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

A Dublin II transfer may be resisted on human-rights grounds only where substantial grounds establish a real risk of treatment reaching the high threshold of degrading treatment under Article 3 of the ECHR, normally involving systemic deficiencies in the receiving state. A possible interference with Article 9 religious manifestation, falling short of Article 3, will ordinarily be addressed through the receiving state’s authorities and courts. The best interests of an affected child must first be assessed and treated as a primary consideration, but those interests do not automatically prevent removal to another state complying with its international obligations. A human-rights claim may be certified as clearly unfounded where the evidence cannot arguably meet those thresholds.

The claimants, an Iranian father and his ten-year-old daughter, challenged the Secretary of State’s decision to return them to France under the Dublin II Regulation without determining their asylum claim on its merits. They argued that French legislation prohibiting face-covering clothing in public would interfere with their rights under Articles 3, 8, 9, 10, 11 and 14 of the ECHR, and that the Secretary of State had failed to treat the daughter’s best interests as a primary consideration under section 55 of the Borders, Citizenship and Immigration Act 2009.

They also sought permission to raise a Wednesbury challenge to the decision to return them to France. The central questions were whether removal would expose them to treatment contrary to the ECHR, whether the child’s best interests had been properly considered, and whether the claim was clearly unfounded.

1. Ground 1 failed. Mutual trust under the Dublin II Regulation creates a rebuttable presumption that the receiving state will comply with European and international human-rights obligations. Rebuttal requires compelling and reliable evidence. In a Dublin transfer case, systemic deficiencies producing a real risk of treatment reaching the Article 3 threshold are required.
2. The French prohibition on face covering could engage Article 9’s qualified protection of religious manifestation, but the court considered that the anticipated consequences for the daughter—occasional risk of prosecution, an admonition at most while under 13, possible exclusion from public places and access to French legal remedies—fell far below the minimum level of severity required for Article 3. There was no evidence of serious physical, psychiatric or psychological suffering, or of systemic unwillingness by France to remedy any violation.
3. The court stressed the limited nature of the issue. It was neither appropriate nor necessary to decide whether the French legislation was proportionate generally. That question was primarily for French and Strasbourg institutions.
4. Ground 2 failed. The best interests of a child affected by an immigration decision must first be assessed and treated as a primary consideration. The Secretary of State had assessed the daughter’s interests in the decision of 7 June 2012. Removal is not unlawful merely because the destination state is not a signatory to the UNCRC, and the evidence did not establish a legally sufficient reason against return.
5. Ground 3 failed. Permission to raise the unpleaded Wednesbury ground was refused. Given the Dublin II scheme, the Asylum and Immigration (Treatment of Claimants Etc) Act 2004 and the circumstances, the proposed ground had no legal merit.
6. The judicial-review claim was dismissed. Permission to appeal was refused. Removal was stayed by injunction until 4.00 pm on 26 July 2013 to enable an application to the Court of Appeal. The defendant was awarded costs in principle, subject to the statutory protection applicable to publicly funded claimants.

First-instance judicial-review decision. Permission to appeal was refused by the High Court. A time-limited stay on removal was granted to permit an application to the Court of Appeal.