AI, R (On the Application Of) v The Secretary of State for the Home Department

Removal under the Dublin system is assessed against a rebuttable evidential presumption that the receiving Member State will comply with its obligations under European and international law. The presumption may be displaced by reliable evidence of a real risk of prohibited treatment, including indirect refoulement, but ordinary procedural restrictions, isolated aberrations or low asylum recognition rates are insufficient without more.

Where the challenge concerns refoulement, the applicable question is whether there is a real risk, not whether the claim is merely arguably arguable under the clearly-unfounded certification test. The court need not assess the claimant’s underlying asylum claim. The possibility of obtaining interim protection under rule 39 of the ECtHR’s Rules of Court forms part of the overall assessment. The claim was dismissed.

The claimant, a Sudanese national claiming non-Arab Darfuri and Tunjur ethnicity, challenged the Secretary of State’s decision to remove him to France under the Dublin II Regulation without determining his asylum claim in the United Kingdom.

He relied on Articles 4, 18, 19.2 and 47 of the EU Charter. He argued that the French detained priority procedure, the treatment of his earlier asylum claim, and the low success rate of asylum claims created a real risk of onward refoulement to Sudan. He also alleged that the Secretary of State had failed to investigate the fairness of the French procedures.

The central issues were whether the evidential presumption of French compliance was displaced, whether the claimant’s substantive asylum case affected that assessment, whether the availability of rule 39 protection should be considered, and whether there was a duty to make further inquiries.

1. Disposition. The claim for judicial review was dismissed. The Secretary of State was entitled to decide that removal to France would not expose the claimant to a real risk of onward refoulement to Sudan.
2. Presumption of compliance. The conclusive presumption in para 3(2) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 did not apply to EU Charter rights. Nevertheless, EU law required a significant, rebuttable evidential presumption that Member States would comply with the Dublin Regulation, the asylum directives, the Refugee Convention and the ECHR. The presumption did not prevent consideration of individual risk factors.
3. Applicable test. Because the claim concerned onward refoulement, rather than a human-rights allegation covered by the clearly-unfounded certificate, the question was whether there was a real risk of refoulement in breach of Articles 4 and 19.2 of the EU Charter. The arguably-real-risk test in ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348 did not apply.
4. The court declined to assess the claimant’s underlying asylum claim. The Dublin system required the responsible Member State to determine that claim, and differences in procedural practice, credibility assessment or country-of-origin assessment did not engage the autonomous-interpretation principle in R v Secretary of State for the Home Department, ex parte Adan; R v Secretary of State for the Home Department, ex parte Aitseguer [2000] UKHL 67; [2001] 2 WLR 143.
5. The possibility of applying to the ECtHR under rule 39 was part of the overall assessment of onward-refoulement risk. The evidence showed no general difficulty in making such applications from France or in France complying with positive interim measures.
6. The evidence concerning the detained priority procedure, the 0.5–0.6 per cent success rate, local organisations’ statements and the claimant’s individual circumstances did not rebut the presumption. The procedural defects identified in I.M. v France were exceptional and materially distinguishable. The claimant retained avenues of challenge before the French courts and, if necessary, the ECtHR or CJEU.
7. The duty to investigate was not breached. The statistics did not compare like with like and were unreliable. Even if R v Secretary of State for the Home Department, ex parte Gashi [1999] Imm AR 415 remained good law, it did not require further inquiry on these facts.

First-instance judicial review. The judgment itself describes earlier decisions by the Secretary of State to remove the claimant to France, culminating in the decision challenged in these proceedings.