a country where he will suffer inhuman or degrading treatment. I agree with Laws LJ that there is no evidence of such a risk and would therefore dismiss the appeal.

LORD SCOTT OF FOSCOTE

My Lords,

45.  My Lords, I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hoffmann and am in respectful agreement with his conclusion that this appeal should be dismissed and with his reasons for reaching that conclusion. I want, however, to add just a few words of my own.

46.  In October 1999, at Tampere, the European Council agreed to work towards the establishment of a common European asylum system. Member States agreed that the system should include “… a clear and workable determination of the state responsible for the examination of an asylum application” (Tampere Conclusion para. 14). One of the mischiefs sought to be addressed was the practice of many asylum applicants to make multiple, successive asylum applications, applying first in State A and then, on failure of that application, in State B, and so on. The proposed solution was to formulate rules identifying the Member State to take the primary responsibility for dealing with each asylum applicant. If an application were to be made in a Member State other than that identified by the rules as having the primary responsibility for dealing with the asylum applicant, the applicant could forthwith be sent to the responsible state without the need for any other member state to address itself to the merits of the asylum application.

47.  The Tampere agreement led, inter alia, to Council Regulation 343/2003 “establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the Member States by a third-country national.” Article 3.1 of the Regulation says that the asylum application of a third-country national “… shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible” (see also Article 3.2 and 3.3).

48.  Mr Nasseri is a third-country national and it is not in dispute that, pursuant to the criteria set out in Chapter III of the Regulation, Greece is the Member State responsible for dealing with his asylum application. Whether this is because Greece was the first EU Member State into whose territory he irregularly entered (Article 10.1) or whether Greece was the first Member State with which he lodged an asylum application (Article 13) is not clear to me but does not matter. The responsible Member State (in this case Greece) is obliged to “take back … an applicant … who is in the territory of another Member State without permission” (Article 16.1(c) or (e)) and Greece has agreed to take back Mr Nasseri.

49.  It is, in my opinion, important for the purposes of this appeal, and in particular for the purpose of understanding the human rights context in which section 33 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 and Schedule 3 to that Act came to be enacted, to bear in mind that every Member State of the European Union is, and has to be, a signatory to the European Convention on Human Rights. Adherence to the Convention is a condition of membership of the European Union. The point is underlined by Recital 2 to the 2003 Council Regulation -

“… 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.”

50.  This background explains the language in which section 33 of the 2004 Act introduces Schedule 3.

“(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.

51.  Insofar, therefore, as paragraph 3(2)(b) of Schedule 3 requires an EU Member State to be treated as a place

“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.

52.  As to the evidence in the present case for the proposition that the removal of Mr Nasseri to Greece would be in breach of his Convention rights on the ground that Greece would not respect those rights, I respectfully agree with, and can add nothing to, Lord Hoffmann’s reasons for concluding that it would not. I, too, would dismiss this appeal.

LORD BROWN OF EATON-UNDER-HEYWOOD

My Lords,

53.  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.

LORD NEUBERGER OF ABBOTSBURY

My Lords,

54.  I have had the benefit 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 too would dismiss the appeal.

 
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