In the High Court of Justice – Queen’s Bench Division- Administrative Court
Mr Justice Irwin refused the application for Judicial review on both grounds.
Interesting that in contrast to the Bulgaria cases, art 28 was argued and dealt with differently in these case. However, Mr Justice Irwin says “I am fortified in my conclusions on Article 28 by the approach of Garnham J, culminating in his conclusions in paragraph 69 of the judgment in Khaled (No 2)”
Art 3 – conditions
Mr Abdulkadir's statement recounts his involvement with the Kurdish fighters known as the Peshmerga, fighting against ISIS from 2014. His asylum claim is based on that involvement and on fear of retribution by ISIS.
Mr Abdulkadir's account is that he travelled to Austria via Turkey and Bulgaria. He describes being arrested and detained in Austria and kept in dirty, unsanitary and cramped conditions. He says he was subject to abuse and assault by the Austrian police as he refused to be fingerprinted and he alleges he was fingerprinted by force. Once fingerprinted, he was released. He says that he slept on the streets for five days and then used hidden money to travel on through France and to the UK, via Calais.
Irwin concludes saying “I well understand the argument that the system of registering a claim only following a first interview means that there is a risk of circularity: no claim for accommodation can officially arise until an asylum seeker has formally registered a claim, but no claim will be registered without the provision of an address. However, there is before me no clear evidence as to the numbers of individuals who have fallen foul of this circularity, such that their treatment has reached the standard of inhuman or degrading treatment. The evidence from the NGOs (and indeed in the AIDA report) carries no firm statistics, nor are there any concrete individual examples.”
“ It seems to me that the ratio of CK (Afghanistan) does not assist the claimants. On this ground, these claimants do not seek to invoke rights under the ECHR but under European law in the form of the Charter”.
Does the introduction of Article 27 of Dublin III alter that position? On the face of the wording, the right accorded is an individual right. Mr Southey suggests the answer to this question may be given by the CJEU in the linked cases of Karim C155/15 and Ghezelbash C63/15. He places reliance on the opinion of Advocate General Sharpston in those cases, to the effect that individuals will in fact be able to challenge Dublin III decisions on the basis of "an incorrect choice of criterion".
Mr Payne rejects this argument as being of assistance to these claimants. The issue here contemplated is not a question of "incorrect choice of criteria".
In my view, there are a number of difficulties with this argument beyond the points already identified. Article 18, as quoted above, was part of the wording of the Charter from at least the Treaty of Lisbon, of December 2007, and thus long before the argument in Abdullahi. As the passage quoted above from Abdullahi makes clear, that decision was founded on Article 4 of the Charter (the homologue of Article 3 of the ECHR). Critically, the CJEU, considering European law, confined the opportunity for an asylum seeker challenging a decision of this kind, requiring the claimant to show "system deficiencies in asylum procedure and (emphasis added) in the condition for the reception of applicants" providing substantial grounds for a breach of Article 4 (not Article 18).
The approach of the claimants, for present purposes, is that they should succeed if they can show systemic deficiencies in asylum procedure, without substantial risk of breach of Article 4 of the Charter (Article 3 of HR Convention). That seems to me directly counter to the judgment of the CJEU in Abdullahi.
For these reasons, I reject this head of claim.
Irwin says the following :
• In respect of a given asylum seeker, the provisions of Article 28 apply to detention once there has been a decision to seek to return the individual pursuant to Dublin III. Before that decision is taken, he says it is difficult to see how any specific obligations set out in Article 28 arise.
• No conflict, nor indeed that there is any important difference between English law derived from the English statutes, the Hardial Singh principles as they have been developed and the requirement to adhere to policy on the one hand, and the content of Article 28 on the other.
• The facts in each case gave rise to a significant absconding risk from the beginning despite the fact that the tick box re absconding was not ticked. Irwin says – “That should have been recorded in “tick box” fashion, but I accept that Mr Payne is correct in saying that it was obvious in each of these cases that was a major consideration. In each case they arrived in a clandestine and illegal way and the evidence suggests that each did not voluntarily approach the authorities to claim asylum”- they were caught coming off the lorry/ running away on the motorway somewhere in Kent.
• There was in neither case a sensible basis for considering that alternative methods would be adequate to ensuring compliance and preventing absconding. Does not deal with why tagging etc was not appropriate. [ another appeal point]
• The risks of absconding in the face of imminent removal justified detention, whether considered under Article 28 or otherwise.
• He says the matter was kept under review and the reviews were conducted consistently with the principles laid down in Hardial Singh and with the Secretary of State’s policy. That until the time when (1) judicial review proceedings were permitted and (2) it was clear the proceedings could not be expedited, continued detention was both reasonable and proportionate.
In relation to the issue of a possible undisclosed policy of automatic detention of those whom it is intended to return under Dublin III, he said that such is not demonstrated here.