AH (Iran) & Ors v Secretary of State for the Home Department

In a Dublin transfer challenge under Article 3, the court must distinguish between ill-treatment in the receiving state and onward removal to a country where the claimant would face ill-treatment.

A defective asylum procedure in the receiving state becomes relevant only where there is a real risk of onward removal without proper consideration of the asylum claim. Procedural defects alone do not establish an Article 3 breach.

The assessment must be evidence-based and claimant-specific. A pending petition for leave to appeal in another case does not itself justify a stay. An interim measure under Rule 39 of the European Court’s Rules does not, without more, require a domestic stay.

AH, Zego and Kadir were asylum seekers whom the Secretary of State proposed to return to Greece under the Dublin II Regulation. Their claims were not considered substantively in the United Kingdom. Safe-third-country certificates were issued under Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

The Administrative Court refused permission in Zego, in [2008] EWHC 302 (Admin), and Kadir, in [2008] EWHC 1629 (Admin). Lloyd-Jones J refused AH permission and a stay. The applicants sought permission to appeal and stays pending the House of Lords’ decision on the petition in Nasseri. The common issue was whether the pending petition and the stay granted in Nasseri required similar relief in these cases.

1. Disposition. Stanley Burnton LJ, with Richards LJ agreeing, refused permission to appeal in all three cases and refused stays of removal.
2. Statutory scheme. Paragraph 3(2) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 was binding on the court and would remain so despite a declaration of incompatibility unless amended or repealed. The court nevertheless left the statutory deeming issue aside and considered the actual Article 3 position.
3. Article 3 assessment. The risks of direct ill-treatment in Greece and onward refoulement by Greece had to be analysed separately. A defective examination of an asylum claim was relevant only if there was a real risk that the claimant would be returned, without an examination meeting international standards, to a country where he would face Article 3 ill-treatment. A defective examination alone could neither breach Article 3 nor supplement an otherwise insufficient case.
4. The evidence showed that Greece was not returning failed asylum seekers to Eritrea, Iraq or Iran. Zego’s past treatment in Greece did not demonstrate a real risk on return under a specific Dublin arrangement. Kadir alleged no direct mistreatment in Greece. AH’s allegation was too vague. The evidence therefore disclosed no arguable basis for intervention.
5. Rule 39 relief. The European Court’s interim measure in Kadir’s case was immaterial to the domestic order. It was addressed to the Government, leaving the Secretary of State to comply with it or seek its discharge. It did not itself justify a stay.
6. Consistency and Nasseri. The stay in Nasseri had been granted by consent under a policy designed to avoid stultifying the pending appeal. Those circumstances did not apply here. The cases were therefore distinguishable, and the mere pendency of the Nasseri petition did not justify a stay where the evidence showed that Greece was not returning failed asylum seekers to the relevant countries.

• Court of Appeal (Civil Division): Permission to appeal and stays of removal were refused in each of the three applications.
• Administrative Court: Underhill J refused Zego permission in [2008] EWHC 302 (Admin). Irwin J refused Kadir permission in [2008] EWHC 1629 (Admin). Lloyd-Jones J refused AH permission and a stay; no citation for that decision is stated.