Queen’s Bench Division
Published August 3, 2007
Regina (Nasseri) v Secretary of State for the Home Department
Before Mr Justice McCombe
Judgment July 2, 2007

An absolute bar preventing the Secretary of State for the Home Department from considering whether certain countries would return asylum-seekers in contravention of their human rights was incompatible with the right to not be subjected to torture or inhuman or degrading treatment or punishment.

Mr Justice McCombe so held in the Queen’s Bench Division when granting a claim by Javad Nasseri for judicial review of the Home Secretary’s decision by letter of October 13, 2006, to proceed with his removal to Greece.

The claimant was a national of Afghanistan who entered the United Kingdom illegally. When detected he claimed asylum. He was detained and his fingerprints were found to match those of a person who earlier had claimed asylum in Greece.

The Immigration Service put in train procedures for inviting Greece to take responsibility for his asylum claim and return to Greece under the terms of Dublin II: see Council Regulation 343/2003/EC (OJ February 25, 2003 L50/1). The Home Secretary refused to release Mr Nasseri and told him that Greece had accepted responsibility for the asylum claim.

It was stated that, by virtue of paragraph 3(2) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, Greece was to be treated as a place where his life and liberty would not be threatened and from which he would not be sent to another state in breach of his rights under the European Convention on Human Rights.

Mr Nasseri contended that his removal to Greece would be a breach of article 3 of the Convention because he had not and would not have access to fair asylum determination processes there.

The Home Secretary argued that paragraph 3 of Schedule 3 to the 2004 Act, the deeming provision, prevented further scrutiny of the decision. Further detailed grounds of defence were served maintaining that the deeming provision implemented an absolute bar preventing the Home Secretary from considering whether countries such as Greece would return asylum-seekers in contravention of their human rights and claiming that he simply has no discretion to consider whether Greece would remove the claimant in breach of his human rights.

Mr Mark Henderson for the claimant; Miss Lisa Giovannetti and Mr Alan Payne for the Home Secretary.

MR JUSTICE McCOMBE said that counsel for the Home Secretary submitted that an incompatibility challenge could only be mounted successfully when it was demonstrated on the facts that it was no longer compatible with Convention rights to leave a particular state on the statutory list. In other words, it was necessary to consider the merits of any removal challenge on an assessment of the law and practices of the country concerned when an issue of incompatibility arose.

His Lordship said the deeming provision could only work to prevent an investigation of a potential breach of article 3. It did so in absolute terms. That was not simply a denial of a remedy; it directed the defendant not to comply with the substantive obligation of investigation arising under article 3.

The provision was incompatible with a Convention right and a declaration under section 4 of the Human Rights Act 1998 was made.

Solicitors: Ms Sonal Ghelani, Aldgate; Treasury Solicitor.

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