Dudaev & Ors v The Secretary of State for the Home Department

Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 does not apply to claims founded on the Charter of Fundamental Rights. Its conclusive presumption concerning safe third countries therefore does not defeat a claim based on European Union law. Judicial review is an effective and equivalent remedy for challenging a Dublin transfer. The presumption that another Member State will comply with its international obligations may be rebutted by evidence of a real and individual risk, whether or not systemic deficiencies are shown. A single allegedly irrational asylum decision ordinarily carries little weight unless it indicates wider or systematic failure. Judicial comity requires particular caution before scrutinising decisions of another Member State’s courts.

The claimants, Chechen nationals, had been refused asylum in Sweden and had exhausted their Swedish appeals. They entered the United Kingdom and claimed asylum, alleging that return to Sweden under the Dublin II Regulation would expose them to onward removal to Russia in breach of the Refugee Convention, articles 2 and 3 of the Convention, and the Charter.

The Secretary of State declined to determine the claims in the United Kingdom and certified the case under Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. The claimants challenged the statutory scheme and the assessment that Sweden would comply with its legal obligations.

1. Claim dismissed. The Secretary of State was entitled to refuse to determine the asylum claims in the United Kingdom and to rely on Sweden’s acceptance of responsibility under the Dublin II Regulation.
2. Schedule 3 paragraph 3(2) creates a conclusive presumption for claims under the Refugee Convention and the Convention. The Schedule is silent about the Charter and European Union law. It therefore does not apply to a claim founded on the Charter. The provision was consequently not incompatible with European Union law, although its application in a Convention case could, on the individual facts, support a declaration of incompatibility under section 4 of the Human Rights Act 1998.
3. Judicial review supplied an effective remedy for a challenge based on European Union law. The principle of effectiveness was not infringed because judicial review was not practically impossible or excessively difficult. The principle of equivalence was also satisfied because judicial review was the remedy whether the claim relied on the Refugee Convention, the Convention or the Charter.
4. The starting point was a strong presumption that Sweden would comply with its international obligations. The presumption was evidential and rebuttable. The relevant question was whether there were substantial grounds for believing that return to Sweden would expose the claimants to a real risk of unlawful refoulement. That inquiry could involve both systemic conditions and the applicants’ personal circumstances; proof of systemic deficiency was not an indispensable preliminary requirement.
5. The evidence did not rebut the presumption. The Swedish procedure provided for fresh applications, judicial protection against removal where justified, and access to the Strasbourg Court. The criticisms of the Swedish decisions were unsupported by sufficient material and did not establish a general or systematic failure. Even if the decisions had been irrational, a single aberrant decision would ordinarily have little bearing on future risk.
6. Substantial caution was required before treating the High Court as an appellate forum for decisions of another Member State’s courts, given judicial comity. The claims for judicial review were dismissed.

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