Ibrahimi & Anor v The Secretary of State for the Home Department [2016] EWHC 2049 (Admin)

“In no case may an alien be deported or returned to a country, regardless of whether or not it is his country of origin, if in that country his right to life or personal freedom is in danger of being violated because of his race, nationality, religion, social status or political opinions”

“294. In order to determine whether Article 13 applies to the present case, the Court must ascertain whether the applicant can arguably assert that his removal to Afghanistan would infringe Article 2 or Article 3 of the Convention. 295. It notes that, when lodging his application the applicant produced, in support of his fears concerning Afghanistan, copies of certificates showing that he had worked as an interpreter (see paragraph 31 above). It also has access to general information about the current situation in Afghanistan and to the Guidelines for Assessing the International Protection Needs of Asylum-Seekers from Afghanistan published by the UNHCR and regularly updated (see paragraphs 197-202 above). 296. For the Court, this information is prima facie evidence that the situation in Afghanistan has posed and continues to pose a widespread problem of insecurity and that the applicant belongs to a category of persons particularly exposed to reprisals at the hands of the anti-government forces because of the work he did as an interpreter for the international air forces. It further notes that the gravity of the situation in Afghanistan and the risks that exist there are not disputed by the parties. On the contrary, the Greek Government have stated that their current policy is not to send asylum seekers back to that country by force precisely because of the high-risk situation there. 297. The Court concludes from this that the applicant has an arguable claim under Article 2 or Article 3 of the Convention. 298. This does not mean that in the present case the Court must rule on whether there would be a violation of those provisions if the applicant were returned. It is in the first place for the Greek authorities, who have responsibility for asylum matters, themselves to examine the applicant's request and the documents produced by him and assess the risks to which he would be exposed in Afghanistan. The Court's primary concern is whether effective guarantees exist in the present case to protect the applicant against arbitrary removal directly or indirectly back to his country of origin. 299. The Court notes that Greek legislation, based on Community law standards in terms of asylum procedure, contains a number of guarantees designed to protect asylum seekers from removal back to the countries from which they have fled without any examination of the merits of their fears (see paragraphs 99-121 above). It notes the Government's assurances that the applicant's application for asylum will be examined in conformity with the law. 300. The Court observes, however, that for a number of years the UNHCR and the European Commissioner for Human Rights as well as many international non-governmental organisations have revealed repeatedly and consistently that Greece's legislation is not being applied in practice and that the asylum procedure is marked by such major structural deficiencies that asylum seekers have very little chance of having their applications and their complaints under the Convention seriously examined by the Greek authorities, and that in the absence of an effective remedy, at the end of the day they are not protected against arbitrary removal back to their countries of origin (see paragraphs 160 and 173-195 above).”

“The UNHCR is aware that the Court, in its decision in K.R.S. v. the United Kingdom ... recently decided that the transfer of an asylum seeker to Greece did not present a risk of refoulement for the purposes of Article 3 of the Convention. However, the Court did not give judgment on compliance by Greece with its obligations under international law on refugees. In particular, the Court said nothing about whether the conditions of reception of asylum seekers were in conformity with regional and international standards of human rights protection, or whether asylum seekers had access to fair consideration of their asylum applications, or even whether refugees were effectively able to exercise their rights under the Geneva Convention. The UNHCR believes that this is still not the case.”

“For the above reasons the UNHCR maintains its assessment of the Greek asylum system and the recommendations formulated in its position of April 2008, namely that Governments should refrain from transferring asylum seekers to Greece and take responsibility for examining the corresponding asylum applications themselves, in keeping with Article 3 § 2 of the Dublin Regulation.”

“This indication has been made in light of the UNHCR report dated 15 April 2008 (a copy of which is attached). The parties' attention is drawn to paragraph 26 of the report that states that 'In view of EU Member States' obligation to ensure access to fair and effective asylum procedures, including in cases subject to the Dublin Regulation, UNHCR advises Governments to refrain from returning asylum seekers to Greece under the Dublin Regulation until further notice. UNHCR recommends that Governments make use of Article 3(2) of the Dublin Regulation, allowing States to examine an asylum application lodged even if such examination is not its responsibility under the criteria as laid down in this Regulation'. The Acting President has instructed me to inform you that the Rule 39 measure will remain in force pending confirmation from your authorities that the applicant, if removed to Greece and if he so wishes, will have ample opportunity in Greece to apply to the Court for a Rule 39 measure in the event of his onward expulsion from Greece to Iran. Your authorities may wish to avail themselves of any bilateral arrangements under the Dublin Convention with a view to seeking such confirmation.”

