MB & Ors v Secretary of State for Home Department

Persons whose asylum applications have been finally rejected in the member state responsible under the Dublin II system are failed asylum seekers, not current asylum applicants. European Union asylum legislation therefore imposes no duty on the United Kingdom to reconsider their claims.

A removal challenge under Articles 3 or 5 of the European Convention on Human Rights must satisfy the applicable foreign-case threshold. The claimant must establish substantial grounds for believing that removal creates a real risk of prohibited treatment, or, for Article 5, a real risk of a flagrant breach.

Four Eritrean or Ethiopian nationals challenged certificates issued by the Secretary of State under the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, and proposed removal to Malta under the Dublin II regime. They alleged that return would breach Articles 3 and 5 of the European Convention on Human Rights because of detention, reception conditions, possible future detention and onward removal.

The court found that each claimant had made an asylum application in Malta, which had been rejected at first instance and on appeal. The central issues were whether European Union law required further examination in the United Kingdom and whether the human-rights claims prevented certification as clearly unfounded.

1. Disposition. All four claims were dismissed. Permission was granted to TK and GA to apply for judicial review. The third-country and clearly unfounded certificates were lawful.
2. European Union law. Each Maltese asylum application had reached a final decision. Under Articles 2(c) and 2(d) of the Procedures Directive, the claimants were failed asylum seekers. Malta remained responsible under Articles 10.1 and 16.1(e) of the Dublin II Regulation and was obliged to take them back under Article 20. They could not revive or make fresh asylum applications on return.
3. The systemic-deficiency safeguard associated with Article 4 of the Charter and Article 3(2) of the Dublin II Regulation concerns asylum seekers whose claims remain outstanding. It did not assist these claimants.
4. Article 3. This was a foreign case. The claimants had to establish substantial grounds for believing that removal created a real risk of treatment contrary to Article 3. Their possible destitution and past detention did not meet that threshold. There was also no evidence of a real risk of onward removal to persecution or ill-treatment.
5. Article 5. The court accepted Louled Massoud v. Malta and 24340/08 as showing that Malta’s administrative-detention system was probably unlawful. However, there was no evidence that Dublin returnees who had already completed detention would be administratively detained again. A short period of administrative detention would not amount to the flagrant breach required in a foreign case.
6. The claimants’ evidence did not have to be taken at its highest. That approach was not applicable to these human-rights claims, which were governed by the distinct foreign-case tests.

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