Judicial Review - application for judicial review of the decision to
remove the applicant to a European Jurisdiction
[2019]JRC132
Royal Court
(Samedi)
10 July 2019
Before :
|
T. J. Le Cocq, Esq., Deputy Bailiff, and
Jurats Blampied and Dulake
|
Between
|
X
|
Applicant
|
And
|
Minister for Home Affairs
|
Respondent
|
Advocate L. J. Glynn for the Applicant.
Advocate S. A. Meiklejohn for Respondent.2
judgment
the deputy bailiff:
1.
This is an
application by 'X' ("the Applicant") for judicial
review of the decision of the Minister for Home Affairs, acting through the
Jersey Customs and Immigration Service ("JCIS") ("the
Respondent") taken on or around the 15th August 2018
("the First Decision") and maintained on or around 3rd
October 2018 ("the Second Decision") (jointly "the
Decisions") to remove the Applicant to a European Jurisdiction. The Applicant arrived in Jersey
illegally and claims asylum.
2.
The Deputy
Bailiff sitting alone granted to the Applicant leave to apply for judicial
review for the reasons set out in a judgment dated the 3rd December
2018 (see X v Minister for Home Affairs [2018] JRC 222) ("the
Leave Judgment"). The Leave
Judgment was published in anonymised form.
3.
The full
details of the background of the Applicant's application for asylum are
extensive and have been referred to at length in the affidavits filed in
support and in answer to this application for judicial review. The Leave Judgment, however, contains an
overview of the application which, at paragraph 8 of that judgment is in the
following terms:-
"The circumstances of this
application are unusual and are based on the assertions of the Applicant. Whilst the Minister does not necessarily
accept each assertion of the Applicant, he has not carried out a substantive
consideration of the application and has therefore taken the Applicant's
assertions at face value for the purposes of reaching its decision. The circumstances may be summarised as
follows:-
(i) The
Applicant is a Syrian national who, on leaving Syria, sought asylum in a
European jurisdiction. Although the
Applicant has been granted asylum in that jurisdiction, there is a dispute over
his continuing status as his residence permit has expired, he does not wish to
return there and he has written to the authorities of that jurisdiction stating
that he does not wish to have his residence permit / refugee status renewed.
(ii) His circumstances and the
reasons for his reluctance may be summarised for the present purposes as
follows:-
(a) There
is a significant population of ex-patriate Syrians resident in the European
jurisdiction among who are people who would be hostile to the Applicant due to
his background.
(b) The
Applicant has suffered ill-treatment at the hands of such individuals and he is
of the belief that he is being pursued by ISIS affiliated militant groups
resident in the European jurisdiction.
His life, so his application asserts, has been repeatedly threatened and
he has been physically attacked.
(c) He
had previously, according to his affidavit, undergone arrest, detention,
interrogation and extreme torture by the military whilst in Syria. This occurred because it was believed
that he had betrayed his government and as a consequence on release he was
ostracised by his community. He
left Syria via Turkey and Egypt and was smuggled by boat to Europe. He arrived in Italy and then travelled
to another European jurisdiction where, as I have said, he has been granted
asylum but has sought to revoke this.
(d) His
affidavit depicts a situation where he has whilst in the European jurisdiction
in effect lived a life of fear and as a recluse. Whilst away from his home for a short
time, in 2017, he returned to find it had been vandalised and a knife was left
on a table with a letter purporting to be from ISIS.
(e) He
was moved to other cities in the European jurisdiction by the authorities but
his location there is susceptible to being discovered by reason of the size of
the expatriate Syrian community throughout the European jurisdiction and
communication on social media about him.
(f) It
is clear, and the Applicant accepts, that the European jurisdiction authorities
have done their best to protect him.
There is no suggestion other than the police have taken a proper action
when he has complained of matters to them, as I have said, the authorities have
moved him in the European jurisdiction to different cities in the hope,
presumably, that the persecution that he has experienced would end. He is in receipt of a letter from the
European jurisdiction authorities which he can present anywhere in that country
to obtain assistance.
(g) As a
result of his experiences, his mental health has suffered. I do not need to go into the
Psychological Report at length save, to say, for example, at paragraph 5.2.3 of
her report, Dr Boucher says:-
"...To
summarise [the Applicant] presented with the presence of some difficulties with
schizoid, avoidant and dependent personality traits (though not on the level
that would indicate a personality disorder), and clinical levels of
post-traumatic stress disorder, anxiety, dysthymia and major depression."