“Having regard to these general principles, the Court also considers it necessary to recall its ruling in T.I. v. the United Kingdom (dec.), no 43844/98, Reports 2000-III that removal to an intermediary country which is also a Contracting State does not affect the responsibility of the United Kingdom to ensure that the applicant is not, as a result of the decision to expel, exposed to treatment contrary to Article 3 of the Convention. In T.I. the Court also found that the United Kingdom could not rely automatically in that context on the arrangements made in the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims. Where States established international organisations, or mutatis mutandis international agreements, to pursue co-operation in certain fields of activities, there could be implications for the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention if Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution (Waite and Kennedy v. Germany [GC], no. 26083/94, § 67, ECHR 1999 I). The Court finds that this ruling must apply with equal force to the Dublin Regulation, created within the framework of the “third pillar” of the European Union. Returning an asylum seeker to another European Union Member State, Norway or Iceland according to the criteria set out in the Dublin Regulation, as is proposed in the present case, is the implementation of a legal obligation on the State in question which flows from its participation in the asylum regime created by that Regulation. The Court observes, though, that the asylum regime so created protects fundamental rights, as regards both the substantive guarantees offered and the mechanisms controlling their observance.”

“The Court notes the concerns expressed by the UNCHR whose independence, reliability and objectivity are, in its view, beyond doubt. It also notes the right of access which the UNHCR has to asylum seekers in European Union Member States under the European Union Directives set out above. Finally, the Court notes that the weight to be attached to such independent assessments of the plight of asylum seekers must inevitably depend on the extent to which those assessments are couched in terms similar to the Convention (see, mutatis mutandis, NA., cited above, § 121). Accordingly, the Court attaches appropriate weight to the fact that, in recommending that parties to the Dublin Regulation refrain from returning asylum seekers to Greece, the UNHCR believed that the prevailing situation in Greece called into question whether “Dublin returnees” would have access to an effective remedy as foreseen by Article 13 of the Convention. The Court also observes that the UNHCR's assessment was shared by both Amnesty International and the Norwegian Organisation for Asylum Seekers and other non-governmental organisations in their reports.”

“The Court notes that the present applicant is Iranian. On the evidence before it, Greece does not currently remove people to Iran (or Afghanistan, Iraq, Somalia or Sudan – see Nasseri above) so it cannot be said that there is a risk that the applicant would be removed there upon arrival in Greece, a factor which Lord Justice Laws regarded as critical in reaching his decision (see above). In reaching this conclusion the Court would also note that the Dublin Regulation, under which such a removal would be effected, is one of a number of measures agreed in the field of asylum policy at the European level and must be considered alongside Member States' additional obligations under Council Directive 2005/85/EC and Council Directive 2003/9/EC to adhere to minimum standards in asylum procedures and to provide minimum standards for the reception of asylum seekers. The presumption must be that Greece will abide by its obligations under those Directives. In this connection, note must also be taken of the new legislative framework for asylum applicants introduced in Greece and referred to in the letters provided to the Court by the Agent of the Government of Greece through the United Kingdom Agent. In addition, if Greece were to recommence removals to Iran, the Dublin Regulation itself would allow the United Kingdom Government, if they considered it appropriate, to exercise their right to examine asylum applications under Article 3.2 of the Regulation.”

“raise serious concerns as regards compatibility with international and European law, and may be at variance with the country’s international and European obligations.”

“In order to ensure the correct application of the safe country concepts based on up-to-date information, Member States should conduct regular reviews of the situation in those countries based on a range of sources of information, including in particular information from other Member States, EASO, UNHCR, the Council of Europe and other relevant international organisations. When Member States become aware of a significant change in the human rights situation in a country designated by them as safe, they should ensure that a review of that situation is conducted as soon as possible and, where necessary, review the designation of that country as safe”

“However, aside from the fact that the Act on Asylum authorizes the Government to establish a national list of safe third countries, Hungary does not otherwise appear to have laid down rules in its national law on the methodology by which the competent authorities may satisfy themselves that a third country may be designated as a safe third country within the meaning of Section 2(i) of the Action Asylum. Nor is any explanation or justification provided in Government Decree 191/2015 as to how the Government arrived at the conclusion that each country listed qualifies as safe. Thus, as regards the inclusion of Greece, former Republic of Macedonia and Serbia on the list, it remains unclear, for example, why the Government did not heed the Opinion of the Administrative and Labour Law Panel of the Kúria in December 2012 that: ‘[i]f the asylum system of a third country is overburdened, this may should be treated as safe third countries in the same sense as other safe third countries. Different procedures apply as regards to states participating in the “Dublin system” and states that do not. For states participating in the “Dublin system” clear criteria for determining the state responsible for examining an application for international protection are provided for in the Dublin Regulation, whereas for other states the determination of the admissibility of applications for international protection with respect to applying the safe third country concept to these states in individual cases is regulated in the recast APD.82 Further, there is no EU common list of safe third countries, and the recast APD does not provide for such a list.”

