UK - The Queen on the application of Mr Husain Ibrahimi, Mr Mohamed Abasi v The Secretary of State for the Home Department, 5 August 2016

Facts:

The two Claimants are nationals of Iran.

The first Claimant, Mr Husain Ibrahimi, contends that the Iranian authorities seek him for suspected involvement in an anti-government demonstration. He says he left Iran, travelled to Turkey, then entered and was fingerprinted in Greece. He says he then travelled through Serbia and into Hungary where he was fingerprinted and claimed asylum. He then crossed Europe and entered the United Kingdom where he was arrested on suspicion of immigration offences and subsequently claimed asylum.

The second Claimant, Mr Mohamed Abasi, contends that he converted to Christianity and alleges a history of detention and ill-treatment by the Iranian authorities. He left Iran and travelled through Turkey to Europe, and was fingerprinted in Hungary where he claimed asylum. He was then fingerprinted in Slovenia and later entered the United Kingdom, where he was similarly arrested and subsequently claimed asylum.

In the case of both Claimants, a formal request was made to the Hungarian authorities to accept their asylum applications pursuant to the Dublin III Regulation, and was accepted. The Secretary of State then refused their asylum applications and directions were given for their removal. At the date of judgment neither Claimants were being detained.

The Claimants allege that if they are removed to Hungary they will, in due course, be removed from Hungary to a series of other states and will be repatriated to Iran, where they will face threats to their lives and freedoms. Both further allege that even if they are not ultimately removed to Iran they will end up being detained in Hungary, Serbia, Macedonia, Greece or Turkey in circumstances violating their fundamental right to freedom and liberty. It is argued that none of these States are safe and in all, the Claimants are at risk of removal to Iran. 

Decision & reasoning:

In determining the breach of Article 3(2) rights, the court considered the ratio in the cases of MSS v Belgium and EM (Eritrea), and noted that the required standard was whether there was a real risk of the Claimants being subjected to inhuman and degrading treatment if returned to Hungary under the Dublin Regulation. The court found that the Claimants faced a significant risk of chain refoulement if removed to Hungary, where they risked being transferred to Iran via Greece, Turkey, Serbia and Macedonia.  In each of the States concerned, UNHCR, NGOs and other bodies (such as the European Parliament) have identified systematic and/or operational risks in the asylum and judicial systems, which casts serious doubt over the likelihood of the Claimants being able to effectively advance their claims to international protection, should they be removed to that State.

The Secretary of State placed great weight on the presumption of compliance (with obligations under EU and international law) that operates in favour of Hungary, and which must be displaced in order to show that there was a real risk of a breach of the Claimants’ Article 3 rights. The court acknowledged that the presumption should import considerable weight on the evidence weighing process, but noted that it is not irrefutable and highlighted the dramatic changes and substantial volume of evidence generated by the UNHCR in the previous 6-9 months. However, even at the time, the Secretary of State’s resort to broad and sweeping generalisations about presumptions of compliance on Hungary’s part was not justified because had she examined the new 2015 changes to Hungarian asylum law, she would have been bound to conclude that the situation demanded a much more detailed analysis. This was particularly relevant given the UNHCR was already beginning to express real concerns about problems arising from the new Hungarian law.

The court further noted that the Secretary of State had not sought any form of assurance from the Hungarian authorities or from any other State to whom the Claimants might in due course be transferred down the refoulement chain. Obtaining written acceptance from the Hungarian authorities that they will receive back the Claimants does not amount to assurances that on transfer the Claimants will be accorded treatment which is consistent with international and EU law.

In finding a breach of Article 3 rights, the court conducted the necessary assessment of the circumstances of the particular countries. The court first considered the position in Iran. It was found that there is a real risk of refoulement to Iran as the Claimants pass down the chain, hence it was necessary to assess the position in each possible State:

·         In the case of Hungary, the presumption of compliance was rebutted. The EU Commission and the UNHCR concluded that a person removed to Hungary will be subject to an asylum and judicial supervision procedure under which that person’s true asylum case and any properly grounded fears of refoulement to Iran might not be fairly and effectively assessed. There is a consequential risk that the Claimants would be removed from Hungary to a third country (most likely Serbia or Greece).

·         In regards to Serbia, the court found that despite Hungarian law deeming Serbia to be “safe”, if the Claimants were removed from Hungary to Serbia there is a real risk that they will not be accorded a fair chance to establish their refoulement case and a real risk of onward transfer.

·         Similar findings were made in regards to Macedonia, removal to which would place the Claimants at risk of onward removal to Greece or Turkey.

·         The UNHCR and the Strasbourg Court have found Greece to be unsafe, and the court found that a person making an asylum claim in Greece risks being subjected to an inadequate administrative and judicial procedure such that there is an increased risk of refoulement to Iran.

·         Similar findings were made with regards to Turkey, and the court highlighted the recent failed coup as evidence that reinforced the conclusion that Turkey is not “safe”, as required under Article 3(3) ECHR.

The court emphasised that if the Defendants are to justify removal of these Claimants from this jurisdiction, significant analysis of risks and safety such as has not to date been conducted would be required.

Last, as the court did not conclude that the Claimants may be returned to Hungary, the case on detention did not arise.  However, if it were relevant, the court found that there is insufficient evidence that the Claimants would be at risk of unlawful detention contrary to Article 5(1)(f) ECHR if they were removed to Hungary.

Hence, the Claimants’ applications for judicial review succeeded. 

Outcome:

The court accepted the motion of the Claimants requesting judicial review of the Secretary of State’s decision to reject their asylum applications on “Safe Third Country” grounds and subsequently to decline their human rights challenges to the safety of their planned return to Hungary. 

Observations/comments:

The court was careful in highlighting that as the position in the relevant States is in a state of almost perpetual flux, the decision reflects the position as it stands on the date of judgment alone. For example, the position in Hungary might change due to pressure from the EU. The court made it clear that the ruling does not preclude the Secretary of State conducting a more fundamental analysis of the facts as they emerge and evolve and forming a new conclusion. The position is extremely fluid and basic facts changed dramatically since the Secretary of State’s decision.

The court also noted that the position may change should the Secretary of State obtain satisfactory assurances from one or more States as to the treatment that would be given to the Claimants. 

This case summary was written by Linklaters LLP.

Other sources:

The case refers extensively to various sources detailing the reception and procedural conditions in Hungary. Amongst such sources cited by the Court is the Asylum Information Database and domestic case law from Member States, included in ECRE Case Law Fact Sheet: Prevention of Dublin Transfers to Hungary.

A full list of the sources can be found in the Annex to the case.