The applicant had claimed asylum after fleeing Afghanistan to Greece and then to the UK. On the failure of his application, he would be returned to Greece, but objected that he would thence be returned to Afghanistan where his human rights would be infringed.
Held: The appeal failed. The judge had erred. When considering a request for a judicial review of a decision affecting the claimant’s human rights, the test is not the normal one of administrative law, but rather as to whether the claimant’s human rights had been violated: ‘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.’
There had been international concern that the procedures in Greece might lead to the removal of asylum seekers without any examination of their claims on the merits and contrary to the principle of non-refoulement. New procedures were passed, but not yet implemented. However, ‘the practice for dealing with asylum applications may leave something to be desired and very few applicants are accorded refugee status. If, as is usually the case, their applications are rejected, they are given a document directing them to leave the country and their continued presence there is uncomfortable. But there is no evidence, either in the documents before the Court of Appeal or the new evidence tendered to the House, that any Dublin returnee is in practice removed to another country in breach of his article 3 rights.’
Lord Hoffmann said: ‘McCombe J said, in para 36, that the legislation is ‘either compatible with Convention rights or it is not’. It cannot, he said, be incompatible if there is in fact a risk that Greece will return asylum seekers in breach of article 3 rights but compatible if there is no such risk. I do not agree. 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. . . The structure of the 1998 Act suggests that a declaration of incompatibility should be the last resort in a process of inquiry which begins with the question raised by section 6(1), namely whether a public authority is acting in a way which is incompatible with a Convention right. If the answer is no, that should ordinarily be the end of the case. There will be no need to answer the hypothetical question of whether a statutory provision would have been incompatible with a Convention right if the public authority had been infringing it.’
Lord Hope of Craighead, Lord Hoffmann, Lord Scott of Foscote, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury
[2009] UKHL 23, Times 07-May-2009, [2009] 2 WLR 1190, [2009] HRLR 24, [2009] 3 All ER 774, [2010] 1 AC 1
Bailii
Council Regulation (EC) No 343/2003, Asylum and Immigration (Treatment of Claimants, etc) Act 2004, European Convention on Human Rights 9
England and Wales
Citing:
Appeal from – Secretary of State for the Home Department v JN CA 14-May-2008
The Secretary of State appealed against a declaration that paragraph 3(2)(b) of Part 2 of Schedule 3 to the 2004 Act was incompatible with Article 3. The clause was said to restrict the Home Secretary from considering anything beyond the country . .
Cited – TI v United Kingdom ECHR 7-Mar-2000
The Dublin II Regulation did not absolve the United Kingdom from responsibility to ensure that a decision to expel an asylum seeker to another Member State did not expose him, at one remove, to treatment contrary to article 3 of the Convention. ‘In . .
Cited – SB, Regina (on the Application of) v Denbigh High School CA 2-Mar-2005
The applicant, a Muslim girl sought to be allowed to wear the gilbab to school. The school policy which had been approved by Muslim clerics prohibited this, saying the shalwar kameeze and headscarf were sufficient. The school said she was making a . .
At First Instance – Nasseri v Secretary of State for the Home Department Admn 2-Jul-2007
The applicant had sought and been refused asylum. He was found to have come via Greece, and steps were put in place to return him there. He now complained that the provision which allowed no discretion to the respondent to look at his case when the . .
Cited – Belfast City Council v Miss Behavin’ Ltd HL 25-Apr-2007
Belfast had failed to license sex shops. The company sought review of the decision not to grant a licence.
Held: The council’s appeal succeeded. The refusal was not a denial of the company’s human rights: ‘If article 10 and article 1 of . .
Cited – Vilvarajah and Others v The United Kingdom ECHR 30-Oct-1991
Five Tamils were refused asylum in the UK and returned to Sri Lanka but then continued to suffer ill-treatment. Their complaints to Strasbourg were rejected under both Articles 3 and 13, but with regard to Article 3, it held: ‘108. The court’s . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Regina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
Limit to Declaratory Refilef as to Future Acts
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .
Cited – Jabari v Turkey ECHR 11-Jul-2000
A ‘rigorous scrutiny’ was to be conducted of a claim that an individual’s deportation to a third country would expose him to treatment prohibited by Article 3, before it could be rejected.
Held: ‘If the State is to avoid breach of Article 3 by . .
Cited – KRS v The United Kingdom ECHR 2-Dec-2008
Admissibility – The applicant’s claim for asylum had failed, and he challeged the decision to return him to Greece, the point of entry to the EU, saying that he would be at risk if so returned.
Held: The United Kingdom would not breach its . .
Cited by:
Cited – Gaunt v OFCOM and Liberty QBD 13-Jul-2010
The claimant, a radio presenter sought judicial review of the respondent’s finding (against the broadcaster) that a radio interview he had conducted breached the Broadcasting Code. He had strongly criticised a proposal to ban smokers from being . .
At House of Lords – Nasseri v The United Kingdom ECHR 23-Sep-2013
Questions set for the parties . .
Cited – Nicholas v Secretary of State for Defence CA 4-Feb-2015
The claimant wife of a Squadron Leader occupied a military house with her husband under a licence from the defendant. When the marriage broke down, he defendant gave her notice to leave. She now complained that the arrangement was discriminatory and . .
Lists of cited by and citing cases may be incomplete.
Human Rights, Immigration, European, Judicial Review
Updated: 10 November 2021; Ref: scu.341818
