Nasseri v. Secretary of State for the Home Department

"Issue:

(1) Was paragraph 3 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 incompatible with the European Convention on Human Rights 1950?

Considerations (Mr. Justice McCombe):

Paragraph 21 - From the recitation of the procedural history above it seems to me that the question of the compatibility of the deeming provision with the Human Rights Convention, and in particular with Article 3, was never substantively addressed by the defendant at any stage prior to the hearing when Miss Giovenetti made the oral submissions to which I have just referred. It seems rather that, after the objection to the Defendant?s reliance on the deeming provision emerged in the Claimant?s amended grounds in late 2005 and after the grant of permission to apply for Judicial Review, the argument that gradually evolved was that the making of a declaration was ?academic? because the claimant?s perceived concerns (arising as they did out of the UNHCR?s concerns) had been addressed by the Greek authorities. It is now submitted that the court is not dealing with a determination of whether the claimant can be removed from the United Kingdom but with a compatibility challenge to which the deeming provision, on its true construction, does not apply at all.

Paragraph 22 - I find the defendant?s argument on this circular and unsustainable. The claimant did challenge the decision to remove him and continues to do so; that was and is the purpose of these proceedings. The defendant relied upon the deeming provision as precluding any inquiry into the merits or otherwise of the concerns that were being
raised. When it was clear from the summary grounds of defence, at the latest, that that was indeed the defendant?s case, the claimant raised the point that that contention was
incompatible with the claimant?s rights under Article 3 of the Convention. Therefore, the declaration was sought. The present claim to the declaration arose fairly and squarely in the context of the challenge to the Defendant?s decision to remove the Claimant to Greece and that remains the basis of the present proceedings.

Paragraph 24 - The provision in question could not be in clearer terms. It requires ?any person, tribunal or court?, that has to determine whether an asylum applicant or applicant for human rights protection may be removed from this country, to treat Greece (among other states) as a place ?from which a person will not be sent to another state in contravention of his Convention rights?. It seems to me that Parliament has precluded both the Secretary of State and this court from considering any such question as to the law and practice on refoulement in any of the listed countries. The exercise which the defendant urges that I should undertake to demonstrate that the claim is academic is, therefore, an impermissible one. That was the submission that was made by the defendant and accepted by the Court of Session in Scotland in Nauroz Akhund [2006] CSOH 62.
There the defendant by Counsel suggested that the course open to the petitioner in that case was to seek a declaration of incompatibility. That is precisely what this Claimant
has done as part and parcel of his challenge to the Defendant?s decision to remove him.

Paragraph 25 - The danger that a provision, such as the deeming provision here in issue, would be found by the courts to be incompatible with the Convention was foreshadowed in authority and in pre-legislative commentaries available to Parliament at the time that the 2004 Act was passed.

Paragraph 26 - In R (Thangarasa) and (Yogathas) v Secretary of State for the Home Department [2003] AC 920 the appellant, a Sri Lankan Tamil, sought to challenge a certificate by the Secretary of State authorising his removal to Germany. Section 6 of the Asylum and Immigration Appeals Act 1993 prohibited the removal from the UK of an asylum applicant until the Secretary of State had notified him of his decision on the claim. But, by Section 2 of the Asylum and Immigration Act 1996 it was provided that Section 6 of the 1993 Act did not prevent removal if the Secretary of State had certified that the conditions mentioned in section 2(2) were fulfilled, unless the certificate was under
appeal. The conditions were:

?(a) that the person is not a national or citizen of the country or territory to which he is to be sent; (b) that his life and liberty would not be threatened in that country or territory by reason of his race, religion nationality, membership of a particular social group, or political opinion and (c) that the government of that country or territory would not sent him to another country or territory otherwise than in accordance with the Convention?.

(The reference to ?the Convention? is there to the Refugee Convention not the Human Rights Convention.) Section 11(1)(b) of the Immigration and Asylum Act 1999 enacted a statutory presumption that a member state of the European Union, such as Germany, was to be regarded as a place from which an asylum applicant would not be sent to
another country in breach of his rights under the Refugee Convention. (I.e. this was the precursor of paragraph 3(2)(a) and (c) of Schedule 3 to the 2004 Act, omitting what is
now sub-paragraph (b).) However, Section 65 of the 1999 Act did preserve the possibility of a challenge on human rights grounds. In his speech in the House of Lords, Lord
Bingham said that Section 65 was?

??no doubt necessary if that Act was to be compatible with the obligations of the United Kingdom under the European Convention on Human Rights?.

Paragraph 27 - Section 65 is not repeated in the 2004 Act and that Act does precisely the opposite in the deeming provision, by enacting an irrebuttable statutory presumption that an asylum applicant will not be subject unlawful refoulement by a specified state in contravention of the Human Rights Convention. It is clear, in my judgment, that Lord Bingham considered that a provision such as that now in issue would be incompatible with the ECHR. Of course, the remark was very much obiter dictum, but it came from a source whose dicta are very highly persuasive. Miss Giovennetti was constrained to argue, in the most respectful terms, that Lord Bingham?s dictum was simply wrong. I do not
think that it was.

