VT v The Secretary of State for the Home Department

An appellant removed to an EU Member State under the Dublin Regulation retains an out-of-country statutory appeal. However, paragraph 6 of Schedule 3 excludes grounds which, in substance, challenge persecution, refoulement or related Convention-rights risks, even if framed without express reference to the Refugee Convention.

The provision must be read down only where reliable evidence establishes systemic flaws in the receiving State’s asylum procedure and reception conditions which expose transferred asylum seekers to inhuman or degrading treatment. Individual allegations of mistreatment or procedural failure are insufficient. Evidence emerging after removal must nevertheless be considered where it bears on systemic deficiency.

The appellant, a Sri Lankan national, was removed to Romania after Romania accepted responsibility for his asylum claim under the Dublin Regulation. He appealed from Romania against the removal decision, alleging ill-treatment, inadequate asylum procedures and a risk of return to Sri Lanka.

The First-tier Tribunal held that there was no valid appeal. It had not addressed the appellant’s legal submissions concerning the scope of paragraph 6 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 or the effect of NS v Secretary of State for the Home Department [2011] EUECJ C-411/10.

The Upper Tribunal set aside that determination and remade the appeal. The central issue was whether paragraph 6 prevented reliance on the appellant’s individual allegations, or had to be read down because of EU-law requirements.

1. The appeal was dismissed. The First-tier Tribunal had erred in law by finding that no valid appeal existed. An out-of-country appeal remained available under section 82(1) of the Nationality, Immigration and Asylum Act 2002, although Schedule 3 severely restricted the grounds that could be advanced.
2. Paragraph 6 of Schedule 3 excludes grounds inconsistent with treating the receiving State as safe. It does not exclude matters unrelated to the Refugee Convention, including a genuine Article 8 family or private-life complaint. It does, however, exclude human-rights grounds which substantively overlap with Refugee Convention matters. A complaint of persecution, racially motivated ill-treatment, inadequate asylum processing leading to refoulement, or equivalent Article 3 risk cannot be advanced merely by changing its legal label.
3. Following NS v Secretary of State for the Home Department [2011] EUECJ C-411/10, paragraph 6 must be read down where substantial grounds establish systemic flaws in the receiving State’s asylum procedure and reception conditions, resulting in inhuman or degrading treatment of transferred asylum seekers. The necessary evidence is of the kind identified in NS, including regular and unanimous NGO reports, high-level UNHCR material and European Commission reports.
4. Individual evidence may support a systemic-deficiency case but cannot, without such systemic evidence, displace paragraph 6. It would undermine the Dublin system and mutual confidence between Member States for United Kingdom courts to determine, at a distance, individual allegations concerning the receiving State’s treatment of an asylum seeker or the merits of the underlying protection claim.
5. Post-removal evidence capable of showing a systemic deficiency must be considered. Findings by the Administrative Court in a pre-removal judicial review are a starting point and are likely to be authoritative where based on the same or similar evidence. No systemic deficiency in Romania was alleged or established. The appellant’s grounds were therefore barred by paragraph 6, and the remade appeal was dismissed.

• Upper Tribunal (Immigration and Asylum Chamber): Set aside the First-tier Tribunal’s determination for legal error, remade the decision and dismissed the out-of-country appeal.
• First-tier Tribunal: Held that there was no valid appeal before it.
• Administrative Court: Before removal, refused the appellant’s application for judicial review of an earlier removal decision.