RM v The Secretary of State for the Home Department

Immigration detention pending removal under the Dublin II Regulation remains subject to the Hardial Singh principles. A period of detention is lawful where removal is intended, remains reasonably practicable, and the Secretary of State acts with reasonable diligence, taking account of the individual risk of absconding and the progress of removal proceedings.

For an Article 3 challenge to removal, the claimant must establish substantial grounds for believing that removal creates a real risk of inhuman or degrading treatment. The presumption that a listed receiving state will comply with its international obligations may be rebutted by evidence of practical realities, considered alongside the claimant’s personal circumstances. A human rights claim may be certified as clearly unfounded only where it is bound to fail on every legitimate view of the evidence.

The claimant, an Iranian national who had previously claimed asylum in Italy, challenged his detention from December 2011 to May 2012 pending removal under the Dublin II Regulation. He also challenged the Secretary of State’s April 2015 decision certifying as clearly unfounded his claim that removal to Italy would breach articles 3 and 8 of the European Convention on Human Rights.

The certification challenge concerned the effect of Tarakhel v Switzerland (2015) 60 EHRR 28 and the subsequent first-instance decision in MS and Others v SSHD [2015] EWHC 1095 (Admin). Before judgment, the Court of Appeal had upheld the approach in MS and Others v SSHD in NA (Sudan) v SSHD and MR (Iran) v SSHD [2016] EWCA Civ 1060. The central issues were whether detention remained reasonable and whether the claimant’s evidence meant that his human rights claim was not clearly unfounded.

1. Detention. The Secretary of State bore the burden of justifying detention under the Immigration Act 1971. The statutory power was constrained by the four Hardial Singh principles: detention must be for the purpose of removal; it must last only for a reasonable period; detention must cease when removal cannot be achieved within that period; and reasonable diligence and expedition must be used.
2. The claimant’s detention for approximately five months was lawful. He was detained for removal to Italy, the risk of absconding was reasonably assessed as real, and the Secretary of State was entitled to consider that removal could be effected within a reasonable time. The delays relied upon were de minimis. The judicial review proceedings did not make the detention unlawful, particularly since the claim was considered totally without merit and removals to Italy continued during the relevant period.
3. Article 3 and certification. Under R (EM (Eritrea)) v SSHD [2014] AC 1321, a real risk of Article 3 ill-treatment may be established through evidence of general conditions and the claimant’s personal circumstances. Systemic deficiencies are one means, but not the only means, of establishing that risk. A significant evidential presumption nevertheless existed that Italy would comply with the relevant international and European obligations.
4. A certificate that a human rights claim is clearly unfounded may be issued only where the claim is bound to fail on every legitimate view of the evidence. The Court of Appeal’s decision in NA (Sudan) v SSHD and MR (Iran) v SSHD required the court to follow the approach in MS and Others v SSHD, including its treatment of Tarakhel v Switzerland as confined to its particular facts involving a family with children.
5. The additional country evidence was substantially more of the same. It did not materially alter the analysis of the evidence considered in Tabrizagh [2014] EWHC 1914 (Admin) and MS and Others v SSHD, or establish a real risk of Article 3 treatment for this claimant. The certification challenge therefore failed.
6. The claim in its entirety was dismissed.

The judgment itself was a first-instance decision. It recorded that the approach in MS and Others v SSHD [2015] EWHC 1095 (Admin) had subsequently been upheld by the Court of Appeal in NA (Sudan) v SSHD and MR (Iran) v SSHD [2016] EWCA Civ 1060. The present court followed that Court of Appeal judgment.