“76. Another substantial barrier to accessing the Hungarian asylum procedure has been introduced by a decree establishing a national list of safe third countries, which includes inter alia Greece, former Yugoslav Republic of Macedonia and Serbia. UNHCR has repeatedly urged States not to return asylum seekers to these countries, as UNHCR considers that they do not meet their protection obligations vis-à-vis refugees, and can thus not be considered “safe”. …. 78. UNHCR is further concerned by the number of persons kept in detention while awaiting expulsion to Serbia. Since there are limitations on the number of individuals that are actually accepted back by Serbia, the situation of those in detention pending expulsion is unclear. The detention of such people, without clear time limits or effective access to the means to challenge its ongoing legality, may be inconsistent with European and international legal standards governing detention. 79. In conclusion, UNHCR considers that significant aspects of Hungarian law and practice, as described above, raise serious concerns as regards compatibility with international and European law.”

“42. Since January, courts in Debrecen, Szeged and Györ have been annulling OIN’s inadmissibility decisions and instructing OIN to assess the application on its merits in the repeat procedure. When annulling the administrative decisions, courts either declare that Serbia is not a safe third country or argue that the administrative authority did not comply with its obligation to satisfy itself that the Serbian authorities will take over or back the applicant pursuant to Section 51/A of the Act on Asylum and in accordance with Article 38 (4) of the Recast APD. In the latter case, the courts take into account that, since 15 September, Serbia is not taking back third country nationals under the readmission agreement except for those who hold valid travel/identity documents and are exempted from Serbian visa requirement, and they conclude that OIN must examine the applications on their merits. Yet, OIN again denies the cases on admissibility grounds and the applicants must submit a second request for judicial review of the OIN’s inadmissibility decision. OIN therefore only examines the applications on their merits after the administrative courts render a second decision instructing OIN to do so. 43. In failing to promptly take into account the court’s instructions, OIN renders asylum-seekers’ right to effective remedy as set out in Article 47 of the Charter on Fundamental Rights as well as Article 13 of the European Convention on Human Rights ineffective”

“The fact that up to 90% of asylum-seekers leave the country before the asylum procedure is completed reinforces the perception of the Government that asylum claims submitted in the country are not genuine and that the country is used as transit stage on the way to Western Europe”

“In December 2014, the UNHCR described the reception arrangements for asylum-seekers in Greece as “insufficient and, if provided, considerably below the standard set out by EU and national law”

“On 18 March, following on from the EU-Turkey Joint Action Plan activated on 29 November 2015 and the 7 March EU-Turkey statement, the European Union and Turkey decided to end the irregular migration from Turkey to the EU. Yesterday's agreement targets the people smugglers' business model and removes the incentive to seek irregular routes to the EU, in full accordance with EU and international law. The EU and Turkey agreed that: 1) All new irregular migrants crossing from Turkey to the Greek islands as of 20 March 2016 will be returned to Turkey; 2) For every Syrian being returned to Turkey from the Greek islands, another Syrian will be resettled to the EU; 3) Turkey will take any necessary measures to prevent new sea or land routes for irregular migration opening from Turkey to the EU; 4) Once irregular crossings between Turkey and the EU are ending or have been substantially reduced, a Voluntary Humanitarian Admission Scheme will be activated; 5) The fulfilment of the visa liberalisation roadmap will be accelerated with a view to lifting the visa requirements for Turkish citizens at the latest by the end of June 2016. Turkey will take all the necessary steps to fulfil the remaining requirements; 6) The EU will, in close cooperation with Turkey, further speed up the disbursement of the initially allocated €3 billion under the Facility for Refugees in Turkey. Once these resources are about to be used in full, the EU will mobilise additional funding for the Facility up to an additional €3 billion to the end of 2018; 7) The EU and Turkey welcomed the ongoing work on the upgrading of the Customs Union. 8) The accession process will be re-energised, with Chapter 33 to be opened during the Dutch Presidency of the Council of the European Union and preparatory work on the opening of other chapters to continue at an accelerated pace; 9) The EU and Turkey will work to improve humanitarian conditions inside Syria. On what legal basis will irregular migrants be returned from the Greek islands to Turkey? People who do not have a right to international protection will be immediately returned to Turkey. The legal framework for these returns is the bilateral readmission agreement between Greece and Turkey. From 1 June 2016, this will be succeeded by the EU-Turkey Readmission Agreement, following the entry into force of the provisions on readmission of third country nationals of this agreement. On what legal basis will asylum seekers be returned from the Greek islands to Turkey? People who apply for asylum in Greece will have their applications treated on a case by case basis, in line with EU and international law requirements and the principle of non-refoulement. There will be individual interviews, individual assessments and rights of appeal. There will be no blanket and no automatic returns of asylum seekers. The EU asylum rules Member States in certain clearly defined circumstances to declare an application “inadmissible”, that is to say, to reject the application without examining the substance.”