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

A state listed as safe under Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 is treated as safe only for the statutory purpose identified in that Part. The presumption that an ECHR contracting state will comply with its asylum obligations may be rebutted by compelling, reliable evidence of systemic deficiencies. The assessment is fact-sensitive and should consider the quality and consistency of public reports, UNHCR material, practical access to asylum procedures and the availability of effective interim protection under Rule 39. Private expert reports will ordinarily carry little weight in such claims. A policy statement creates a substantive legitimate expectation only where, read fairly in context, it is clear, unambiguous and devoid of relevant qualification.

The claimant, a Sri Lankan Tamil and holder of a UNHCR card, claimed asylum in the United Kingdom after travelling through Cyprus. Cyprus accepted responsibility for examining his asylum claim under the Dublin Regulation. The Secretary of State certified the claim and directed his removal to Cyprus.

The claimant challenged the decision on four grounds: that Cyprus might refoule him to Sri Lanka; that detention conditions in Cyprus would breach Article 3 of the ECHR; that his living conditions would breach Article 3; and that the defendant’s mandate refugee policy created a legitimate expectation that she would consider his asylum claim in the United Kingdom.

1. Legitimate expectation. The claim was for a substantive benefit, namely consideration of the asylum claim by the defendant in the United Kingdom. The applicable requirement was that the relied-on statement be clear, unambiguous and devoid of relevant qualification, applying R v IRC, ex p MFK Underwriting Agents Ltd [1990] 1 WLR 1545, R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs (No 2) [2008] UKHL 61 and Paponette v AG of Trinidad and Tobago [2010] UKPC 32. Read in context, the policy explained how mandate refugee applications were handled; it did not promise that the United Kingdom would forego the Dublin Regulation. This ground failed.
2. Statutory scheme. Paragraphs 2(c) and 3 of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 required Cyprus to be treated as safe against refoulement. A challenge to that legislative assumption could yield only a declaration of incompatibility under section 4 of the Human Rights Act 1998, not quashing relief. The court could not issue such a declaration against the Refugee Convention. By contrast, the safe-country provision did not immunise detention or living conditions from scrutiny under section 6(1) of the 1998 Act.
3. Refoulement. Applying the approach in M.S.S. v Belgium and Greece (ECtHR Grand Chamber, judgment of 21 January 2011), and the earlier authorities of T.I. v United Kingdom and K.R.S. v United Kingdom, there was a presumption that Cyprus would comply with its international asylum obligations. The evidence did not show the systemic, serious and consistent deficiencies found in Greece. UNHCR had not criticised Cyprus’s procedures in equivalent terms, and effective access to Rule 39 relief remained available. The presumption was not rebutted.
4. Detention and living conditions. The evidence concerning Cyprus was materially less serious than that considered in M.S.S. v Belgium and Greece. It did not establish a real risk that removal would expose the claimant to treatment contrary to Article 3. The private KISA report was given little weight because it was procedurally irregular, lacked adequate expertise and translations, was partisan in presentation, and did not engage with the international material.
5. The claim for judicial review and every ground advanced were dismissed.

Not an appeal. The judgment determined a first-instance application for judicial review of the Secretary of State’s certification and removal decision.