UK - Esmaiel Mohammed Pour (1), Seid Jafar Hasini Hersari (2), Majid Ghulami (3) v The Secretary of State for the Home Department

Country of Decision:
Country of Applicant:
Date of Decision:
01-03-2016
Citation:
Esmaiel Mohammed Pour (1), Seid Jafar Hasini Hersari (2), Majid Ghulami (3) v The Secretary of State for the Home Department [2016] EWHC 401 (Admin)
Additional Citation:
Case No.: CO/38722012
Court Name:
The High Court of Justice, Queen’s Bench Division, Administrative Court (Mr Justice Ouseley)
Relevant Legislative Provisions:
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 2
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 3
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 4
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 5 > Art 5.1
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 5 > Art 5.2
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 5 > Art 5.3
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 5 > Art 5.4
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 5 > Art 5.5
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 15 > Art 15.2
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 15 > Art 15.3 (b)
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 15 > Art 15.3 (d)
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 18
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 6 > Art 6.3
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 25
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 4
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 32
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 34
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 6
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 39 > Art 39.3
European Union Law > EN - Asylum Procedures Directive, Council Directive 2005/85/EC of 1 December 2005 > Art 39 > Art 39.1 (c)
Council of Europe Instruments > EN - Convention for the Protection of Human Rights and Fundamental Freedoms > Article 13
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 19 > Art 19.2
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 47
European Union Law > EN - Charter of Fundamental Rights of the European Union > Article 52 > Art 52.3
European Union Law > EN - Returns Directive, Directive 2008/115/EC of 16 December 2008 > Article 13
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Article 8
European Union Law > EN - Recast Reception Conditions Directive, Directive 2013/33/EU of 26 June 2013 > Article 9
European Union Law > EN - Returns Directive, Directive 2008/115/EC of 16 December 2008 > Article 15 > 2.
European Union Law > EN - Dublin III Regulation, Council Regulation (EC) No. 604/2013 of 26 June 2013 (recast Dublin II Regulation) > Article 23
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 20
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 21
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 33
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 40
European Union Law > EN - Recast Asylum Procedures Directive 2013/32/EU of the European Parliament and of the Council > Article 46
National / Other Legislative Provisions:
UK - Asylum and Immigration (Treatment of Claimants etc.) Act 2004
paras 2-5
Part 2
Schedule 3
UK - Human Rights Act 1998
Cyprus - Refugee Law 2000
s.16D
Cyprus - Cyprus Legal Aid Law 2002
sections 6B
6C
6C(aa)
6C(bb)
6(1)(k)
Cyprus - Aliens and Immigration Law
Articles 18 PST
180H
180D
Cyprus - The Constitution of the Republic of Cyprus
Article 146
Headnote: 

The case concerns three unconnected Iranian nationals who unsuccessfully claimed asylum in the Republic of Cyprus then came to the UK where they made asylum claims.  A further right to appeal remained with the Cypriot Supreme Court.  The case is a challenge by the applicants to the SSHD’s refusal to decide their asylum claims substantively; certification of their asylum claims on safe third country grounds; and certification of their human rights claims as clearly unfounded.

The Court concluded that there was no real risk that the applicants, if returned to Iran from Cyprus, would be refouled there and the inclusion of Cyprus on the list of safe third countries involves no incompatibility with the ECHR.  The Court was wholly unpersuaded that there was any flagrant breach of Article 5 in Cyprus for Dublin returnees who have had a final decision on their claim.

Facts: 

The SSHD refused to decide the applicants’ claims substantively.  Cyprus accepted / was deemed to have accepted responsibility for the applicants under Dublin II / Dublin III.  The SSHD certified the asylum claims on safe third country grounds and the human rights claims as clearly unfounded under the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (“the 2004 Act”).

The applicants challenged the human rights decisions on the grounds that (1) the decision to certify the claims was irrational as the SSHD should have concluded that there was at least a reasonable prospect that the FTT would find that the applicants would be detained in breach of Article 5 ECHR, and (2) that the Court should conclude, contrary to the SSHD, that if returned to Cyprus, there was a real risk of each applicant being refouled to Iran.  The asylum certifications were challenged on the same grounds.  A separate Article 3 challenge was made by EP, who was said to have mental health problems, based on the risk of long and arbitrary detention.

The applicants’ first main refoulement submission was that there was no legal aid for any challenge to a refusal by the Cypriot Refugee Reviewing Authority (“RRA”) to accept further representations as a fresh claim, contrary to the Procedures Directives.  The second was that an appeal to the Cypriot 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.  The applicants also suggested that Cyprus was unlikely to accept representations as fresh claims, regardless of any judgment which might now be made as to their potential merits.

