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

In a Dublin transfer case, the presumption that another member state will comply with its international obligations is rebuttable. A claimant need not establish systemic failure if individual evidence shows a real risk of treatment contrary to article 3 of the European Convention or article 4 of the EU Charter. A human-rights claim is clearly unfounded only where an appeal would be bound to fail. The court must apply anxious scrutiny and, where primary facts are undisputed, ask itself the same question as the Secretary of State. Continued immigration detention becomes unlawful where a material public-law consideration is ignored and removal is no longer a realistic near-term prospect.

Two judicial review claims challenged certificates issued under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, by which the Secretary of State proposed to return the claimants to Malta under the Dublin II arrangements. Both claimants relied on alleged defects in Malta’s asylum procedures and reception conditions, and on risks of refoulement or treatment contrary to the European Convention and the EU Charter.

Mr Ararso additionally claimed damages for detention between 28 August and 7 November 2014. The central questions were whether the evidence rebutted the presumption of Maltese compliance, whether the certificates were clearly unfounded, and whether Mr Ararso’s detention remained lawful after his proposed removal became subject to a likely judicial review challenge.

1. Judicial review claims. Both applications for judicial review were dismissed. The evidence did not rebut the presumption that Malta would comply with its relevant international obligations, and no individual circumstances altered that conclusion.
2. Human-rights certificates. A claim is clearly unfounded only if it is so clearly without substance that an appeal would be bound to fail. The court must apply anxious scrutiny. Where primary facts are undisputed, the court undertakes the same mental process as the Secretary of State rather than substituting a different view.
3. Article 3 and article 4 risk. The presumption of compliance is rebuttable. A claimant need not prove systemic deficiencies in the receiving state’s asylum system or reception conditions. Systemic failure is a route by which a real risk may be established, not an additional hurdle. An individual risk could suffice even where the general system functions effectively.
4. The Maltese system was imperfect but functioning. Improvements in detention, accommodation and appeal outcomes, together with the absence of evidence of a policy or frequent practice of refoulement, meant that neither claimant faced a real risk of inhuman or degrading treatment, ineffective judicial protection, or refoulement. The court reserved its opinion on whether article 18 of the EU Charter provides rights wider or deeper than the European Convention.
5. Detention. Mr Ararso’s detention was lawful from 28 August to 15 September 2014. His 29 August pre-action protocol letter materially changed the circumstances. The Secretary of State failed to take account of the consent order recording that Court of Appeal judges had seen sufficient merit in the earlier appeal to order stays of removal, and later relied on an artificial absconding risk despite a history of satisfactory reporting. That material public-law failure made continued detention unlawful from 16 September 2014.
6. Detention remained unlawful until release on 7 November 2014. After the judicial review claim was issued, expedition and removal in the near future were unrealistic. The court declared the detention unlawful for that period and granted liberty to apply if compensation could not be agreed.

These were first-instance judicial review claims. The judgment refers to earlier decisions in related proceedings, including [2013] EWHC 123 (Admin) and [2013] EWCA Civ 1701, but those decisions were not stages of an appeal in this judgment.