UTIAC (1) An out of country appeal may be made to the First-tier Tribunal by a person who has been removed to an EU member State pursuant to the Dublin Regulation (Council Regulation 343/2003/EEC). However, paragraph 6 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 precludes the appellant from bringing the appeal on any grounds that relate to the Refugee Convention, including human rights grounds which effectively ‘overlap’ with Refugee Convention issues. If the substance of a ground involves persecution for a Refugee Convention reason, paragraph 6 excludes that ground, whether or not the ground makes actual reference to the Refugee Convention.
(2) The effect of NS v Secretary of State for the Home Department [2011] EUECJ C-411/10 (21 December 2011) is to require paragraph 6 of Schedule 3 to be ‘read down’, where the EU State to which the appellant has been sent pursuant the Dublin Regulation is shown to be one whose asylum processes are experiencing major operational problems, involving systemic flaws in the asylum procedure and reception conditions for asylum applicants, resulting in inhuman or degrading treatment of asylum seekers transferred to that State. In order to establish such a state of affairs, there needs to be material of the kind referred to at [90] of NS, such as regular and unanimous reports of international non-governmental organisations bearing witness to the practical difficulties in the receiving State, UNHCR high-level pronouncements and EU Commission reports.
(3) Where such a ‘systemic deficiency’ in the asylum processes of the receiving State is found to exist, paragraph 6 of Schedule 3 is to be read down, so as to be compatible with EU law. In such circumstances, the Tribunal would, accordingly, allow the appeal, to the extent that the removal decision is held to be not in accordance with the law. It would then be for the respondent to secure the appellant’s return to the United Kingdom, where his or her claim to be in need of international protection would be substantively considered by the respondent and, if necessary, determined on appeal.
(4) Unless such a systemic deficiency can be shown, paragraph 6 of Schedule 3 applies, without qualification. It is not permissible to read down that provision on the basis only of evidence concerning the individual appellant.
(5) The effect of (2) to (4) above means that the same area of enquiry applies in appeals governed by Schedule 3, where a systemic deficiency is being asserted, as it does in a judicial review of the respondent’s decision to certify under paragraph 5 of Schedule 3, prior to a person’s removal from the United Kingdom. Where the Administrative Court has specifically addressed the issue in such proceedings, prior to the person’s removal, the Tribunal, in considering the out of country appeal brought by that person, should regard the Court’s findings as a starting point and as likely to be authoritative on the issue of systemic deficiency in the receiving State, insofar as those findings were based on the same or similar evidence as that before the Tribunal.
Judges:
Lane, McGeachu UTJJ
Citations:
[2012] UKUT 308 (IAC)
Links:
Jurisdiction:
England and Wales
Immigration
Updated: 05 November 2022; Ref: scu.464260