Secretary of State for the Home Department (Respondent) v Nasseri (FC)(Appellant)

An article 3 challenge to removal concerns the substantive result, not whether the decision-maker followed a particular investigative process. Article 3 creates no freestanding duty to investigate a claimed risk where no real risk of prohibited treatment in fact exists.

A statutory deeming provision may make removal lawful, but it does not prevent a court considering evidence of actual risk when deciding whether the provision is incompatible with a Convention right. A declaration under section 4 of the Human Rights Act 1998 will ordinarily arise only where a real Convention right is engaged on the facts. On the evidence, removal under the Dublin system did not expose the appellant to a real risk of onward refoulement contrary to article 3.

The appellant, an Afghan national, had first entered Greece and claimed asylum before entering the United Kingdom and making a further claim. Greece accepted responsibility for his application under the Dublin II system.

He contended that removal to Greece exposed him to a real risk of onward removal to Afghanistan contrary to article 3 of the Convention. Paragraph 3(2)(b) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 conclusively treated Greece as a state from which he would not be sent elsewhere in breach of Convention rights.

McCombe J made a declaration of incompatibility: [2008] 2 WLR 523. The Court of Appeal allowed the Secretary of State’s appeal, found no real risk on the evidence, and discharged the declaration: [2008] EWCA Civ 464. The central issue was whether the statutory presumption was incompatible with article 3 despite the absence of an actual risk of unlawful refoulement.

1. Appeal dismissed unanimously. Lord Hoffmann gave the leading speech. Lords Hope, Brown and Neuberger expressly agreed with it. Lord Scott also agreed with its conclusion and reasons, while adding observations of his own.

2. Per Lord Hoffmann, an allegation that removal infringes a Convention right requires the court to determine whether the right has in fact been violated. It is not an ordinary administrative-law review confined to the decision-making process. Article 3 therefore imposed no independent procedural duty upon the Secretary of State to investigate the risk in Greece. The relevant question was whether removal would in fact expose the appellant to a real risk of treatment contrary to article 3.

3. Paragraph 3(2)(b) of Schedule 3 conclusively made removal to Greece lawful for the statutory purpose. It did not prevent a court from examining evidence of actual risk for the distinct purpose of deciding whether that provision was incompatible with a Convention right. Under the structure of the Human Rights Act 1998, a declaration of incompatibility will normally be considered only after the court has found an actual infringement which primary legislation requires or authorises. A hypothetical declaration remained discretionary but would rarely be appropriate.

4. The Court of Appeal was entitled to decide the factual issue itself. Its conclusion was correct. The evidence, including the later decision in KRS v United Kingdom, did not show that Dublin returnees were in practice removed by Greece to Afghanistan or another country in breach of article 3. Difficulties in Greek asylum procedures and conditions did not establish the required real risk of onward refoulement.

5. Lord Hoffmann added that no person can be under a justiciable duty to promote primary legislation to remove a country from the statutory list. Lord Scott emphasised that EU member states could initially be treated as Convention-compliant, but convincing contrary evidence could found an application for a declaration of incompatibility. The statutory assumption alone could not do so.

• House of Lords: dismissed the appellant’s appeal and affirmed the Court of Appeal’s result: [2009] UKHL 23.
• Court of Appeal: allowed the Secretary of State’s appeal, determined that removal to Greece would not infringe article 3, and discharged the declaration of incompatibility: [2008] EWCA Civ 464.
• Administrative Court: McCombe J made a declaration that paragraph 3(2)(b) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 was incompatible with Convention rights: [2008] 2 WLR 523.