NS, Regina (on The Application of) v Secretary of State for The Home Department: CA 12 Jul 2010

The court referred the following questions to the ECJ: ‘(1) Does a decision made by a Member State under Article 3(2) of . . Regulation No 343/2003 whether to examine a claim for asylum which is not its responsibility under the criteria set out in Chapter III of the Regulation fall within the scope of EU law for the purposes of Article 6 [TEU] and/or Article 51 of the Charter . .?
If Question 1 is answered in the affirmative:
(2) Is the duty of a Member State to observe EU fundamental rights (including the rights set out in Articles 1, 4, 18, 19(2) and 47 of the Charter) discharged where that State sends the asylum seeker to the Member State which Article 3(1) [of Regulation No 343/2003] designates as the responsible State in accordance with the criteria set out in Chapter III of the regulation (‘the responsible State’), regardless of the situation in the responsible State?
(3) In particular, does the obligation to observe EU fundamental rights preclude the operation of a conclusive presumption that the responsible State will observe (i) the claimant’s fundamental rights under European Union law; and/ or (ii) the minimum standards imposed by Directives 2003/9 . . 2004/83 . . and 2005/85 . .?
(4) Alternatively, is a Member State obliged by European Union law, and, if so, in what circumstances, to exercise the power under Article 3(2) of the Regulation to examine and take responsibility for a claim, where transfer to the responsible State would expose the [asylum] claimant to a risk of violation of his fundamental rights, in particular the rights set out in Articles 1, 4, 18, 19(2) and/or 47 of the Charter, and/or to a risk that the minimum standards set out in Directives [2003/9, 2004/83 and 2005/85] will not be applied to him?
(5) Is the scope of the protection conferred upon a person to whom Regulation [No 343/2003] applies by the general principles of European Union law, and, in particular, the rights set out in Articles 1, 18 and 47 of the Charter wider than the protection conferred by Article 3 of the ECHR?
(6) Is it compatible with the rights set out in Article 47 of the Charter for a provision of national law to require a court, for the purpose of determining whether a person may lawfully be removed to another Member State pursuant to Regulation [No 343/2003], to treat that Member State as a State from which the person will not be sent to another State in contravention of his rights pursuant to the [ECHR] or his rights pursuant to the [Geneva Convention] and [the 1967 Protocol]?
(7) In so far as the preceding questions arise in respect of the obligations of the United Kingdom, are the answers to [the second to sixth questions] qualified in any respect so as to take account of the Protocol (No 30)?’


Neuberger MR LJ, Laws, Sullivan LJJ


[2010] EWCA Civ 990




England and Wales

Cited by:

CitedZagorski and Baze, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills and Others Admn 29-Nov-2010
The claimants, in the US awaiting execution for murders, challenged the permitting by the defendant for export of the chemical Sodium Thipental which would be used for their execution. The respondent said that its use in general anaesthesia practice . .
Lists of cited by and citing cases may be incomplete.

European, Human Rights, Constitutional

Updated: 22 August 2022; Ref: scu.421586