Pour & Ors v The Secretary of State for the Home Department

A significant evidential presumption applies when an EU Member State is asked to accept a Dublin return. The returning state may assume that the receiving state will comply with the Refugee Convention, the ECHR and the EU Charter, unless sufficiently persuasive evidence displaces that presumption.

Shortcomings in another Member State’s asylum procedures, or breaches of EU directives, do not by themselves establish a real risk of refoulement or prevent removal. For Convention rights outside the core protections against inhuman treatment, removal is prevented only where there is a real risk of a flagrant breach which would completely nullify the right. The assessment must focus on the evidence of actual risk in the individual case or, where alleged, a properly established systemic risk.

Three Iranian nationals had made and lost asylum claims in Cyprus before travelling to the United Kingdom. Cyprus accepted responsibility for them under Dublin II or Dublin III. The Secretary of State refused to consider their UK asylum claims substantively, certified Cyprus as a safe third country under Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, and certified their human rights claims as clearly unfounded.

The claimants challenged removal on the grounds that they faced a real risk of refoulement to Iran after making further representations in Cyprus, and that they would face arbitrary or excessively lengthy detention contrary to Article 5 ECHR and Article 6 of the Charter. The first claimant also relied on mental ill-health and a risk of suicide. The central issues were whether the evidential presumption of compliance had been displaced and whether the Secretary of State’s certification decisions were irrational.

1. Refoulement. Where there was no in-country appeal against removal, the court had to determine for itself whether return created a real risk of refoulement. A significant evidential presumption applied that Cyprus, as an EU Member State, would comply with the Refugee Convention, the Charter and the ECHR (paras [96]-[98]).
2. The claimants’ case depended on the assumptions that the Refugee Reviewing Authority would wrongly reject their further representations as not amounting to fresh claims and that any legal error would lead to a different substantive asylum outcome. There was no evidence establishing either proposition, nor evidence showing that the alleged procedural defects had caused a real risk of refoulement (paras [99]-[106]).
3. Even if Cyprus had breached aspects of the EU directives concerning legal aid or suspensive remedies, such breaches would not themselves establish a real risk of refoulement. The court was not the appropriate tribunal to determine generally whether another Member State had complied with EU law, and considerable caution was required when interpreting foreign legislation without proper expert evidence (paras [107]-[123]).
4. The absence of an automatic stay on a Supreme Court challenge did not breach the applicable Procedures Directive. MA v Cyprus concerned a different situation, where removal was unlawful because the asylum file had been reopened and domestic law required suspension; it did not govern a final adverse asylum decision followed by further representations (paras [113]-[118]).
5. Detention. It was open in principle to rely on Article 5 ECHR and Article 6 of the Charter in challenging a Dublin return. However, the applicable threshold was a real risk of a flagrant breach, meaning a breach which completely nullified the essence of the right. Systemic breaches of directives did not suffice without such a breach of a fundamental right (paras [169]-[177]).
6. The evidence did not establish arbitrary detention, a complete denial of reasons or remedies, or detention of such duration as to constitute a flagrant breach of Article 5. The evidence about routine detention of failed Dublin returnees was uncertain, and the claimants’ final adverse decisions gave a legitimate basis for considering them absconding risks (paras [180]-[186]).
7. As to the first claimant, the Secretary of State’s decision was rational. Although detention was accepted as likely, there was insufficient evidence of a real risk that it would occur in circumstances violating Article 3. Cyprus was presumed to provide appropriate medical care and to assess his mental health and torture claim (paras [187]-[196]).
8. The claims were dismissed and the declaration of incompatibility was refused (para [197]).

not stated in the judgment.