The applicants raised four detention issues: (1) the possibility that they would be detained without individual assessment just because they were Dublin returnees and their earlier claims had been rejected - which would be a breach of the recast Reception Directive; (2) it was unlikely that the applicants 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 Article 5(4) ECHR and Article 15(2) of the Returns Directive.

The applicants sought relief in the form of a declaration that the inclusion of Cyprus in the list of safe third countries in the 2004 Act, or the obligation that it be treated as required was incompatible with the Human Rights Act 1998.  The SSHD ought to have used her powers to decide the asylum claims substantively.

Decision & Reasoning: 

1) Refoulement

The Court found the refoulement claims to be based wholly on systemic risks, not particular individual circumstances.  It rejected the suggestion that no one succeeds in having their further representations treated as fresh claims.  It found no reason to suppose that the RRA decisions would not be in the applicants’ favour if their representations properly merited further examination, nor that adverse decisions would not be reached on the same basis of careful scrutiny that they would receive in the UK.

The Court found no evidence to support the applicants’ claimed risk of refoulement based on shortcomings asserted in the Cypriot legal and legal aid system after an adverse RRA decision.  The evidence did not support a conclusion that Cyprus simply carries on as before, ignoring what is required of it; there was clear impression from the reports submitted as evidence that changes were being made to improve the system and transpose the EU Directives.  Even if the applicants could have demonstrated the system was defective, it would not have been enough to show a real risk of refoulement.  

The Court held that the only available remedy for an adverse RRA decision rejecting further representations as meriting further examination being by application to the Supreme Court did not contravene any EU Directive requirement; the remedy need not be a full merits appeal, review for error of law is sufficient.

The Court accepted that there is no automatic stay on removal because an appeal to the Supreme Court has been made.  However, the Procedures Directive, current at that time of the hearing, did not require an automatically suspensive remedy for failed asylum seekers who wish to challenge a refusal to admit further representations as a fresh claim.  It was impossible for the Court to say whether Cyprus would be in breach of the recast Procedures Directive, not in force at that time.  It was not for the Court to rule on whether Cyrus was in breach of existing Directives or that it would be in breach of future Directives not yet in force - this task is for the CJEU. 

The Court accepted that the test applied for the grant of interim relief by the Supreme Court is very restrictive.  However, it found nothing in the strictness of the test which contravened EU Directives, recast or original.  The Court saw no legal aid coverage in the Cypriot legislation for applications from those whose further representations are rejected as amounting to a fresh claim.  However, the Court was not prepared to assume that Cypriot law remained unchanged by the transposition of the recast Directive, or if inadequately transposed, directly effective.  In any event, the Directive does not require that free legal aid be available for all applications for a remedy but it permits means and merits tests.  Assuming the applicants would pass any means test, an adverse decision on the merits would be by a specialist appellate.  Therefore, even if a past breach and a proposed breach were established, it would not demonstrate a real risk of refoulement, overcoming the significant evidential presumption that Cyprus would comply with its obligations as an EU Member State.

In conclusion, the Court was satisfied that, even if there had been or were to be breaches of the Directives, there was no real risk that the applicants, if returned to Iran from Cyprus, would have been refouled there, and inclusion of Cyprus on the list of safe third countries involves no incompatibility with the ECHR.

2) Detention                        

The Court stated that R(B) v SSHD implies that Articles other than 3 of the ECHR and 4 of the CFR can be invoked to prevent Dublin II returns and the CJEU had not decided the issue.  Compliance with Dublin II, even if 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.  It was therefore difficult for the Court to suppose that the CJEU would reach such a conclusion.

The Court accepted that breaches of EU Directives however extensive, repeated or systematic would not of themselves lead to Dublin returns being prevented.  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.  A real risk of a flagrant breach is required.  Accordingly, it was for the applicants to show that their Article 5 ECHR and Article 6 CFR rights would be flagrantly breached by return to Cyprus.  This was a very hard task because of the significant evidential presumption of Cyprus’s compliance and the applicants’ arguments depended on Directives not yet transposed or in force.

The Court did not accept Dublin returnees who have had their asylum claims finally determined will be detained regardless of circumstances.  Even if such individuals were detained, it would not demonstrate that detention was arbitrary and unlawful because all would share a legally relevant characteristic: they would no longer have any rights to stay in Cyprus and their removal would be the next step, and the risk of their absconding would be obvious.  The applicants’ past actions further evidenced their absconding risk.  Furthermore, even if it were proven that all Dublin returnees whose claims had been finally determined are detained, it would not have persuaded the Court that there was some flagrant breach of Article 5 or the Reception Directive or other domestic law.

