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

Statutory deeming provisions concerning safe third countries do not prevent the court from considering whether an asylum claimant has an arguable risk of refoulement. They become material only once such a question arises. A declaration of incompatibility does not alter the validity, operation or enforcement of the statutory provision concerned. Where the proposed return is arranged under the Dublin Regulation and the evidence does not establish an arguable risk that the receiving state will breach its obligations, removal is not shown to be unlawful.

The claimant, an Eritrean national, entered the United Kingdom illegally and claimed asylum. The Secretary of State certified his claim on third-country grounds and proposed returning him to Greece under the Dublin Regulation. Greece had accepted responsibility and confirmed that he would be able to apply for asylum on arrival.

The claimant relied on evidence concerning treatment of asylum seekers in Greece and on Nasseri v Secretary of State for the Home Department [2007] EWHC 1548 (Admin), in which the deeming provisions had been declared incompatible with Convention rights. The central issue was whether the claimant had shown an arguable risk of refoulement on the particular return arrangements proposed.

1. Application refused. The claimant had not shown an arguable risk that removal to Greece would expose him to refoulement contrary to Article 3 or the Refugee Convention.
2. The court rejected the submission that the deeming provisions prevented even an investigation of whether an arguable risk existed. Those provisions only operated once there was a question requiring determination. If no arguable risk was established, the relevant Convention rights were not engaged.
3. A declaration of incompatibility under the Human Rights Act 1998 does not affect the validity, continuing operation or enforcement of the provision concerned. The court did not need finally to decide how the declaration in Nasseri affected the Secretary of State’s decision-making.
4. The evidence about irregular treatment of asylum seekers arriving by sea or crossing the Turkish-Greek border did not establish a risk on the proposed facts. The claimant would be returned to Athens airport by prior arrangement under the Dublin Regulation, would be expected by the Greek authorities, and had been promised an opportunity to claim asylum.
5. The evidence from the Secretary of State’s official concerning the Greek reception procedure was accepted. The general suggestion that no Greek agency could be trusted merely because some police, coastguard or border guards might be unreliable was rejected.
6. Permission to apply for judicial review was refused and the existing stay was not continued generally. A stay was nevertheless granted until the claimant’s application to the Court of Appeal for permission to appeal had been heard, conditional on that application being made by 4 pm on 8 February 2007 and prosecuted diligently. The claimant was ordered to pay £450 costs for the acknowledgment of service, subject to Legal Aid assessment.

The claimant issued judicial review proceedings after the Secretary of State certified his asylum claim and proposed removal to Greece. High Court (Administrative Court): Munby J ordered a temporary stay and an urgent hearing. The present court refused permission for judicial review, but granted a conditional stay to preserve the claimant’s right to seek permission to appeal.