W, R (on the application of) v Secretary of State for the Home Department

Where article 3 risk arises from non-state agents, a claimant must show both a real risk of proscribed ill-treatment and that the receiving state will not provide reasonable protection. A listed safe state benefits from a significant evidential presumption that it will comply with the ECHR. Systemic deficiencies are not required to rebut that presumption, but cogent evidence is required. A human rights claim is clearly unfounded if it cannot succeed on any legitimate view of the facts or law. Article 28 of Dublin III regulates detention based solely on the Dublin transfer procedure; it does not displace domestic detention powers. Detention under domestic law remains subject to the Hardial Singh principles.

The claimant, an Eritrean national, challenged decisions refusing to examine his asylum claim, certifying Italy as a safe third country, rejecting his article 3 claim and detaining him pending removal to Italy. He alleged a risk of violence from pro-Eritrean government groups in Italy and inadequate protection by the Italian authorities. He also challenged two periods of immigration detention and relied on article 28 of Dublin III.

The claim was issued after permission was initially refused and later granted. The claimant was permitted to add a challenge to his earlier detention. The central issues were whether removal to Italy breached article 3, whether the defendant had lawfully exercised her discretion not to determine the asylum claim, and whether the detention was unlawful under article 28 or domestic law.

1. Article 3. The claim failed. Under R(Bagdanavicius) v Secretary of State for the Home Department [2005] 2 AC 668, risk of violence by non-state agents is insufficient unless the receiving state has failed to provide reasonable protection. The state need not guarantee immunity from harm, but must maintain machinery for detecting, prosecuting and punishing crime and show a willingness and ability to operate it.
2. Italy was a listed safe country and therefore attracted the significant evidential presumption recognised in R(EM(Eritrea)) v Secretary of State for the Home Department [2014] AC 1321. Systemic deficiencies were not a necessary precondition to rebutting the presumption, but the evidence did not do so. The police had taken statements and investigated reported assaults. The absence of arrests did not establish unwillingness to protect. There was no clear, direct and independent evidence that the claimant would not receive reasonable protection.
3. The defendant was entitled to certify the human rights claim as clearly unfounded. The question was whether the claim could succeed on any legitimate view of the facts or law. Taking the claimant’s case at its reasonable highest did not prevent careful scrutiny of evidence that was unsupported or contradicted.
4. The defendant had considered, and declined to exercise, her discretion under article 17 of Dublin III and paragraph 5(1) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004. The normal practice of returning an asylum seeker to the responsible Member State supplied adequate reasons in the circumstances.
5. Detention. Article 28.1 of Dublin III prohibits detention solely because a person is subject to the Dublin procedure. Articles 28.2 and 28.3 concern detention for the purpose of securing a Dublin transfer and do not govern detention authorised under an independent domestic power. The court followed K v Secretary of State for the Home Department (No 2) [2016] EWHC 1394 (Admin) and declined a reference to the CJEU.
6. The two detention periods were lawful under the Hardial Singh principles. There was a reasonable prospect of removal, the defendant acted with reasonable diligence, and the periods of 19 and 40 days were not unreasonable. Administrative delays did not amount to public-law illegality. The judicial review proceedings were unmeritorious and did not require immediate release.

The judicial review claim was dismissed.

The judgment records that permission to apply for judicial review was initially refused by Dingemans J on 29 September 2015, but was granted on renewal by HHJ Bidder QC on 10 November 2015. The Administrative Court dismissed the claim.