Ibrahimi & Anor v The Secretary of State for the Home Department

In assessing whether removal of an asylum seeker would breach the prohibition on refoulement, the court must examine the up-to-date evidence at the date of the hearing or judgment. The assessment must address the whole foreseeable chain of removal, including indirect or onward refoulement. A presumption that another EU Member State will comply with EU and international law is important but rebuttable. It may be displaced by substantial evidence of systemic or operational deficiencies, or by the individual circumstances of the claimant. Reports from the UNHCR and other expert bodies are highly probative but are not conclusive. Broad generalisations cannot replace a detailed evaluation of the evidence. The applications succeeded because removal to Hungary created a real risk of onward chain refoulement to Iran.

Two Iranian nationals challenged decisions by the Secretary of State certifying their asylum claims on safe-third-country grounds and permitting their return to Hungary under the Dublin III system. Each claimant alleged that removal to Hungary could lead to onward transfer through Serbia, Macedonia, Greece or Turkey and ultimately to Iran, where they claimed to face persecution. They also argued that detention during the process could breach Article 5(1)(f) of the European Convention on Human Rights.

The Secretary of State relied on the presumption that Hungary would comply with EU and international obligations and declined to examine the claimants’ individual asylum merits. The central issues were whether current evidence established a real risk of chain refoulement and whether there was a real risk of unlawful detention.

1. Applications allowed. The decisions were set aside because removal to Hungary gave rise to a real risk of indirect chain refoulement to Iran. The detention ground was rejected because the evidence did not establish a real risk of unlawful detention.
2. The relevant evidence had to be assessed as at the date of the hearing or judgment. In an asylum case the question is whether removal is safe on the evidence before the court, not whether the original administrative decision was reasonable on the material then available. Subsequent changes in circumstances must therefore be considered.
3. The Article 3 risk assessment had to be rigorous and prospective. It required consideration of the foreseeable consequences of removal, the general position in each receiving state, the claimants’ personal circumstances and the complete possible chain of removal. The risk was not confined to direct removal from Hungary to Iran.
4. The presumption that an EU Member State would comply with EU and international law was rebuttable. The concept of systemic flaws was not a defined term of art and did not exclude widespread operational failures or individual circumstances creating a real risk. The relevant question was whether substantial grounds existed for believing that the deficiencies would lead to treatment contrary to Article 3 or Article 4 of the Charter.
5. UNHCR reports carried very substantial probative weight, but were not dispositive. The court had to consider them alongside the EU Commission’s material, governmental and non-governmental reports, statistics and evidence of how the systems operated in practice. The evidence showed serious deficiencies in Hungary and the possible receiving states, including inadequate procedural safeguards and risks of onward removal. The presumption of compliance was consequently rebutted.
6. The conclusion was necessarily based on the evidence available at judgment and did not prevent the Secretary of State from conducting a fresh, comprehensive assessment and making new decisions if circumstances changed or adequate assurances were obtained.