Pour & Ors v The Secretary of State for the Home Department [2016] EWHC 401 (Admin)

Case No CO/3872/2012

[2016] EWHC 401 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 01.03.2016

Before

MR JUSTICE OUSELEY

Between

ESMAIEL MOHAMMED POUR (1)Claimants

SEID JAFAR HASINI HESARI (2)Claimant

MAJID GHULAMI (3)Claimant

THE SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

Stephen Knafler QC and Claire Physsas (instructed by Duncan Lewis) for Claimants

David Manknell, Matthew Donmall and Robert Harland (instructed by Government Legal Department) for Defendant

Hearing Hearing dates: 16, 17, 18 and 19 June 2016

Judgment

MR JUSTICE OUSELEY :

[1]The Claimants are three Iranian nationals who unsuccessfully claimed asylum in the Republic of Cyprus, which I shall call Cyprus for convenience, and who then came to the UK. They made asylum claims in the UK. In each case, and there is no connection between them, the SSHD found out or was told by them that they had claimed asylum in Cyprus. The SSHD refused to decide their claims substantively. Cyprus accepted or was deemed to have accepted responsibility for the Claimants under EU Council Regulation 343/2003 (Dublin II) or Council Regulation (EC) No 604/2013 of 26th June 2013 (“Dublin III”). The SSHD certified the asylum claims on safe third country grounds, in 2013 and 2014, under paragraphs 3-5 of Part 2 to Schedule 3 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, the 2004 Act, and certified the human rights claims as clearly unfounded, under paragraph 5(4) of Part 2 of the same Schedule. The human rights decisions now challenged were taken in May 2015, taking a very simplified version of the messy two year procedural history of the three judicial review claims. It was agreed by all parties that those decisions should be treated as superseding earlier human rights decisions.

[2]They are together challenged on grounds common to all three Claimants, which is what brings them together before me, that(1) the decision to certify the human rights claims was irrational because, on the evidence, the SSHD should have concluded that there was at least a reasonable prospect that the First-tier Tribunal would find that they would be detained in flagrant breach of

Article 5 ECHR

, and

(2) that the Court should conclude, contrary to what the SSHD had concluded, that, if returned to Cyprus, there was a real risk of each Claimant being refouled thence to Iran. In both grounds, reliance was placed on the ECHR, the EU Charter of Fundamental Rights,, the CFR, and EU Directives. The asylum certifications are challenged on the same amended grounds, provided shortly before the hearing. There is a separate Article 3 challenge by EP, who is said to have mental health problems, based on the risk of long and arbitrary detention.

[3]The relief sought included a declaration that the inclusion of Cyprus in the list of safe third countries in paragraph 2 of Part 2 of Schedule 3 to the 2004 Act, or the obligation that it be treated as required by paragraph 3 was incompatible with the Human Rights Act 1998. The SSHD ought to have used her powers to decide the asylum claims substantively.

[4]It was made clear but a few days before the hearing that it was not now being said that the evidence showed that there was a real risk of a breach of ECHR rights through the reception conditions in Cyprus for those not detained, or that there was a want of adequate medical treatment in or out of detention, including for EP. At the hearing, Mr Knafler QC for the Claimants made it expressly clear that certain other arguments were also no longer pursued: there was now no argument about general conditions of detention and Article 3, or about the interview process, or screening for the vulnerable, the quality of interpreters, access by the individual and his lawyer to his file, or the limit to points of law in the scope of appeals or applications to the Supreme Court.

[5]There had also been a fourth case, due to be heard with these, concerning a Syrian national, who put forward the same grounds in relation to Syria. But that Claimant accepted, in relation to Syrian nationals, that those risks no longer applied; there was now a policy, at least, in Cyprus of granting some form of protection to Syrian nationals, no real risk of refoulement, and Syrian nationals were unlikely to be detained. The claim was withdrawn by consent, the Claimant paying costs.

The decisions

[6]The relevant asylum certification decisions, EP’s on 21 March 2013, SH’s on 23 June 2014, and MG’s on 13 March 2014, are short - simply reciting the acceptance of responsibility by Cyprus, which is deemed to be a safe country by the 2004 Act, and then certifying that the statutory conditions are met. There were no grounds for departing from the usual practice of not examining the substantive asylum application.

[7]The relevant SSHD human rights decision in EP’s case is dated 22 May 2015; the other two decisions, for SH, and GH, are dated 15 May 2015. The three letters are in materially the same terms on the common issues with which this case is concerned. EP alone raised a distinct issue - about his mental health. There are no specific individual issues in the other two cases.

[8]Each human rights decision is carefully considered, and responds to very extensive material deployed before the SSHD, though, as the letters point out, that material was often deployed without the representations stating the point which the material was supposed to support, or where within the voluminous material the point could be found.

[9]In each decision, the SSHD noted that EU Member States had not reached the conclusion that clear evidence existed of systemic deficiencies in Cyprus, giving rise to any substantial grounds for believing that those returned faced a real risk of being subjected to treatment contrary to Article 3 or

Article 5 ECHR

. Whilst some of the objective evidence submitted by the Claimant gave some cause for concern, “none of the reports conclude that removals to Cyprus should be suspended, nor do they reflect a consistent body of opinion such that the presumption of compliance should no longer be applied.”

[10]The SSHD also considered whether there was a real risk of a breach of Article 3 by reference to personal circumstances, dealing first with the risk of refoulement. This was rejected. Each letter is different in the factors considered, since the SSHD here was considering personal circumstances, but the conclusion was the same. Article 3 was then likewise considered in relation to reception conditions. EP’s mental health and the risk of suicide were specifically considered. The SSHD concluded that, should EP be detained, he would receive adequate medical care in detention. But, as with the other two, there was no real risk of a breach of Article 3 in relation to reception conditions.

[11]Possible detention in Cyprus was then considered, in relation to its likelihood, duration and remedies; this is where the Claimants’ detention argument was focussed, rather than on detention conditions. EP had contended in his representations that all Dublin returnees were placed in detention. That did not appear to be made out.

[12]Before me, however, the case had a narrower focus. All three Claimants had had a final decision on their asylum claims when in Cyprus. It was accepted that when they were returned, they could only make a fresh claim, because there was no outstanding claim to pursue. Accordingly, the discussion in the letter of detention in relation to Dublin returnees, whose claim had not been determined finally, is not now to the point.

[13]Overall, the SSHD concluded that each Claimant had “not come close to rebutting the presumption that Cyprus will treat him in compliance” with the CFR, the Refugee Convention and the ECHR; nor on the specific facts of each case had any of them established a real risk of a breach of Articles 3 or 5 ECHR. The human rights claims were refused, and then had to be certified as clearly unfounded as the SSHD was not satisfied to the contrary; paragraph 5(4) in Part 2 of Schedule 3 to the 2004 Act. This precluded an in-country appeal.

The individuals

[14]EP was 38, an engineering graduate, and former soldier. He claimed in the UK that he had been detained and then harassed by the police in Iran after allowing a man to hide from the police in his shop. He had left Iran for Cyprus in 2001 where at some point he claimed asylum. He lived with a friend and worked there. In 2006, he converted to Christianity. In 2011, his asylum claim in Cyprus was refused by the Asylum Service of the Ministry of the Interior, the AS. He made what was called an administrative appeal to the Refugee Reviewing Authority, RRA, which was dismissed in November 2011. The letter accompanying the decision says that this was the second review. The letter also says that the decision was annexed in Greek. But it has not been produced. There is no evidence, let alone documentary evidence, as to the basis of his claim in Cyprus for asylum or the reasons for its refusal.

[15]He could have appealed to the Supreme Court within 75 days, as the RRA told him, but he says that he had insufficient money to do so, and lawyers advised him to leave the country instead. He claimed to have obtained travel documents from the Iranian Embassy in Cyprus, and to have returned to Iran in January 2012. He says that he practised Christianity there; the police found out, raided his house, seized his belongings and arrested him in January 2013, detaining him for three weeks before he was released. His brother helped him to leave via an agent in mid February 2013; he arrived in the UK on 1 March 2013 where he claimed asylum, acknowledging at interview that he had made a claim in Cyprus. A Eurodac search revealed an asylum claim by him in Cyprus in 2009. On 8 March 2013, Cyprus was requested to accept responsibility under Dublin II, and did so.

[16]While in detention in the UK, he made an allegation leading to a Rule 35 report in March 2013 that he had been beaten while in detention in Iran in 2013. He had no scars. This was not seen as providing independent evidence of torture. His first witness statement in these proceedings denied that he had been beaten by the Iranian police, but rather said that he had been sworn at, shouted at and pushed around by them. His later statements do not deal with this issue at all. His representations made no mention of what happened in Iran, beyond a claim that he was a victim of torture, until 15 May 2015. I will need to deal later with EP’s contention about the effect of his diagnosis of depression and PTSD, but I note only at this stage that the psychiatric report relied on was not submitted until 15 May 2015.

[17]EP produced a fifth witness statement, not before the SSHD, which states that his first claim in Cyprus was refused in 2005, a fresh claim was refused in 2008 and a second fresh claim was made in 2009, when he was finger printed, which was refused in 2010. He states that there were no reasons for the first refusal, and says nothing either way about the refusals of the fresh claims. He does not deal with the basis of any of his asylum claims. This fifth statement also dealt with the claim for asylum which he made in France. In May 2013, his second witness statement said that he had never knowingly been to France or been fingerprinted there. He later admitted in his third witness statement that he had been fingerprinted in France. He said in this fifth witness statement that he was sorry for not mentioning that at interview or in his first witness statement; he did not want to be returned to France. This does not deal with the significant point about the evidence of the detention in France which is that the Ministry of the Interior in Cyprus records a French “take back” request for EP on 21 January 2013, at the time when he said that he was in detention in Iran. Cyprus accepted the request but EP absconded. He has no dependants.

[18]SH,a 35 year old dressmaker, claims to have entered Cyprus in 2005, after spending some time in northern Cyprus trying to avoid being returned to Turkey. After receiving free legal assistance, he made an asylum claim in 2005. This was refused in 2006; the decision in Greek was attached to the accompanying letter. There is no copy of it. His appeal to the RRA was dismissed in February 2010; there is a translation of that decision, which contains the essence of the Asylum Service reasoning. He claimed asylum because he alleged that he had had a short term affair with a married woman, but her husband had discovered them, and stole his documents. His claim was not believed, nor, if his claim were true, was it believed that the Iranians had any interest in prosecuting him. His claim to be a member of the Iranian National Front was disbelieved. The RRA decision shows that it has power to consider material in addition to what was placed before the Asylum Service, but there was none in this case.

[19]He instructed solicitors to file an application in the Supreme Court but they said that there was nothing they could do. In May 2010 he was told by the Ministry of the Interior to leave Cyprus immediately, at which point he went into hiding for four years. In 2014, the Government started arresting failed Iranian asylum seekers; so he left for the UK in June 2014 where he claimed asylum. Cyprus accepted responsibility under Dublin III in July 2014. SH has said, for example in his first witness statement of 16 August 2014, that he would commit suicide if returned to Cyprus. He claims that he fled Iran after suffering sexual harassment in the army, and being falsely accused of, but persecuted for, homosexuality. He also claimed to be a member of the Iranian National Front. He said at the screening interview that his life was not in danger in Iran but life there was hell for him. He has no dependants.

[20]MG was a 33 year old hairdresser, who left Iran for Cyprus in 2004, where he claimed asylum on arrival. He married an Iranian national in 2008, and in 2010 a daughter was born. In 2010 his claim was refused; he says that he was given no reasons. His appeal to the RRA was dismissed. Neither decisions nor accompanying letters have been produced; but it is not said that he did not receive any or any RRA decisions without reasons. There is no evidence in the form of decisions by the Cypriot authorities to show the basis of the claim or the reasons for refusal. He says that he was advised by his solicitor that an appeal to the Supreme Court was very unlikely to succeed, and so he became dependant upon his wife’s claim. Both converted to Christianity in Cyprus, participated in a television programme made in Cyprus about that which was screened in Iran, and claimed to fear persecution on that account if returned to Iran. He had had some involvement with Christianity in Iran as a result of his brother’s earlier conversion to Christianity in Iran.

[21]His wife’s claim was refused in July 2011; and the appeal to the RRA was dismissed in November 2012. Again there is no evidence as to the basis of claim or the reasons for the refusal. In January 2013, the wife submitted fresh evidence to the RRA which included video evidence that she had previously been married in Iran to someone else, implying that that claim had not been believed, and also relying on her pregnancy. A second child was born in July 2013. On 1 August 2013, the RRA refused to re-open its file on the basis of fresh evidence; the decision in Greek said to be attached to the letter of 1 August is not before me.

[22]MG’s witness statement explained that they knew by July 2013 that they would all be removed to Iran in September 2013. He says that he escaped from hospital, where they all were, to go to northern Cyprus to await the preparation of his travel documents; he returned to pick up the documents when ready and came to the UK in December 2013. His wife and children were removed to Iran on 27 September 2013, where, in his witness statement of August 2014, he says that she faced adultery charges since her former husband had found out about her marriage to MG. He fears that if returned to Cyprus, he would be detained and removed to Iran where he would face charges of adultery and apostasy, for converting to Christianity.

[23]MG admitted that he had been fingerprinted in Cyprus, but said that he had been returned to Iran from Cyprus in 2005 and had then come to the UK from Iran via Turkey. He gave an explanation for these inconsistencies in a later witness statement. A Eurodac search showed that he had been fingerprinted in 2004 in Cyprus. Cyprus was asked to accept responsibility, but did not respond until March 2014 when it formally accepted responsibility under Dublin III. MG made a report under rule 35 while in detention to the effect that he had been assaulted by Iranian officials at the Iranian Embassy in Cyprus when he went to see about travel documents, which had required stitching to a finger. He also ascribed the injury to Cypriot police while he was taking part in a protest about conditions for asylum seekers. His dependants are in Iran.

The legal framework: domestic

[24]Cyprus is listed as a safe country in paragraph 2 of Part 2 of Schedule 3 to the 2004 Act. Paragraph 3(2) of that Part provides that in deciding whether a person who has made a human rights claim or an asylum claim may be removed from the UK, Cyprus and the other countries listed in paragraph 2 shall be treated as places where his life and liberty will not be threatened in a manner which would breach the Refugee Convention, and from which he would not be sent to another State in breach of his ECHR rights or of the Refugee Convention. The SSHD’s certificate under paragraphs 4 and 5 of Part 2 means that, as here, those who are not nationals of Cyprus have no in-country right of appeal against removal to Cyprus in so far as that appeal relies on onward removal by Cyprus, under either Convention. Nor can the absence of a substantive decision on the asylum claim prevent removal. Where the claim is that there is a real risk of refoulement, and there is, as here, no in-country right of appeal, the question for this Court is whether it judges that there is a real risk of refoulement, unaffected by a judgment about how the FtT might resolve that issue.

[25]Paragraph 5 (4) deals with the further certification of other human rights claims, where the SSHD proposes to remove a person to a safe country of which he is not a national. The SSHD is obliged to certify such a claim as “clearly unfounded” unless she is satisfied that it is not clearly unfounded. There is an out of country appeal for those otherhuman rights claims.

[26]Where a challenge is brought to a decision to certify a claim as clearly unfounded, the question for the Court on judicial review is whether it is so clearly without substance that the appeal to the Tribunal would be bound to fail. If the Court considers that, on one legitimate view, a tribunal directing itself properly could conclude that there were substantial grounds for believing that the return of the claimant to Cyprus would involve a real risk of a breach of Article 3, or a flagrant breach of other relevant rights applying EHCtR jurisprudence, (Article 5 is the one raised before me, save for a particular aspect of EP’s case), the claim should not have been certified as clearly unfounded; see MS, NA and SG v SSHD

[2015] EWHC 1095 (Admin)

, paragraphs 95-97 Lewis J.

[27]Mr Knafler accepted that his judicial review challenge to the human rights certification decisions was based on irrationality. It was not alleged that the SSHD had overlooked part of the representations or had misunderstood the import of the many reports she was asked to consider.

The legal framework: EU

[28]Articles 4 and 6 CFR provide for the same rights as in Articles 3 and 5 ECHR. Article 19(2) CFR forbids the removal of anyone to a State where there is a serious risk of torture or inhuman or degrading treatment or punishment. In Dudaev v SSHD

[2015] EWHC 1641

(Admin), Burnett LJ pointed out,[19], that the 2004 Act and Schedule 3 made no mention of the CFR or of claims under EU law. “…[To] the extent that an individual seeks to rely upon the Charter to resist removal to a “safe third country” the irrebuttable presumption [that a Scheduled country would not refoul a person] does not apply”, although it was now clear that the Charter did provide for independent justiciable rights in the UK. Schedule 3 did not apply to a claim based on the CFR, and so the Schedule was compatible with the CFR.

