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

A challenge to a Dublin transfer fails where the evidence, assessed at its reasonable zenith, does not establish a real risk of treatment contrary to Article 3 of the ECHR. Historical shortcomings in the receiving state's asylum, detention or healthcare arrangements must be assessed against current evidence and the applicant's likely individual circumstances.

For a certification decision under the Asylum and Immigration (Treatment of Claimants etc) Act 2004, a claim is clearly unfounded if there is no legitimate view of the facts or law on which an appeal could succeed. Deficiencies in Malta's arrangements did not establish systemic failure, denial of fair asylum procedures, or a real risk of refoulement in this case.

The applicant, an Eritrean national, claimed asylum in the United Kingdom after previously entering Malta, where his asylum claim had been refused and he had experienced immigration detention and psychiatric treatment. Malta accepted responsibility for his claim under the Dublin Regulation.

The Secretary of State certified his human-rights claim as clearly unfounded under Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 and directed his removal to Malta. The applicant sought judicial review of the operative decision of 7 January 2015.

He alleged a real risk of Article 3 treatment because of mental-health needs and likely imprisonment in Malta, unfair asylum procedures contrary to Articles 18 and 47 of the Charter, and refoulement. The central issue was whether any legitimate view could permit a successful appeal against the certification decision.

1. Permission to apply for judicial review was granted, but the application was dismissed. The Tribunal held that there was no legitimate view of the evidence on which an appeal to the First-tier Tribunal could succeed. The Secretary of State was therefore entitled to certify the Article 3 claim as clearly unfounded.

2. The relevant Article 3 inquiry was whether there were substantial grounds for believing that removal would expose the applicant to a real risk of inhuman or degrading treatment. The Tribunal accepted the psychiatric assessment of suicide risk, but found that the risk arose from detention itself rather than substandard conditions. It found that the likely scenario was prosecution for an immigration offence, possible imprisonment, and access to psychiatric care at the Corradino Correctional Facility and, if needed, Mount Carmel Hospital. The available services were imperfect, but did not attain the elevated Article 3 threshold.

3. The evidence showed shortcomings in Malta's reception, detention and asylum arrangements. However, it also showed progressive improvement. Those shortcomings fell well short of fundamental failure or near collapse and did not establish systemic deficiencies. Applying the alternative real-risk approach in EM (Eritrea) v Secretary of State for the Home Department [2014] UKSC 12, the applicant had likewise failed to show a real risk of Article 3 treatment.

4. Assuming that Article 18 of the Charter protected a right to a fair and effective asylum process, the evidence did not show that the applicant would be denied relevant information, legal advice or an effective remedy on return. A fresh claim or reconsideration was available. His prior experience, United Kingdom legal advice, written materials and likely contact with JRSM materially reduced the alleged procedural risk. The evidence also did not prove that the Refugee Appeals Board was incapable of providing an effective remedy.

5. The refoulement claim failed. Malta's statutory and international non-refoulement obligations, together with the absence of evidence of refoulement of Dublin returnees or any applicant-specific risk, sustained the strong presumption of compliance.

6. Obiter, removal to another state violates Article 5 only where there is a real risk of a flagrant breach. The predicted detention pending trial or imprisonment after conviction would be lawful under Article 5.1(a) or (c).

• Upper Tribunal (Immigration and Asylum Chamber): the applicant challenged the Secretary of State's certification and removal decisions by judicial review. Paper permission was initially refused, but a rolled-up hearing was ordered. The Tribunal granted permission and dismissed the application.
• Subsequent permission: an application for permission to appeal to the Court of Appeal was refused, because the decision applied established rules and principles to a fact-sensitive matrix.