The Court found nothing in the Cyprus legislation which was said to contravene the Directives or Article 5.  Provision is made in Cypriot law for detainees to be informed of reasons for detention, remedies are provided for and the decision in Suso Musa showed that the lack of legal aid involved no necessary breach of Article 5 or 6.  The evidence was not clear enough to show a systematic or routine breach by Cyprus of its own law pertaining to information given to detainees, nor was there evidence which showed it resulted in the nullification of the rights under Article 5.

The Court specified that if there remains a lack of speedy remedy to challenge the lawfulness of detention following MA v Cyprus, the breach would not amount to a complete nullification of the right.  A challenge to the length of detention although too slow, is not so slow as to lead to the length of detention being a flagrant breach. 

The Court accepted that an obstacle in obtaining a remedy in relation to detention was contacting lawyers, but the applicants were in a position to make contact.  It found contradictory evidence about whether legal aid is available for “prohibited immigrants”.  However, 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.  There is no bar to a merits test in Article 5 or other Directives.

In conclusion, the Court was wholly unpersuaded that there was any flagrant breach of Article 5 in Cyprus for Dublin returnees who have had a final decision on their claim.

3) EP’s Article 3 claim

It was argued that detention of EP would breach Article 3 because of his specific vulnerability.  The Court accepted that EP would be detained.  The Court did not accept that there was a real risk that EP 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.  The Court found no reason to believe that he would be refused treatment for his psychiatric illness in Cyprus.  There was no sufficient evidence to rebut the presumption of compliance by Cyprus with its obligations.

Outcome: 

All claims dismissed and the declaration of incompatibility refused.

Observations/Comments: 

MA v Cyprus

The Court distinguished MA v Cyprus, specifying that MA v Cyprus was concerned with an effective remedy for a breach of domestic law; it was not a decision that there must be a suspensive remedy where any Court challenge by an asylum seeker to an adverse decision is considered.

It also distinguished MA v Cyprus on the basis that the decision in that case concerned the removal of someone who was entitled to substantive relief and entitled not to be removed.  MA’s file had been re-opened and there was no final decision.

The Court also commented that in MA v Cyprus, the ECtHR did not reject the evidence that the Cypriot government, in practice, did not remove those who had an unresolved application for interim relief -  which was very relevant to assessing the reality of any risk of refoulement.

Rule 39 applications

The Court considered the availability of Rule 39 interim measures applications to the ECtHR.  The Court found that although available, such applications would not be an adequate answer to preventing removal if a real risk of refoulement were otherwise established because (1) the Strasbourg Court does not itself claim to provide that sort of answer routinely, as it cannot examine all cases fully, and (2) an application with the requisite documentation is likely to require legal assistance.

 

This case summary was written by Sally Jackson, LLM student at Queen Mary's University.

Other sources cited: 

AIDA updated Country Report, Cyprus, February 2015

Supreme Court of Cyprus Constitutional Rules

European Court of Human Rights Rules of Court, Rule 39

Amnesty International report of 2012 on the detention of migrants and asylum seekers in Cyprus, “Punishment without Crime”

The US State Department 2012 Human Rights report on Cyprus

April 2014 report by KISA [“Detention Conditions and Judicial Overview on Detention and Deportation Mechanisms in Cyprus”, March 2014]

UN Committee against Torture report on Cyprus, June 2014 [UNCAT, “Concluding Observations on the Fourth Report of Cyprus”, Committee against Torture, 21 May 2014?]

Report by ECRE and ELENA in April 2012 [ECRE/ELENA, “Information Note on Syrian Asylum Seekers and Refugees in Europe”, November 2013]

ECtHR Practice Direction on Requests for Interim Measures

European Asylum Support Office (EASO) Newsletter April 2015

Case Law Cited: 

UK - NS (Afghanistan) v. Secretary of State for the Home Department [2013] QB 102

UK - Tabrizagh v. Secretary of State for the Home Department [2014]

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

ECtHR - Conka v Belgium (Application no. 51564/99)

UK - Soering v UK (1989) 11 EHRR 439

UK- R (Hagos) v SSHD [2015] UKUT 0271 (IAC), [2015] UTIJR 6

UK - E v Chief Constable of the Royal Ulster Constabulary [2008] UKHL 66, [2009] 1 AC 536

ECtHR - MoyoMoyo v Cyprus 3 Cyprus LR 1988

UK - MB and Others v SSHD [2013] EWHC 123 (Admin)

UK - EM (Lebanon) v SSHD [2008] UKHL 64

UK - R (EM) (Eritrea) v SSHD [2014] UKSC 12, [2014] AC1321

UK - R (B) V SSHD [2014] EWCA Civ 854

Suso Musa v Malta app 42337/12, 23 July 2013 4th section