Secretary of State for the Home Department v Nasseri

The House of Lords dismissed the appellant's challenge to the Secretary of State's decision to remove him to Greece under the Dublin II Regulation. The court held that the Human Rights Act 1998 framework (notably sections 6, 3 and 4) does not create a freestanding procedural duty to investigate the safety of a proposed removal where there is in truth no real risk of treatment contrary to Article 3 of the European Convention on Human Rights. The irrebuttable deeming provision in paragraph 3(2)(b) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 precludes domestic decision-makers from treating Greece as unsafe for the purpose of authorising removal, but does not prevent a court from considering whether, on the facts, removal would in fact infringe Article 3 for the purpose of deciding whether the statutory provision itself is incompatible under section 4.

The court found, on the available evidence (including the contemporaneous position of the UNHCR, reports by human rights organisations and the European Court of Human Rights' decision in KRS v United Kingdom), that there was no real risk that a person returned to Greece under the Dublin II system would in practice be removed onward to Afghanistan or otherwise be exposed to treatment violating Article 3. Accordingly a declaration of incompatibility was unnecessary and the Court of Appeal's decision discharging the declaration was upheld.

Background and facts:

• The appellant, an Afghan national, entered Greece in late 2004 and claimed asylum; that claim was rejected on 1 April 2005. He later entered the United Kingdom clandestinely on 5 September 2005 and again claimed asylum. Pursuant to Council Regulation (EC) No 343/2003 (the Dublin II Regulation), the United Kingdom sought to transfer him to Greece, which accepted responsibility.
• The appellant alleged that removal to Greece would expose him, at one remove, to a real risk of onward removal to Afghanistan in breach of Article 3 ECHR and sought judicial review of the removal decision and, in the alternative, a declaration of incompatibility under section 4 of the Human Rights Act 1998 with respect to paragraph 3(2)(b) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (an irrebuttable presumption that specified states, including Greece, are places from which a person will not be sent onward in breach of Convention rights).

Procedural history:

• At first instance McCombe J (Administrative Court) concluded that the deeming provision impeded the investigation required by Article 3 and made a declaration of incompatibility ([2008] 2 WLR 523).
• The Court of Appeal ([2008] EWCA Civ 464; [2008] 3 WLR 1386) allowed the Secretary of State's appeal, rejected the existence of a freestanding duty to investigate, examined the factual evidence and concluded there was no real risk of unlawful refoulement from Greece, discharging the declaration.
• The appellant appealed to the House of Lords, which dismissed the appeal.

Issues framed by the court:

• Whether Article 3 imposes a freestanding procedural obligation on the United Kingdom to investigate the risk of onward refoulement from Greece, irrespective of whether a real risk exists.
• Whether paragraph 3(2)(b) of Schedule 3 (Part 2) of the 2004 Act is incompatible with Article 3 in the appellant's case and whether a declaration of incompatibility under section 4(2) of the Human Rights Act 1998 should be made.
• Whether, on the evidence, removal to Greece would expose the appellant to a real risk of treatment contrary to Article 3.

Court’s reasoning and conclusion:

• The House of Lords held that Article 3 engages a substantive inquiry into whether a person would be exposed to treatment contrary to Article 3; it does not create an independent, freestanding procedural duty to investigate in every case where a domestic statute precludes inquiry. The correct approach is to decide whether, on the facts, a Convention right would be violated; only if the public authority is acting compatibly is the inquiry at an end. If incompatibility is alleged and the authority cannot act differently because of primary legislation, the court must consider section 3 interpretative obligations and, if these fail, may make a section 4 declaration.
• The judge at first instance erred in treating the Article 3 obligation as a freestanding procedural duty. The House of Lords accepted the Court of Appeal's factual conclusion — based on UNHCR, NGO reports, trends in removals and the European Court of Human Rights' consideration in KRS v United Kingdom — that there was no evidence of actual onward removals from Greece to countries such as Afghanistan and therefore no real risk to the appellant. As a result a declaration of incompatibility was unnecessary.
• The court also emphasised the context of EU asylum cooperation (Dublin II, Eurodac and the asylum directives) and the role of the European Commission and the European Court of Human Rights in supervising member states' compliance; these institutions limit the extent to which one member state can be expected to police another's asylum procedures.

Appeal dismissed. The House of Lords held that Article 3 does not impose a freestanding procedural duty to investigate where there is no real risk that removal would expose the applicant to treatment contrary to Article 3; the judge at first instance erred in treating the deeming provision as automatically unlawful because it precluded an inquiry. On the facts and the contemporaneous evidence (including international and ECHR material) there was no real risk of onward removal from Greece to a place where the appellant would face treatment contrary to Article 3, so a declaration of incompatibility was unnecessary.

High Court (Administrative Court): McCombe J made a declaration of incompatibility ([2008] 2 WLR 523); Court of Appeal: allowed the Secretary of State's appeal and discharged the declaration ([2008] EWCA Civ 464; [2008] 3 WLR 1386); House of Lords: appeal dismissed ([2009] UKHL 23).