Asylum seeker - Removal from United Kingdom to state of which person not national or citizen

R (on the application of Elayathamby): Queen's Bench Division, Administrative Court (London) (Mr Justice Sales): 11 August 2011

The claimant was a Tamil of Sri Lankan nationality. He left Sri Lanka and travelled to Malaysia where the United National High Commissioner for Refugees (UNHCR) determined that he had good grounds for claiming that he would face persecution if returned to Sri Lanka.

It was decided that, under the Geneva Convention relating to the Status of Refugees 1951 (the Refugee Convention), he would be accorded protection against return to Sri Lanka. Consequently, he was issued with an identity card which provided that he would be given protection against removal to Sri Lanka (the UNHCR card). The claimant did not claim asylum in Malaysia. He travelled to Cyprus and, from there, used a forged passport to enter the United Kingdom where he then sought asylum.

The UK sent a formal request to Cyprus under art 9 of Council Regulation (EC) 343/2003 (establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodge in one of the member states by a third-country national) (the Dublin Regulation) to accept responsibility for the claimant's asylum claim. Cyprus accepted responsibility for the claim. The defendant secretary of state certified the claimant's claim as clearly unfounded under para 5(4) of Pt 2 to Sch 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 and decided that the claimant would be removed to Cyprus. The claimant sought judicial review of that decision.

He submitted that: (i) he had had a legitimate expectation, based on the secretary of state's mandate refugee policy, that his asylum claim would be considered in the UK; (ii) he would be at substantial risk of detention in inhumane conditions in breach of his rights under art 3 of the Convention; (iii) that if he were not detained, he would not be provided with proper welfare support and appropriate living conditions so that there would be a substantial risk of breach of his rights under art 3 of the Convention; and (iv) he would be at substantial risk of refoulement to Sri Lanka in breach of his right to protection under the Refugee Convention and arts 2 and 3 of the European Convention on Human Rights (see [26] of the judgment for the relevant provision of the policy). The application would be dismissed.

(1) The claimant could not demonstrate that he had had a legitimate expectation that his claim would be considered under the mandate refugee policy. Applying established principles, the claimant could not show that the relevant statement in the mandate refugee policy was clear, unambiguous and devoid of relevant qualification.

It was clear that the main point of the policy was to explain to officials how the mandate refugee policy worked, including that it might be necessary to consider applications for asylum under the Refugee Convention made by persons from outside the UK. In that context, the relevant statement was properly to be read as a reminder to officials that, if a claim for asylum was made by a mandate refugee who was present in the UK, the usual rules regarding consideration of their claim applied.

The sentence relied upon by the claimant could not fairly be read as a clear and unambiguous statement that the secretary of state would herself consider the asylum claim in the UK and would not seek to operate the Dublin Regulation procedure even in a case in which she would be entitled so to do. It required very clear and distinct wording explaining that before it could fairly be concluded that the mandate refugee policy was intended to be read as having the effect that, in the case of mandate refugees, the Dublin Regulation would not operate. No such clear and distinct wording was used in the policy (see [28]-[30] of the judgment).

R v IRC, ex p MFK Underwriting Agents Ltd [1989] STC 873 applied; R (on the application of Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2008] 4 All ER 1055 applied; Paponette v A-G of Trinidad and Tobago [2010] All ER (D) 275 (Dec) considered.

(2) There was a presumption that a contracting state to the Convention would respect its international obligations in asylum matters, which presumption had to be rebutted if the claim was to be made out.

A degree of adverse commentary on a state's asylum procedures, even from highly respected sources such as the UNHCR, did not immediately lead to the conclusion that the presumption was rebutted (see [42] of the judgment).

In the instant case, there was a significant evidential presumption that Cyprus did responsibly and properly act to assess asylum applications made to it in an effective manner. The claimant was a long way from being able to rebut that presumption. Although there were adverse opinions on Cyprus's asylum procedures from certain local organisations, there was no pattern of adverse reporting from respected international organisations.

The pattern of reports in the case of Cyprus was very far from showing agreement on the part of the leading international bodies that Cyprus's asylum procedures were far from deficient or that asylum seekers there could not in practice have their claims for asylum considered effectively.

The UNHCR had not suggested that asylum procedures in Cyprus were deficient or in any way unacceptable. Any criticism that was made did not show that there was a substantial failure on the part of Cyprus to comply with its international obligations with respect to protecting asylum seekers against refoulement to countries where they might be at risk, nor was it suggested that asylum seekers could not safely be sent to Cyprus under the Dublin Regulation procedures.

There was no pattern of conduct by the Cypriot authorities to deprive potential asylum seekers of all information about their rights or how to apply for asylum.

There was no good basis, on the evidence available, for concluding that there was any significant impediment on an asylum seeker in Cyprus who feared refoulement from applying to the European Court of Human Rights for an interim protection order (see [42], [46], [53]-[55], [60] of the judgment). TI v UK (App no 43844/98) (unreported, 7 March 2000) considered; KRS v United Kingdom (App no 32733/08) (unreported, 2 December 2008) considered; MSS v Belgium and Greece (App no 300696/09) (unreported, 21 January 2011) considered.

(3) Although in the various reports of the international organisations there were, at some places, some criticisms of the detention conditions in which asylum seekers were held, they were comparatively muted in tone.

They fell a long way short of the sort of material which supported a claim that the secretary of state would act in violation of the claimant's rights under art 3 of the Convention by sending him to Cyprus to face detention there (see [68], [72] of the judgment).

(4) On the evidence, there was no indication that there was a serious problem and disregard for the welfare interests and living conditions of asylum seekers in Cyprus. The UNHCR had not suggested that there was a serious problem for asylum seekers in Cyprus such as amounted to inhumane treatment contrary to art 3 of the Convention.

The claimant fell far short of demonstrating that the secretary if state would act in breach of his rights under art 3 of the Convention by sending him to Cyprus (see [74]-[75] of the judgment).

Per curiam: In my assessment, although the reports of these local organisations which are produced for publication in the public domain are entitled to weight (as equivalent reports from local organisations in Greece were taken into account in MSS from local organisations in Greece were taken into alongside reports from international organisations), they carry considerably less weight than the considered reports of bodies such as the UNHCR, the ECRI, LIBE and the US State Department.

Local organisations such as KISA do not have the resources nor the general perspective on acceptable standards of protection for asylum seekers which those other bodies have. Nor is it apparent that the local organisations are engaged in a process of dialogue with the Cypriot authorities in the way that the UNHCR, the ECRI and LIBE appear to be, in the course of which the authorities are given an opportunity to comment on possible criticisms.

Therefore, the reports of the local organisations risk being rather one-sided in the picture they present (see [56] of the judgment).

Per curiam: ...where materials are not published and readily accessible in the public domain, a contracting state cannot be expected to be aware of those materials when deciding whether it is lawful to send an individual to another country under the Dublin Regulation procedures (see [60] of the judgment).

Claire Physsas (instructed by Satha & Co) for the claimant. Lisa Giovanetti (instructed by the Treasury solicitor) for the secretary of state.