ECtHR - K.R.S. v the United Kingdom, Application no. 32733/08 (decision on admissibility), 2 December 2008
| Country of applicant: | Iran |
| Court name: | European Court of Human Rights (Fourth Section) |
| Date of decision: | 02-12-2008 |
| Citation: | K.R.S. v the United Kingdom, Application no. 32733/08 |
Keywords:
| Keywords |
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Effective remedy (right to)
Description
A general principle of EU law now set out in Article 47 of the Charter of Fundamental Rights: "Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article.” “[It] is based on Article 13 of the ECHR: ‘Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.’ However, in Community law the protection is more extensive since it guarantees the right to an effective remedy before a court. The Court of Justice enshrined the principle in its judgment of 15 May 1986 (Case 222/84 Johnston [1986] ECR 1651; see also judgment of 15 October 1987, Case 222/86 Heylens [1987] ECR 4097 and judgment of 3 December 1992, Case C-97/91 Borelli [1992] ECR I-6313. According to the Court, this principle also applies to the Member States when they are implementing Community law. The inclusion of this precedent in the Charter is not intended to change the appeal system laid down by the Treaties, and particularly the rules relating to admissibility. This principle is therefore to be implemented according to the procedures laid down in the Treaties. It applies to the institutions of the Union and of Member States when they are implementing Union law and does so for all rights guaranteed by Union law.” |
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Non-refoulement
Description
A core principle of international Refugee Law that prohibits States from returning refugees in any manner whatsoever to countries or territories in which their lives or freedom may be threatened. Note: The principle of non-refoulement is a part of customary international law and is therefore binding on all States, whether or not they are parties to the Geneva Convention. |
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Safe third country
Description
Any other country, not being the country of origin, in which an asylum seeker has found or might have found protection. Note: The notion of safe third country (protection elsewhere/first asylum principle) is often used as a criterion of admissibility to the refugee determination procedure. |
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Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
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Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
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Request to take back
Description
Formal request by one Member State that another Member State take back, under the conditions laid down in Article 20 of the Dublin II Regulation: - an applicant whose application is under examination and who is in the territory of the requesting Member State without permission; - an applicant who has withdrawn the application under examination and made an application in the requesting Member State; - a third-country national whose application it has rejected and who is in the territory of the requesting Member State without permission. |
Headnote:
The applicant challenged his transfer to Greece from the UK under the Dublin II Regulation, on the basis that the situation for asylum seekers in Greece would lead to a violation of Article 3 ECHR. The Court declared the application manifestly ill-founded and therefore inadmissible, as it was presumed that Greece would comply with its obligations and would not refoule him to his county of origin Iraq.
Facts:
The applicant, an Iranian national, claimed asylum in the UK in November 2006, having travelled through Greece first. The UK authorities made a request for Greece to accept responsibility for considering his claim, pursuant to the Dublin II Regulation, which was accepted. The UK authorities therefore declared the applicant’s asylum claim inadmissible and set directions for his removal to Greece.
The applicant was refused permission to bring a judicial review challenge against his removal. However removal was suspended as the applicant lodged an application with the ECtHR for a rule 39 interim measure, which was granted on the basis of a UNHCR position paper, recommending that governments refrain from returning asylum seekers to Greece under the Dublin Regulation until further notice.
He alleged before the Court that his expulsion from the UK to Greece would breach Article 3 ECHR. The Court also considered Article 13.
Decision & reasoning:
The Court considered its previous case law on Article 3 and 13, and the obligation of States to rigorously assess whether a person has shown substantial grounds that s/he faces a real risk of being subjected to treatment contrary to Article 3 upon expulsion, which cannot be on the basis of an automatic application of procedural requirements. To comply with Article 13, there must be independent and rigorous scrutiny of such a claim, with automatic suspensive effect.
The Court noted the concerns expressed in the UNHCR position paper, in particular that Dublin returnees would not have access to an effective remedy in Greece. This concern was shared by Amnesty International and other NGOs.
However, the evidence before the Court showed that Greece did not remove people to Iran, which meant the applicant did not face a risk of refoulement. The Court found that there was a presumption that Greece would abide by its international obligations, contained in the Dublin Regulation, as well as the EU asylum acquis on minimum reception conditions and asylum procedures.
The Court also found nothing to suggest that Dublin returnees in Greece who were at risk of onward refoulement would be unable to apply in Greece to the ECtHR for Rule 39 measures to prevent this, referring to a letter obtained by the UK government by the Greek ‘Dublin Unit’. It reiterated that as a Contracting State Greece has undertaken to secure ECHR rights, including Article 3 and Article 34. In the absence of evidence to the contrary it should be presumed to comply with these obligations. As such, if the applicant faced removal by Greece to Iran, he should lodge a Rule 39 application against Greece, once there. Similarly, any potential concerns in relation to detention conditions in Greece should be pursued first before the Greek domestic authorities, and then the ECtHR.
Outcome:
The Court unanimously found that the UK would not breach its obligations under Article 3 ECHR by removing the applicant to Greece. It therefore declared the application inadmissible and manifestly ill founded, and lifted the interim measure.
Subsequent proceedings:
This case was overturned by the Court in its ruling in M.S.S. v. Belgium and Greece.
Observations/comments:
In 2008, following the publication of the UNHCR report in April, the ECtHR received a large number of Rule 39 requests from asylum applicants in the UK seeking to prevent their removal to Greece.
The Rule 39 indication in this case informed the UK government that the measure would be maintained pending confirmation that the applicant would be able to apply in Greece for Rule 39 measures in the event of onward expulsion from Greece to Iran. This led an agent of the UK government to write to the Court providing information obtained from the Greek Dublin Unit that Dublin returnees would be able to lodge asylum claims upon transfer and would not be immediately removed.
On the basis of this ruling, other challenges to Dublin transfers to Greece were found inadmissible, until the case of M.S.S. v. Belgium and Greece.
The ECtHR Dublin Fact Sheet provides a useful overview of relevant Dublin cases before the Court:
Relevant International and European Legislation:
Cited National Legislation:
Cited Cases:
| Cited Cases |
| ECtHR - Conka v Belgium (Application no. 51564/99) |
| ECtHR - T.I. v United Kingdom (Application no. 43844/98) |
| UK - Nasseri v Secretary of State for the Home Department [2008] 3 WLR 1386, [2008] 2 WLR 523 |
| ECtHR - NA v UK, Application No. 25904/07 |
| ECtHR - Waite and Kennedy v. Germany [GC], Application No. 26083/94 |
| ECtHR - Gebremedhin (Gaberamadhien) v France, Application No. 25389/05 |
| ECtHR - Jabari v. Turkey, Application no. 40035/98, 11 July 2000 |
| CJEU - Case C-72/06, Commission of the European Communities v Hellenic Republic |
Follower Cases:
Other sources:
UNHCR Position on the return of asylum seekers to Greece under the “Dublin Regulation”, 15 April 2008
Recommendation R (97) 22, Recommendation R (98) 13, and Recommendation R (2003) 5 of the Committee of Ministers
Resolution 1471 (2005) of the Parliamentary Assembly of the Council of Europe (Accelerated asylum procedures in Council of Europe member states)
Committee for the Prevention of Torture, report on its visit to Greece from 20 to 27 February 2007
Norwegian Organisation for Asylum Seekers, the Norwegian Helsinki Committee and Greek Helsinki Monitor report “A gamble with the right to asylum in Europe-Greek asylum policy and the Dublin 2 Regulation”, 9 April 2008
Amnesty International press release, ‘No place for an asylum-seeker in Greece’, 28 February 2008