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Third Country Removals and Open Borders (7 July 2015)

Date: 07/07/2015
Duncan Lewis, Public Law Solicitors, Third Country Removals and Open Borders

In this article Bahar Ata of the Duncan Lewis Public Law team discusses Third Country Removals and Open Borders.

European Union Member States are signatories to the Dublin Regulations. One of the critical aspects of the Dublin Regulations is that asylum seekers encountered in more than one Member State will be transferred back to the first state they had been encountered. Over the past few years there have been a number of challenges on the basis that an individual's rights under Article 3 of the European Convention for Human Rights would be breached if returned to a particular country.

Countries such as Greece, Italy, Bulgaria, and Hungary have all been subject to challenges before the UK and the European Courts recently. Following numerous challenges on returns to Italy the UK Supreme Court in R (EM (Eritrea) and others) v SSHD [2014] UKSC 12 provided guidance on assessment of breach of Article 3 when dealing with third country removals. The Supreme Court emphasised that the there was no need to show that systemic deficiencies are responsible for the feared harm. At present there are a number of applications before the High Court and the Court of Appeal dealing with the issue of returns to countries such as Hungary and Bulgaria.

The test for stopping removals to a third country is that set out by the European Court of Human Rights in the case of Soering v UK (1989) 11 EHRR 439, where at paragraph 91 the Court held that there is a breach of Article 3 if substantial grounds are established to show that the person concerned would be subjected to torture or inhuman and degrading treatment. The Court further stated that an assessment of the conditions would need to be carried out before an individual is extradited. This test was reaffirmed by the Supreme Court in EM (Eritrea), where the court held that the same test applied to the context of removals under Dublin Regulations.

Recent events and the 'problems with influx of migrants' through the Mediterranean by sea and through Hungary by land has escalated this issue which has led to Hungary initially stating that they would be building a fence on the border with Serbia, and as recently as 23 June 2015 stating that they will not be accepting any asylum seekers returned under the Dublin Regulations. Similar actions have been taken by Austria where they have stopped processing asylum applications in a bid to compel other EU members to accept fixed quotas of migrants. Switzerland has recently threatened to close its borders with Italy. The European Commission is now looking to provide financial support to Hungary to deal with the increase in migration.

It is often forgotten that in a bid to close borders, and stop migrants from coming into the continent it seems that the people who suffers the most are those who are most vulnerable, which includes victims of torture, victims of trafficking, women and young children. These individuals endure countless hardships on their journey and when they think that they have arrived at a safe haven they are either locked up in detention centres or in certain countries left on the streets, as there is not enough resources to house them all.

As level of migration increases within Europe, the whole concept of open borders may have to be considered or the European Union would need to come to a collective agreement and solution to what everyone considers a problem high on their agenda.

Most recently permission was recently granted by the Court of Appeal in Duncan Lewis case dealing with a Judicial Review application challenging removal to Hungary. The judge granting permission noted that the test set out in EM (Eritrea) would need to be applied on a case by case basis in order to determine whether there is a breach of Article 3.

About the Author: Bahar Ata

Bahar joined Duncan Lewis & Co in November 2011 and is an accredited Supervisor and Senior Immigration caseworker under the Law Society Immigration and Asylum Accreditation Scheme. Bahar is a member of the Chartered Institute of Legal Executives. Bahar has over 6 years experience specialising in Immigration and Asylum, representing clients in all types of immigration and asylum matters from initial applications through to appeals at the Tribunal and the higher courts.

Bahar has in depth experience of representing clients at the High Court in their judicial review matters. She also has a very good knowledge of the procedures involved within the Court of Appeal and the Supreme Court having represented clients in matters where the decision of the Supreme Court changed the jurisprudence in relation to the Immigration Rules in the UK .

Most notable cases Bahar has been extensively involved with are:

- Ahmed Mahad & Others -v- ECO [2009] UKSC 16; in which the Supreme Court held that individuals sponsoring family members to join them in the UK can rely on third party support.
- AM (Jamaica) -v- SSHD [2008] EWCA Civ 1408; the Court of Appeal remitted the matter back to the Tribunal to consider the Article 8 rights of children in deportation appeals.

Other notable cases include:

- R (on the application of QB) -v- SSHD [2010] EWHC 483
- Odawey -v- ECO [2011] EWCA Civ 840
- Muse and others (by their litigation friend Ali) v Entry Clearance Officer [2012] EWCA Civ 10


Bahar is fluent in Farsi.


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