Secretary of State for the Home Department v Javad Nasseri

Article 3 responsibility may arise where removal to an intermediary state forms part of a possible chain leading to ill-treatment in a third state. Article 3 does not impose a free-standing duty to investigate a future risk, but substantive compliance requires rigorous scrutiny of the destination state’s law and practice and the individual circumstances.

The deeming provision in Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 applied only to the actual decision whether a particular person could be removed. It did not prevent monitoring listed states or considering a declaration of incompatibility. The Secretary of State must monitor positively and regularly, and halt removals and seek legislation if a listed state becomes non-compliant. Greece’s inclusion was not shown, on the evidence, to breach Article 3.

The Secretary of State appealed, with permission from Pill LJ, against McCombe J’s declaration on 2 July 2007 under section 4(2) of the Human Rights Act 1998. The declaration concerned paragraph 3(2)(b) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004. The decision below was reported at [2008] 1 AER 411.

The respondent, an Afghan national, had claimed asylum in Greece before entering the United Kingdom. Removal to Greece was directed under the Dublin II Regulations. He argued that onward removal to Afghanistan without proper consideration of his claims would expose him to Article 3 ill-treatment. The central issues were whether the deeming provision prevented examination of that risk and whether Greece’s inclusion in the statutory list was incompatible with Article 3.

1. Appeal allowed. The Court of Appeal discharged the declaration of incompatibility made by McCombe J.
2. Article 3 responsibility can arise indirectly where removal to an intermediary Contracting State is one link in a possible chain leading to ill-treatment in a third State. The court relied on T.I. v United Kingdom [2000] INLR 211 and R (Thangarasa) and (Yogathas) v Secretary of State for the Home Department [2003] AC 920. However, Article 3 does not impose a free-standing duty to investigate a future risk. Assenov v Bulgaria (1997) 28 EHRR 652 concerned an effective investigation after alleged ill-treatment, while Banks v UK (21387/05, 6 February 2007) did not establish the wider proposition advanced below. Substantive compliance nevertheless requires examination of relevant law, practice and individual circumstances. Expulsion claims require rigorous scrutiny, as illustrated by Jabari v Turkey 40035/98 and Kandomabadi v Netherlands (6276/03 & 6122/04).
3. The opening words of paragraph 3(1) of Part 2 of Schedule 3 to the 2004 Act limit paragraph 3(2) to the actual executive or judicial determination in a particular case of whether removal would violate Convention rights. They do not prevent the Secretary of State from monitoring listed States or the court from examining their law and practice when considering a declaration of incompatibility. Re S [2002] 2 AC 291 and Lancashire County Council v Taylor [2005] 1 WLR 2668 did not address that specific construction question.
4. The Secretary of State’s general duty under the HRA requires positive and regular enquiry into whether listed States comply with Article 3. If a State falls short, removals there must be halted and urgent main legislation sought to remove it from the list. Compatibility may therefore change with the factual circumstances.
5. The evidence concerning Greece was limited but showed no current removals to Afghanistan and no reports of unlawful refoulement to any destination. Greece’s continued inclusion did not, on the evidence, offend the United Kingdom’s Convention obligations. The list system remained legally possible in principle, but its Article 3 compliance was fragile and depended on muscular monitoring.

1. Court of Appeal (Civil Division): Allowed the Secretary of State’s appeal and discharged the declaration of incompatibility.
2. High Court of Justice, Queen’s Bench Division: McCombe J granted a declaration on 2 July 2007 that paragraph 3(2)(b) of Part 2 of Schedule 3 to the 2004 Act was incompatible with Article 3; the decision was reported at [2008] 1 AER 411.
3. Permission to appeal: Pill LJ granted permission on 3 December 2007.