UK - R (on the application of Hassan and Another) v Secretary of State for the Home Department (Dublin – Malta; Charter Art 18) IJR, 28 September 2016

Facts:

Mr. Hassan claims to be a member of the Berti tribe from Darfur which is persecuted by the Sudanese Government. This has resulted in the death of a substantial number of people, including Mr. Hassan’s brother. Mr. Hassan also claims that he was unjustifiably detained and tortured by the Sudanese police. Fleeing this persecution, Mr. Hassan escaped to Libya where he remained for a number of months, and then fled to Malta. He asserts that his fingerprints were forcibly taken in Malta. He made an asylum application without any legal advice, which was refused. Interpreter facilities were only perfunctorily provided to him. He was confined in substandard detention facilities in Malta for approximately one year. After initially trying to flee to Denmark, he was then returned to Malta where he was convicted in a criminal court and imprisoned.  Eventually he found his way to the United Kingdom.

Mr. Karada’s parents and sisters were killed in a Janjaweed attack in Sudan. He remained in detention for six months after which he fled to Libya and eventually to Malta. In Malta, he asserts that he was detained for approximately 18 months in substandard and degrading conditions. He claims that he applied for asylum but was never told the outcome of his application. Eventually he fled from the degrading state of his detention facilities in Malta, to the United Kingdom.

In each case, the Secretary of State for the Home Department decided that the applicant must be transferred to Malta under the provisions of the Dublin Regulation. 

Decision & reasoning:

The applicants argued that Article 18 of the EU Charter grants individuals the substantive right to asylum within a reasonable time if they fulfil certain conditions. It also grants them certain procedural rights, and there is a real risk that such rights would be violated if the applicants were transferred to Malta, due to the shortcomings in the Maltese asylum system. A second further risk of refoulment was also asserted.

The Tribunal considered extensive expert evidence advanced by the applicants to support the assertion that the asylum procedures in Malta has several shortcomings, with the effect that transferring the applicants to the Maltese system would result in a violation of the Article 18 rights to a fair and timely procedure for determining asylum applications. The Tribunal noted that the evidence provided by one expert does not discuss in detail the effect of the changes stimulated in Malta in 2015 by the recast Procedures Directive and the associated disappearance of mandatory detention and therefore does not illuminate the reception conditions prevailing in the last two years.

Relying heavily on the fact that a full review of the objective evidence was conducted in 2015 in the Hagos case, the Tribunal concluded that the events that the applicants describe occurred four to five years ago, and in that time, there have been significant changes to the conditions in Malta for the reception, accommodation and general treatment of asylum applicants and the processing of their protection claims.

The applicants tried to distinguish themselves from the claimants in the Hagos case, contending that the inadequate  processing and determination of their original asylum claims in Malta; the absence of the services of any NGO; the fact that the original asylum claim papers cannot be provided to their English lawyers for consideration and advice; the complete absence of any relevant documents; and the likelihood that any fresh asylum application by either applicant will result in an inadmissibility decision which, it was suggested,  is effectively unappealable under Maltese law.

The Tribunal noted that evidence of the applicants’ past experiences in Malta is sparse, with only one of the applicants having made a witness statement which is “notably light in detail”. Deeming the evidence on the whole as “unsatisfactory”, the Tribunal stated that it would take it “at its reasonable zenith” for the purposes of its determination.

The Tribunal concluded that the features of this case only differ from Hagos in one respect – unlike Hagos, there was no evidence in this case that there was any direct contact between the applicant’s English solicitors and the Maltese Jesuit Refugee Service. The court stated that it would expect the applicants’ solicitors in these proceedings to provide the benefit of the expertise in respect of any second asylum application made by the applicants in Malta.

The Tribunal also rejected that applicants’ submission that fresh asylum claims on behalf of the applicants were likely to generate an inadmissibility decision and that the right to challenge such decision by appeal is purely illusory, on the basis that such submission is purely speculative. The Tribunal noted that the right to pursue a subsequent asylum application or to have an asylum application determined without an admissibility threshold was not contained in Article 18 of the EU Charter.

Furthermore, a refusal of any fresh asylum would not infringe any procedural element of rights conferred by Article 18 of the EU Charter.  The court accepted the expert evidence which stated that the strict time limit of 15 days is unlikely to be applied to the detriment of either applicant, and while the experts describe the exercise involved in a fresh asylum claim as “fairly difficult”, they also demonstrate that new claims are capable of succeeding. The court also stated that it is essential to bear in mind that the applicants will have access to the ECtHR via an application for interim protective measures.