[29]Mr Manknell for the SSHD accepted that Part 2 of Schedule 3 to the 2004 Act did not apply to reliance on CFR rights, even if they duplicated ECHR rights. There are no appeal rights in respect of alleged breaches of the CFR either, so the claim that action by the SSHD would breach such rights can only be brought by judicial review. But he submitted, rightly, that there was a significant evidential presumption in effect as between EU Member States that they would not breach CFR or ECHR rights.

[30]What is now called the Common European Asylum System, CEAS, though it is not quite uniform as between Member States who have and have not opted into various recast Regulations, comprises, so far as it applies to the UK, Dublin II, the Reception Directive 2003/9/EC (minimum standards for the reception of asylum seekers), the Qualification Directive 2004/83/EC (tests for qualifying for international protection), and the Procedures Directive 2005/85/EC (standards for the procedures for granting protection status). EU Regulation 604/2013 (Dublin III) came into force on 1 January 2014, and may apply to two of these claims. I will also need to refer to the two “recast” Directives, the Procedures Directive 2013/32/EC and the Reception Directive 2013/33EC (neither of which the UK has opted into but both of which are in force in Cyprus as from 20 July 2015, by transposition or by direct effect) and to the Returns Directive 2008/115/EC (also applicable in Cyprus but not in the UK).

[31]The aim behind the CEAS was the establishment of a complete body of rules, founded on respect for international law, including the principle of non-refoulement. The examination of an asylum claim is restricted to one member state, and transfer of the asylum seeker to the state responsible for processing the claim, if asylum is sought elsewhere. Dublin II governed the mechanisms and provides the criteria for determining which Member State was responsible. There are common basic standards, and an important aim is to reduce secondary movements caused by disparities in standards.

[32]In Dudaev v SSHD Burnett LJ at [21-23], also considered the relationship between Dublin II and the Directives making up the CEAS, and the proper scope for a challenge to the transfer of an applicant to another Member State. The CJEU in Abdullahi v Bundesasylampt (

Case C-394/12

)

[2014] 1 WLR 1895

, had pointed out that the Procedures Directive did not deal with actions governed by Dublin II, and Member States could have confidence in each other to observe the Refugee Convention and the ECHR. The rationalisation of the treatment of asylum applications meant that the rules adopted by the Member States would be broadly the same.

[33]In NS v SSHD 21 December 2011

[2013] QB 102

, the CJEU accepted that, although it was to be assumed that the treatment of asylum seekers in Member States complied with the CFR, ECHR and the Geneva Convention, the system could, in practice, experience “major operational problems in a given Member State, creating a substantial risk that on transfer, asylum seekers might be treated in a manner incompatible with their fundamental rights”; [81]. But that did not mean that “any infringement of a fundamental right by the Member State responsible will affect the obligations of the other Member States to comply with [Dublin II]”; [82]. What was at issue was the creation of the CEAS, and a presumption of compliance; treating the slightest infringement as a reason to prevent transfer would be incompatible with that. If the consequence of any infringement were that the claim could not be transferred to the country where the claim should be handled, that would create an additional criterion to those in the Regulation, exempting members from their obligation [83-85]. “By contrast, if there are substantial grounds for believing that there are systemic flaws” in the procedure and reception conditions, resulting in inhuman and degrading treatment, “within the meaning of Article 4 of the Charter”, transfer to that territory “would be incompatible with that provision.” [86]. In [106], the CJEU held that Article 4 CFR meant that Member States could not transfer asylum seekers to the Member State “responsible” under Dublin II, where they were aware that systemic deficiencies in the procedures and reception conditions gave rise to substantial grounds for believing that the asylum seeker would there face a real risk of inhuman or degrading treatment.

[34]The Supreme Court held in R (EM) (Eritrea) v SSHD

[2014] UKSC 12

[2014] AC1321

, discussing NS v SSHD above, that the presumption that an EU member state would comply with its obligations was both principled and pragmatic, but the significant evidential presumption could be displaced by evidence which did not have to prove a systemic deficiency in the reception and procedure conditions provided by the receiving state. In the context of Article 3, or refoulement, a real risk in relation to the individual was still the test, and the absence of systemic deficiency did not prevent such a conclusion. The position in relation to other Articles was not discussed.

[35]InAbdullahi v Bundesasylamt 10 December 2013 [2014] 1 WLR, before the decision of the Supreme Court in EM (Eritrea) but not cited to it, the CJEU returned to the issues in NS. Ms Abdullahi, a Somali asylum seeker, had entered the EU in Greece, and had journeyed via Hungary to Austria, where she claimed asylum. At Austria’s request, Hungary accepted responsibility. She claimed that Greece was the responsible State, but that she could not be transferred there conformably with Article 4 CFR, so Austria should determine her asylum application. The CJEU held, citing NS, above, [60 and 62] that once a Member State had agreed to take charge of an asylum applicant, Article 19(2) of Dublin II meant that:

“60. … the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systematic deficiencies in the asylum procedure and in the conditions for the reception of the applicants for asylum in that latter member state, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of article 4 of the Charter: see the NS (Afghanistan) case, paras 94 and 106, and Federal Republic of Germany v Puid (Case C-4/11) [2014] QB 346, para 30.”

[36]Paragraph 62 repeats the point verbatim. Breach of the Directives was not at issue in that case.

[37]In R (B) v SSHD

[2014] EWCA Civ 854

, two Iranians challenged their removal to France under Dublin II on the grounds that the daughter, under French law, could not wear a burkha or niqab in France in public, including in public but not in private schools, breaching essentially Articles 8, 9 and 14 ECHR. After concluding that the case came nowhere near a complete nullification of the rights in question, a stringent test, and more stringent than that required in relation to Articles 2 and 3, particularly as the Strasbourg Court had decided that the French law did not breach Article 9, the Master of the Rolls, dealt with a submission concerning the operation of Dublin II. At [23] he said:

“23. I turn to the Secretary of State’s third submission. It is not in dispute that the purpose of the Dublin II Regulation is to introduce a clear division between a responsible state (France in this case) and a non-responsible state (the UK in this case) for managing the asylum claims of third country national asylum seekers. Mr Manknell submits that (i) it would be inconsistent with the policy of the Dublin II Regulation if a non-responsible state (the UK in this case) were required to assess Convention challenges to the legislation of a responsible state (in this case France); and (ii) it is clearly established in the relevant EU, ECtHR and domestic case law that a Convention challenge to the legislation of a Dublin II Regulation state must be brought in the responsible state, save in exceptional circumstances.”

[38]He accepted the first submission. The second submission involved a discussion of the NS, M.S.S, and EM (Eritrea) cases. Abdullahi was not cited. In relation to Article 3 cases, the difference between “foreign” cases and Dublin II cases was that in the latter, one started with the “significant evidential presumption.” At [31], he said:

“31. EM (Eritrea) was an article 3 case as was NS. It is, of course, binding on this court. It is difficult to avoid the conclusion that, although the Supreme Court was purporting to apply and explain NS, it was to some extent departing from it. At the very least, EM (Eritrea) gives less weight than NS to the mutual confidence in Member States and the presumption of their compliance with EU law and fundamental rights. The reason for this may be that complaints of violations of article 2 and 3 are rightly regarded as more serious and treated differently from complaints of violations of other articles of the Convention. That is why the threshold for a successful complaint in the former in a foreign case is substantially lower than for a successful complaint in the latter. As we have seen, the “flagrancy” threshold is so stringent that successful complaints in “foreign cases” based on violations of Convention rights other than articles 2 and 3 are very rare. 32. Even is the EM (Eritrea) approach falls to be applied in the present case, I have no doubt that, for the reasons given at paras [21] above, the appellants come nowhere near rebutting the presumption that France would comply with its obligation to respect the rights enjoyed by the appellants under articles 8, 9 and 14 of the Convention.”

[39]In Dudaev, [39], in which R (B) v SSHD appears not to have been cited, Burnett LJ said:

“The Luxembourg Court returned to the topic of systematic failings in Abdullahi and appeared unequivocally to state that only systematic deficiencies would do: para 60 (quoted above). Neither court had the benefit of the other’s reasoning because of the timing of their respective hearings. The Luxembourg Court has not yet been faced with a case which is not squarely based upon systematic failings. It is unnecessary to explore in these proceedings whether there remains a tension between the approach in Luxembourg and the decision of the Supreme Court. The risk in play in this claim arises from the personal circumstances of the first claimant but his real complaint is that the systems in place in Sweden for dealing with fresh claims after an initial refusal are not sensitive enough to enable full arguments to be deployed before removal from Sweden.”

[40]Burnett LJ commented, [55], that the CJEU in Abdullahi v Bundesasylampt “restated with conspicuous clarity” “that the only way in which an asylum applicant could call into question the fulfilment of the obligations of the receiving state so as to prevent return, would be to show “systemic deficiencies” in its asylum procedures and reception conditions “which provide substantial grounds for believing that the applicant ...would face a real risk” of a breach of Article 4 CFR, the CFR equivalent of

ECHR Article 3

, and, I add, by logical extension

Article 2 ECHR

, and Article 19 CFR where the risk was of refoulement. Whether that is the true limit of the CFR grounds preventing removal under Dublin was at issue before me.

The risk ofrefoulementfrom Cyprus to Iran

[41]Mr Knafler contended that, as the Claimants’ claims had all reached finality in Cyprus, they would be detained on arrival. They would have the opportunity to make a fresh claim. That would be considered by the RRA which was unlikely to accept the material as amounting to a fresh claim. Were the RRA to accept it as amounting to a fresh claim, but nonetheless to refuse it, the claim would then enter the normal decision-making process, and no complaint would arise. But if it were refused, the only recourse would be an application to the Supreme Court on a point of law. No free legal assistance would be available to them at any point. There was therefore a real risk that they would be sent to Iran, without a full and proper consideration of the fresh claims which each wished to make. That would create a real risk of refoulement.

[42]It was not at issue but that the Claimants’ asylum claims had been finally determined in Cyprus. The fresh claims which each wished to make were: EP: that he had returned from Cyprus to Iran where he had then been persecuted for his Christian beliefs; I note that, in 2006, when in Cyprus, he had converted to Christianity, and so was a Christian when at least some if not all of his claims for asylum were being processed in Cyprus. SH: his original claim to this Court, that he had been prevented by the Cypriot authorities from putting forward his sur place claim based on political activity in Cyprus was not pursued, but it was said that he had not had an adequate remedy for his claims while there; MG: that he would be at risk of the same arrest and persecution as his wife had already experienced for adultery and apostasy.

[43]Mr Knafler made his submissions in relation to refoulement and detention by reference to the recast Directives because he submitted that they would be part of domestic law in Cyprus governing consideration of fresh representations once the Claimants were returned there; if returned there, they would be dealt with after 20 July 2015, when the recast Directives would have been transposed or be in force through their direct effect. It was irrelevant that other Directives were and would remain in force in the UK. I accept that submission, though such differences as exist between the two forms of Directive cannot be of any significance in relation to a real risk of a breach of Article 3, or indeed of other fundamental rights, since the other Directives are part of the CEAS, and respect them.

[44]The recast Procedures Directive deals with further representations as “subsequent applications” in Article 40. Article 40(1) requires such representations to be considered “in the framework of the examination of the previous application” or in the framework of the decision under review or appeal so long as the authorities can take all the elements of the former and new representations together.

[45]Article 40(2) deals with the decision on the admissibility of such a subsequent application. “For the purpose of taking a decision on the admissibility of an application for international protection under Article 33(2)”, the application must be subject to preliminary examination to see if “new elements or findings” have been presented relating to qualification for international protection. If the preliminary examination concludes that there are new elements which add significantly to the likelihood of the applicant qualifying for international protection, the application is then to be further examined in the normal way to see if it qualifies for protection. If it is not further examined, the application is to be considered inadmissible in accordance with Article 33(2)(d); Article 40(5). Article 33(2)(d) provides that a subsequent application may only be considered inadmissible where there are no new elements or findings adding to the claim for protection.

[46]It was not suggested that that meant that the Asylum Service had to consider the further representations in the first place; they could be considered by the RRA, as Cypriot law required.

[47]Chapter V Article 46 deals with the right to an effective remedy. By Article 46(1):

“Member States shall ensure that applicants have the right to an effective remedy before a court or tribunal, against … (a) a decision taken on an application for international protection, including a decision: … (ii) considering an application to be inadmissible pursuant to Article 33(2)….”

[48]Article 46(5) deals with the suspensive effect of the exercise of an effective remedy: applicants must be allowed to remain in the territory until the time limit for the exercise of the right to an effective remedy has expired or, if exercised within the time limits, pending the outcome of the remedy. But in respect of certain decisions, a court can decide whether or not the applicant may remain; Article 46(6). This provides:

“In the case of a decision: (a) considering an application to be manifestly unfounded in accordance with Article 32…;(b) considering an application to be inadmissible pursuant to Article 33(2)…(d); a court or tribunal shall have power to rule whether or not the applicant may remain on the territory…if such a decision [under (d)] results in ending the applicant’s right to remain in the Member State and where in such cases the right to remain in the Member State pending the outcome of the remedy is not provided for in national law.”

[49]Legal aid for appeals is dealt with in Articles 20 and 21: free legal assistance and representation must be granted on request for Chapter V appeals, at least to cover preparation of the procedural documents and for the hearing before a first instance court or tribunal. But Member States may refuse such assistance and representation “where the applicant’s appeal is considered by a court or tribunal or other competent authority to have no tangible prospect of success.” If a competent authority so decides, the applicant must have the right to an effective remedy before a court or tribunal against that decision.

[50]Article 21 contains the conditions for the provision of free legal assistance and representation. Member States may provide that the free legal assistance and representation in Article 20 is provided by such persons as are admitted or permitted under national law rather than NGOs, and is only for the appeals procedures under Chapter V at first instance, and not for any further appeals or reviews.

[51]Mr Knafler submitted, and it was not really contested, that a decision, rejecting further representations as amounting to a fresh claim to be examined, required an effective remedy before a court or tribunal; it was a court or tribunal which had power to decide whether the exercise of that right suspended removal. The effective remedy in Article 46 of the recast Directive was an appeal for the purposes of Article 20, and so free legal assistance was required. Article 46 (6)(b), in Chapter V, submitted Mr Knafler, was predicated on the availability of free legal aid for an appeal. But that is obviously subject to Articles 20 and 21.

[52]Mr Knafler also referred to Article 47 CFR which requires those whose EU rights are violated to have an effective remedy before a tribunal, within a reasonable time in a fair and public hearing, with legal aid for those who lack the necessary resources, in so far as thatis necessary to “ensure effective access to justice”. The provisions of Articles 20 and 21 are the clear expression of the extent of that obligation in this context.

[53]The Procedures Directive, 2005/85/EC, in force in the UK, is not significantly different for these purposes from the recast Directive. By Article 32, the application may be examined in the framework of the previous decision or appeal; it is subject to a preliminary examination to see if there are new elements or other reasons to re-open the procedure, and if there are, the application is to be examined further in accordance with the basic procedure in Chapter II. But Article 34 permits the preliminary examination to be carried out by written submissions without a personal interview. Chapter V, Article 39(1)(c ), provides for the right to an effective remedy against a decision not to examine further the subsequent application under Article 32; the Member State is not obliged to suspend removal while the remedy is pursued, though it must provide a means of challenging any non-suspended removal. Article 39(3) permits it to make rules about whether and when an appeal has suspensive effect. (Article 25 deals with applications which are not admissible in the sense that they do not require any substantive examination at all: one such is an application identical to one which has already received a final decision. I do not consider, especially in the light of Article 32, that a subsequent application which contains no new material of significance but which is not identical is inadmissible under Article 25.)

[54]Article 15 deals with legal assistance and representation. “In the event of a negative decision by a determining authority…” it is to be provided free on request. The Member State can limit it to Chapter V appeals before a court or tribunal, and not for “onward appeals or reviews”, and can limit it by cost, means and merits, so that it may be awarded “only if the appeal or review is likely to succeed;” Article 15(3)(d).

[55]It does not seem to me that there is any great difference in substance relevant to this case between the two Directives.

[56]Article 13(1) and (4) of the Returns Directive, 2008/115/EC, not part of the CEAS, require an appeal or review mechanism to challenge decisions that someone should be returned, before a competent judicial or administrative authority, or before a competent, impartial and independent body. Legal aid, free of charge, in accordance with national rules must be available. This applies generally to removals.

