Al-Ali, R (on the application of) v Secretary of State for the Home Department

Where an asylum seeker has previously been effectively refouled by the state responsible under the Dublin II Regulation, the decision-maker must investigate why that occurred and obtain a sufficient assurance that it will not happen again. A transfer may proceed where the evidence establishes an individual mistake, the receiving state gives a case-specific explanation and assurance, and there is no sufficient basis for believing that the mistake will recur. The absence of systemic deficiencies does not remove the need to address a specific history of refoulement.

The claimant, a Kuwaiti Bidoon, had claimed asylum in the Netherlands but was ordered to leave before his claim was determined. He later claimed asylum in the United Kingdom. The Netherlands accepted responsibility under the Dublin II Regulation and agreed to take him back.

The claimant challenged removal, arguing that his previous treatment amounted to refoulement and that the Secretary of State could not rely solely on the absence of systemic deficiencies in the Netherlands. The Administrative Court considered the effect of NS v Secretary of State for the Home Department [2011] EUECJ C-411/10 and C-493/10 and EM (Eritrea) and others v Secretary of State for the Home Department [2012] EWCA Civ 1336. The central issue was whether removal to the Netherlands was lawful after the Netherlands had provided a specific explanation and assurance.

1. The claim for judicial review was dismissed. The claimant could be transferred to the Netherlands under the Dublin II Regulation.

2. The court accepted that requiring the claimant to leave the Netherlands when he had nowhere else to go had effectively refouled him. Although the court did not finally determine the broader legal distinction from NS v Secretary of State for the Home Department [2011] EUECJ C-411/10 and C-493/10 or EM (Eritrea) and others v Secretary of State for the Home Department [2012] EWCA Civ 1336, it proceeded on the claimant-favourable assumption that a second transfer could not occur without an adequate explanation and assurance.

3. The history required investigation because it was necessary to determine whether the earlier incident was an isolated mistake or evidence of systemic deficiency, including possible systemic bias. The Netherlands authorities explained that the order to leave resulted from a miscommunication. They confirmed that, on return, the claimant would be placed in an asylum seekers’ residence centre and would not receive a similar order.

4. Those assurances were case-specific and sufficient. The claimant had also signed a document explaining that, on release from detention before determination of his asylum application, he had to report to the application centre. The Secretary of State was entitled to conclude that the evidence did not rebut the presumption that the Netherlands would comply with the EU Charter, the Geneva Convention and the ECHR.

5. The claim had been justified when issued and until the later explanation and assurance were received. Nevertheless, there was no further impediment to transfer. There was no order as to costs, reflecting the parties’ agreement that their respective costs would broadly cancel out.

• Court of Appeal: Permission to apply for judicial review was granted after the claimant relied on the absence of an explanation for the earlier order to leave. The judgment records written decisions by Sullivan LJ dated 6 December 2011 and 23 February 2012.
• High Court (Administrative Court): The claim for judicial review was dismissed and removal to the Netherlands was held lawful.