Further, the Tribunal noted the evidence (which was uncontested) that unsuccessful subsequent asylum claimants are informed of both the decision and the mechanisms for challenging same; that there is an automatic review of such decisions by the Refugee Appeals Board of Malta (RAB); that an appeal lies to the RAB on safe third country grounds; that there is the legal remedy of a challenge in the Maltese Civil Court, exercising is constitutional jurisdiction, on the basis of an alleged violation of a fundamental human right protected under either the Constitution of Malta or the European Convention Act; that there is the remedy of a challenge by proceedings in the Maltese Administrative Tribunal, from whose decisions an appeal lies to the Court of Appeal, the court concluded that there was insufficient evidence to warrant the conclusion that any right of appeal against an inadmissibility decision is purely illusory.

Following from this, the Tribunal concluded that as there is no risk of the violations of the procedural rights granted under Article 18, there is also no risk of any unlawful refoulement. Furthermore, insofar as any risk of refoulement is demonstrated, the appropriate course will be for the Applicants, on the scenario of enforced return, to seek their remedy against the state of Malta by applying to the ECtHR for interim relief. 

On behalf of the Secretary of State, it was suggested that Article 18 of the Charter cannot be invoked as a standalone right for resisting removal under the Dublin Regulation. Only a real risk of breach of Article 4 or Article 19 will suffice. The court considered the Puid, NS and ME, EM (Eritrea), Pour, Hamad and Araso, Abdulkadir and Abdullahi cases in detail in this respect. It noted, per curiam, that for the present case, the court has assumed that a proposed transfer under the Dublin Regulation can be challenged under Article 18 of the EU Charter.  As a result, it also expressed doubt on the ‘only way’ test expressed in Abdullahi particularly in light of the fact that the application of this test was questioned in EM (Eritrea), R(B) and Pour.

Additionally, it was argued in the alternative that if the applicants can invoke Article 18 as a standalone right to resist removal under the Dublin Regulation, the operative threshold is that of a flagrant breach, which was not satisfied in the present case. The court noted, per curiam and by way of observation, that given the often horrific circumstances in which a right of asylum is required, the “flagrant breach” test cannot be the right one. The “flagrant breach” test belongs to the ECHR jurisprudence, under which a right of asylum does not exist, and accordingly, it would be inappropriate to apply this standard in the context of the Common European Asylum System machinery.

In respect of both points noted above, the tribunal noted that the decision in Abdulkadir (that Article 18 could not be invoked to refuse a Dublin Regulation transfer), the decisions of the Administrative Court were not binding on it in its judicial review jurisdiction, and accordingly, no binding decision existed on the matter to date.

Outcome:

Application denied. 

Observations/comments:

In terms of the shortcomings of the Maltese asylum system, the Tribunal commended the detailed report prepared by two experts purely for the purpose of this case and advanced on behalf of the applicants. This report stated that a fresh application for asylum in Malta was unlikely to overcome the admissibility threshold as there is a requirement for “new elements or findings” and the admissibility criteria being hard to know, proceedings being conducted in secret, legal aid being unavailable and judicial review remedy being largely illusory. Despite this, the court appears to have in large part, denied the applicants’ claim on account of the insufficiency of evidence to suggest a breach of procedural rights guaranteed under Article 18.

The case contains extensive evidence as to reception and detention conditions in Malta, as an appendix. This was prepared and submitted on behalf of the applicants. 

This case summary was written by Linklaters LLP.

Other sources:

These sources were not cited but annexed to the judgement as a “Summary of Objective Evidence”:

Council of Europe Committee for the Prevention of Torture (‘CPT’), December 2008; Medecins sans Frontieres, April 2009; JRS Malta, ‘A report on a pilot study on destitution amongst the migrant community in Malta’ in partnership with IOM and UNHCR, March 2010; JRS Malta, ‘Becoming Vulnerable in Detention’, June 2010, based on research Feb – Sept 2009; Amnesty International, ‘Seeking Safety, Finding Fear’, December 2010; Council of Europe, Commissioner for Human Rights, Thomas Hammarberg, 9 June 2011, following a visit on 23-25 March 2011; Council of Europe CPT, Report on its visit of 26-30 September 2011, 4 July 2013; International Commission of Jurists, ‘Not Here to Stay’, May 2012, based on a visit from 26-30 September 2011, ACB; Human Rights Watch, ‘Boat Ride to Detention’, July 2012, ACB; Amnesty International, World Report 2013, ACB; Asylum Information Database, National Country Report: Malta, March 2013, ACB; People for Change Foundation, Malta Human Rights Report 2013, ACB; JRS Europe, ‘Protection Interrupted’ 4 June 2013, ACB; Amnesty International Public Statement, ‘Malta: collective expulsions, push-backs and violating the non-refoulement principle never an option, 12 July 2013, ACB; UNHCR’s position statement on the detention of asylum seekers in Malta, 18 September 2013, ACB; European Commission against Racism and Intolerance (‘ECRI’), report of 15 October 2013, up to date to 6 December 2012.