[57]For the purposes of Elayathamby v SSHD

[2011] EWHC 2182 (Admin)

, which had held Dublin returns to Cyprus to be lawful, Sales J had read the relevant parts of a vast array of reports from which he obtained the picture that, whilst criticism could be made of asylum procedures in Cyprus, and I add that Cyprus is not the only country in the EU open to such criticism, those criticisms had been made with a view to improving the situation and not to condemn it or to find breaches of international obligations. There had been no suggestion by the US State Department, ECRI or UNHCR that asylum seekers could not safely be transferred to Cyprus under Dublin II, in contrast with the position in relation to Greece. The various NGO reports, such as from KISA, “Action for Equality, Support and Anti-Racism”, which describes itself as an “advocacy and services-providing grass root organisation”, and Future Worlds Centre, FWC, did not support the risk of refoulement either, and they carried less weight than the considered views of UNHCR, ECRI or the US State Department. The NGOs lacked resources, and did not have the same overall and general perspective, nor did they engage in the process of dialogue with the Government in the same way, enabling it to comment on the reports, so they risked being rather one-sided. He was particularly critical [59] of the report commissioned from KISA. He refused the declaration of incompatibility, sought as here too.

[58]I should set out some passages from that judgment, relied on in the SSHD’s decision letters, and by Mr Manknell here on her behalf. “42. A number of important points can be made by reference to this extended passage [from MSS v Belgium ECtHR Grand Chamber]:

‘… (vi) The Grand Chamber considered the possibility of asylum seekers in Greece applying for interim measures from the ECtHR under Rule 39 to protect them against removal to a third country where they might be killed or suffer ill-treatment, but concluded that this potential layer of protection was illusory because of difficulties facing asylum seekers in Greece: paras. [355]-[357]. This conclusion is founded on findings at paras. [173]-[181] that there are major difficulties for asylum seekers in gaining access to the asylum procedure in Greece (including being deprived of all information about asylum procedures and how to make an application for asylum and in some cases being tricked by the police to discourage them from following the procedures), leading to the assessment at para. [182]…’

There is no evidence of an equivalent pattern of conduct by the Cypriot authorities to deprive potential asylum seekers of all information about their rights or how to apply for asylum. There is no good basis in the evidence available about Cyprus for concluding that applications to the ECtHR for interim measures under Rule 39 are “almost impossible”. This is a significant point, since the possibility of having access to the ECtHR to secure interim relief is an important safeguard against the possibility of refoulement to another country where there is a real risk for the individual of death or ill-treatment. 43. The contrast between the position of the Claimant in the present case at the time of the hearing before me and the position of the applicant in M.S.S. in relation to the possibility of making an application under Rule 39 is particularly stark. ….[The position of the applicant in M.S.S.] is not the position of the Claimant in this case as things now stand. In the circumstances which now apply, the Claimant is represented by lawyers and is known to KISA, a local non-governmental refugee organisation, which –if he is sent to Cyprus –will be in a position to assist him in making a Rule 39 application to the ECtHR should the need arise. 44… But it does seem to me to be relevant that the statistics for Cyprus for successful asylum applications at first instance as compared with total applications considered at first instance (as published by the Eurostat agency of the European Commission) appear to be respectable or even good by comparison with those of other countries whose proper compliance with their international obligations has not been in question in any way (such as France, Ireland and the United Kingdom),and appear to be very much better than the statistics for Greece. The number of positive decisions as compared with the number of total decisions for these countries for 2010 were: Cyprus 425 out of 2,440; France 5,115 out of 37,620; Ireland 25 out of 1,600; United Kingdom 6,440 out of 26,690; and Greece 105 out of 3,455. This is not indicative of a situation in which asylum seekers in Cyprus are in practice unable to vindicate their rights to protection against refoulement in appropriate cases. 46. Overall, the picture one gets from the reports from international organisations in relation to Cyprus which have been put before the court is that certain criticisms may certainly be made about aspects of the asylum procedures in Cyprus, but these are advanced with a view to promoting improved practice in this area and not to condemn Cypriot procedures as clearly inadequate or in breach of its international obligations. It seems likely that a broadly similar picture, where criticisms may be made of asylum procedures in an effort to encourage improvements, could be drawn in relation to the asylum procedures of most, if not all, the ECHR Contracting States (and by way of example I was shown reports critical of aspects of the United Kingdom’s asylum procedures). But in such reports it is not suggested that such criticisms as are made show that there is any substantial failure on the part of Cyprus (or the United Kingdom, or any other state subject to similar criticisms) to comply with its international obligations with respect to protecting asylum seekers against refoulement to countries where they may be at risk; nor is it suggested that asylum seekers cannot safely be sent to Cyprus (or, as the case may be, the United Kingdom or any other state subject to similar criticisms) under the Dublin Regulation procedures. 49. The absence of adverse comment by the UNHCR regarding Cyprus’s asylum procedures is very telling. According to the ECRI report of 23 March 2011 there is close co-operation between the Cypriot authorities and the UNHCR, “which has unrestricted access to files and can present its views on cases”. So if the UNHCR had significant concerns about Cyprus’s procedures, he would be in a position to inform itself and to articulate such concerns. He has not raised any significant problems with Cyprus which might suggest that individuals could not be sent there under the Dublin Regulation procedures –by contrast with the position he adopted in relation to Greece, as set out by the Grand Chamber in M.S.S.. Local refugee support organisations such as KISA and Future Worlds Centre (which received funding from the UNHCR) are also well placed to present any criticisms they have of procedures in Cyprus to the UNHCR for his assessment. The UNHCR has not endorsed the criticisms which they make, as relied on by the Claimant (see below -the same point may be made in relation to the US State Department: it is clear from its 2010 Report that KISA communicates concerns it may have to the State Department, but the State Department reports that overall Cyprus does provide practical protection against refoulement). 55. In my judgment, the Claimant gets little or no support for his refoulement argument from the reports from international organisations. Indeed, the overall impression from those reports is that Cyprus is not regarded by those organisations as having problems in relation to its asylum procedures which are in any way comparable with the position in Greece reviewed in M.S.S.. Accordingly, Ms Physsas was obliged to submit that the court should treat certain reports from local Cypriot refugee support organisations (KISA -an acronym for its Greek name, which in translation is Action for Equality, Support, Antiracism; Symfiliosi; and Future Worlds Centre, which has been funded by the UNHCR to implement a project entitled “Strengthening Asylum for Refugees and Asylum-seekers in Cyprus”) as having greater weight. The reports from these organisations which she relied on were: a KISA report dated May 2011 entitled “Asylum procedures and conditions of Asylum Seekers in Cyprus” (which those acting for the Claimant had asked KISA to provide as an expert opinion in the Claimant’s case), a report by Symfilosi of 2009 for the Jesuit Refugee Service in Europe; a questionnaire return on Cyprus by Future Worlds Centre to Refugee Council Hesse dated 4 January 2011; the “Report on the Asylum Procedure in Cyprus –2011” by Future Worlds Centre dated 8 June 2011; a KISA report entitled “Migrants’ detention and ill treatment in Cyprus” dated 25 May 2008; a KISA report entitled “Reception Conditions of Asylum Seekers” dated 25 May 2008; a KISA report entitled “KISA’s positions on the Fifth periodic report submitted by the Government of Cyprus on the implementation of the International Covenant on Economic, Social and Cultural Rights” dated 24 October 2008; a KISA report entitled “Asylum Procedures in Cyprus” dated January 2009; and a KISA report entitled “The Right to an effective remedy in the context of asylum procedures in Cyprus” dated 29 June 2009. 56. In my assessment, although the reports of these local organisations which are produced for publication in the public domain are entitled to weight (as equivalent reports from local organisations in Greece were taken into account in M.S.S. alongside reports from international organisations), they carry considerably less weight than the considered reports of bodies such as the UNHCR, the ECRI, LIBE and the US State Department. Local organisations such as KISA do not have the resources nor the general perspective on acceptable standards of protection for asylum seekers which those other bodies have. Nor is it apparent that the local organisations are engaged in a process of dialogue with the Cypriot authorities in the way that the UNHCR, the ECRI and LIBE appear to be, in the course of which the authorities are given an opportunity to comment on possible criticisms. Therefore, the reports of the local organisations risk being rather one-sided in the picture they present. 57. Moreover, looking at the specific comments in the published reports from local organisations, I do not think that they provide especially compelling evidence to support the Claimant’s refoulement argument. For example, in KISA’s report entitled “Reception Conditions of Asylum Seekers” dated 25 May 2008, it refers to an “improvement of access to asylum procedures” which it acknowledges has taken place, and although it refers to continuing problems with the procedures its comment is:

“In very rare occasions asylum seekers are arrested and deported instead of given access to the Asylum procedure”

. In its report of January 2009 it again referred to “the improvement of access to asylum procedures in the last few years”, while referring to continuing problems. These materials cannot outweigh the general impression which emerges strongly from the reports of international organisations, as referred to above. 58. I consider that the other materials produced by the local organisations on which the Claimant sought to rely carry considerably less weight than their published reports, since they do not afford any opportunity for assessment by neutral outsiders such as the UNHCR or for response by the Cypriot authorities. The Grand Chamber in M.S.S. does not give any indication that it would be inclined to give significant weight to unpublished materials of this kind. 59. In particular, I should comment on the Claimant’s use of what purported to be an expert report from KISA commissioned by the Claimant’s lawyers for the purposes of this case. In my view, this was an unsatisfactory document which should be given comparatively little weight: … (vii) Still more fundamentally, there is nothing in the Grand Chamber’s judgment in M.S.S.to lend support to the idea that claims regarding potential violation of Convention rights on the basis of a refoulement argument should be determined by reference to expert opinions obtained for the purposes of court proceedings regarding the claims in question. The materials relied on by the Grand Chamber were not of that character. They were published reports from highly regarded bodies, of which the Greek government would obviously have been aware and in respect of which it would have had a full opportunity over several years to answer (if it could) any of the criticisms levelled against it. A private expert report of the kind commissioned from KISA by the Claimant is, in my view, in a completely different category. Other than in exceptional cases, I do not think it is appropriate for a refoulement argument of the kind made in M.S.S. and in this case to be mounted by reference to private expert reports. They will not usually carry significant weight, when compared with the sort of materials to which the Grand Chamber had regard in M.S.S., and are more likely to add disproportionately to the time, effort and expense involved in determining the proper outcome on such an argument. I do not think that M.S.S. type claims should be converted into trials by way of consideration of opposing expert reports. 68. Although in the various reports of international organisations there are, at some places, some criticisms of the detention conditions in which asylum seekers are held, they are comparatively muted in tone. They fall a long way short of the sort of material which could support a claim that the Defendant would act in violation of the Claimant’s rights under Article 3 by sending him to Cyprus to face detention there. The overall picture is very different from the sorry state of the Greek detention facilities assessed in M.S.S.” ‘… (vi) The Grand Chamber considered the possibility of asylum seekers in Greece applying for interim measures from the ECtHR under Rule 39 to protect them against removal to a third country where they might be killed or suffer ill-treatment, but concluded that this potential layer of protection was illusory because of difficulties facing asylum seekers in Greece: paras. [355]-[357]. This conclusion is founded on findings at paras. [173]-[181] that there are major difficulties for asylum seekers in gaining access to the asylum procedure in Greece (including being deprived of all information about asylum procedures and how to make an application for asylum and in some cases being tricked by the police to discourage them from following the procedures), leading to the assessment at para. [182]…’

[59]The points in [59 (i-vi)] were: no order for expert evidence had been sought, and it would probably have been refused; the KISA report was not from a lawyer but contained statements about the law in Cyprus; no full text translations of Cyprus statutes were provided (I was provided with them); its author made no expert’s declaration and did not refer to relevant but adverse materials; the comments of the Cypriot Government had not been sought; much of the report when properly understood damaged the Claimant’s case.

[60]Mr Knafler’s first main refoulement submission was that there was no legal aid for any challenge to a refusal by the RRA to accept further representations as a fresh claim, contrary to the Procedures Directives. The second was that an appeal to the Supreme Court did not automatically suspend removal. Together, these created a real risk of refoulement for those relying on further representations after a final determination of their asylum claims. He also suggested that Cyprus was unlikely to accept the representations as fresh claims, regardless of any judgment which might now be made as to their potential merits.

[61]Legal aid. The evidence supporting Mr Knafler’s first main submission started with the Asylum Information Database, AIDA, updated country report of February 2015. I was also shown the relevant statutes translated into English so that I could try to interpret them. The Refugee Law 2000 requires the further representations to be considered by whichever of the AS or RRA, the second tier body, had issued the final decision on the first application. Here, it would be the RRA. The RRA is a court under the Refugee Law, but it was not unlawful for it to consider the further representations behind closed doors. S16D of the Refugee Law governs subsequent representations or applications following a final decision. These representations are treated as further steps in the initial application, not as a fresh application. It is only if there is new material which “substantially increases the possibility of a grant of international protection” or if, through no fault of the applicant, the new material could not have been supplied earlier, that a new decision, one way or the other, must be issued. S16D provides for reasons to be given for the earlier decision being affirmed, if that be the outcome, and for notification of the right to appeal to the Supreme Court against the affirmation of the final decision. This is only on a point of law and not of substantive merit. That is akin to judicial review in the UK. The appeal has to be lodged within 75 days. So far no complaint can be made about the procedure.

[62]The Cyprus Legal Aid Law 2002, s6B, provided for legal aid before the Supreme Court against an unfavourable decision of the RRA under certain provisions of the Refugee Law, but these appear not to include s16D of the Refugee Law. Legal aid for an appeal to the Supreme Court would be available if the further representations were sufficient to lead to a further examination, but that examination had still led to a refusal of the claim. However, the AIDA report was unclear as to the extent of legal aid for the appeal to the Supreme Court against the rejection of representations as amounting to a fresh claim. Mr Knafler relied on an email the day before the hearing, from one of the main authors of the AIDA report as clarifying the position, as I have set it out.

[63]The legal aid position is referred to in MA v Cyprus ECtHR 4th section app 41872/10 23 July 2013. An illegally resident migrant can obtain legal aid to challenge detention and deportation at first instance, if the challenge has a reasonable chance. This covers a first instance recourse before the Administrative Court; [72]; s6C (aa) and (bb) of the Legal Aid Act, as amended. It does not apply to any further appeal to the Supreme Court. (The Administrative Court is a first tier Court, to which the Supreme Court is the second tier. The Administrative Court is sometimes spoken of as part of the Supreme Court.) A challenge can be brought against the RRA decision to the Administrative Court with legal aid, with the same provisos, [76]. MA v Cyprus does not refer to s16D Refugee Act decisions, which did not arise in that case.

[64]Ms Drousitou, a senior Legal Adviser and Head of the Humanitarian Affairs Unit at the FWC, the UNHCR implementing partner in Cyprus, dealt in her witness statement with the availability of legal assistance from NGOs for asylum-seekers. NGO employees were prohibited from representing asylum-seekers but could use associated lawyers, of which FWC had four. These lawyers could represent asylum –seekers through the initial procedures and could be a silent presence at the asylum interview before the AS. They could gather evidence and prepare appeals to the RRA. For Supreme Court appeals, they would do the preparatory work, but a law firm would submit the appeals. Legal representation was provided for a nominal fee by a collaborating private law firm, since lawyers were prohibited from undertaking pro bono work. KISA also assisted with selected cases, but did not have the continuous funding for legal representation which FWC enjoyed; NGO capacity to represent asylum–seekers was insufficient. However, failed asylum –seekers, including Dublin returnees, did not receive the legal assistance referred to in the AIDA report. There were very limited prospects of free legal assistance from other projects, such as UNHCR. Ms Drousitousaid that the NGO lawyers referred to in the AIDA report did not act for failed asylum seekers.

[65]Ms Savvides, Coordinator and Legal Manager at Caritas Cyprus Migrant Centre, an NGO, said that NGOs employed few lawyers, and only about two worked for church organisations who would work without charge. Caritas would refer cases before the AS, RRA or Supreme Court to FWC. She also said that it was very unlikely that Iranian Dublin returnees would be able to make fresh applications or to have their files re-opened. She provided no further evidence in support of either assertion, and for the latter, no more than had Ms Charalambidou.

[66]Mr Knafler submitted that this situation breached Article 15 of the 2005 Directive and Article 20 of the recast Directive. There always had to be at least one appeal. Legal aid was not available for the pre-appeal steps which was not of itself a breach of the Directive. Legal aid was needed for the appeal from the RRA, and the absence of free legal aid deprived appellants of an effective remedy. There was limited pro bono legal assistance. This affected the risk of refoulement particularly for those who had no legal skills, and spoke no Greek. It was next to impossible anyway to persuade the Supreme Court that there had been a legal error.

