UK - High Court, 11 August 2011, Elayathamby, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin)

Facts:

The applicant was a Sri Lankan national who has been recognised as a refugee in Malaysia under UNHCR’s mandate. He subsequently came to the UK via Thailand, Syria and Cyprus. The UK decided to remove him to Cyprus under the Dublin Regulation.  He resisted removal on the basis that 1) under domestic public law he had a legitimate expectation that the authorities would consider his claim in the UK; 2) he feared that his claim would not be appropriately considered in Cyprus and he would risk removal to Sri Lanka; 3) in Cyprus he risked being held in detention conditions that breached Article 3 of the European Convention on Human Rights (ECHR), and; 4) that in Cyprus his living conditions would otherwise breach Article 3 ECHR. The Secretary of State for the Home Department relied on a statutory provision that deemed that Cyprus would not return the applicant to another country in breach of the Refugee Convention or the ECHR, and certified his claims that he would face a breach of his ECHR rights in Cyprus as being “clearly unfounded” which meant that he did not have suspensive right of appeal against the removal. The applicant lodged an application for Judicial Review in respect of the decision to remove him to Cyprus asking for a declaration that the deeming legislation was incompatible with the ECHR and that the certification and the decision to remove him should be quashed.

Decision & reasoning:

The Court dismissed the application.

It held, first of all, that there was no legitimate expectation on the basis of the Secretary of State’s Mandate Refugee policy that the applicant’s asylum claim would be considered in the UK. The Court stated “on a fair reading and in its context” the policy would not have been reasonably understood to create such an expectation by those to whom it was made.

Secondly, the Court refused to make a declaration of incompatibility, applying the judgment in Nasseri (see separate summary), KRS v UK and MSS v Belgium and Greece. It gave a series of reasons for this finding:

1. Applying the ECtHR case law there was a presumption that Cyprus would ordinarily take steps to properly comply with its obligations under the ECHR and the 1951 Refugee Convention and interim measures under Rule 39 were available to enforce such compliance;
2. The evidence from respected international organisations and the UNHCR did not reflect an equivalent pattern to that identified by the ECtHR in MSS v Greece and Belgium, rather the evidence was from local organisations that carried less weight;
3. In particular there was no equivalent public letter from UNHCR in respect of Cyprus to that which had been sent to the Belgium authorities in respect of Greece;
4. Again, unlike the ECtHR’s findings in respect of Greece, there was no evidence of a pattern of conduct from the Cypriot authorities that would limit access to interim measures from ECtHR under Rule 39;
5. The applicant’s position was factually different from the applicant in MSS in that he had yet to be removed to Cyprus and Cypriot NGOs were aware of him and could help him if he were removed;
6. The statistics in respect of the Cypriot recognition rates were not as poor as those in Greece;
7. The reports of respected international organistation were phrased in terms of how improvements could be made to the Cypriot system rather than condeming the practice as being in breach of international oblgiations;
8. There were significant problems in the expert evidence submitted and, in any event, such evidence would be given little weight in these proceedings;
9. Overall the applicant was “a long way” from rebutting the presumption that Cyprus would abide by its international obligations.

Thirdly, in respect of conditions in detention although there were criticisms these were “comparatively muted in tone” and contrasted with the strident criticisms in respect of Greece.

Fourthly, in respect of living conditions that the applicant would face in Cyprus the evidence did not disclose “anything like as serious a problem and disregard for the interests of asylum seekers as occurred in Greece”.  Indeed there was a legislative framework in place to try to ensure a minimum level of reception conditions.

Outcome:

Application dismissed.

Observations/comments:

This decision was applied in Medhanye (see separate summary).