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

An individual cannot generally challenge the allocation of responsibility between Member States under the Dublin Regulations. Such a challenge may proceed only on human-rights grounds or, potentially, irrationality. Removal to Greece is unlawful under Article 3 only where there is a real risk of onward treatment amounting to inhuman or degrading treatment. The humanitarian clause in Article 15 is engaged at the request of another Member State. Family life, medical treatment and detention must be assessed on the evidence and in the circumstances of the individual case. A serious risk of absconding may justify continued immigration detention where removal has been delayed by legal proceedings.

The claimant, an Iranian national, sought judicial review of the Secretary of State’s decision to remove him to Greece under the Dublin Regulations. He alleged that he had left the European Union for three months, that Greece was unsafe for him, and that removal would breach Articles 3, 6 and 8 rights. He also relied on the humanitarian clause, complained about medical treatment in immigration detention, and challenged the lawfulness of his continued detention under Article 5.

Permission had been granted by Black J. The issues were whether removal to Greece was lawful, whether the humanitarian clause applied, whether the medical treatment was unlawful, and whether continued detention was justified.

1. The application was dismissed. The Secretary of State had acted lawfully and proportionately. Removal to Greece would not breach the claimant’s human rights.

2. The allocation of responsibility under the Dublin Regulations could not be challenged by the claimant merely because he disputed the transfer. The available grounds were breach of human rights and, potentially, irrationality. The court applied the approach explained in Chen v Secretary of State for the Home Department [2008] EWHC 437.

3. The claimant had provided inconsistent accounts about when he left Greece and whether he had remained outside the European Union for three months. The evidence did not establish that the relevant period had elapsed. Nor did the evidence establish a real risk that return to Greece would result in onward removal to a country where he would suffer inhuman or degrading treatment. The court applied Nasseri and KRS in rejecting this ground.

4. Article 15 of the Dublin Regulations did not assist the claimant. The humanitarian clause was triggered at the request of another Member State, and no such request had been made.

5. The complaint about medical treatment failed. The claimant accepted that his real complaint concerned the effects of reducing his methadone rather than the treatment itself. The reduction was painful but sensible. There was no sufficient evidence that the treatment was unlawful, and Greece had undertaken to provide access to health care.

6. The detention challenge also failed. The claimant would have been removed, and therefore released from detention, but for the judicial review proceedings. His history gave rise to a serious risk of absconding. Two bail applications had been considered and refused. Continued detention was therefore not unlawful.

Permission to apply for judicial review was granted by Black J on 17 February 2009. The Administrative Court dismissed the claim.