[67]Suspensive appeals. Mr Knafler’s second main submission in relation to the risk of refoulement concerned the fact that the appeal to the Supreme Court from the further final decision by the RRA did not have automatic suspensive effect. This was not necessarily a breach of either Procedures Directives, but it created the risk of refoulement. If the further decision had been made by the AS, the appeal to the RRA would be suspensive. An injunction could be sought from the Supreme Court to prevent removal, but the tests applied for the grant of such an interim remedy were very demanding: the applicant would have to show “blatant illegality” or “irreparable damage” if interim relief were not granted. This was not always accepted in a removal case; indeed it is described by the Cyprus Supreme Court Constitutional Rules as an “extraordinary remedy.” The failed fresh asylum claimant was therefore at risk of removal and refoulement before the final determination by the Supreme Court of his further attempted claim. He would not be removed while the RRA considered his case or if it decided that it did amount to a fresh claim, while it was determined. There appears to be a general time limit for seeking such “recourses” of 75 days from the act challenged. This description of the process is borne out by Moyo v Cyprus 3 Cyprus LR 1988, and MA v Cyprus above; [71 and 75]. I accept that what was found to be the law and practice in MA v Cyprus is sound evidence of the position at the time, though it cannot coverany changes responding to the judgment.

[68]I need to say a little more about MA v Cyprus here, though the case is also relevant to the detention argument. The first issue in it concerned refoulement. MA was made subject to a deportation order at a stage when his file had been re-opened. He could not be removed under Cypriot law until there had been a final determination of his asylum claim by the AS or, on further application, by the RRA. The deportation order was therefore contrary to Cypriot law. He was found to be at a real risk of refoulement to Syria since his removal was proposed when he had an arguable asylum claim; indeed by the time of the ECtHR hearing, he had already been granted asylum. MA was only not removed to Syria because of a Rule 39 request; [137-141]. But he had lacked an effective remedy for the breach of Cypriot law in the proposed deportation before his claim was resolved. This was because the only effective remedy was an automatic suspension on lodging a challenge in the Supreme Court, rather than the opportunity to apply for interim relief, and on the limited grounds available. The Cyprus Government had argued that in practice the authorities did not remove people until after the decision of the Supreme Court, at least in deportation cases, which is what MA was, and an application for interim relief was suspensive in practice. The Court did not, on the face of it, reject the Government’s contention that the lodging of a recourse as a matter of practice prevented removal. It said that the

Article 13 ECHR

requirement for an effective remedy for MA’s complaint of breaches of Articles 2 and 3 required non-removal to be guaranteed and not just a practical arrangement. Risks were involved where the suspension was granted on application and on a case by case basis; it was not sufficient since it was not an entitlement, and mistakes happened, as in MA itself. There had been no effective domestic remedy to counter that error. Since an automatically suspensive remedy was not available, the Government could not say that MA ought to have pursued the rather less effective remedy which was available. MA adopted the earlier approach in Conka v Belgium 3rd section app 51564/99 5 May 2002 at [81-3]. MA v Cyprus is concerned with an effective remedy for a breach of domestic law; it is not a decision that there must be a suspensive remedy while any Court challenge by an asylum seeker to an adverse decision is considered.

[69]There was worrying evidence, submitted Mr Knafler, of the consequences of the two shortcomings, lack of legal aid and lack of automatic suspensory remedy, to be seen in what actually happened by way of refoulement. An Amnesty International, AI, report of 2012 on the detention of migrants and asylum seekers in Cyprus, “Punishment without Crime”, instanced a Pakistani, challenging the dismissal of his asylum claim before the Supreme Court, who was removed the day after it had ruled that his continued detention was unlawful, but while the asylum challenge was still pending before it. The US State Department 2012 Human Rights report on Cyprus noted allegations that a lawyer representing asylum seekers claimed in reports “to AI and the European Commission that the Cyprus government had arrested and removed asylum seekers before final adjudication of their cases.” The note did not differentiate between those who had made fresh claims and those who had not, or the stage reached in the processing of their claims.

[70]The April 2014 report from KISA said that although the Aliens and Immigration Law specifically provided that non-refoulement was respected, asylum seekers who had failed before the AS and RRA were removed even though an appeal to the Supreme Court might still be unresolved, and the asylum seeker might have filed new evidence in support of a subsequent asylum application. Sometimes people were removed before the expiry of the deadline for making an appeal. The UNCAT report on Cyprus of June 2014 stated that, although Cyprus had still not established a suspensive appeal right for failed asylum seekers, Cyprus intended to establish a new administrative court with power to consider appeals by failed asylum seekers. This is not based on a correct understanding of MA v Cyprus, in my judgment.

[71]An adverse decision by the RRA led to an immediate removal instruction which could be enforced. The asylum seeker had to file three applications to prevent that: an appeal against the RRA’s decision, a challenge to the order to leave and also a challenge to any detention and deportation order. None were automatically suspensive. Legal aid was not in practice available for those remedies, and without legal aid, the asylum seeker could not prove to the Court that he had prospects of success.

[72]Ms Charalambidou, a lawyer specialising in immigration and asylum claims in Cyprus and who acted for MA, spoke of one of her clients as an example of this in a supplementary statement of 15 June 2015. He was ordered to leave Cyprus while an application to the Supreme Court was pending, and so left for Germany, whence he was returned to Cyprus under Dublin II. He obtained an interim measure from the Supreme Court to prevent removal. The RRA rejected his further evidence as giving rise to a fresh claim, and affirmed its previous final decision. He was then deported to Guinea, while he had four other applications pending to the Supreme Court. A Rule 39 application was submitted or granted; the statement is unclear as to which Court ordered the suspension of removal, but it came too late as he had already been removed. Ms Charalambidou also said that applications had to be lodged at the Supreme Court in person which was very difficult for those in detention. Mr Knafler pointed out that MG’s evidence was that his wife and children were refouled to Iran, because his wife was taken to prison shortly after return, charged with adultery and risked charges of apostasy.

[73]A report by ECRE, the European Council on Refugees and Exiles, and ELENA, the European Legal Network on Asylum, in April 2012, referred to an incident in 2010, when a number of failed Kurdish asylum seekers from Syria, were forcibly removed the day before a Rule 39 request was issued by the ECtHR; it appears that this did not occur while an appeal to the Supreme Court was pending, the request was lifted three months later, and some of those affected were then removed. This does not read to my mind, though the report implies otherwise, that there was any failure in the Cyprus procedures domestically or in relation to the response to the Rule 39 request.

[74]Mr Knafler submitted that these cases exemplified the increased risk of refoulement arising from the absence of automatic suspension and the absence of free legal aid for Supreme Court applications. They were likely to underestimate the scale of the risk, since these were examples known to lawyers through representing the individuals; many went unrepresented.

[75]Rule 39 was not an adequate answer, submitted Mr Knafler, as it was not a reliable safeguard or a general substitute for an effective domestic suspensive remedy. It was unrealistic to expect unrepresented appellants to make Rule 39 applications; even if they did, it could be difficult to obtain all the necessary papers. Ms Charalambidou said that there was a fax machine in the main detention centre for sending applications under Rule 39 to the ECtHR, but there was no system for explaining the right to the potential applicant. Ms Drousitou also said that failed asylum seekers would find it extremely difficult to access the Rule 39 procedure, and would almost certainly be in detention while they tried to do so. No legal aid was available for making a Rule 39 application.

[76]In MSS v Belgium and Greece [2011] 53 ECHR 2, the Grand Chamber at [355] rejected the Belgian Government’s argument that the refusal of a Rule 39 request that the applicant be not transferred to Greece showed that the transfer did not breach Article 3. When such applications are brought to it urgently, and it takes an urgent decision, it is not prejudging the merits of the underlying application at all. It will have neither all the information nor the time to analyse it.

[77]The ECtHR’s Practice Direction of 2014 states that interim measures are “only applied in exceptional cases”. It required “a real risk of imminent risk of serious, irreversible damage.” Any application had to be supported by reasons specifying in detail why interim measures were necessary, with all supporting documents. The Direction emphasised that the ECtHR was not an appeal court from domestic asylum and immigration tribunals. No application could be made where a domestic suspensive remedy existed in a removal case. The number of Rule 39 requests had grown very substantially between 2006 and 2010, from 112 to 4786, falling back to 2778 in 2011 because of procedural changes made by the Court. There had been a marked reduction in the proportion of applications granted too, but from 2012-2014 the percentage granted had gone up from 5% to 11%. None out of 23 applications, had been granted from Cyprus in those three years; only 9 had been in scope. For comparison, 20 out of 2147 applications from the UK were granted, 938 of which were in scope.

[78]The SSHD’s submissions. Mr Manknell for the SSHD submitted that there were many similarities in the arguments put forward in Dudaev and in this case. There was evidence in Dudaev from the Swedish co-ordinator of ELENA, to the effect that asylum claims in Sweden could not readily be re-opened by fresh claims; once the original claim had been refused, in Sweden, applications to re-open were examined in a very cursory fashion; it could not be reopened with automatic suspensive effect; specific applications for interim relief were rarely successful; no legal aid was available for a returned failed asylum seeker; and the applicants would be swiftly refouled from Sweden to Russia before the process could be concluded; an application for a Rule 39 ECHR request was an illusory remedy.

[79]The Divisional Court, Burnett LJ and Thirlwall J, was not persuaded that this evidence was sound. The Court pointed out that the Claimant could forewarn the Swedish authorities of their intention of making further representations and could provide the material before arriving in Sweden so as to speed up consideration of his claim when made. There was no evidence that Sweden systematically refused claims from a particular group of asylum seekers, contrary to general practice; its decisions were not irrational; nor did the alleged cursory examination of fresh claims receive any clear evidential support. The system for considering fresh claims there had many similarities to the position in the UK. Public funding did not have to be available for the whole process; those who felt strongly about the well-being of Dudaev, as did the ELENA witness, could be expected to assist, a point Mr Manknell put some weight on here, if time were short or legal assistance there limited. It was improbable that the Claimant would receive no legal assistance, especially given the support he had received from his lawyer. The absence of legal aid did not of itself lead to a real risk of refoulement. The Court, [77], thought it fanciful that the Claimant would be unable to avail himself of the Rule 39 procedure; the reports had only shown that in Sweden there were perceived difficulties in limited circumstances, rather than general difficulties, and in so far as time after arrival in Sweden had been the anticipated problem, Dudaev had plenty of time in which to prepare the further claims with evidence, and to prepare for a Rule 39 request. The evidence did not warrant the inference that rare applications showed that there was some more general failure in international obligations.

[80]Mr Manknell drew parallels between Dudaev’s position and the position of the three Claimants here: they were adult males, without their wives or children, and with employment skills. They had all been in the UK for at least a year where they had had the benefit of legal representation which would assist them to prepare for their return to Cyprus. Return should be no surprise, and so they could make arrangements for it in advance, and prepare their further representations, and indeed forward the RRA about them. They could be made aware of how applications for Rule 39 requests were made. They had received, for the purpose of the current proceedings, advice and assistance from NGOs in Cyprus such as the FWC, the co-ordinator of Caritas Cyprus, KISA and others. It should be inferred that those bodies, having helped here, would offer assistance on arrival in Cyprus. Whatever might be the difficulties for others, the question for the Court was whether these three could lawfully be returned to Cyprus. Indeed, they had all had legal advice in Cyprus when they were there.

[81]Mr Knafler submitted that Dudaev should be distinguished on four grounds: one of the witness statements relied on by him was inadequate, vague and partial; he had a Swedish lawyer passionately committed to his cause; he did not allege any breach of a Directive in relation to appeal rights and legal aid; and the Rule 39 submissions made here were not made in that case.

[82]At Dudaev [67] the Court entered a note of reservation about subjecting, as it had been asked to do by the Claimant, the decisions of Swedish Courts dealing with asylum claims to judicial scrutiny in UK courts, and though that did not apply to Swedish administrative decisions at least to the same extent, it was necessary to bear in mind that the UK Court might well not have the full background of the evidence, procedure and experience available. Mr Manknell urged the same caution here, although it is more Cypriot law and procedures which require caution than the merits of decisions themselves. They have largely not been produced.

[83]A similar note of caution, albeit on a different aspect of the law of a Member State, had been sounded in R (B) v SSHD

[2014] EWCA Civ 854

, which considered the approach to be adopted where the claim involved the assessment by the UK Courts of whether a foreign law, of a Council of Europe and EU Member State, was lawful. In that case the French law prohibiting the wearing in public of the burkha or niqab was invoked to contend that Dublin II return was prevented under the ECHR. At [18], the Master of the Rolls said “18. I accept the need for great caution here. The court should be very slow to decide that the legislation of a democratically-elected legislature of a member state of the European Union is incompatible with the Convention. But I do not consider that our courts are powerless to assess the compatibility with the Convention of legislation enacted by a foreign legislature. There might be exceptional circumstances in which it would be appropriate for such an assessment to be made. But I am not persuaded that such circumstances exist here. I emphasise that the Dublin II Regulation issue (the Secretary of State’s third submission) is a distinct submission.”

[84]The Claimants, Mr Manknell submitted, had conflated the risk of a breach or rather of systemic breaches of the Directives with what prevented their lawful return to Cyprus. The recast Directives were not the benchmark for the minimum content required for those purposes, though he accepted that it was Cyprus law which mattered. The real question was not whether the Directives were breached but whether Article 4 CFR or some other fundamental right was breached. Only the real risk of a breach of Article 4 CFR or Article 19 CFR or of a breach of

Article 3 ECHR

could prevent an otherwise authorised removal. There was no basis for saying that there was a lower threshold preventing removal under the CFR than under the ECHR. The approach in R (B) v SSHD

[2014] EWCA Civ 854

, [2014]1 WLR 4188 was to be applied.

[85]Article 52 CFR provided that where a CFR and an ECHR right corresponded, the meaning and scope of the former should be the same as that of the latter, though without preventing EU law providing for more extensive protection. For the purposes of the Charter, the evidence required to show a real risk is much greater.

[86]As at the date of the hearing, the date for the coming into force in Cyprus of the recast Directives had not arrived. The Claimants’ evidence said nothing about compliance with those Directives; rather there was evidence that Cyprus was working towards compliance. The European Asylum Support Office, EASO, an EU body, produces newsletters. I was referred to its April 2015 letter which contained an update on Cyprus and post-dates the February 2015 AIDA report. It pointed out that Cyprus was in the process of transposing the recast Standards and Procedures Directives into national law. Support had been requested for a support for a collaborative mechanism between relevant bodies and induction training on the roles and obligations of the various Cypriot institutions.

[87]The operation of the evidential presumption of compliance could be seen in Tabrizagh v SSHD

[2014] EWHC 1914 (Admin)

. This was a very important part of the inquiry when the issue related to a generalised concern, regardless of the circumstances of the individual, in an Article 3 case. Elizabeth Laing J had regarded the starting point, though not necessarily the decisive point, as being that the UNHCR had not asked for the suspension of removals to Italy; its recent criticisms had not begun to paint a picture which met the test. The significance thus attributed to the UNHCR position is consistent with a series of ECtHR cases; M.S.S is an example; see [347-350]. In EM (Eritrea) v SSHD,the Supreme Court accepted the “significant evidential presumption” from Elayathamby [64] that Member States would comply with their Convention and EU obligations. There was also a powerful presumption that Cyprus would address issues of breaches from within Cyprus through its domestic remedies. The domestic remedy was the first port of call, except in Article 3 cases or other extreme circumstances, even if the breach were serious, unless the domestic remedy was illusory; see for example, M.S.S. at [357].

[88]Mr Manknell submitted that little weight should be given to the reports relied on by the Claimants. They were not remotely of equivalent weight to UNHCR reports.A report from the UNHCR could readily be regarded as the litmus test for breaches of refugee obligations but there was none. He adopted the points made by Sales J in Elayathamby, notably at [59] set out above,in terms of their scope, range and objectivity. The AIDA report was concerned with best practice, not minimum standards, nor with the legal context; it had sought no comment on its conclusions from the Cyprus Government, and its concerns did not amount to evidence of a breach of international obligations.

[89]The opinion evidence from a number of individuals had not been adduced in compliance with CPR Part 35, nor with permission. As the reality of a risk of refoulement was an issue for the Court itself, such evidence was not admissible but, if admitted, should be treated with considerable caution. It would be different for issues where the question was whether a reasonable FtT might find for the Claimants, since the FtT admitted such evidence, and decided what weight to give to it. As to weight, Mr Manknell submitted that the evidence of individuals and NGOs such as KISA and FWC needed to be analysed for sources, whether anecdotal or statistical, and the extent to which each was just adopting what was said by another. Elayathamby made many of these same critical points. Mr Knafler said that this material is commonly accepted in Dublin return cases without demur; the Secretary of State should have raised these points earlier since this evidence was served in February and March 2015. The court should exercise its discretion both to receive it and to give it weight, subject if necessary to the formal requirements of CPR Part 35.

