Ehmed, R (on the application of) v Secretary of State for the Home Department

Where a Dublin II removal is challenged on the basis of an individual’s previous treatment in the receiving state, the presumption of compliance with Convention obligations is not irrebuttable. The court must address the legally correct threshold, including the unresolved question whether systemic deficiency is required or whether individual risk may suffice.

Where authoritative appellate guidance on that threshold is pending, it may be appropriate to stay the judicial review application and separately control removal. The existence of an earlier decision supporting removal does not prevent later material about the claimant’s individual history from being relevant to the legality and timing of removal.

The claimant, a Syrian national, challenged certification and proposed removal to Cyprus under Dublin II. Cyprus had accepted responsibility for considering his asylum claim. The claimant alleged that he had previously been removed from Cyprus to Syria in breach of the Refugee Convention. The Cypriot account of his history differed materially from his own and contained apparent inconsistencies.

The application raised questions about the effect of subsequently emerging facts, the human-rights duty not to remove, and the threshold applicable to resistance to Dublin removals. The Court of Appeal’s decision in EM (Eritrea) v Secretary of State for the Home Department was subject to an appeal to the Supreme Court, while related Cyprus-removal applications had been stayed. The central issue was whether the present application and removal should await authoritative resolution of that law.

1. The application was stayed pending determination of the appeal to the Supreme Court in EM (Eritrea) v Secretary of State for the Home Department. Removal was separately stayed initially pending the Court of Appeal’s determination of the Secretary of State’s challenge to the stay made in R (FJ (Iran)) v Secretary of State for the Home Department. Either party had liberty to apply, and costs were reserved.

2. The presumption underlying Dublin II is that Member States can determine asylum claims lawfully and observe Convention rights. It is not irrebuttable. The presumption may be rebutted by substantiated evidence that the claimant’s Refugee Convention or European Convention rights would not in truth be observed in the proposed receiving state.

3. The correct threshold remained uncertain. The Court of Appeal had summarised the effect of NS v Secretary of State for the Home Department as requiring operation of Dublin II unless there was evidence of systemic deficiency in the receiving state’s arrangements. The pending appeal in EM (Eritrea) might determine whether systemic deficiency was the exclusive test, how it should be defined, and whether the test applied to individual human-rights and refoulement issues.

4. The stringent approach applicable to the Dublin allocation decision did not govern a human-rights claim. The Secretary of State remained under an obligation not to remove a claimant, or otherwise act, in breach of human rights. An individual’s particular history in the receiving state could therefore affect the legality and timetable of removal.

5. The earlier Cyprus decision in R (Elayathamby) v Secretary of State for the Home Department supported removal on the materials then considered, but the claimant relied on new evidence and the wider legal uncertainty. The court did not decide that Dublin II removals to Cyprus were generally impermissible.

The judgment records earlier permission proceedings before Underhill J, an oral hearing before Mr Vincent Fraser QC sitting as a deputy judge, and an adjournment before Males J. It does not state a final lower-court merits decision.