Saeedi, R (on the application of) v Secretary of State for the Home Department & Ors

A person may generally be returned under the Dublin Regulation to the Member State responsible for determining the asylum claim. Return is impermissible where substantial grounds establish a real risk of treatment contrary to Article 3 of the Convention, including unlawful onward refoulement. Destitution or inadequate asylum conditions in the receiving State do not ordinarily engage Article 3 responsibility on the part of the transferring State unless there is a close and direct link between the State’s conduct and the alleged harm.

The sovereignty clause in Article 3(2) must be exercised consistently with fundamental rights recognised in European Union law. The Secretary of State must consider whether the receiving State will respect human dignity and provide effective access to asylum. The claimant’s challenge nevertheless failed on the evidence.

The claimant, an Afghan national, sought judicial review of the Secretary of State’s decisions to return him to Greece under the Dublin Regulation. Greece had accepted responsibility by default following a Eurodac match. The Secretary of State certified the claimant’s human rights claim as clearly unfounded under Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004.

The claimant alleged a real risk of Article 3 ill-treatment through detention, destitution, defective asylum procedures and onward refoulement. He also argued that the Secretary of State should exercise the sovereignty clause in Article 3(2) because Greece would fail to comply with European Union asylum obligations. The central issues were whether the certificate was lawful, whether the deeming provision was compatible with Article 3, and whether Article 3(2) required the United Kingdom to assume responsibility for the claim.

1. Article 3 and certification. Applying ZT (Kosovo) v Secretary of State for the Home Department and anxious scrutiny, the court had to assess how the claim would fare before the tribunal. The evidence did not establish substantial grounds for believing that return to Greece exposed the claimant to a real risk of Article 3 treatment. The certificate was therefore upheld.
2. The risk of detention in Article 3 conditions was too speculative. Dublin returnees were generally detained at Athens airport for no more than a short period, and assurances indicated that they would not be transferred to detention centres in northern Greece. The decisions in SD v Greece and Tabesh v Greece were fact-specific and did not govern the claimant’s position.
3. Although asylum procedures and reception conditions in Greece were seriously unsatisfactory, Nasseri and KRS v United Kingdom required the court to recognise that such matters were principally for the Greek authorities and European institutions. Under Limbuela, destitution could engage Article 3, but there had to be a close and direct link between the destitution and the responsible State’s conduct. That link was too attenuated here.
4. The deeming provision in paragraph 3(2)(b) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 was not incompatible with Article 3 on the current evidence. The evidence of voluntary returns to Afghanistan and the absence of identified Dublin returnees among those removed to Turkey did not materially alter the position considered in Nasseri.
5. Article 3(2) of the Dublin Regulation. The Secretary of State was not required to use the sovereignty clause merely to remedy another Member State’s general failure to comply with the Common European Asylum System. Such an approach would undermine the allocation of responsibility and encourage forum shopping. However, the discretion had to be exercised consistently with fundamental rights recognised in European Union law, including human dignity and the effective examination of asylum claims. In an appropriate case, those considerations might require the United Kingdom to assume responsibility.
6. The Secretary of State had not demonstrated that those fundamental rights had been considered expressly. Nevertheless, the omission was immaterial in this case because the claimant was not vulnerable and the relevant dignity and asylum-access matters had already been considered under Article 3. The claim was dismissed.

Not stated in the judgment.