[90]The question for the Court on refoulement was whether there is sufficient general evidence of risk from reliable sources, M.S.S, or whether particular features of the asylum claimant created a real risk of refoulement. In NS, the CJEU had held [84] that it was not the “slightest infringement” of the Directives which could prevent transfer of an asylum seeker to the Member State responsible, since the objective conditions were already set out in the Dublin II Regulation. Mr Manknell submitted that the threshold was higher than the Claimants could demonstrate, especially in the absence of any UNHCR plea for transfers to be suspended. On the facts, the criticisms were misplaced or overstated, especially as the failings were alleged to be current failings. Even if there were shortcomings, that was a long way short of showing a real risk of refoulement, which was not a question of breach of the Directives but of a real risk on return.

[91]There was no requirement for any challenge to an adverse decision on an asylum claim to be automatically suspensory in effect; in the UK a challenge to a refusal to treat a claim as a fresh claim did not automatically suspend removal in all circumstances. Article 39(3) of the Procedures Directive required States to provide for the possibility of a stay while an appeal was heard. It was sufficient if this could be dealt with on an application for interim relief. Article 46 of the recast Directive may make the stay automatic unless a court rules against it. There was no evidence of a series of cases in Cyprus in which individuals had been removed despite meritorious cases. What is really alleged is that the bar to interim relief is set too high in Cyprus, since it required “blatant illegality” or “irreparable damage”. But, assuming that a breach of Article 3 would amount to irreparable harm, there was no reason to suppose that the Supreme Court applied the wrong test for whether there was a real risk of such treatment.

[92]In effect, the refoulement issue came down to the availability of legal assistance to challenge RRA decisions in the Supreme Court to apply for interim relief while any such challenges were pending. The RRA decision would be a judicial decision on the merits of the further representations. These Claimants have had advice and can reasonably be expected to access it. The legal aid position is equivocal. Although the Claimants say that legal aid is not available for a challenge to an adverse decision treating representations as not amounting to a fresh claim, the AIDA report said that it was only at the stage of judicial examination that state legal aid became available, subject to means and merits. The clarifying email should be treated with caution.

[93]If there were no legal aid for a challenge to a refusal to treat further representations as a fresh claim, that would not necessarily breach the 2005 Procedures Directive, since Article 15(2), which requires free legal assistance after a negative decision, is subject to Article 15 (3)(b) and (d), which limit it to those who lack sufficient resources and to those whose appeal or review is likely to succeed. Chapter V, Article 39, requires an effective remedy before a court or tribunal against a decision not to examine further a subsequent application for asylum; Article 39(1)(c ). Article 20 of the recast Directive is effectively the same except that there should be a judicial remedy in respect of a merits refusal of legal aid if that is done by a non-judicial body. Mr Manknell commented that the number of lawyers was not shown to be too small to deal with the number of asylum claimants. Besides, a breach of the Directive would not necessarily create a real risk of refoulement whether in these three cases or more generally.

[94]A refusal to accept representations as amounting to a fresh claim matters less if the applicant can, with legal aid, challenge the subsequent enforcement of return; MA (Cyprus); above. But the rather unclear relationship between the refusal of a claim to international protection and removal as a prohibited immigrant, with a further right of appeal, was not an issue for this Court to resolve. The 2014 KISA comments for UNCAT appear to suggest a further procedure existed but criticise knowledge of and access to the right of legal challenge.

[95]Any risk of refoulement could be dealt with by an application under Rule 39 to the ECtHR. The ELENA report discussed the reforms to the ECtHR and to Rule 39 requests; the 2011 Izmir Declaration had emphasised the importance of national remedies, if necessary with suspensive effect. There was nothing to suggest that the ability to make applications was illusory. Interim measures had been granted in 2010 to prevent a collective removal of 44 Syrian Kurds. Lawyers in a number of countries, including Cyprus, had said that they were unaware of any cases in which such a request had not been complied with. A major issue in Elayathamby had been the risk of refoulement to Sri Lanka, without proper consideration of his claim to be a refugee. Sales J rejected that contention: he pointed to the “particularly stark” difference between the position in M.S.S in relation to making a Rule 39 application and the position in Cyprus; KISA, to whom he was known, would be able to assist in that respect, and he was already represented by lawyers. There was no untoward disparity in failure or grant rates as between Cyprus and other countries. The same applied to these three Claimants, submitted Mr Manknell.

Conclusions: refoulement

[96]I accept the position agreed between the parties that, where, as here, there is no in -country right of appeal, it is for this Court to judge whether there is a real risk of refoulement, unaffected by how the FtT might resolve the issue. This is the position whether the claimed fear of refoulement is expressed as a real risk of a breach of

Article 3 ECHR

or Article 4 CFR. I shall assume that a real risk of a breach of Article 19(2) CFR, which expressly forbids refoulement, would also prevent a Dublin II return. The refoulement claims here are based wholly on systemic risks, and not on particular individual circumstances.

[97]I also accept that there is a significant evidential presumption which applies to this issue, which it is for the Claimants to overcome by sufficiently persuasive evidence, that Cyprus as an EU Member State would comply with its various obligations under the Refugee Convention, CFR and ECHR, and would not refoul any of the Claimants. That is of course not to say that they could not lawfully be returned to Iran.

[98]The claims here are limited to those who have already received a final adverse decision on their claims, who make a fresh claim on return, and whose further representations are rejected by the RRA as not meriting further examination. No complaint is made about the position of those whose further representations lead to a further examination of their claim, since they enter the general asylum claim process of which for these purposes no complaint is made.

[99]I reject the tentative suggestion that no one succeeds in having their further representations treated as fresh claims. This was based on two short comments, without any further evidential support, in witness statements from Ms Charalambidou and Ms Savvides. These were bare assertions, without evidence of the merits of those whose claims go no further, or any statistical support, or of any reasoned or unreasoned RRA decisions. Accordingly, what I really have to judge is whether considered RRA decisions, adverse to the Claimants, that their further representations do not amount to fresh claims meriting further consideration, can lead to a real risk of refoulement.

[100]That illustrates the start of the problems the Claimants face in overcoming the substantial evidential presumption that their Article 3/non-refoulement rights will be respected. First, there is no reason at all to suppose that the RRA decisions will not be in their favour, if their representations properly merit further examination. Second, there is no reason to suppose that adverse decisions will not be reached on the same basis of careful scrutiny that they would receive in the UK from a judicial body. The RRA is the appellate body for appeals from the AS, and is a form of Court though it may not sit in public. So the predicates for Mr Knafler’s arguments that the Cyprus procedure for dealing with Dublin returnees, already with a final adverse decision, is systemically liable to permit refoulement are(i) that adverse decisions will be made, which may not happen at all, and

(ii) that, if made, the adverse decision that the further representations merit no further examination, is wrongly made. Without a wrong decision there is no risk of refoulement.

[101]The effective remedy for an adverse decision does not require a full merits review. It is sufficient if there is a route of challenge equivalent to judicial review only. So the reason why the adverse decision is wrong has to amount to an error of law, correctable by legal challenge. Absent such an error, the adverse decision is in effect not wrong. It is in the nature of judicial review that a proven error of law on the first decision may not lead to a different outcome when the further decision is retaken on a lawful basis. Even if the RRA decision erred in law in concluding that the further representations did not amount to a fresh claim, and the correction of that error meant that the further representations did amount to a fresh claim, it would still not follow that the claim itself would succeed after its further examination.

[102]The claimed risk of refoulement is based on the various shortcomings asserted in the legal and legal aid system after an adverse RRA decision, but it is necessary to remember that there are many reasons why an adverse decision, disputable on its merits though such a decision often is, will not lead to refoulement, even though it leads to return. After all failed asylum seekers, not in need of international protection, can be returned, and that is not refoulement. The risk is confined to those adverse decisions, based on an error of law which, if corrected, would lead to a different outcome on the asylum claim itself, and does not cover those which on full examination lead to ultimate rejection of the claim.

[103]There is no evidence whatsoever which bears directly on this issue, the only basis for the refoulement ground now open to Mr Knafler. There is no statistical evidence as to the number of fresh representations leading to claims being re-opened or not, the number which contain errors of law, leading to further examination or the outcomes of such deliberations. There is none in relation to the effect of errors of law on substantive outcomes generally. There was no evidence that decisions of the RRA, more generally, were themselves sufficiently often in legal error, the correction of which had led to a change in outcome, that the absence of a correcting mechanism meant that there was a real risk of refoulement. I am not prepared to assume that legal challenges, even when successful, alter the substantive outcomes in any remotely significant number of individual cases. Nor am I prepared to assume that the Directive provisions on effective remedy and legal aid themselves carry any necessary implication that without them, there would be a real risk of refoulement. They harmonise the differing national systems. A review mechanism for legal error in first instance decisions is a common feature of legal systems to correct legal errors of course, but that is not the same as showing that they prevent a real risk of an erroneous substantive decision on corrected law, if error had been made.

[104]There is no general evidence about the level of refoulement, although there were instances cited in which refoulement was alleged, particularly in relation to the effect of non-suspensive appeals. There is no evidence or report from UNHCR, saying that returns to Cyprus should be stopped because of the risk of refoulement, nor from the US State Department. There is nothing approaching a general consensus among international NGOs, that failed Dublin returnees in Cyprus are at a real risk of refoulement. Indeed, although the risk of refoulement was a major issue when the system in Cyprus was examined closely in Elayathamby, it is difficult to see that reliance was placed on the shortcomings now put forward, which would have been present then, and many of those providing reports and evidence then featured again here. It is difficult to see that the position in Cyprus has been worsening after Elayathamby. The clear impression from the reports is that changes are being made to improve the system, though not as far or as fast as NGOs think is required.

[105]Mr Knafler argued that three linked problems led to a real risk of refoulement: the absence of a suspensive remedy, the high threshold for interim relief, and the absence of legal aid in breach of the original and recast Directive; no NGO assistance was in reality available as a substitute. In large measure, these arguments were based on shortcomings asserted in Cypriot law and practice when compared with the various EU Directives. It was not, in reality, that automatic suspensive remedy or a low threshold for interim relief and legal aid for legal challenges to refusals of further representations of themselves were a demonstrably necessary part of preventing a real risk of refoulement in any legal order. Nor was there evidence that those shortcomings had led to refoulement. It was rather that these aspects of the Cypriot legal order contravened various EU Directives, and therefore there was a real risk of refoulement.

[106]In my judgment, this conclusion simply does not follow from its premise. Even if Mr Knafler showed that the Cypriot system was defective in the way he contended, that would not of itself show that there was a real risk of refoulement. The most that can be said is that had all Directives been fully complied with, there could be no real risk of refoulement. But that is simply not enough to show a real risk of refoulement.

[107]Although that suffices to dispose of the refoulement claim, nonetheless, I shall examine the contentions. First of all however, I make certain observations about the nature of the exercise which those submissions ask the Court to undertake. (1) The exercise involved the interpretation of Cypriot statutes on legal aid, and its appeal system. This evidence as to foreign law was not the subject of any expert or objective evidence which is how the content of foreign law is properly proved. This is no mere quibble. In essence I was asked as a non-Cypriot judge to interpret Cypriot legislation, in what may be a competent but not official translation, and assuming that I had all the relevant parts. I was asked to do so on the basis of non-expert reports, not all evidently impartial, some from non-lawyers, and on the basis of submissions from English barristers on behalf of their clients. The reports and witness statements did not contain any agreement by the Cyprus Government that the interpretation and effect of Cypriot law put before me by the Claimants was correct, though I can well imagine that the Cyprus Government would not see it as part of its functions to assist a foreign court to sit in judgment on it. The comments on how these provisions worked in practice came from reports by bodies which were evidently concerned on the part of asylum seekers, and cannot be assumed to be objective. The relationship between the challenge to removal and to adverse asylum claim decisions was unclear to all, and potentially very important. This is not how such an exercise should be done; it has been made clear by Sales J in Elayathamby, that that is not good enough.

[108](2) I was asked to find that Cyprus was in breach of existing Directives, since the existing and recast Directives are not so very different in the relevant respects, and to hold that it would be in breach of the recast Directives when in force. This is a task which is for the CJEU; indeed the Strasbourg Court makes such findings where Directives are part of domestic law. It may be necessary for a UK Court to undertake this task, since the presumption of compliance is rebuttable, but it is not an international court empowered to rule on whether a Member State of equivalent status to the UK has breached its international or domestic obligations. The judgment in R(B) v SSHD [18], above, dealing with the need for great caution in deciding that the legislation of a democratically-elected legislature of a member state of the EU is incompatible with the ECHR, is apposite, as is the comment in [67] of Dudaev. This situation therefore requires considerable caution and circumspection on the part of this Court before it holds that Cyprus would breach its international obligations.

[109](3) The criticisms made by Sales J in Elayathamby of the similar type of evidence from some of the same bodies whose reports were relied on here are equally applicable. I agree with what he said at[56] about the relative significance of local and international NGO reports before Strasbourg. I accept much of Mr Manknell’s submissions in principle on the nature of the Claimants’ evidence. The evidence is put before the Court as expert opinion evidence. No applications under CPR Part 35 were made. None of the statements purport to comply with the duty of an expert to the Court. None of the reports proclaim the objectivity required. The refoulement issue is an issue for the Court. It is not like the detention issue where the question is whether a reasonable FtT could conclude that there was a real risk of a flagrant breach of an ECHR right, for which purposes, the evidence it admits routinely, under its rules, is evidence of the sort relied on here, and often of rather lower quality.

[110]Mr Knafler submitted, based on what Sales J had found in Elayathamby, that even if the AIDA report were not broadly based, ECRE/ELENA edited and wrote reports on a broader basis. The witness statements of Ms Drousitou and Ms Charalambidoushould be judged on their own merits, and they were objective in their evidence. The former was the main author of the AIDA report and the latter is a solicitor. The provenance of the statements should not lead to their being given limited weight.

[111]For present purposes, I propose to admit all the evidence placed before me on all issues, and to judge it on its weight. One of the drawbacks of the rolling litigation is that the interlocutory issues did not include this one; new decision letters preceded the hearing by a month or so; they were responded to by further reports and statements; the Skeleton Argument stood for Grounds, which were then varied to alter the focus of the argument in a substantial way, away from the reception conditions and

Article 3 ECHR

arguments. Where issues are raised which fall for decision by the Court on the two bases here, (one for the Court itself to decide and one to be judged on how a Tribunal would react), and evidence is held inadmissible on the one but admissible on the other, and there may be a degree of overlap as well, the decisions could be inconsistent because of differences in the evidence admitted. That would be a risk here. There is much to be said for the admissibility of evidence on issues which relate to the ECHR to be as wide as that which Strasbourg would admit. For these purposes, I consider that I can decide what weight to place on the evidence including that which might have failed to pass the CPR 35 tests for admissibility as expert’s evidence.

[112](4) The Claimants’ arguments largely derive from the recast Directives. But the form of transposition was unknown at the time of the hearing; they were not yet in force; there could be no experience of them in operation. There was no evidence of any value about the intentions of the Cyprus Government in that respect. Now it may be that Cyprus was in breach of the earlier Directives in respect of applications to challenge decisions of the RRA rejecting as fresh claims the further representations of Dublin returnees who had already had a final adverse decision. But there is no doubt but that Cyprus, with EU encouragement and assistance, has been moving towards satisfactory transposition of EU Directives. I would require very clear evidence in order to find that Cyprus would breach a Directive, the transposition of which was not complete, and of which there was no operational or practical experience. The evidence does not support a conclusion that Cyprus simply carries on as before, ignoring what is required of it.

[113]The evidence satisfies me that the only available remedy for an adverse RRA decision rejecting further representations as meriting further examination is by an application to the Supreme Court. That does not contravene any EU Directive requirement; they do not require that the remedy be a full merits appeal, and review for error of law is sufficient.

[114]It is then said that the lodging of an application or even the fact that time for doing so has not expired does not prevent removal. The focus of the case was on the former. I accept that there is currently no automatic stay on removal simply because an appeal to the Supreme Court has been made. A specific application for interim relief must be made. It appears that an application for a stay on removal does not itself operate as a stay at present. The Procedures Directive, current at the time of the hearing, does not require an automatically suspensive remedy for failed asylum seekers, who wish to challenge the refusal of the RRA or the like, to admit further representations as a fresh claim. They have to be able to seek a stay, but the Member State can choose how that is provided. Cyprus law did not fail to comply with that aspect of the Directive then in force.

