In the High Court of Justice - Queen's Bench Division - Administrative Court
The Claimants are three Iranian nationals who unsuccessfully claimed asylum in the Republic of Cyprus, which I shall call Cyprus for convenience, and who then came to the UK. They made asylum claims in the UK. In each case, and there is no connection between them, the SSHD found out or was told by them that they had claimed asylum in Cyprus. The SSHD refused to decide their claims substantively. Cyprus accepted or was deemed to have accepted responsibility for the Claimants under EU Council Regulation 343/2003 (Dublin II) or Council Regulation (EC) No 604/2013 of 26th June 2013 ("Dublin III").
The SSHD certified the asylum claims on safe third country grounds, in 2013 and 2014, under paragraphs 3-5 of Part 2 to Schedule 3 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004, the 2004 Act, and certified the human rights claims as clearly unfounded, under paragraph 5(4) of Part 2 of the same Schedule. The human rights decisions now challenged were taken in May 2015, taking a very simplified version of the messy two year procedural history of the three judicial review claims. It was agreed by all parties that those decisions should be treated as superseding earlier human rights decisions.
They are together challenged on grounds common to all three Claimants, which is what brings them together before me, that (1) the decision to certify the human rights claims was irrational because, on the evidence, the SSHD should have concluded that there was at least a reasonable prospect that the First-tier Tribunal would find that they would be detained in flagrant breach of Article 5 ECHR, and (2) that the Court should conclude, contrary to what the SSHD had concluded, that, if returned to Cyprus, there was a real risk of each Claimant being refouled thence to Iran. In both grounds, reliance was placed on the ECHR, the EU Charter of Fundamental Rights,, the CFR, and EU Directives. The asylum certifications are challenged on the same amended grounds, provided shortly before the hearing. There is a separate Article 3 challenge by EP, who is said to have mental health problems, based on the risk of long and arbitrary detention.
The relief sought included a declaration that the inclusion of Cyprus in the list of safe third countries in paragraph 2 of Part 2 of Schedule 3 to the 2004 Act, or the obligation that it be treated as required by paragraph 3 was incompatible with the Human Rights Act 1998. The SSHD ought to have used her powers to decide the asylum claims substantively.
It was made clear but a few days before the hearing that it was not now being said that the evidence showed that there was a real risk of a breach of ECHR rights through the reception conditions in Cyprus for those not detained, or that there was a want of adequate medical treatment in or out of detention, including for EP. At the hearing, Mr Knafler QC for the Claimants made it expressly clear that certain other arguments were also no longer pursued: there was now no argument about general conditions of detention and Article 3, or about the interview process, or screening for the vulnerable, the quality of interpreters, access by the individual and his lawyer to his file, or the limit to points of law in the scope of appeals or applications to the Supreme Court.
There had also been a fourth case, due to be heard with these, concerning a Syrian national, who put forward the same grounds in relation to Syria. But that Claimant accepted, in relation to Syrian nationals, that those risks no longer applied; there was now a policy, at least, in Cyprus of granting some form of protection to Syrian nationals, no real risk of refoulement, and Syrian nationals were unlikely to be detained. The claim was withdrawn by consent, the Claimant paying costs.