UK - House of Lords, 5 June 2009, Secretary of State for the Home Department v Nasseri, [2009] UKHL 23

Facts:

The applicant was an Afghan national who crossed into Greece by lorry and claimed asylum in December 2004. His claim was rejected on 1 April 2005 but he may have already left Greece by then. He entered the UK on 5 September 2005 travelling under a lorry. The UK sought to remove him to Greece, who had responsibility for his asylum application under the Dublin Regulation. The applicant applied for Judicial Review alleging that his removal to Greece would breach his ECHR rights, in particular he would risk being removed without substantive consideration of his asylum claim. The Secretary of State relied on a legislative provision which deemed that all EU states were safe and would not remove the applicant in breach of his Convention rights. The applicant requested that the Court should make a declaration that this provision was incompatible with his Convention rights under the Human Rights Act 1998. The Administrative Court made such a Declaration on the basis that the statutory provision prevented the Court from examining whether Greece was a safe third country. The Court of Appeal reversed the decision. The applicant appealed to the House of Lords.

Decision & reasoning:

The House of Lords dismissed the appeal. Lord Hoffman gave the leading judgment.

Lord Hoffman noted that the ECtHR had decided in T.I. v UK 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 EU Member State did not expose him, once removed, to treatment contrary to Article 3 ECHR.  He set out paragraph 3 of Part 2 to Schedule 2 of the Immigration and Asylum (Treatment of Claimants) Act 2004 - the domestic law provisions which deemed that removal to Greece or other EU member states would not breach Article 33(1) of the 1951 Refugee Convention and that removal from Greece to another state would not breach either the 1951 Refugee Convention or the ECHR.

Lord Hoffman concluded that the ECtHR and domestic caselaw did not indicate that there was a breach of Article 3 if there was a procedural failing when a State considered the risk of a breach of the ECHR as a result of removal.  Rather the caselaw indicated that the crucial issue was whether the substantive protection of Article 3 ECHR would be breached as a result of the removal of the applicant from the UK to Greece.

Lord Hoffman held that the domestic legislation precludes consideration of whether Greece is a safe third country for the purposes of removal of the applicant, but it did not prevent the Court from considering whether the legislation is compatible with the Human Rights Act. However, if the Court held that the provision was incompatible with the right, Lord Hoffman concluded that there is no justiciable duty on the executive to consider and/or promote primary legislation to ensure compatibility with a Convention right.

Lord Hoffman endorsed the findings of the Court of Appeal and of the ECtHR in KRS v UK, finding that there was no risk that the applicant would face onward refoulement from Greece. This finding was made on the basis that there was no evidence of such a practice and there had been recent amendments to the Greek asylum law that should ensure access to the asylum procedure for Dublin returnees. Further, in the event that the applicant was removed to Greece and faced a breach of a Convention Right, or a risk of onward refoulement, the could apply to the European Court of Human Rights for an indication under Rule 39 to prevent the risk or the ill-treatment.

Outcome:

The applicant’s appeal was dismissed.

Subsequent proceedings:

Observations/comments:

Obiter Comments: Lord Scott noted, in an otherwise concurring judgment, that “[i]f 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.”

This decision pre-dated the ECtHR’s decision in MSS v. Belgium and Greece and the CJEU’s decision on the reference in NS (CJEU, C‐411/10, NS v. Secretary of State for the Home Department, reference for a preliminary ruling, 18 August 2010). 

Other sources:

European Union: Council of the European Union, Presidency Conclusions, Tampere European Council, 15-16 October 1999, 16 October 1999