[115]The recast Procedures Directive, not in force in Cyprus at the time of the hearing, and in the process of transposition at the time the evidence was prepared, requires that a remedy be available, and that a court have power to decide whether removal should be prevented in cases declared inadmissible under Article 33(2). How this is to happen is not clear. It may be that the State has to apply for a lifting of the general Article 46(5) stay; it may be that in those cases where the stay may not be suspensive, as with an application declared inadmissible under Article 33(2), the Directive expects or permits an application for a stay to be made to the court by the person to be removed. It seems to me impossible to say whether, whichever way the Directive is interpreted, that Cyprus will be in breach. If the stay is automatic, and the State must apply for it to be lifted, there is no reason to suppose that the Directive will not be transposed correctly. If the applicant must apply for a stay, as now, the route and process may or may not be changed from what it is. But the law permits such application to be made. There is vague evidence that the transposition is not to bring about an automatic stay, but that may not be required.

[116]MA v Cyprus calls for comment in these circumstances. Mr Knafler relied on it to show that the ECtHR required a guarantee that a stay would take place, not just that an application could be made for one, or that a practice existed not to remove someone while an appeal was pending. But the decision concerned the removal of someone who was entitled to suspensive relief, entitled not to be removed, and whose removal would be unlawful because it was based on an erroneous view of the person’s removability. MA’s file had been re-opened, so there was no final decision, and he could not be removed under Cypriot law. There was no effective domestic remedy for the proposed unlawful removal, in breach of

Article 13 ECHR

. The Cyprus Government argument was that he should have applied to the Supreme Court, and although that did not mean there would be an automatic stay on removal, in practice it did not remove people in those circumstances. But the ECtHR held that that was insufficient; errors could be and were made, as in that case. If removal were unlawful, an effective remedy had to be provided and that was an automatic stay; a practice, which might well work in most cases, was insufficient.

[117]That is not the position here. There was no right, under the original Procedures Directive, not to be removed while time for lodging an application to the Supreme Court had yet to expire, nor while an application, substantive or for interim relief, already lodged had yet to be heard. A specific application had to be heard and relief ordered, though that is not to say that removals necessarily take place before that anyway, though they can do. Once it is clear that that Directive permitted removal before all avenues of appeal and stay were exhausted - and the UK permits removal while applications are pending and assuming that Directive to be part of Cyprus domestic law, the ECtHR could not hold that compliance with domestic law required a stay to be guaranteed. This is not because the law has changed, but because MA v Cyprus does not apply to the circumstances here. As I have said, the position under the recast Directive in relation to automatic suspension is not clear, and there could be no evidence of operational experience.

[118]It is next said that the test applied for the grant of interim relief by the Supreme Court is very restrictive: it requires a great deal more than reasonable arguability. That is correct. Indeed, it bears a strong resemblance to the test applied now by Strasbourg to Rule 39 requests. I see nothing in the strictness of the test which contravenes EU Directives, recast or original. But although the ECtHR rejected the Cyprus Government argument in MA v Cyprus that its practice of not removing those who had an unresolved application for interim relief was an insufficient remedy, it did not reject the evidence that that was its practice. That is very relevant to judging the reality of any risk of refoulement.

[119]I accept however, that the strictness of the test and the requirement that it be based on an error of law means that an unaided litigant in person, and especially one dealing with law in a foreign language, is very unlikely to be able to mount a case successfully, and indeed to make the application at all. That is where the arguments about the availability of legal aid come to the fore.

[120]I would, with considerable reservations, interpret s16 of the 2002 Legal Aid Act as amended, in the way for which Mr Knafler contended. I see no legal aid coverage for s16D applications which covers those whose further representations are rejected as amounting to a fresh claim. The recast Directive requires that legal aid be available for a challenge to an admissibility decision of the type which would be at issue here, subject to means and merits. If the recast Directive requires it, as it appears to, I am not prepared to assume that Cyprus law remained unchanged by the transposition of the recast Directive, the terms of which I have not seen, nor that the Cyprus Courts will not recognise its directly applicable effect. Nor am I prepared to assume that the Cyprus Administrative Court or Supreme Court do not enforce the Directive, as directly applicable. The only evidence that it would be breached is that the original Directive was breached; I accept that the original Directive appears to have required legal aid for such a challenge and on the basis of the Legal Aid Act s16D, Cyprus was in breach of it. But I do not accept that that goes very far with a new Directive being transposed, and if inadequately transposed, directly effective.

[121]However, even if Cyprus law did not transpose the recast Directive adequately, and if no domestic remedy were available in respect of directly applicable Directives, and before any action were taken by or against Cyprus to correct the transposition, the Directive still does not require that free legal aid be available for all applications for a remedy in respect of the admissibility decision at issue here. The Directive permits means and merits tests. I assume that the Claimants would pass any means test, though I have no real evidence as to their means; it is impossible to say that they would pass any merits test. The relevant decisions have not been taken, and I cannot second guess their outcome. But the adverse decisions would be decisions by a specialist appellate body that there was nothing in the further representations which even warranted further examination. Some such cases may pass a merits test requiring the error of law to be reasonably arguable; but the nature of the decision would mean that many would not. So even if a past and proposed breach were established, it would not demonstrate a real risk of refoulement, overcoming the significant evidential presumption.

[122]If the Claimants, looking to pursue a challenge, were reliant on the resources of NGOs, or on the firms which did such work for a nominal fee, there is still a resource available. It is not great, and it may focus on those who challenge other decisions. I can give weight to what Ms Drousitou and Ms Charalambidou say about this, since it is within their knowledge and experience; the latter represented the largely successful MA in MA v Cyprus. There is however some prospect of some legal advice, and some representation reduces the prospect of refoulement still further, if there is in fact no legal aid. As in Dudaev, it seems unlikely that those who have engaged the support of those lawyers and NGOs would find them entirely unwilling and unable to help on return. Although these Claimants lack the personal impetus of Mr Dudaev’s Swedish lawyer, and Mr Dudaev’s own profile, they all had legal assistance when they were last in Cyprus.

[123]I am unable to reach any firm conclusion about Mr Manknell’s contention that legal aid would be available for a different challenge to prevent removal, removal as a prohibited immigrant. I can see that there is provision for a separate challenge in relation to a removal decision, and for legal aid for it, but I am quite unclear how that applies, if at all, to those who are prohibited immigrants, and the illegal migrant status of the Claimants appears not to be at issue, whose basis for staying in Cyprus has been resolved by the final decision of the RRA and in respect of which no further asylum based challenge is available. I cannot assume that that process permits a challenge to the lawfulness of the RRA’s decision, in the absence of much clearer and more explanation or evidence than provided by the references to which Mr Manknell drew my attention. So, although I am reluctant to express any firm view about that which is unclear in Cyprus law, that seems to me a source of help for the Claimants to which I should not attach significance. I may however be entirely wrong about it.

[124]Mr Manknell contended that the availability of a Rule 39 request was a sufficient back stop to mean that, if otherwise there was a real risk of refoulement, that would prevent it. Dudaev, and Elayathamby in particular, supported that submission but Mr Knafler pointed to the different evidence here. I accept that a Rule 39 request is available, and may provide a remedy in a few cases, reducing the risk of refoulement. But it is just a small one of a range of factors reducing the risk of refoulement. However, it would not be an adequate answer if a real risk of refoulement were otherwise established. The first reason is that the Strasbourg Court itself does not claim to provide that sort of answer routinely. It has recognised the need for domestic courts to provide the solution. It asserts that it lacks the resources to deal with the volume of cases which could come its way, and applies a high threshold to them. It cannot examine them all fully. Second, an application to the Court with the documentation required by its Practice Direction is likely to require legal assistance, even if without it the existence of the remedy were known to the would-be applicant. I accept that the fact that each Claimant is advised here by UK lawyers gives them a greater prospect of finding out about how to make an application to Strasbourg than many, and that they will be known to NGOs and to some other lawyers, so I do not wholly discount the possibility of an application.

[125]Accordingly, I am satisfied that, even if there have been or were to be breaches of the Directives, there is no real risk that the Claimants, if returned to Iran from Cyprus, would have been refouled there. It follows too that the inclusion of Cyprus on the list of safe third countries involves no incompatibility with the ECHR. Detention

[126]Mr Knafler submitted that, although the CJEU had not considered a detention case, if systemic failures created a real risk that someone would be detained in breach of Article 6 of the CFR, its equivalent to

Article 5 ECHR

, removal under Dublin II would be unlawful. This followed from its jurisprudence in the NS and EM (Eritrea)sequence of cases and would be equivalent to the thinking in (R)Ullah v Special Adjudicator [ 2004] UKHL 26,

[2004] 2 AC 323

, at [34].

[127]The test for EU law purposes was not the real risk of a flagrant breach of Article 5, as it is for ECHR rights in a “foreign” case. Despite the language of NS and Abdullahi, it was not only a systemic breach of Article 4 CFR which could prevent return; a systemic breach of Article 19 CFR would also suffice. Nor could the Court therefore exclude the effect of systemic breaches of other Articles of the CFR. That was not acte clair in any event. The CJEU required a systemic or an important breach. Article 52 CFR did permit a different test, more favourable to the individual, than under the ECHR. While it was insufficient to point merely to a number of breaches of a Directive to prevent removal under Dublin II, systemic breaches could displace the significant evidential presumption of compliance, and could potentially show a flagrant breach of

Article 5 ECHR

as well.

[128]Mr Knafler raised four detention issues:(1) there was the possibility of detention without individual assessment just because they would be Dublin returnees, and their earlier claims had been rejected; this would be a breach of the recast Reception Directive,

(2) it was unlikely that the Claimants would be informed of the reasons for their detention,

(3) detention would be for an arbitrary and lengthy period of time, and

(4) this would amount to a breach of national legal provisions and to a systemic and flagrant breach of

Article 5(4) ECHR

and of Article 15(2) of the Returns Directive.

[129](1) Detention as Dublin returnees without individual assessment: Article 8(1) of the recast Reception Directive, 2013/33/EU, states that a person should not be detained for the sole reason that he sought international protection under the Procedures Directive, but by Article 8(2), a person could be detained when it was “necessary” and on the basis of an individual assessment, for one of the six stated purposes. These include detention for the purpose of returning those illegally present, who have already had access to the asylum procedures, and whose application for international protection is reasonably thought to have been made merely to delay or frustrate removal. Those detained have the rights in Article 9, which include the right to a speedy judicial review where detention is ordered by administrative authorities, for which there should be access to free legal assistance, subject to financial limits, and representation by suitably qualified persons. Article 9(6) of the recast Reception Directive required legal aid for such a challenge, by contrast with its predecessor Directive or Article 15 of the Returns Directive. It provides that an applicant shall have “access to free legal aid and assistance and representation”, by suitably qualified persons, for the speedy judicial review required by Article 9(3). Article 9(7) and (8) permit this to be means tested and monetary limits to be placed on the assistance. It contains no explicit merits test.

[130]The original Procedures Directive, Article 18, prefigures Article 8(1) of the recast Reception Directive and also requires the possibility of access to speedy judicial review.

[131]Article 15 of the Returns Directive permits detention for the purpose of removal, in particular when there is a risk of absconding or where the individual avoids or hampers the process. Detention has to be ordered in writing and with reasons given. Where ordered by administrative authorities, there have to be means for the person to obtain judicial review of the lawfulness of the detention as soon as possible. These Directives are part of the law of Cyprus to which the Claimants would be returned, and would be treated as such by the ECtHR. Breach of those provisions would be a breach of domestic Cyprus law.

[132]The evidence relied on by Mr Knafler was as follows. The AIDA report, of February 2015, states that the majority of returned asylum seekers, excluding women and children, are placed in detention, not by the AS, but by the Migration Department which is in charge of administrative detention. Detention is under the Aliens and Immigration Law, enabling persons to be detained for the purpose of return; it transposed the Returns Directive. It says that that Department considers, without individual examination, that all Dublin returnees are at risk of absconding. That is however a risk which permits detention. At the end of 2014, the practice changed so that it was only those Dublin returnees who had had a final decision, as is the case with these Claimants, whom the report expected to be routinely detained, though it had no experience to go on at that stage. Those who awaited a final decision were now placed in Menoyia reception centre, and not detained, under a new policy. Those awaiting a decision of the Supreme Court were routinely detained, even though it was the Supreme Court’s decision which was the final decision.

[133]The AIDA report summarises an UNCAT report of May 2014, which says that the decision to detain is not based on the asylum seeker’s individual circumstances; there is no assessment of the risk of absconding. The required safeguards were not implemented; detainees were rarely released by the authorities. The UNCAT report was written before the change of policy referred to in the AIDA report, since it refers to the routine detention of those whose cases were still pending. Under the old law, persons were detained regardless of personal circumstances or the stage which the examination of their claim had reached. Now, those whose further representations were accepted as fresh claims would probably be released from detention. Detention was initially for 6 months with a further year’s extension possible, but that upper limit did not apply to those who were “prohibited migrants”, and generally the Returns Directive safeguards did not apply to them. The UNCAT report on Cyprus of June 2014 stated that asylum seekers were detained under the Aliens and Immigration Law and not under the Refugee Law which permitted a maximum period of detention of 32 days. They were detained after the adverse administrative decision and pending its judicial review. The Aliens and Immigration Law did not list less coercive or alternative measures to detention, contrary to the Returns Directive.

[134]An ECRE Bulletin of February 2014 reported Amnesty International contending that Cyprus used detention of asylum seekers as a standard practice rather than as a last resort. But, in my view, it reveals a not uncommon problem with such reports, which is to ignore the relevant distinction between asylum seekers and those whose claims have been rejected and are properly to be removed. It appears that those to whom the report refers as asylum seekers are in fact those awaiting deportation, that is, those whose claims have been rejected, and who may well be awaiting removal as prohibited migrants. It treated them all alike in its 2013 report as well. I have already referred to the AI report of 2012 instancing a Pakistani whose detention was held to be unlawful, but who was removed immediately upon release, before the Supreme Court heard the challenge to the refusal of his asylum claim. The Report also claimed that the detention of those who entered illegally, “prohibited migrants”, was inconsistent with the Refugee Convention, which is not necessarily the case at all. They were not usually deported until after final consideration of their claims, but AI thought their detention unnecessary and unlawful.

[135]Ms Drousitou of the FWC stated that it was not clear whether Iranians would be detained or not, since the new policy that Dublin returnees would not be detained was not in writing, and it was not clear whether it would also apply to those whose cases had already been rejected by the RRA. It was highly likely that they would be kept in detention, if they did make new applications.

[136]Ms Charalambidou, in her supplementary statement, doubted the basis for the change in practice reported by AIDA in 2015. But her response, in my view, suggests that she may have been dealing with different issues. She said that her experience was that those who left Cyprus, either after a final decision, or before a final decision but whose files were closed because they failed to maintain contact with the Cyprus authorities, were on return still detained, even if they submitted fresh evidence or some other reasons for re-opening their files. She referred to the Ghanaian, above, and to an Iranian, who was released after his file was re-opened. But, in my judgment, that example shows nothing to support any unlawful acts by the Cypriot authorities, whether she approves of their acts or not.

[137]Infraction proceedings were begun in 2014 against Cyprus by the European Commission in respect of its compliance with the Directive in relation to detention and effective remedy. Mr Knafler submitted that this showed that Cyprus ignored its own law. I cannot draw much from that fact and many countries feature on the list of alleged infringers of EU asylum law.

[138]There was, submitted Mr Knafler, a history of the indiscriminate detention of Dublin returnees in breach of the Returns and Reception Directives. This was systemic and a flagrant breach of a fundamental protection, since they were not given individual consideration.

[139](2) Informing detainees of the reasons for detention. This was a requirement of

Article 5(2) ECHR

, Article 15(2) of the Returns Directive and Article 9(2) of the recast Reception Directive. The reasons must also explain how the detention decision may be challenged in law; Article 9(4) of the latter.

[140]Ms Drousitou of FWC said that the most common complaint by immigration detainees was that they were not told of the factual or legal basis for their detention.

[141]The AIDA report said that the majority of asylum seekers were not informed of the reasons or legal basis for their detention, rarely receiving the detention order. This, usually in English, rarely in Greek and never in a language understood by the detainee, includes a summary of the articles of law upon which the power to detain rests, and a brief description of the available remedies. The Migration Department said that detainees were always provided with written information about the reasons for detention and their rights, and every effort was made to provide them in a language understood by the detainee. KISA, other NGOs and the Ombudsman had noted several contrary reports by detainees.

