Court of Appeal

Published May 20, 2008

Regina (Nasseri) v Secretary of State for the Home Department

Before Sir Anthony Clarke Master of the Rolls, Lord Justice Laws and Lord Justice Carnwath Judgment May 14, 2008

A provision which prevented the Secretary of State for the Home Department from considering whether certain listed countries would return asylum seekers in violation of their human rights did not enact an absolute bar, but was limited in scope.

It did not preclude a general consideration of whether a listed state’s laws and practices complied with the right not to be subjected to torture or ill treatment contrary to article 3 of the European Convention on Human Rights and therefore was not incompatible with article 3.

The Court of Appeal so held, allowing the appeal of the Home Secretary from Mr Justice McCombe (The Times August 3, 2007; [2008] 2 WLR 523) who had made a declaration that the deeming provision in Schedule 3 Part 2 paragraph 3(2) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 was incompatible with the rights of the claimant, Javad Nasseri, under article 3. Mr Robert Jay, QC and Ms Lisa Giovanetti for the Home Secretary; Mr Andrew Nicol, QC and Mr Mark Henderson for the claimant.

LORD JUSTICE LAWS said that Schedule 3 Part 2 paragraph 3(2) of the 2004 Act applied in every case where the Home Secretary proposed to return an asylum or human rights claimant to any one of 28 states listed in Schedule 3 Part 2 paragraph 2 on the basis that that state was a third country responsible for determining the merits of the claimant’s asylum or human rights claim. The Home Secretary was empowered to add states to the list but not to delete any state from it.

The claimant, a national of Afghanistan, made an asylum claim in Greece. That was refused. He left Greece and entered the United Kingdom unlawfully. When his presence was discovered he claimed asylum.

The Home Secretary declined to deal with the substance of the claim and set directions for his removal to Greece pursuant to Council Regulation (EC) No 343/2003, the Dublin II Regulations, (OJ 2003 L50/1). Those regulations essentially preserved the rule that an asylum claim would be substantively decided by the first Convention state where the claimant arrived.

The claimant resisted removal to Greece because of a claimed fear that the Greek authorities would return him to Afghanistan without properly considering his asylum and human rights case, and he would be ill treated there. That was not accepted by the secretary of state.

Violations of article 3 could extend to cases where a person was sent to a state which might remove him to a third state where he could face such a risk: see R (Yogathas) v Secretary of State for the Home Department (The Times October 18, 2002; [2003] 1 AC 920).

There was no free-standing duty to investigate the risk of loss of life or torture, but in order for a state to avoid a breach of article 3 by removing a person to another territory where he might be ill treated or whence he might be sent elsewhere and ill treated there, the authorities of the first state clearly had to apprise themselves of the relevant law and practice of the place to which removal would be effected. Otherwise they could not know whether or not their actions would violate article 3.

That was a necessary incident of the substantive obligation to fulfil article 3, underlined by the need for rigorous scrutiny of an individual’s claim that removal would expose him to article 3 treatment.

The opening words of Schedule 3 Part 2 paragraph 3(1) limited the application of paragraph 3(2) to the actual process of an executive or judicial determination of whether a person’s removal would contravene the relevant rights.

Consideration of such a question or, more generally, of a listed state’s laws and practices for the purpose of forming a view as to whether a state should remain on the list, the secretary of state’s function, or deciding whether a declaration of incompatibility should be made vis-à-vis any particular state, the court’s function, was not precluded or inhibited in any way. That result flowed from the language of the statute.

Given that the secretary of state was obliged to monitor the states on the list to ensure individual compliance, and the court was entitled, on an application for a declaration of incompatibility, to investigate by evidence whether any particular state infringed article 3 in a specific case or generally, the list system was not incompatible with article 3.

There were currently no removals from Greece to Afghanistan, and no reports of unlawful refoulement to any destination. That was critical. On the evidence the presence of Greece on the list did not offend the United Kingdom’s Convention obligations. It followed that there was no case for a limited declaration of incompatibility relating only to Greece.

The list system rendered the United Kingdom’s compliance with article 3 of the Convention fragile. In the absence of individual examinations of the merits of individual cases by those responsible for specific executive and judicial decisions in those cases, the whole weight of compliance fell on the measures and systems in place for monitoring law and practice in the listed states, and did so in circumstances where government had no discretion to take a state off the list but had to seek main legislation. Those measures and systems would need to be muscular.

The Master of the Rolls and Lord Justice Carnwath agreed.

Solicitors: Treasury Solicitor; Ms Sonal Ghelani, Aldgate.

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