Case Note and Comment

Facts

The case concerned a challenge to the decision by the Secretary of State for the Home Department (SSHD) to remove an asylum-seeker to the Republic of Cyprus, under Council Regulation (EC) 343/2003 (the Dublin II Regulation).

The claimant was a national of Syria. He arrived in the UK on 13 April 2012 and claimed asylum. During his screening interview he stated that he had previously claimed asylum in Cyprus. He was returned to Syria by the Cypriot authorities on 11 August 2009. He was persecuted in Syria. He fled Syria on 27 December 2011 and travelled to the UK via Turkey, using a false passport. A Eurodac search showed he claimed asylum in Cyprus on 1 February 2006. On 19 April 2012 the SSHD requested the Cypriot authorities to accept responsibility for his claim under art 16(1) of the Dublin II Regulation, which they did on 10 May 2012.

The SSHD certified the claimant’s asylum claim on third country grounds under Pt 2 of Sch 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Removal directions were set. The claimant challenged the removal on the basis that he was previously refouled from Cyprus to Syria in 2009. The SSHD certified the claimant’s human rights claim as clearly unfounded under para 5(4) of those provisions. Cyprus is deemed to be a safe third country from which an individual will not be refouled, under para 2(c).

The claimant lodged an application for permission to apply for judicial review. This was refused on the papers. The application was renewed on the basis that: (i) the claimant was previously refouled from Cyprus to Syria and therefore Cyprus was not safe for him; (ii) there are systemic deficiencies in the general conditions for asylum-seekers in Cyprus and/or the conditions breach human rights.

Held

Mr Ockleton, sitting as a Deputy Judge of the High Court, granted a stay on the proceedings pending the judgment of the Supreme Court in EM and a stay on removal pending FJ in the Court of Appeal.

Comment

In order to understand the judgment of Mr Ockleton, it is necessary to consider the authorities that formed the backdrop to the two grounds of challenge in this case.

R (Elayathamby) v SSHD [2011] EWHC 2182 (Admin) concerned a challenge to removal to Cyprus under Dublin II. Sales J held that there was no risk of r efoulement from Cyprus and the detention and living conditions for asylum-seekers in Cyprus did not breach human rights.

The legal approach was drawn from the judgment of the European Court of Human Rights (ECtHR) in MSS v Belgium and Greece (App no 30696/09) [2011] ECHR 108, which concerned the removal of an asylum-seeker from Belgium to Greece under Dublin II. The Court endorsed its earlier case law and held that the presumption that Member States comply with their international human rights obligations is rebuttable. It was held that there had been a violation by Greece of art 3 of the European Convention on Human Rights (ECHR) because of the detention and living conditions for asylum-seekers and of art 13, taken in conjunction with art 3, because of the risk of refoulement due to the deficiencies in the asylum procedure and the lack of access to an effective remedy. There had been a violation by Belgium of art 3, taken alone and in conjunction with art 13, because, by sending an asylum-seeker back to Greece, the Belgian authorities exposed him to the conditions there.

Subsequently, following a request for a preliminary ruling from the UK Court of Appeal, the Court of Justice of the European Union (CJEU) in NS (European Union law) [2011] EUECJ C-411/10, endorsed the judgment in MSS, in another case involving removal to Greece under Dublin II. The CJEU held that the exercise of discretion by a Member State under art 3(2) of the Dublin II Regulation, to take charge of an asylum claim that is not its responsibility, implements EU law. Article 4 of the Charter must be interpreted as meaning that the Member States may not transfer an asylum-seeker to another Dublin state where they cannot be unaware that systemic deficiencies in the asylum procedure and reception conditions in that state amount to substantial grounds for believing that the asylum-seeker would face a real risk of being subjected to inhuman or degrading treatment.

The approach in NS was applied in R (EM (Eritrea)) v SSHD [2012] EWCA Civ 1336, which involved removal to Italy under Dublin II. The Court of Appeal dismissed a challenge based on the living conditions in Italy because the appellants had not shown there were systemic deficiencies in Italy. This was the sole ground on which a state is required to exercise its discretion under art 3(2). Further, evidence of individual risk was insufficient. The Court proceeded to grant a stay on the removal of the appellants pending their applications for permission to appeal to the Supreme Court and recognised as problematical that NS and MSS may pull in different directions.

In R (AB (Sudan)) v SSHD [2013] EWCA Civ 16 the Court of Appeal granted permission to appeal against the judgment of Mr Ockleton refusing to grant a stay pending EM in another case involving return to Italy. The Court held there was a real possibility that the Supreme Court would grant permission. Therefore, it was arguable that the judge erred in finding that the challenge had no realistic prospect of success and it was wasteful of resources to proceed with the matter when the Supreme Court might be able to clarify this difficult area of law. The Supreme Court in EM granted permission to appeal on 6 March 2013.