[142]KISA reported the Government of Cyprus response to questions raised by UNCAT on these issues. A variety of laws including those passed in 2004, 2005 and 2011 provided rights for those taken into custody under the Aliens and Migrants Law: they were informed without delay of their rights and in a language which they understood; they immediately received a leaflet, available in ten languages including Arabic and Farsi, for which they signed a receipt; copies were also available inside the detention centre. The law also required them to be told of their right to challenge detention in the Supreme Court, but not of their right to an administrative review by the Minister. KISA in April 2014 reported however that there was a large gap between what the law said and what actually happened: whether the rights were provided was dependent on the arbitrary decision of those in charge of a detention centre or of individual officers. The leaflet was not always given, though a signature was usually obtained. The leaflet covered their rights in relation to detention but not in relation to the immigration/asylum claim process. AI also said in 2012 that immigration detainees were often not told why they were detained, and what their rights were in detention. There was usually a short letter referring to the legislative provisions and saying that they had been detained pending removal. AI had not come across leaflets in different languages.

[143](3) Detention could be for an arbitrary and lengthy period. This covers ground covered under the other issues.

[144](4) Systemic and flagrant breach of Article 5(4) ECHRand breach of Article 15(2) of the Returns Directive and Article 9(3) of the recast Reception Directive requirement for a speedy judicial review of detention where ordered by administrative authorities.

Article 5(4) ECHR

requires that those detained shall be entitled to take proceedings to determine the lawfulness of their detention and to secure release if detention is unlawful. Article 15 (2) provides that if detention is ordered by administrative authorities, as speedy as possible a judicial review of its lawfulness is required, or the detainee has to be given the right to challenge the lawfulness of the detention. Article 9(3) of the recast Reception directive is to the like effect. There was no automatic Court review as required by those two Directives.

[145]Mr Knafler submitted that the recast Reception Directive required legal aid in relation to detention to be available without a merits test. Means are clearly relevant since free legal aid is not available other than to those who lack sufficient resources; Article 9(7) (a). Article 9 (8) (a) also permits monetary limits to be imposed on the provision of free assistance and representation, so long as that is not an arbitrary restriction. I do not exclude that as permitting an allocation of resources which allows for a judgment on merits, but there is no explicit merits test. The original Procedures Directive, Article 18, contains no provisions requiring legal aid, other than such as might be inferred from the requirement that there should be a possibility of a speedy judicial review for a detained asylum seeker. The Returns Directive does not do so either, but it deals with those detained for the purpose of removal, which can cover those whose further representations have been rejected as amounting to a fresh claim, and to those who are awaiting a decision on that point.

[146]Conka v Belgium app 51564/99 5 May 2002 3rd section held, [43-46], that the remedies envisaged by Article 5 had to be accessible and effective in practice so that for example, information about remedies in a language which the recipient could not understand, or in illegibly small writing, or inadequately interpreted, or inadequate availability of lawyers and inadequate time for the remedy to be sought could all make the remedy merely theoretical. Mr Knafler submitted that this meant that legal aid had to be available where, without it, the remedy would be ineffectual. In Suso Musa v Malta app 42337/12, 23 July 20134th section, the ECtHR held, [61-62], that the lack of a proper system of enabling detainees to have access to effective legal aid could make remedies ineffective. Free legal aid was not necessarily required in detention cases, but if the national law required legal representation, the lack of free representation could raise an issue of access to justice.

[147]The routes to a challenge depended on the power underlying the detention: if the detainee was a “prohibited migrant”, the administrative order for detention could be challenged before the Supreme Court under the Constitution. A challenge under the Aliens and Immigration Law, transposing the Returns Directive, also goes to the Supreme Court, but for that purpose, state legal aid was available, under Article 6C of the Legal Aid Law. Most asylum seekers were not detained but the majority of those who were, were detained under the Aliens and Immigration Law either as “prohibited immigrants” or for the purposes of return under the transposed Returns Directive. Being a “prohibited immigrant” involves the commission of a criminal offence which can lead to imprisonment. A habeas corpus application was also available before the Supreme Court for a challenge to the lawfulness of the length of detention; the Articles transposing the Returns Directive refer to this remedy. But if the detainee is a prohibited migrant, the maximum of 18 months does not apply to him, and no application for habeas corpus can be made on the basis that detention exceeded 18 months. AIDA reported “a significant” number of cases where release was ordered by the Supreme Court followed immediately by a further arrest even where release had been ordered on the grounds of length of detention. Periodic review under the transposed Returns Directive routinely does not take place as required, and when it is, it is not a proper review but more like a repeat of the original justification for detention.

[148]The AIDA report said that legal aid was only available for the judicial review of detention before the Supreme Court, if detention had been ordered under the Aliens and Immigration Law. It was not available if the applicant was a “prohibited immigrant”. Nor was it available to challenge the length of detention by way of habeas corpus, nor for a challenge through administrative procedures. Legal aid was subject to a means and merits test. But the Court decision on the merits test required the applicant, without legal assistance, to show that he had arguable points of law. This was nearly impossible, as demonstrated by the fact that none of the few applications for legal aid had been granted since 2010. Mr Knafler submitted that legal aid was not in reality available to test the lawfulness of detention.

[149]The main obstacle in accessing legal assistance in detention was the lack of resources for engaging the services of a lawyer, and the procedural problem in obtaining legal aid. Actually making contact with a lawyer is “not much of an issue”, although not all detainees were provided with the information about the lawyers which they required. Asylum seekers in detention accessed NGOs providing legal assistance, primarily through word of mouth, or when NGOs make monitoring visits. Communication with illiterate asylum seekers was almost impossible because of the limited use made of interpreters. A lawyer who had acted for an asylum seeker before detention might be able, subject to funding, to continue to act, but NGO assistance would be limited, since only the FWC provided legal services, and could not cover court expenses for judicial review. There were no expenses for administrative challenges, and although representation for that sort of challenge was free for detained asylum seekers through projects funded by UNHCR and the European Refugee Fund, both were limited in their capacity to offer representation to all who sought it.

[150]Ms Drousitou of FWC said that legal aid, “the main issue”, was subject to a means and merits test, and the detainee had to present his legal argument to the Supreme Court in Greek without legal assistance. The list provided to detainees of lawyers was only in English or Greek. Detention was not reviewed automatically.

[151]One group of issues in MA v Cyprus concerned detention. The first complaint was that there was no speedy judicial remedy, compliant with Article 5(4). The Court accepted that, even taking the unsatisfactory average time, provided by the Government, of 8 months for an application other than by habeas corpus to be dealt with by the Supreme Court, and in the absence of a successful application for interim relief, there was no speedy determination of the lawfulness of detention; [167-169]. (Habeas corpus applications were dealt with more quickly, 1-3 months). Even periods of 17-20 days had been found excessive. So it was again no answer to the claim before Strasbourg that MA had not pursued a remedy before the Supreme Court. I also note that the failure to inform MA of a new detention order breached Cypriot law, and Article 5(1); [215-6].

[152]The AIDA report also referred to the legislative measures being taken in Cyprus to transpose the recast Procedures, Qualification and Reception Directives into Cyprus law. None of the changes to which it refers deal with the alleged breaches of Article 5, nor do its criticisms of the changes deal with them either.

[153]Mr Knafler submitted that what Article 5 requires is that immigration detention must accord with national law, which must not be arbitrary or indiscriminate; the reasons for detention must be given in sufficient details for the right to review the lawfulness of the detention effective; and there must be a speedy review, that is one which comes on quickly. There was no legal aid available before the only court which could help them in detention. All of these rights, in the ingredients relevant to a Dublin returnee, are completely denied. An appeal could take a number of years to come on.Although there was no statutory duty to detain them, they were detained in practice if they returned as failed asylum seekers in respect of whom a final decision had been reached. These were long-standing problems. The absence of legal aid for appealing decisions was in the Legal Aid Act. The absence of a non-suspensory appeal to the Supreme Court was in the Constitution. Long delays and arbitrary periods were the established practice. Thus, he submitted, the rights were ineffective; there were systemic breaches of EU law and a flagrant breach of Article 5, completely nullifying the right, as was the test laid down in EM(Lebanon) v SSHD

[2008] UKHL 64

, [35 and 41]. In those circumstances, the burden switched to the SSHD of showing that there was no real risk of a flagrant or systemic breach of fundamental rights.

Detention:

[154]Mr Manknell submitted that the question was whether a reasonable Tribunal could find that there was a real risk of a flagrant breach on return to Cyprus. For a breach of Article 5 to prevent removal, the breach must be flagrant; R (B) v SSHD above. For a Convention state, the normal course is for applications to be made against and only against the receiving state; MB and Others v SSHD

[2013] EWHC 123 (Admin)

, Mitting J at [34-35].

[155]It was necessary to define the essence of the right within the Article in question. The essence of Article 5 was the right in Article 5(1), and it was that which had to be completely nullified for the degree of breach to arise which would prevent removal: the fact of detention and its length. A flagrant breach would be, for example, detention for years without access to a court or to lawyers. Articles 5(2)–(5) are ancillary to the main right in Article 5(1), as with the Article 6 rights. The right to be told the reason for detention was not of the essence of Article 5. There could be no flagrant breach of Article 5(6) dealing with compensation.

[156]In Soering v UK,

(1989) 11 EHRR 439

, it was alleged, as a lesser part of the claim, that Article 6(3) would be breached by the absence of statutorily required state legal aid for certain applications was not a flagrant denial of the fair trial rights in breach of Article 6. Othman v UK

[2012] 55 EHRR 1

, dealing with flagrant breaches of Articles 5 and 6, should not be treated as applying in its fullest extent to removal to a Council of Europe state, since in such a state, redress could be obtained from Strasbourg. Suso Musa v Malta, above, showed that there was no necessary breach of Articles 5 or 6 through the absence of legal aid, let alone a flagrant one. R (Hagos) v SSHD

[2015] UKUT 0271 (IAC)

, [2015] UTIJR 6[62-64]showed that a real risk of a flagrant breach had to be proved in relation to Article 5, and how stringent that test was, on Dublin II returns to Malta. But it also shows that UTIAC did not treat the permissible grounds of Dublin challenges as limited to Articles 2 and 3. The current claims are also very far fromOthman.

[157]If a systemic breach of the Directives led to breaches of Article 5 in Cyprus, that would not be enough of itself to prevent removal there. There was no authority that a lower threshold applied to Article 6 CFR. The content was the same. Article 52(3) CFR, which did not prevent EU law providing greater protection than the equivalent ECHR rights, otherwise provided that they were to be the same in scope and meaning as their ECHR equivalents.

[158]The only basis upon which it was said that detention was arbitrary was that the Claimants would be detained simply because they were Dublin returnees who had already received a final decision. Article 8(2) of the recast Reception Directive was not yet in force, and it permitted detention where necessary and in an individual case. Help is being provided to Cyprus by the EU with the implementation of the re-cast Directives.

[159]But even if it were correct that the Migration Department considered that all Dublin returnees should be detained, without further individual consideration, on the grounds that they were all at risk of absconding, that would not be arbitrary, here at least, since all three could be legitimately considered absconding risks: their claims were rejected and they fled from Cyprus, which would lead to a proper basis for concluding that there was a risk of their absconding again. The AIDA Report accepted that the previous policy, if such it was, under which all Dublin returnees were detained regardless of personal circumstances or the stage which the examination of their asylum claim had reached, had changed. Those without a final decision would go to a Reception Centre, butthe expectation, according to the Report, (but whose expectation and on what basis is quite unclear), that all Dublin returnees with final decisions would be detained regardless is unproven. The new approach is but a few months old and there is no case to that effect.Ms Drousitou said that the position for those with a final decision was unclear. Ms Charalambidou acknowledged there is a possible change of practice of which there was limited knowledge, though she thought it likely to apply to a very small sample.

[160]The 2012 US State Department Human Rights Report on Cyprus stated that the Government generally observed the legal prohibition on arbitrary arrest and detention. Individuals were not detained just because they were asylum seekers, according to the AIDA Report.

[161]KISA in its April 2014 comments for UNCAT said that the leaflets, which the Government claimed to hand out to detainees informing them of their rights, were not given to migrants detained for deportation. It did not suggest that reasons for detention were not given; the passage relied on did not deal with that issue.

[162]AI in June 2012 reported that reasons were often not given for detention, and detainees usually only received a short letter referring to the legal provisions under which they are detained pending deportation. Although detainees were supposed to receive reasoned justification for their detention, and information about their right to challenge it before the Supreme Court, there was no obligation to inform them of their rights to challenge detention administratively. The AI report referred to Nicosia whereas now the new centre at Menoyia exists for immigration detention. These were not flagrant breaches, even if breaches, sufficiently evidenced and continuing.

[163]The length of detention may lead to a nullification of the rights under Article 5 but here the Claimants say that the average time taken for a review of detention is 8 months. That is too long for a review under Article 5(4) but it is not possible to say that there is a flagrant breach of Article 5(4).

[164]This type of challenge, pointing to an expert body saying that the law was inadequate, required caution since it involved unpicking domestic legislation in another country; see R(B) v SSHD, above.

[165]Article 18 PST of the Aliens and Immigration Act permits detention for the purpose of effecting removal, especially when there is a danger of the individual “sabotaging” the return process or escaping. The reasons, factual and legal have to be given in writing. Detention is subject to appeal procedures, and Ministerial re-examination every two months of his own motion, and at any reasonable period of time upon request by the individual. The length of detention is subject to habeas corpus applications in the Supreme Court. Information about this has to be provided.

[166]The threshold for interim relief in Cyprus was set out in 1988 but this Court should be very careful about submissions based on foreign law without expert evidence since the test might have been repealed or subsequently interpreted.

[167]Cypriot law had a separate stage for removal for which legal aid appeared to be available. Article 180H of the Aliens and Immigration Law enables a decision to be made by the Departmental Director that an illegal immigrant or resident can be returned to his country of nationality.Article180D refers to the “decision for return” in respect of an illegal immigrant. By s6C of the 2002 Legal Aid Law, free legal aid is available for those exercising appeal rights in the Administrative Court, but not before the Supreme Court and subject to a merits test, in relation to a decision for return or for deportation. I have already pointed out that it was unclear from s6C what grounds could be raised if the prohibited immigrant, as each Claimant would be under s6(1)(k), had already been refused protection, and the final decision had been upheld on the preliminary examination of the further representations.

[168]A new Administrative Court was being set up in 2013/2014, according to the European Committee for the Prevention of Torture report of March 2014, which would have exclusive first instance jurisdiction over deportation and detention challenges under Article 146 of the Constitution, as a form of administrative recourse. A UK Court should be very slow to conclude that the evidential presumption of compliance had been rebutted.

Conclusions on detention

[169]It was common ground that the question, in relation to the certificate that the claim is clearly unfounded, is whether the SSHD’s decision is rational, to be judged by whether on one legitimate view of the facts, a tribunal properly directing itself could conclude that there were substantial grounds for believing that the return of any of the Claimants to Cyprus would involve a real risk of a flagrant breach of Article 5. The misdirection alleged here is simply irrationality; it is not said that any material considerations were omitted. That is all subject to resolution of issues arising out of the decisions in NS, Adullahi and EM (Eritrea).

[170]The first question is whether risks of a breach of

Article 5 ECHR

or Article 6 CFR are relevant at all to a Dublin return case. Dudaev carries the history of the CJEU, ECtHR and Supreme Court decisions to its present end. As the Divisional Court points out, the CJEU has made its position clear seemingly. It is only where there is a systemic/real risk of a breach of

Article 3 ECHR

or Article 4 CFR, that Dublin returns can be challenged in the sending Member State. It has said the same thing twice, in NS and in Abdullahi, the latter not considered by the Supreme Court in EM (Eritrea). On the face of it, the question of a breach of

Article 5 ECHR

or Article 6 CFR is not seen by the CJEU as a basis for preventing Dublin return. I accept however that that cannot be taken too literally since Article 19 CFR, non-refoulement, is clearly covered by the same thinking, as would be Articles 2 and 4 ECHR, and circumstances which breached Article 3 because of the manner or degree to which they breached other Articles. But the position of the CJEU, if impliedly extending that far, appears then to exclude a flagrant breach of other Articles of the CFR or ECHR, or the possibility of systemic or major operational problems in Member States affecting those other Articles, as a basis for preventing a Dublin II return. This could be seen as consistent with its view that the EU legal order has primacy within its competencies. Save for Articles 4 and 19 CFR, any additional barriers to return could amount to additional criteria for return, contrary to the Dublin Regulation, undermining the CEAS.