Paragraph 28 - Warnings of potential incompatibility were also given, from sources knowledgeable in this field, first in evidence to the Select Committee on Constitutional Affairs by Mr Justice Ouseley, then President of the Immigration Appeal Tribunal, and secondly, by the Joint Committee of both Houses on Human Rights (see the Scrutiny of Bills: Sixth
Progress Report, 13th Report of Session 2003-4).

Paragraph 29 - The Bill contained the required statement by the Minister under section 19(1)(a) of the Human Rights Act that, in his view, the provisions of the Bill were compatible with Convention rights. The government?s view on the deeming provision was provided (in reply to Mr. Justice Ouseley?s evidence) in the following terms, perhaps foreshadowing Miss Giovannetti?s argument which emerged very belatedly in these proceedings:

?We cannot simply assume that our obligation, in relation to Article 3, will be met by another State. That is, that another State would have procedures in place to ensure that a person would not be removed improperly from that state to another country. Nor can we simply assume that a person would not face a real risk of treatment there contrary to Article 3. However, provided that we are satisfied as a matter of fact, after detailed and diligent enquiry, that the procedures and situation in another State are such that there is no real risk that a breach of an individual?s Convention rights will occur, we believe that such a provision is lawful.?

Paragraph 30 - The problem with that argument is that, when the defendant is faced with a claim to asylum and a claim alleging a potential breach of Article 3 by unlawful refoulement, the deeming provision precludes the defendant making any such enquiry at the point of removal as he is required by law to do. Even if the defendant was faced with clear and compelling evidence of such refoulement in an individual case, he is directed by this provision to deem the third country safe and to ignore the evidence of his own eyes and understanding. A mere generalised enquiry, made years earlier, that led to the country being included on the statutory list, would conclude the matter against the asylum
claimant. It is also instructive to note that, as Mr. Henderson for the claimant pointed out, the Act confers no discretion on the Minister to remove a State from this particular
list by statutory instrument or order. Primary legislation is required for that: see Schedule 3 paragraph 20.

Paragraph 31 - The Bill as originally presented allowed amendment, by way of addition or deletion of States, by order made by the Minister. However, that was changed by a government amendment, no doubt to remove any possibility of conferring on the Minister a reviewable discretion to delete a country from the Bill as enacted. Miss Giovennetti?s
fourth point, set out above, was that the deeming provision did not stop the United Kingdom authorities from monitoring the specified States for the purpose of deciding
whether to keep any one or more of them on the list of ?safe? countries. This ?monitoring? facility is in reality illusory in the light of paragraph 20 as enacted. It
amounts to no more than a facility to monitor for the purposes of deciding whether to promote primary legislation to remove any particular state from the list.

Paragraph 35 - The defendant submits (see Miss Giovennetti?s fifth point) that the deeming provision does not preclude the court from examining the law and practice of the relevant country on an incompatibility challenge. It followed, therefore, that the court should examine the material now produced as to the state of affairs prevailing in Greece to determine whether the deeming provision was indeed compatible with rights under the Human Rights Convention. If necessary, it was argued, the proceedings should be adjourned to enable the full material on this to be gathered, including so far as necessary the additional material sought by the claimant since April this year when the defendant?s
new amended grounds and Mr. Pulham?s statement were provided.

Paragraph 36 - I have already expressed my difficulty in comprehending how, in the light of the deeming provision, the court can engage in this enquiry in the context of proceedings such as these challenging a decision to remove the claimant. It also gives rise to the difficulty that the legislation would be capable in some circumstances of being
compatible with Convention rights and in others not so compatible. For example, it might be that, prior to the changes to procedures said to have been adopted by the
Greek authorities in June 2006, the legislation was incompatible with the Convention, but that after the changes it became compatible. That, to my mind, is an impossible
contention. The legislation is either compatible with Convention rights or it is not. As Mr. Henderson submitted, the Minister made his statement in the Bill that this provision
was compatible with the Convention. That statement was either correct or incorrect; it cannot be right that such a statement is correct at one moment and yet capable of being rendered incorrect by a change of factual circumstances after the Bill is enacted.

Paragraph 40 - In the present case, the deeming provision can only work to prevent an investigation of a potential breach of Article 3. It does so in absolute terms. In the words of the defendant?s written argument it is ?mandatory? and ??the Secretary of State simply has no discretion to consider whether Greece will remove the Claimant in breach of his
Human Rights?? (see paragraph 50). This is not simply a denial of a remedy; it directs the defendant not to comply with the substantive obligation of investigation arising
under Article 3."