Nasseri v Secretary of State for the Home Department

A statutory deeming provision which conclusively treats a listed third country as safe from onward removal in breach of Convention rights may be incompatible with Article 3 of the European Convention on Human Rights. Where removal is challenged on the basis of a real risk of unlawful refoulement, the Secretary of State and the court must be able to investigate that risk. Parliament cannot make that investigation impermissible by an irrebuttable statutory presumption. The issue is one of compatibility of the legislation itself, not merely of the availability of a remedy in an individual case. International arrangements allocating responsibility for asylum claims, including the Dublin Regulation, do not automatically absolve the United Kingdom of its Convention obligations.

The claimant, an Afghan national who was accepted to be approximately 17 years old, challenged the proposed removal of him to Greece under the Dublin Regulation. He relied on concerns that Greece might return him onwards without a substantive examination of his asylum claim, contrary to Article 3 of the Convention.

The Secretary of State relied on paragraph 3 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, which required Greece to be treated as a place from which a person would not be sent onwards in breach of Convention rights. The central issue was whether that deeming provision prevented consideration of the risk of refoulement and was itself compatible with Convention rights.

1. Declaration granted. Paragraph 3 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, as applied by section 33, was incompatible with a Convention right.
2. The provision required any person, tribunal or court determining whether an asylum or human rights claimant could be removed to Greece to treat Greece as a place from which the claimant would not be sent onwards in breach of Convention rights. Its terms therefore precluded both the Secretary of State and the court from investigating the law and practice concerning refoulement in a listed country.
3. The distinction between a challenge to removal and a challenge to compatibility was artificial. The compatibility issue arose directly in the removal challenge because the Secretary of State relied on the deeming provision to prevent consideration of the claimant’s Article 3 concerns.
4. The court rejected the argument that the claim was academic because later evidence suggested that Greek procedures had improved. Legislation is either compatible with Convention rights or it is not. Its compatibility cannot depend on changing factual circumstances after enactment.
5. The reasoning in R (Thangarasa) and (Yogathas) v Secretary of State for the Home Department [2003] AC 920, particularly Lord Bingham’s observation that a preserved human-rights challenge was necessary for compatibility, strongly supported that conclusion. The observation was obiter, but the judge rejected the submission that it was wrong.
6. The Dublin Regulation could not provide automatic exoneration from the United Kingdom’s Convention obligations. The United Kingdom remained responsible for ensuring that removal did not expose the claimant to treatment contrary to Article 3.
7. The complaint concerned the substantive Article 3 obligation, not merely the absence of an Article 13 remedy. The deeming provision directed the Secretary of State not to undertake the investigation required as an aspect of Article 3. The court accordingly made the declaration sought.