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

A proposed transfer under the Dublin Regulation may be challenged under the Charter of Fundamental Rights of the European Union, Article 18. The applicable threshold is a real risk of breach of the Article 18 right, rather than the ECHR standard of a flagrant breach.

Article 18 protects the right to asylum and has procedural aspects. It does not, however, guarantee that a subsequent asylum application will be admitted or determined without an admissibility threshold. Imperfections in a receiving Member State’s asylum procedures, legal assistance, or review mechanisms will not prevent transfer unless the evidence establishes a real risk that the claimant’s Article 18 rights will be infringed.

The applicants were Sudanese nationals whom the Secretary of State proposed to transfer from the United Kingdom to Malta under the Dublin Regulation. Malta had accepted responsibility for examining their protection claims, and the Secretary of State certified their claims under Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004.

Both applicants had previously claimed asylum in Malta. They alleged serious deficiencies in their earlier treatment and contended that, if returned, fresh claims would expose them to prolonged procedural limbo, inadequate access to legal assistance and a risk of refoulement. The central issue was whether transfer would create a real risk of breach of Article 18 of the Charter of Fundamental Rights of the European Union.

1. The application for judicial review was dismissed. The evidence did not establish a real risk that either applicant would be denied the procedural protections inherent in Article 18 of the Charter of Fundamental Rights of the European Union if returned to Malta.

2. Article 18 was assumed to provide an available basis on which to challenge a Dublin transfer. The Tribunal held, per curiam, that the appropriate test is whether there is a real risk of breach of that right. The elevated ECHR test of a flagrant breach was inappropriate because Article 18 is a fundamental EU right without an ECHR equivalent.

3. The applicants’ past experiences in Malta were insufficiently detailed and, in any event, pre-dated material developments in Maltese asylum arrangements. Although future procedures might be imperfect by United Kingdom standards, the evidence did not show an incurably unfair or substandard process.

4. It was speculative to assume that fresh claims would necessarily be rejected as inadmissible. The applicants would probably have legal advice and representation, could obtain support from Maltese NGOs, and could make use of the material prepared by their United Kingdom solicitors. Article 18 did not confer either a right to make a subsequent application or a right to have one determined without an admissibility threshold.

5. The available review and challenge mechanisms in Malta, though subject to limitations, were not shown to be illusory or theoretical. Nor did the evidence support a prediction of indefinite delay. The alleged risk of refoulement depended on the asserted future procedural breaches and therefore also failed.

6. In judicial review proceedings, an Administrative Court decision is not binding on the Upper Tribunal. The two courts exercise coordinate jurisdiction: Secretary of State for Justice v RB [2010] UKUT 454 (AAC) applied.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial review of the Secretary of State’s certification and proposed Dublin transfer decisions. The application was dismissed.