(iii) And, in her summary and opinion, Dr
Boucher indicates that the Applicant is experiencing severe psychological
distress which triggers chronic suicidal thoughts and that he would benefit
from individual trauma focussed psychological therapy. However, the Doctor goes on to say:-
"In my opinion, therapy will
only have limited benefit if [the Applicant] feels that he is currently under
threat. For trauma based therapy to
be effective, [the Applicant] will need to be in an environment where he feels
safe... This may explain why his previous experiences of therapy whilst in
[the European jurisdiction] had little success, as he continued to feel his
life was in danger."
(iv) The Applicant has attempted suicide
whilst in Jersey on more than one occasion and this is normally associated with
his immediate apprehension that he will be returned to the European
jurisdiction."
4.
Since
leave was granted there has been an updated psychological report which deals at
some length with the Applicant's mental state. That report, dated the 3rd
March 2019, by Dr Boucher says, at paragraph 6.4, the following:-
"6.4 It is my opinion, that
'X''s current experiences of: ongoing immigration
uncertainty; accommodation difficulties; lack of meaningful activities; and his
worries regarding his father's health and that he may not see him before
his death; have caused a deterioration in his psychological health, resulting
in ongoing suicidal thoughts and behaviour."
The psychological evidence is undisputed.
5.
The
following additional facts do not appear to be in dispute. These are:-
(i)
The
Applicant previously entered Ireland on two occasions in May 2016 and September
2017 and each time was returned to the European Jurisdiction, on the basis that
he had an extent claim in the latter jurisdiction;
(ii) The Applicant had sought to use a fake passport
of the European Jurisdiction to travel to Canada in September 2017;
(iii) The Applicant travelled to Canada in November
2017 using a false document and was returned to the European Jurisdiction by
the Canadian authorities on the 3rd January 2018;
(iv) The Applicant entered Gibraltar illegally on
the 16th August 2016 and claimed asylum. He stated that he was fleeing ISIS and
that the European Jurisdiction was not a safe country. The Gibraltar authorities refused his
application on the basis of his refugee status in the European
Jurisdiction. He left the
jurisdiction immediately but says that this was due to his name being published
in a media article;
(v) The Applicant's entry into Jersey in
August 2018 followed an earlier failed attempt on the 16th July
2018; and
(vi) On the 15th August 2018 the
authorities of the European Jurisdiction agreed to accept responsibility for
the Applicant and continue to do so.
6.
Since
leave was granted to the Applicant to apply for judicial review he was granted
temporary conditional release in September 2018 and lived in private
accommodation, thereafter Orchard House and then the Shelter Trust premises,
Evans House. However due to
apparent difficulties with his accommodation and without an alternative address
it became necessary to detain the Applicant at La Moye Prison where he resided
since the 5th March 2019.
He has recently been released under Temporary release conditions.
7.
The
grounds for the application are as follows:-
(i)
The
decision to remove the Applicant without investigating whether or not he could
be safely returned is a breach of the procedural requirements of Article 3 of
the European Convention on Human Rights (ECHR) (Prohibition Against Torture or
Inhuman or Degrading Treatment or Punishment) given effect in Jersey law by
virtue of the Human Rights (Jersey) Law 2000 (HRL) (Ground 1);
(ii) The decision to remove the Applicant is in
breach of Article 3 ECHR because the Applicant faces a real risk of inhuman and
degrading treatment on his return (Ground 2); and
(iii) The Respondent's failure to consider all
material facts is unreasonable; and/or the Respondent's decision to
remove the Applicant in the circumstances of the case is unreasonable (Ground
3).
The Law on Judicial Review
8.
Judicial
review is generally a remedy of last resort and is used only when all other
available remedial avenues have been exhausted. The onus is on the Applicant for
judicial review to demonstrate that the decision is unreasonable, illegal or
irrational, or suffers from a procedural irregularity or that the Minister
otherwise acted outside the rules of natural justice.
9.
There has
been no application for judicial review of an asylum decision in this
jurisdiction before. However it is
accepted by both parties that assistance on the approach to such an application
may be derived from the decision in J v His Excellency the Lieutenant
Governor of Jersey [2018] JRC 072A in which this Court, in considering the
decision of His Excellency the Lieutenant Governor to order deportation said
with regard to the test for judicial review, the following:-
"There is no right of appeal
against the decision of the Lieutenant Governor and judicial review is
therefore the only basis upon which the applicant can have the decision
examined by an independent tribunal.
That being so, although it is a question of judicial review, the ambit
of examination is wider because the Human Rights (Jersey) Law 2000 requires
that a decision affecting the human rights of the applicant must ultimately be
taken by a human rights compliant tribunal..... The Court on judicial
review, as it were, fills the gap which otherwise exists from having no human
rights compliant tribunal to which the applicant can appeal from the
respondent's decision.
Although the statements are of direct relevance to judicial review in
deportation cases, they have a wider significance.....".
