Alshirif v The Secretary of State for the Home Department

Permission to seek judicial review of a transfer under the Dublin III Regulation should be refused where the evidence does not make a claimed breach of Convention or Charter rights reasonably arguable. A claimant’s past treatment, including alleged unlawful removal from a safe third country, does not by itself establish a current real risk on return. A significant evidential presumption that the receiving state will comply with its international obligations can be rebutted only by cogent evidence.

The claimant, a Syrian national, sought judicial review of decisions to transfer him from the United Kingdom to Spain under the Dublin III Regulation. Spain had accepted responsibility for determining his asylum claim after a Eurodac match. He alleged that he had previously been returned unlawfully from Melilla to Morocco and that transfer to Spain created real risks of onward refoulement, denial of asylum protection and breaches of Articles 3 and 13 of the ECHR and relevant provisions of the EU Charter.

1. Permission refused. The evidence did not establish a realistic prospect that either ground for judicial review would succeed.
2. The court ordinarily assessed legality on the assumption that the claimant’s asserted facts were established. It declined, however, to proceed on the artificial premise that no asylum claim had been made in Spain. The fingerprint match and Spain’s acceptance of responsibility justified the conclusion that an asylum claim had been made.
3. The Spain–Morocco readmission agreement contemplated a formal process for returning third-country nationals who had entered from the other state. The claimant’s account of earlier returns from Melilla did not correspond with that process. There was no evidence that Spain would renege on its assurance or remove the claimant unlawfully before determining his asylum claim.
4. The court accepted the significant evidential presumption that Spain would comply with its international obligations. The claimant’s substantial material did not rebut that presumption or establish a realistic prospect of breaches concerning refoulement, asylum protection or Convention and Charter rights.
5. Although the permission threshold was comparatively low, permission was refused because the evidence did not substantiate the proposed grounds and the prospects of success were so low.