This is a significant test case judgement where the High Court has determined that a Member State of the European Union is not complying with its obligations under the Common European Asylum System and the return of asylum seekers to Hungary will result in significant breaches of protected human rights. It is expected that the judgement will have extensive implications for the assessment of returns to Hungary not only from the United Kingdom but also from elsewhere within the European Union.
His primary finding was that as at the date of his judgement, and having carefully considered all the relevant evidence, that there is a significant risk that the Claimants would be at risk of refoulement if removed to Hungary. However, even at the time when the original decisions were taken, the decisions were legally flawed because it ought to have been clear to the Secretary of State that there were serious problems arising out of the recent changes to the Hungarian law, such that removal of the Claimants from this jurisdiction may not have been justified. No detailed analysis as to whether removal was justified was ever undertaken by the Secretary of State.
We had also pleaded that the Claimants would be at risk of detention contrary to Article 5(1)(f) of the ECHR, but this was always very much a secondary argument, which the judge made clear in his judgement. In respect of this aspect of the challenge, he found that “there is insufficient evidence that the Claimants would be at risk of unlawful detention if they were removed to Hungary”.
The judge has added a number of caveats to his decision that the Claimants would be at risk of refoulement. He has been careful to emphasise that the decision he has reached in is based on the evidence before him and that the further, relevant evidence may change future assessment (for better or for worse). For example, since argument was heard but before the date of the judgement, there was a failed coup in Turkey, and the consequences of that may well be highly relevant. He also noted that the factual position was very fluid, and that it may well be possible for the Secretary of State to obtain specific assurances from the various States as to the treatment which individuals might receive.
The “net effect however is that the applications for judicial review succeed”.
Counsel for the Claimants : Declan O’Callaghan and Carine Patry, Landmark Chambers
Instructing solicitors : Bahar Ata and Krisha Prathepan