10. At paragraph 4 of the judgment the court went
on to say the following:-
"4. It is for these reasons that the
traditional Wednesbury standard of unreasonableness - was the decision of
the decision maker so unreasonable that no reasonable decision maker could
reach it? - is inappropriate where
the decision under review engaged a fundamental right or important
interest. Where that is the
position, the decision does indeed engage the most anxious scrutiny of the
courts - see Bugday Cay v Secretary of State for the Home Department
[1987] AC 514 at 531 per Lord Bridge.
As Sir Thomas Bingham MR (as he then was) put it in R v Ministry of
Defence ex parte Smith [1996] 1 All ER 257, the more substantial the
interference with human rights, the more the court will require by way of
justification before it is satisfied that the decision is reasonable. In R v Lord Saville of Newdigate ex
parte A [2000] 1 WLR 1855 at paragraph 37, the Court of Appeal said that:-
"it is not open to the
decision maker to risk interfering with fundamental rights in the absence of
compelling justification."
5. There
are nonetheless constraints upon the Court's powers to intervene. First of all, the Court is not a fact
finding body in this exercise. It
takes a given set of facts and applies the relevant legal tests to them. Of course, one such legal test may
involve consideration of a submission that the decision taker has proceeded on
the wrong facts, but it seems to us that it would be very rare and highly
exceptional that any evidence other than affidavit evidence would be considered
by the Court on such applications.
Secondly, it is not correct to say that there is no deference to the
decision taker. A higher degree of
scrutiny on human rights grounds is still not a full merits review. What is needed is that the Court examine
what reasons have been given, whether they comply with the fundamental rights
of the applicant and in particular whether the lawfulness of what has been done
meets the structured proportionality test that the Courts now apply,
recognising that the decision taker has a discretionary area of
judgment."
11. In our judgment this articulates the correct
test and approach in considering an application for judicial review not only of
a decision on deportation but also of the refusal of asylum claims when it is
clear, as may more often than not be the case, the Applicant's human
rights are engaged. The test is
not, accordingly, strictly one of Wednesbury unreasonableness but also whether
the interference with the Applicant's human rights is lawful and
justifiable and proportionate in the circumstances of the case. It is, of course, still short of a full
merits review but it is wider in ambit than the traditional Wednesbury approach
to judicial review.
12. The Applicant arrived in Jersey in a small boat
on the 5th August, 2018. He attended the States of Jersey Police
Headquarters voluntarily and asked to make a claim for asylum and was
subsequently transferred to JCIS at Elizabeth Terminal. He was there served with notice of
illegal entry, detained overnight, and interviewed on Monday 6th
August, 2018, during which he gave JCIS information about his background.
13. We have the benefit of seeing a transcript of
the interview with the Applicant. At
the beginning of the interview there is a discussion about the right of the
Applicant to obtain legal advice and the interviewing officer says:-
"No...it's
entirely your choice if you want to have legal advice, but for me the purpose
of today is just to have a conversation to find out about you and what has led
us here today."
14. The Applicant declined not only legal advice
but also the services of an interpreter.
He expressed the view that his English was sufficient.
15. We make no observations at this point about the
detail of the interview but we note that it does not appear, in the context of
discussing the need for legal advice or indeed for an interpreter, to have been
made clear to the Applicant that as a result of what he said in interview the
decision may have been made to deny him his claim for asylum and return him to
the European Jurisdiction. We think
he may have been under the mistaken belief for all or for part of the interview
that he was not at any immediate risk of a decision being made.
16. In our judgment it would, in future interviews
of a similar kind, be fairer to make it clear as to what the import of any
interview might be so that the interviewee can take a fully informed view as to
whether legal advice should be obtained and indeed he should better ensure the
clarity of this answers through the services of an interpreter.
17. Following the First Decision the Applicant
applied for leave to apply for judicial review as we have said and during the
course of a preliminary inter partes
hearing on the 13th September, 2018, that application was adjourned
so that the Respondent could consider the contents of the psychological report
from Dr Boucher that had been filed and served shortly before that
hearing. That consideration
resulted in the Second Decision.
18. JCIS confirmed that the position of the
Minister remained as it was prior to that hearing in September - namely
that the Applicant would be removed from the jurisdiction without substantive
consideration of his claim for asylum.
The legal framework
19. The Respondent's power to remove an
individual from Jersey in the circumstances arises out of the Immigration
(Jersey) Order 1993 ("the Immigration Order") which
incorporates into Jersey law certain provisions of the Immigration Act
1971.
