Abdulkadir & Anor, R (on the application of) v The Secretary of State for the Home Department

In a Dublin III removal case, an Article 3 claim is clearly unfounded only where it is bound to fail. The starting point is the significant presumption that another EU member state will comply with its Convention obligations, but that presumption may be displaced by evidence establishing a real risk of inhuman or degrading treatment.

General pressure on reception arrangements, homelessness risks and procedural delays did not establish the required risk for two single men without dependent children or demonstrated special vulnerabilities. Article 28 detention requires an individual assessment, a significant risk of absconding, proportionality and consideration of less coercive alternatives. Those requirements were compatible with domestic detention principles. Article 27 Dublin III created a procedural remedy but did not broaden the substantive grounds for challenging transfer.

The claimants, Iraqi nationals who had travelled through Austria, challenged decisions certifying their human rights claims as clearly unfounded and proposing their removal to Austria under Dublin III. They relied principally on evidence concerning overcrowding, homelessness, delayed asylum registration and reception conditions in Austria.

They also challenged their detention under Article 28 Dublin III, domestic law and the Hardial Singh principles. By amendment, they alleged that removal would breach Article 18 of the Charter because Austria’s asylum procedure was systemically deficient. The central issues were whether the Article 3 claims were bound to fail, whether detention was lawful, and whether Article 18 supplied an independent ground of challenge.

1. Article 3 certification. A claim is clearly unfounded where it is bound to fail: R (Yogathas) v SSHD [2003] 1 AC 920. The applicable substantive test was whether substantial grounds showed a real risk of treatment contrary to Article 3, applying Soering v United Kingdom (1989) 11 EHRR 439.
2. Presumption and evidence. Dublin arrangements give rise to a significant evidential presumption that the receiving member state will comply with its Convention obligations. The presumption is not irrebuttable and must not prevent consideration of evidence showing that return would expose the individual to a fundamental-rights violation: R (EM (Eritrea)) v SSHD [2014] AC 1321. The evidence concerning Austria showed serious pressure and periods of inadequate reception, but lacked reliable statistics or concrete individual examples demonstrating Article 3-level treatment. The claimants were young single men without dependent children and were not comparable to the particularly vulnerable family in Tarakhel v Switzerland (2015) 60 EHRR 28. Their evidence did not justify individual assurances or displace the presumption.
3. Detention. Article 28 Dublin III permits detention where there is a significant risk of absconding, following an individual assessment, where detention is proportionate and less coercive alternatives cannot be applied effectively. The domestic statutory framework, the Hardial Singh principles and the Secretary of State’s policy were not materially inconsistent with Article 28. Both claimants’ clandestine and unlawful entry, lack of UK ties and circumstances of apprehension established a significant absconding risk. Early removal was realistically feasible and alternatives were inadequate. Detention was therefore lawful and proportionate until judicial review proceedings could not be resolved promptly, at which point release was appropriate.
4. Article 18 of the Charter. Article 27 Dublin III required an effective remedy against a transfer decision, but did not broaden the substantive grounds on which transfer could be challenged. Abdullahi v Bundesasylamt [2014] 1 WLR 1895 indicated that a challenge based on systemic deficiencies required substantial grounds for believing that the claimant faced a real risk of Article 4 ill-treatment. An Article 18 claim based solely on systemic procedural deficiencies, without the required Article 4 risk, was therefore rejected. In any event, the evidence did not establish systemic failure or a real risk of breach of Article 18.
5. The claims were dismissed.