In the meantime challenges to returns to Cyprus were brought on the basis of fresh evidence of the conditions in Cyprus, which post-dated the judgment in Elayathamby. In three such challenges Sir Richard Buxton in the Court of Appeal granted stays on the proceedings and removal to Cyprus pending EM. One of the orders post-dated the grant of permission in EM, in R (FJ (Iran)) v SSHD C4/2012/3361, where it was held:

‘Permission to appeal in EM Eritrea having been granted by the Supreme Court, it is not possible to proceed with this application until that appeal has been determined. Amongst the important issues in EM that lack an authoritative answer are whether the correct test is “systemic deficiency”; if yes, how is that phrase to be defined; and whether the test, in whatever terms, applies to all or some human rights issues as well as to issues of refoulement.

I therefore direct that this application be stayed to await the decision of the Supreme Court in EM.

For the avoidance of doubt removal of the applicant stayed until determination of this application and any subsequent appeal, or further order.’

It will be recalled that in EM the Court of Appeal held that evidence of individual risk was insufficient to challenge removal to a Dublin state. In R (Al-Ali) v SSHD [2012] EWHC 3638 (Admin) the claimant challenged his return to the Netherlands on the basis that he was previously asked to leave the Netherlands before his asylum claim was determined and he returned to his country of origin, where he was persecuted. Permission to apply for judicial review was refused in the High Court, but granted on appeal by Sullivan LJ, who held that in the absence an explanation from the Dutch authorities as to why the applicant was ordered to leave notwithstanding his asylum claim, it was arguable that there was a serious risk that, if returned there, he would once again be ordered to leave. Holman J accepted that the facts and circumstances were distinct from EM and NS given that the claimant was previously refouled and the history of the case called for some investigation and explanation. By the time of the substantive hearing, it was considered that there was a sufficient explanation.

It was against this background that the challenge in Ehmed came before Mr Ockleton. By the time of the permission hearing, the SSHD obtained disclosure from the Cypriot authorities that showed that the claimant’s asylum claim was refused in Cyprus in 2007. Thereafter he absconded until he was encountered in 2009 and removed to Syria. According to the Cypriot authorities, the claimant returned to Cyprus, lodged an administrative appeal against the earlier refusal on 28 December 2011 and left Cyprus for Lebanon on 12 or 27 April 2012. It was the claimant’s case that he had not been notified of the refusal of his claim and he never returned to Cyprus after he was removed to Syria in 2009. Mr Ockleton noted that all the accounts could not be correct.

The Court considered the authorities of R (Chen) v SSHD [2008] EWHC 437 (Admin) and Al-Ali. In the former, Silber J held that once there has been a decision as to allocation under Dublin II that decision is not subject to reconsideration in the light of subsequently emerging facts. However, in the latter, an adequate investigation and explanation had been required. Mr Ockleton held that there might be a conflict between the two authorities. It was acknowledged that challenges could be brought on Wednesbury grounds and/or where human rights are engaged.

The Court proceeded to consider that the presumption that Member States are safe is rebuttable. The concern was the correct test to be applied. It was evident from the judgment of Jackson LJ in AB, that despite the judgment of the Court of Appeal in EM, the Court of Appeal’s position on Dublin II removals to Italy is that they should not be enforced until the outcome of the appeal to the Supreme Court is known. The Court held that where there is substantiated material about the fate of individuals who have been returned, or may be returned, to Cyprus, the same difficulty arises as to the correct legal test to be applied, as shown by the decisions of Sir Richard Buxton. In the circumstances, it was appropriate to grant a stay on the proceedings pending EM. Given that in FJ, the SSHD had applied for the orders to be lifted and discharged, Mr Ockleton deemed it appropriate to order a stay on removal until the outcome of the challenge by the SSHD to Sir Richard Buxton’s Order in FJ.

Interestingly, on the same date that the judgment was handed down in Ehmed, the ECtHR in Hussein and Others v the Netherlands and Italy (App no. 27725/10) dismissed an application based on a challenge to removal to Italy under Dublin II because it had not been shown to disclose a systemic failure to provide support or facilities catering for asylum seekers as members of a particularly vulnerable group of people as was the case in MSS.

The CJEU in Halaf v Darzhavna agentsia za bezhantsite pri Ministerskia savet (Regulation (EC) No 343/2003) Case C‐528/11 (30 May 2013) recently confirmed the approach in NS.

It remains to be seen what the Supreme Court in EM will decide. If the test is ‘systemic failure’, what does that mean and does it apply to all or some human rights issues as well as to issues of refoulement? How does the test ‘sit’ with the approach in Al-Ali? As observed by Jackson LJ in AB: ‘We are here dealing with a fast developing area of law, which is in part a response to the changing fortunes of the European Union’.

The significance of the judgment in Ehmed, following the approach of the Court of Appeal in the Cyprus cases, is that the judgment of the Supreme Court in EM will have implications for Dublin II cases generally, and not just for returns to Italy. Until then, where there is substantiated material about the fate of an individual in a Member State, arguably the approach should be to grant a stay pending EM.

Claire Physsas

Renaissance Chambers