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

Article 3 may be engaged by a period of asylum-seeker limbo, but only where the circumstances meet the very high threshold for inhuman or degrading treatment. A proposed removal to another European state attracts an important, rebuttable presumption that the receiving state will comply with Article 3. An assurance or investigation is required only where the evidence gives rise to a viable Article 3 risk. Dublin transfer arrangements may contain safeguards against indefinite delay, including a time limit after which responsibility reverts to the transferring state.

The claimant, an asylum seeker, challenged the Secretary of State’s decisions declaring his asylum claim inadmissible under Nationality, Immigration and Asylum Act 2002, section 80B, and certifying his human rights claims as clearly unfounded under Schedule 3, Part 2, paragraph 5 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. Removal to France under the UK-France Agreement was proposed.

The claimant sought urgent interim relief and permission to apply for judicial review. He relied on Article 3 risks arising from alleged homelessness, destitution and uncertainty in France while a proposed Dublin transfer to Italy could not immediately be implemented. He also asserted a freestanding investigative duty requiring the Secretary of State to obtain clarification or assurances from France.

1. Applications dismissed. Interim relief was refused and permission to apply for judicial review was refused. The claim had no realistic prospect of success and disclosed no triable issue or arguable claim.
2. Article 3 was the governing substantive test. The question was whether there were substantial grounds for believing that removal would expose the claimant to a real risk of torture or inhuman or degrading treatment, whether directly in France or through onward removal. The court assumed, in the claimant’s favour, that an investigative duty could be advanced as a freestanding basis, but considered that it did not materially alter the Article 3 analysis.
3. A period of limbo could in principle engage Article 3, but the circumstances would have to be severe. The evidence did not arguably establish circumstances capable of reaching that threshold or triggering a need for an assurance or investigation.
4. The Dublin arrangements provided a protective time limit. The French transfer order required transfer within six months, subject to a possible extension in specified circumstances. If transfer could not be implemented within the applicable period, responsibility for determining the asylum claim would revert to France. The French and Italian documents were therefore not inconsistent and did not establish indefinite limbo.
5. France was presumed to comply with Article 3. The presumption was rebuttable, and case-law concerning removal or extradition and prison conditions showed that investigative duties and assurances could sometimes be required. The claimant’s evidence, however, came nowhere near arguably rebutting the presumption of French compliance.
6. The Secretary of State’s decisions could not be impugned on Article 3 grounds, and no order restraining removal was justified. The applications were dismissed.