Toufighy & Anor, R (on the application of) v Secretary of State for the Home Department

In a challenge to removal under the Dublin II Regulation, the United Kingdom is required to assume responsibility under Article 3(2) only where the first Member State has systemic deficiencies in its asylum procedure or reception conditions, known to the United Kingdom, which create a real risk of inhuman or degrading treatment. Powerful evidence of individual risk is insufficient without systemic deficiency.

In certification cases, the court may exercise its own judgment on the material available to the Secretary of State. A human-rights claim is clearly unfounded where it is bound to fail. The best interests of children are a primary consideration, but may be outweighed by immigration control and compliance with international obligations. The children’s position, integration and educational circumstances must be assessed in their factual context.

The claimants were an Iranian mother with two children and a Somali adult, each of whom had claimed asylum in the United Kingdom. Hungary had accepted responsibility for examining their claims under the Dublin II Regulation. The Secretary of State declined to examine the claims substantively, certified the human-rights claims as clearly unfounded under Asylum and Immigration (Treatment of Claimants etc.) Act 2004, and directed removal to Hungary.

The mother relied principally on her children’s best interests and Article 8. The Somali claimant relied on alleged Article 3 risks arising from reception and integration conditions, and on Article 8 and Article 14 because of the asserted difficulty of family reunion for Somali nationals. The central issues were whether Hungary’s conditions disclosed systemic deficiencies and whether either claim was sufficiently arguable to prevent certification.

1. Certification. In cases under section 94 of the Nationality, Immigration and Asylum Act 2002 and paragraph 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, the court may exercise its own judgment, but only on the material available to the Secretary of State. The claim must be clearly unfounded, in the sense that it is bound to fail. The approach differs from the Wednesbury review applied to a fresh claim under Rule 353 of the Immigration Rules.
2. Dublin II. Article 3(2) of Council Regulation 343/2003 is engaged only where substantial grounds establish systemic deficiencies in the asylum procedure and reception conditions in the first Member State, resulting in a real risk of inhuman or degrading treatment. Hungary’s shortcomings, though troubling, did not establish systemic deficiencies. The Somali claimant’s evidence showed no sufficient individual risk of destitution or Article 3 ill-treatment. The particular homelessness evidence concerned persons who had left Hungary after obtaining status and later returned.
3. Article 8 and children. The Secretary of State’s later decision expressly treated the children’s best interests as a primary consideration, considered their circumstances and the available arrangements in Hungary, and was assessable in substance rather than form. The children’s views were before the court through the expert report. Their relatively short and precarious residence, removal with both parents, and the Dublin II framework meant that the Article 8 claim was clearly unfounded.
4. The adult claimant’s relationship with his sister did not disclose the additional dependency required for Article 8 family life. His family-reunion argument was speculative, and Article 14 added nothing on the facts.
5. The mother’s claim was considered on a rolled-up basis but permission was refused. The Somali claimant’s application was dismissed.

First-instance judicial review decision. No prior appellate decision is stated in the judgment.