[171]What however is not clearly resolved by those cases is how the relationship of EU law and the CEAS to the requirements of the ECHR works out in relation to Dublin returns. The question in relation to the ECHR is whether removal would involve the complete nullification of the rights of the person returned under Article 5, though that person would have to overcome the significant evidential presumption of compliance, which I would regard as stronger for an EU Member State than a non EU member of the Council of Europe. There are two possible answers:(1) the CJEU decisions should be regarded as providing an answer only in relation to

Article 3 ECHR

and Article 4/19 CFR, and despite the clarity of the language, not dealing with the position in relation to breaches of other Articles;

(2) the CJEU intended

Article 3 ECHR

and Articles 4/19 CFR breaches alone to warrant refusal of return under Dublin II.

[172]My view is that, although Abdullahi was not cited in R(B) v SSHD, R(B) v SSHD decides by necessary implication that other Articles of the ECHR and CFR than 3 and 4 respectively can be prayed in aid to prevent Dublin II returns. Article 52 CFR permits the CJEU jurisprudence under CFR to progress with the ECHR jurisprudence. The CJEU has not addressed the issue head-on, but the way it confines its judgments to the issues it faces directly, means that it should not be taken to have decided the point.

[173]Compliance with Dublin II, if even a flagrant breach of other Articles were irrelevant, could put a Member State in breach of the ECHR in order to comply with its EU obligations. I find it very difficult to suppose that the CJEU, while insisting on the primacy of the Community legal order, would reach such a conclusion rather than align itself in practical effect, even if expressing its tests in different ways, with the jurisprudence of Strasbourg. It could not rule out for all possible circumstances, that other Articles of the CFR might lawfully preclude the operation of Dublin returns. The CJEU would emphasise the mutual confidence which Member States have, and the redress available through directly applicable law, and adopt a further, stronger but analogous distinction between EU Member States and other Council of Europe states when considering the practical strength in the presumption of compliance.

[174]If, however, CFR Articles other than CFR 4 and 19 can prevent removal, the second question is what test is applied. R(B) v SSHD was decided on the unresolved hypothesis that the real risk of a flagrant breach had to be shown, but no resolution of that was necessary to reach the decision adverse to the Claimants there; [32]. So the question is what test is to be applied. Can a systemic breach of a Directive suffice to prevent return under Dublin II? Would returns under Dublin II be prevented under EU law by problems of a scale or degree involving less than a real risk of a flagrant breach of the ECHR? Is a real risk of a flagrant breach required or is a systemic or major operational problem required? Would the EM (Eritrea) approach be adopted, the former qualifying the other?

[175]First, I accept Mr Manknell’s contention that breaches of EU Directives however extensive, repeated, or systemic would not of themselves lead to Dublin returns being prevented. That would require one Member State to rule on compliance by another with EU law, a task for the CJEU. It would add to the criteria governing Dublin returns, contrary to the Regulation. The Member State’s domestic system would be taken as providing means of redress, with the EU institutions fulfilling their functions as well. There is no basis in any CJEU decision for refusing a return under Dublin where breaches of Directives do not amount to a flagrant breach of an ECHR or CFR right. It would be wrong to interpret NS/Abdullahi as holding that breaches of Directives, however widespread, but which did not amount to flagrant breaches of fundamental rights should prevent returns under Dublin. It is the relationship between breaches of the Directives and breaches of fundamental rights which would engage the CFR, and it is that which would lead to the return breaching the Dublin Regulation.

[176]Second, the CJEU has given no indication, quite the reverse, that it would itself contemplate an approach to CFR rights which was more favourable to the individual than the ECtHR’s. Whatever language it chose to use, if it were to allow breaches of Articles other than 4 and 19 CFR to affect Dublin returns in the CEAS, the effect would be no less demanding than the flagrant breach test, which would rarely be proved in a Member State. EU jurisprudence would march in step with Strasbourg’s, and neither lag behind nor out pace it. Systemic breaches, as a sufficient condition, though not always a necessary one, will prevent removal in the case of Article 4, because that will show that in the general run of cases that the risk of a breach of Article 4 is real. That language is confined to that Article. A systemic breach cannot of itself suffice to show that the breach of other Articles is flagrant, a complete nullification of their essence.

[177]Accordingly, I accept that it is open to the Claimants to show that their

Article 5 ECHR

and Article 6 CFR rights would be flagrantly breached by return to Cyprus. But that is a very hard task to show because of the significant evidential presumption of compliance. That task is not easier for the Claimants where its argument depends on non-compliance with Directives not transposed or in force, and on this Court ruling on the meaning and effect of Cypriot legislation, as I have already pointed out in relation to refoulement.

[178]As I have said the scope of the allegations pursued is much more limited than originally intended, though pursued in oral argument in considerable detail. I do not repeat what I have said about the nature and quality of the evidence, in relation to refoulement; it applies here too. But I accept that the admissibility issue does not arise since the evidence relied on would be admitted before the FtT, and so is relevant to how this Court should judge its legitimate reactions to it.

[179]I do not accept the stark distinction drawn by Mr Manknell between the rights in Article 5(1) and the rights in the other sub Articles, in particular the right in Article 5(4) to take proceedings speedily to test the lawfulness of detention which is very much part and parcel of ensuring the effectiveness of what Mr Manknell submitted was the essence of the right. The right to be informed of the reason for detention is a concomitant of that. So while I agree that the right to liberty, except on the prescribed grounds, is the essence of the right, and it is supported by the others in the sense that they make the primary right effective and breaches remediable, the distinction between them cannot be so stark. Breaches of Article 5 (1) are likely to be found together with breaches of Article 5(2) and (4). The statement of general principles in MA v Cyprus, [160] does not support Mr Manknells’ contention that Article 5(1) is to be distinguished from the rights in the sub-Articles. They are the necessary concomitants of the effectiveness of Article 5(1). The existence of a flagrant breach, one which nullifies the essence of a fundamental right, is not to be decided on an artificially constrained view of the facts or law. Soering does not really assist Mr Manknell on this point either because on the facts, legal assistance, though not provided by the state as a matter of obligation, was available from other sources.

[180]The first point made by Mr Knafler is that Dublin returnees who have had their asylum claims finally determined, as have these Claimants, will be detained regardless of circumstances. I do not accept that he has made that out on the evidence. There appears to have been a time when asylum seekers were generally detained, but it is accepted that that does not now happen; and it is irrelevant to this case, other than showing that Cyprus has or may have breached Article 5 in the past, but in that respect no longer does so. The evidence as to what now happens to individuals in Cyprus whose asylum claims have been determined finally and adversely does not suggest that they are subject to arbitrary detention. Even if all of such individuals were detained, that could not of itself show that detention was arbitrary and unlawful. All would share an important and legally relevant characteristic: they would no longer have any right to stay in Cyprus, and their removal would be the next step; the risk of their absconding would be obvious. For these Claimants, returning as failed asylum seekers whose claims have been finally determined, unless and until they are re-opened, the position is yet clearer: SH absconded on his own case; EP lied about not going to France; he was in France when he claims to have returned to Iran, and he is an obvious abscond risk; MG on one view at least of the evidence absconded from Cyprus. That will be a common position for Dublin returnees with a final adverse decision. Although the evidence that all Dublin returnees whose claims have been finally determined are detained is sketchy, even if proven, it would not persuade me that there was some flagrant breach of Article 5 or of the Reception Directive or other domestic law.

[181]The period of detention at issue is the period associated with the consideration of the further representations. There is no evidence as to the time taken over such decisions, and none to suggest that it is arbitrary or excessive. It was not claimed that, if the representations make a further claim admissible, any further detention would be arbitrary, or that the period of detention before removal, after the adverse decision on the further representations, would be excessive. That is not what this case was about. Nor was that the point to which the evidence was directed.

[182]The next basis for a real risk of a flagrant breach of Article 5 is the absence of a speedy judicial challenge. There is nothing in the Cyprus legislation itself which was said to contravene the Directives or Article 5. Certainly no provision or omission could found a claim that Article 5 was in its essence nullified. Provision is made in Article 18 PST of the Aliens and Immigration Law for detainees to be informed the reasons for detention. Remedies are provided for. The decision in Suso Musa showed that the lack of legal aid involved no necessary breach of Article 5 or 6, let alone a flagrant one.

[183]The argument is therefore dependant on evidence that Cyprus does not observe its own law or that the remedies are in reality not available. There was some evidence from AI and KISA to the effect that notice to detainees was given in an ineffectual manner for conveying the reason for detention and the remedies. But that was not clear enough to show a systemic or routine breach, nor was there evidence which showed that it resulted in the nullification of the rights under Article 5.

[184]I accept that the ECtHR in MA v Cyprus found that the Supreme Court procedures had not permitted a speedy challenge to the lawfulness of detention; it had been too slow. There was some evidence that there had been no change to Cypriot law as a result. If however there remains a lack of speedy remedy, the breach would not amount to a complete nullification of the right, in my judgment. There is on the face of it a right to detain. There is no evidence that the periods of detention, while a decision is reached on the admissibility of further representations to found a further claim is arbitrary or excessive, let alone of themselves such as to amount to a flagrant breach in these circumstances. A challenge to the length of detention is made by habeas corpus which, albeit too slow, is not so slow as to lead to the length of detention being a flagrant breach, nor indeed are the longer periods for the challenges by the other routes.

[185]The evidence shows that one major obstacle in detention, in obtaining a remedy in relation to detention, was contacting lawyers; but these returnees are in a position to make contacts now and they all had lawyers when in Cyprus. The major obstacle is however legal aid. But the evidence shows that the majority of those detained are detained, as these Claimants would be, under the Asylum and Immigration Law. There is contradictory evidence about whether legal aid is available for “prohibited immigrants”. The AIDA report states that it is not, but that is not how I understand the effect of s6C of the Legal Aid Act, nor is it what the ECtHR said in MA v Cyprus [72]. There is no necessary contravention of Article 5 in the absence of legal aid for the speedy judicial review, provided that it does not remove the practical value of the remedy. But the AIDA report’s evidence about the number of releases by the Supreme Court, does not suggest that, if there is no legal aid, the practical value of the remedy has been removed. If now there is no requirement for a merits test under the recast Procedures Directive, and if yet Cyprus still applies one, that cannot be a flagrant breach of any rights. There is no bar to a merits test in Article 5 or other Directives.

[186]I am wholly unpersuaded that there is any flagrant breach of Article 5 in Cyprus for Dublin returnees who have had a final decisions on their claim.

EP’s individual claim

[187]Ms Physsas for EP submitted thatdetention for EP would breach Article 3 because of his specific vulnerability. Although no allegation was now being made that the treatment he would receive would itself breach Article 3, the SSHD’s decision that he could be returned to face detention or a real risk of it was irrational. The approach in E v Chief Constable of the Royal Ulster Constabulary

[2008] UKHL 66

[2009] 1 AC 536

[7-9] could be as well applied to the mentally ill as to children. A failure to take reasonable protective measures could amount to a breach of Article 3.

[188]EP had not been diagnosed with these problems until he was detained in the UK. The report dated 27 April 2015, from Dr Lodhi, a consultant psychiatrist, and submitted to the SSHD on 15 May 2015, details what EP says happened to him in Iran in 2001, and from 20 January 2013 to 7 February 2013 when he says he returned to Iran. (He was fingerprinted in France on 21 January 2013, and eventually admitted lying about never having been there.) He told Dr Lodhi that the handcuff scars from that time had healed and that explained why there was no sign of them. Dr Lodhi took EP as truthful and explains that his presentation was consistent with depression and PTSD. He had a strong fear of being killed because of his conversion to Christianity, in addition to the torture he experienced. He accepted EP’s account of a near attempt at suicide, preparing to jump from a window which he could not quite bring himself to do. Dr Lodhi thought that the risk of suicide was high, taking a view on EP’s credibility:

“[EP] was honest in saying that if his asylum application was refused then he will prefer to kill himself than be returned back to Cyprus.”

It is not clear whether it is Dr Lodhi speaking in paragraph 11.10 when he describes the risks that a convert would face in Iran, where he would face the death penalty, which would not be within his area of expertise, or whether that is what EP told him. But with such strong stressors, “his mental state will deteriorate with worsening of his depression and PTSD symptoms.” He could not access medical treatment when last in Cyprus. “The risk of serious self-harm and suicide will also increase many times…if he is sent back to Cyprus.” Further detention there would increase his stress, depression and risk of suicide. It was not suggested that there was any real risk in the UK or on the journey back to Cyprus.

[189]Ms Physsas submitted that EP would be detained and was likely to be detained for substantial period of time on the basis of the AIDA report. The fact of detention and for an extended period would be bound to lead to distress. He could not make an effective claim in respect of his detention. There was no evidence that the authorities would review his detention or his particular individual circumstances. This detention would lead to a breach of Article 3. The UNCAT 2014 Report considered that Cyprus did not have effective systems for identifying victims of torture and them removing from detention, and did not consider alternatives to detention or the individual risk of absconding. Undocumented immigrants were routinely detained and for periods exceeding the 18 month maximum.

[190]Mr Donmall in reply submitted that there was no reason to reach a different conclusion here from those reached by Lewis J in relation to Italy in MS v SSHD, either on the existence of sufficient evidence to rebut the presumption of compliance or to show a real risk that Article 3 would be breached on the facts of EP’s case.

[191]The SSHD’s careful decision letter of 22 May 2015 dealt with this report and the other medical evidence. The drug treatment he was receiving was available in Cyprus. He would be entitled to health care there if he made a further claim for asylum, under the Standards Directive. That Directive also laid down obligations for the vulnerable and those who were victims of torture. There was no reason to believe that he would be refused treatment for his psychiatric illness. His medical details could be forwarded to the Cyprus authorities, with his agreement, so as to alert them to his needs. Cyprus had the necessary medical services. There was insufficient evidence to rebut the presumption that Cyprus would comply with its obligations.

[192]A rule 35 report had been made in March 2013 but as it was based on what EP said, and there were no scars or other supporting evidence, diagnostic finding or recommendation and no mention had been made of any of the difficulties in the screening interview, no action was taken on it as the report did not represent independent evidence of torture.

[193]The evidential presumption remains; healthcare is available; EPs arrival could be notified in advance; this court should assume that the Cypriot authorities would respond appropriately. The case has changed here. The material from EP of 8 April 2015 does not help because it complains about breaches of the Reception Directive since, it claims, even if he were to be released he would face street homelessness for at least 4-6 months as a vulnerable person and a victim of torture. EP however is untruthful on his own admission about never going to France, and there is a contradiction between what he said about his stays of detention in Iran 20 January to 7 February 2013 and his being fingerprinted in France during that period. He does not deal with the problem created by the dates.

[194]Despite his claim of depression and PTSD, he has not harmed himself. There is no evidence that detention of itself would be intolerable nor can it be said that he will be detained or any further claim refused as a fresh claim. The AIDA report stated that there were communication and interpretation difficulties for people seeking medical treatment in detention, interpreters were often not available; there was no in-house psychiatrist or psychologist although a visit from one could be requested. The Government response to the 2013 CPT report said that a clinical psychologist visited Menoyia twice a week; detainees could be transferred to an outside hospital if necessary. Funding was being sought for improved health care in Menoyia. Other support was also being received by Cyprus from the EU.

[195]As to the grounds of release: the AIDA Report said that release is rare, but there is no reason to suppose that if his situation breached Article 3 that he would not be released or treated. There has been no challenge to his detention in the UK before removal on the grounds that it breached Article 3; his issue related to the length of possible detention.

EP conclusions

[196]I accept the submissions of Mr Donmall for the SSHD, and I found the SSHD’s careful decision persuasive and rational. There is no risk of a breach of Article 3 before arrival in Cyprus. I am prepared to accept that EP would be detained. But I do not think that there is a real risk that he would be detained in circumstances which breached his Article 3 rights, though this might require no more than that he receive medical care in detention. There is no sufficient evidence to rebut the presumption of compliance by Cyprus with its international obligations. Indeed, there is little to rebut it at all on this count. It will be for the Cyprus authorities to assess his mental health and his claim to have been tortured. There may be excessive delays in obtaining a Supreme Court hearing on the lawfulness of detention, though how the new Directives, transposed or directly applicable, are working is unknown.

Overall decision

[197]The claims are all dismissed and the declaration of incompatibility refused.

Pour & Ors v The Secretary of State for the Home Department [2016] EWHC 401 (Admin)

The decisions

The individuals

The legal framework: domestic

The legal framework: EU

The risk ofrefoulementfrom Cyprus to Iran

Conclusions: refoulement

Detention:

Conclusions on detention

EP’s individual claim

EP conclusions

Overall decision

Cited in 5 later judgments