| IMMIGRATION — Asylum — Illegal entrant — Claimant entering United Kingdom illegally and claiming asylum having previously made claim in Greece —Immigration Service proposing to return claimant to Greece — Statutory deeming provision preventing Home Secretary from considering whether claimant’s return would contravene Convention rights — Whether provision incompatible with Convention rights — Human Rights Act 1998, Sch 1, Pt I, art 3 — Asylum and Immigration (Treatment of Claimants etc) Act 2004, Sch 3, Pt 2, para 3(2)
R (Nasseri) v Secretary of State for the Home Department [2008] EWCA Civ 464; [2008] WLR (D) 150
CA: Sir Anthony Clarke MR, Laws and Carnwath LJJ: 14 May 2008
The scope of the deeming provision in Sch 3, Pt 2, para 3(2) of the Asylum and Immigration (Treatment of Claimants etc) Act 2004, which required states listed in Sch 2, Pt 2, para 2 of the Act to be treated as countries safe for a person to be returned, was limited to the actual process of executive decision or adjudication of whether a person’s removal would contravene his rights under art 3 of the Human Rights Convention. It did not preclude a more general consideration of whether a listed state’s laws and practices were Convention compliant, therefore the list system was not incompatible with art 3 of the Convention.
The Court of Appeal so held, allowing the appeal of the Secretary of State for the Home Department from the order of McCombe J on 2 July 2007 [2008] 2 WLR 523, making a declaration that the deeming provision in Sch 3, Pt 2, para 3(2) of the 2004 Act was incompatible with the rights of the claimant, Javad Nasseri, under art 3 of the Convention.
LAWS LJ said that Sch 3, Pt 2, para 3(2) of the 2004 Act applied in every case where the Secretary of State proposed to return an asylum or human rights claimant to any one of 28 states listed in Sch 3, Pt 2, para 2 on the footing that that state was a third country which was responsible for determining the merits of the applicant’s asylum or human rights claim. The Secretary of State was empowered to add states to the list but not to delete any state from it. The claimant resisted removal to Greece where he first claimed asylum because of a claimed fear that the Greek authorities would return him to Afghanistan without properly considering his asylum and human rights case, and he would be ill treated there. There was no freestanding duty to investigate the risk of loss of life or torture, but if a state was to avoid a breach of art 3 by removal of an individual to another territory where he might be ill treated or whence he might be sent elsewhere and ill treated there, the authorities of the first state plainly had to apprise themselves of the relevant law and practice of the place to which removal would be effected. Otherwise they could not know whether their actions would violate art 3 or not. That was a necessary incident of the substantive obligation to fulfil art 3. It was underlined by the need for rigorous scrutiny where an individual claimed that expulsion would expose him to art 3 treatment. The opening words of Sch 3, Pt 2, para 3(1) limited the application of para 3(2) to the actual process of an executive or judicial determination of whether a person’s removal would violate the relevant rights. Consideration of such a question or, more generally, of a listed state’s laws and practices in order to form a view as to whether a state should remain on the list (the Secretary of State’s function) or deciding whether a declaration of incompatibility should be made vis-à-vis any particular state (the court’s function) was not precluded or in any way inhibited. That result flowed from the language of the statute. Given that the Secretary of State was obliged to monitor the states on the list to ensure individual compliance, and the court was entitled (on an application for a declaration of incompatibility) to investigate by evidence whether any particular state fell foul of art 3 in a specific case or generally, the list system was not incompatible with art 3. On the evidence there was no case for a limited declaration of incompatibility relating only to Greece.
SIR ANTHONY CLARKE MR and CARNWATH LJ agreed.
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