Khan, R (on the application of) v Secretary of State for the Home Department

Where the Court of Appeal has upheld the compatibility of the safe-third-country certification regime with Convention obligations, a first-instance court should determine an individual removal challenge on its merits rather than leave it indefinitely adjourned. In the absence of evidence showing that the claimant faces a particular risk or vulnerability in the receiving state, a general challenge based on related litigation provides no sufficient basis for continued delay. The court may therefore dismiss the application and permit removal in accordance with the applicable arrangements.

The claimant challenged the Secretary of State’s decision that Greece should consider his asylum claim under the Dublin II arrangements. The claim had remained unresolved while litigation concerning the compatibility of the safe-third-country certification regime and the safety of return to Greece proceeded, particularly Secretary of State for the Home Department v Nasseri, [2008] EWCA Civ 464. By the hearing, the claimant was unrepresented and his solicitors had applied to come off the record. The central issue was whether the application should remain adjourned pending further litigation or be determined on the evidence relating to this claimant.

1. The application was dismissed. The court declined to adjourn the matter further because it could not remain indefinitely in limbo while related litigation continued.
2. The Court of Appeal in Secretary of State for the Home Department v Nasseri, [2008] EWCA Civ 464, had concluded that the certification regime was compatible with Convention obligations provided that the Secretary of State monitored arrangements in Greece. That conclusion governed the legal issue raised by the claimant’s general challenge.
3. The court recognised that the position concerning Greece might develop and that future proceedings could require an up-to-date assessment. That possibility did not justify postponing this application in the absence of a claimant-specific case.
4. The papers disclosed no particular vulnerability or evidence suggesting that the claimant would face a risk of ill-treatment in Greece. No individualised submission was advanced on his behalf.
5. Accordingly, there was no sufficient basis for a stay or adjournment. The claimant could be removed to Greece pursuant to the undertakings previously given.