Public Law Solicitors

With the ascension of the already infamous Dublin III Regulations, taking the reins on 1 January 2014, the European Council had the chance to clarify a number of issues surrounding the most contentious area of Immigration jurisprudence. Removal to a third country different from the original Eurozone country that a migrant entered.

The primary purpose of the Dublin Regulations, spawned out of the Dublin Convention of 1990, is the quick and speedy determination of who is responsible for processing an asylum claim, to the advantage of both the Eurozone signatories and the refugees themselves.

However, following the decision that Greece was “unsafe for migrants” and with removals to both Italy and Cyprus stayed, cracks began to form and bring into question the rigid nature of the Dublin Regulations.

This can be seen in the firm’s current and increasing involvement in cancelling third country removals to Hungary. Following Greece’s demise, the Home Office have on numerous occasions taken the decision to remove asylum seekers to Hungary despite originally entering the Eurozone in Greece and travelling via the non-member states of Macedonia and Serbia.

This stance raises a number of significant issues which have added to the weight of Judicial Review applications made to the Courts, a burden which so far that both the Courts and the Home Office have struggled to cope with.

Firstly, where a person cannot be removed to the responsible state because of conditions or because the state refuses to accept them, is the second country identifiable from the Regulations?

Secondly, if it is, whether a member state must still give proper consideration to the first Eurozone country a migrant entered, when that country is accepted as been “unsafe”, in determining which country to remove to.

And, arguably most importantly in the Public Law arena, if a state is chosen as such outside of the regulations or if proper consideration is not given when making a decision, is that decision potentially Wednesbury unreasonable or unlawful?

The recent decision of the Supreme Court in EM (Eritrea) now offers a fresh perspective to the consideration of these issues. The Unanimous decision to re-affirm the test in Soering v UK, requiring a “real risk” of inhuman or degrading treatment, overturns the Court of Appeal’s test requiring “systemic deficiencies”.

This upheaval effectively changes the threshold for deciding third country certification from an accepted country wide risk to an individual risk on a case by case basis. Metaphorically speaking, a country may now be unsafe for one refugee but present no “real risk” to another, or vice versa. Any decisions made without the necessary EM test applied are now extremely susceptible to public law challenges.

In a recent Judicial Review issued by the firm, against removal to Hungary, it has been alleged that following an asylum claim our client was subject to a breach of his Article 3 convention rights by the Hungarian authorities.

This raises another interesting mute point. Assuming that removal responsibility could be passed to a second country, what if this country is also deemed unsafe, does the process carry on until a safe country exists. The decision in EM suggests that for each country should a “real risk” of an Article 3 violation be present then responsibility will continue to pass until that risk disappears.

Given the trend that most asylum seekers entering the UK do so via several countries from Southern or Eastern Europe, the possibilities are far-reaching. Effectively a ripple effect could occur as less countries are “safe”, or present a “real risk” of violation and more countries have to share the burden.

Whilst the threshold of the “real risk” test will undoubtedly be high and the existence of Article 10, setting a 12 month limitation on accepting responsibility following entry to another state, should keep this scenario hypothetical. The criteria of Dublin III is quite clearly not adequate to deal with cases where the state responsible ceases to be the returnable state.

While it seems unreasonable to have expected the Dublin Convention of 1990 to envisage that a member state would fall foul to the rules like Greece, or that EM 24 years later would highlight the deficiencies within the Regulations further still, with Dublin III the European Union has missed a chance to clarify what they set out to achieve.

Until this is done, challenges against certification will continue to come before the UK Courts, piling further pressure on the Home Office and perhaps the worst casualties, migrants, will continue to be left in a stateless limbo.

About the Author

Richard Currer joined Duncan Lewis in December 2013 as a Caseworker in the Public Law department. He is currently based in the Harrow office.

Prior to joining Duncan Lewis, Richard graduated from Northumbria University in 2011 with a 2:1 LLB Honours Degree. Richard’s four-year course included the modules of the Legal Practice course, thus making him exempt from any further assessment. In his final year of study, Richard completed work in the Student Law Office as a Caseworker for a Pro Bono Criminal Appeals firm.

Notable work that Richard undertook included drafting lengthy submissions for a client to the Criminal Cases Review Commission and assessing the legality of indefinitely suspended sentences in line with the ECHR.