Secretary of State for the Home Department (Respondent) v. Nasseri (FC) (Appellant)

a)    On whether Article 3 creates a procedural obligation for a member state ordering the return of an applicant under Dublin II regulation to investigate whether there is a risk of breach of the applicant's Article 3 rights by the receiving member state, regardless of whether such actual risk exists, the UKHL:

?    Cited Jabari v Turkey [2001] INLR 136 where the ECtHR said "that when an individual claims that his deportation will infringe his rights under article 3, ?a rigorous scrutiny must necessarily be conducted? of his claim" and said that in the UKHL's opinion the ECtHR "intended to mean that the ECHR will conduct a rigorous scrutiny of the claim and that unless a Member State has done so, it runs the risk of being held in breach? It did not mean that even though there is actually no real risk of treatment contrary to article 3 in the receiving state, a Member State will be in breach because it did not adequately investigate the matter" (para. 15).

?    The UKHL distinguished the judicial review process for an infringement of an Article 3 right with the review process under the normal principles of administrative law (citing Huang v Secretary of State for the Home Department [2007] 2 AC 167 and the Denbigh High School case):

?    "the judge was wrong in saying that article 3 creates a procedural obligation to investigate whether there is a risk of a breach by the receiving state, independently of whether or not such a risk actually exists [...] It is understandable that a judge hearing an application for judicial review should think that he is undertaking a review of the Secretary of State?s decision in accordance with normal principles of administrative law, that is to say, that he is reviewing the decision-making process rather than the merits of the decision. In such a case, the court is concerned with whether the Secretary of State gave proper consideration to relevant  matters rather than whether she reached what the court would consider to be the right answer. But that is not the correct approach when the challenge is based upon an alleged infringement of a Convention right"(para. 12); and
?    "The other side of the coin is that, when breach of a Convention right is in issue, an impeccable decision-making process by the Secretary of State will be of no avail if she actually gets the answer wrong" (para. 13).

b)    The UKHL examined the compatibility of the 2004 Act with  ECHR and with Section 4(2) of the 1998 Act, which requires the UK authorities not to act incompatibly with Convention rights. The issue is whether the 2004 Act irrebuttable presumption that a return to Greece is lawful, is compatible with ECHR. The Administrative Court had ruled that "the mere fact that the Secretary of State was precluded from considering whether there was a risk of unlawful refoulement from Greece was in itself a breach of Convention rights" (para. 9) and "declined to go into the question of whether there was actually a risk of unlawful refoulement and made a declaration of incompatibility" (para. 11). The UKHL, however, said that "Section 4 of the 1998 Act provides that a declaration of incompatibility may be made if a provision is ?incompatible with a Convention right?. That will normally mean a real Convention right in issue in the proceedings, not a hypothetical Convention right which the claimant or someone else might have if the facts were different" (para. 17).

c)    On whether Mr Nasseri's removal to Greece from the UK would infringe the applicant's Article 3 rights, i.e. whether the applicant faced a risk of an unlawful refoulement to his home country would he be returned to Greece, the UKHL agreed with the Court of Appeal's ruling "that removal to Greece would not infringe Mr Nasseri?s article 3 rights" (para. 23) and that "there was no evidence that anyone returned under the Dublin II Regulation had been removed to Iran, Afghanistan, Iraq, Somalia or Sudan" (para. 41), noting that "[l]ike the operation of the Greek system for processing asylum applications and the conditions under which asylum seekers are kept, that is a Greek problem. The Secretary of State is concerned only with whether in practice there is a real risk that a migrant returned to Greece will be sent to a country where he will suffer inhuman or degrading treatment. I agree with Laws LJ that there is no evidence of such a risk and would therefore dismiss the appeal" (para. 44) , and citing KRS v United Kingdom (Application no 32733/08), which among others said that "[o]n the evidence before it, Greece does not currently remove people to Iran (or Afghanistan, Iraq, Somalia or Sudan ? see Nasseri above) so it cannot be said that there is a risk that the applicant would be removed there upon arrival in Greece" (para. 36).