20. It is not disputed that the Applicant in this
case was lawfully detained by the Respondent pursuant paragraph 16 of Schedule
2 of the Immigration Order which provides:-
"A person in respect of whom
directions may be given under of paragraphs 8 - 14 above may be detained
under the authority of an immigration officer pending the giving of directions
and pending his removal in pursuance of any directions given."
21. The Respondent decided on the removal of the
Applicant from the island pursuant to paragraph 8(1)(c)(iv) of the schedule to
the Immigration Order which is in the following terms:-
"Where a person arriving in
the [Bailiwick of Jersey] is refused leave to enter, any immigration officer
may...
(c) give
the owners or agents directions requiring them to make arrangements for his
removal from the [Bailiwick of Jersey] in any ship or aircraft specified or indicated
in the direction to a country or territory so specified, being either -
(iv) a country
or territory to which there is a reason to believe that he will be
admitted."
22. Claims for asylum are dealt with under Part 11
of the Jersey Immigration Rules ("the Immigration Rules"). Rule 327 provides the definition of an
asylum application. If an
application for asylum is successful an applicant would be granted refugee
status, the criteria for the grant of which is set out in Rule 334 of the
Rules.
23. Rule 345 of the Immigration Rules provides as
follows:-
"345. (1) If the Minister or,
in the case of a person arriving in Jersey, an Immigration Officer not below
the rank of Senior Immigration Officer, is satisfied that there is a safe
country to which an asylum applicant can be sent, his application will normally
be refused without substantive consideration of his claim to refugee status.
(2) A safe country is one in which
the life or freedom of the asylum applicant would not be threatened (within the
meaning of Article 33 of the Geneva Convention) and the government of which
would not send the applicant elsewhere in a manner contrary to the principles
of the Convention,
(3) An asylum applicant shall not
be removed without substantive consideration of his claim unless -
(i)
the asylum applicant has not arrived in Jersey directly from the country in
which he claims to fear persecution and has had an opportunity at the border or
within the territory of a third country to make contact with that
country's authorities in order to seek their protection, or
(ii)
there is other clear evidence of his admissibility to a third country.
Provided that a case meets the
above criteria, there is no obligation to consult the authorities of a third
country before the removal of an asylum applicant.
24. The Decisions in this case were made without
substantive consideration because the Applicant was able to return to the
European Jurisdiction which was taken to be a safe country.
25. The Convention known as the Dublin III
Regulation may offer guidance as to what may be considered to be a safe
country. Although the Dublin III
Regulation does not apply in Jersey, in terms of considering what may be
acceptable norms, and in the absence of any authority here as to how one should
consider a safe country, in our view regard might be usefully had to the
provisions of the Dublin III Regulation.
It states:-
"In considering whether an
asylum claimant can be removed to a third country, obligations under the
Refugee Convention and the Human Rights Act are relevant."
26. Thereafter there is a definition of a
'safe third country' as:-
"A place where a
person's life and liberty is not threatened by reason of his race,
religion, nationality, membership of a particular social group, or political
opinion; a place from which a person will not be sent to another country
otherwise in accordance with the Refugee Convention; a place from which a
person will not be sent to another state in contravention of his ECHR
rights."
ECHR: Article 3 and Non-State Agents
27. The relevant right for the purposes of this
application is Article 3 ECHR which states:-
"No one shall be subject to
torture or inhuman or degrading treatment or punishment."
28. As indicated above, the application is based on
the possible treatment of the Applicant not by the [European Jurisdiction]
state but by non-state agents. A
number of cases have been placed before us in connection with the application
of Article 3 ECHR where the alleged treatment will be carried out by non-state
agents.
29. In HLR v France [1998] 26 EHRR 29 the
European Court of Human Rights said this:-
"40. Owing to the absolute character of the right
guaranteed, the Court does not rule out the possibility that article 3 of the
Convention (art. 3) may also apply where the danger emanates from persons or
groups of persons who are not public officials. However, it must be shown that the risk
is real and that the authorities of the receiving State are not able to obviate
the risk by providing appropriate protection."
30. In Regina (Bagdanavicius) v Secretary of
State for the Home Department [2005] UK HL 38 the House of Lords further
considered the circumstances with regard to harm being caused by non-state
agents and also gave further consideration to the word 'obviate' in
HLR v France above. At
paragraph 24 of the judgment, Lord Brown said:-
"24. The plain fact is that the argument throughout has
been bedevilled by a failure to grasp the distinction in non-state agent cases
between on the one hand the risk of serious harm and on the other hand the risk
of treatment contrary to article 3.
In cases where the risk 'emanates from intentionally inflicted
acts of the public authorities in the receiving country' (the language of
D v United Kingdom 24 EHRR 423, 447, para 49) one can use those terms
interchangeably: the intentionally inflicted acts would without more constitute
the proscribed treatment. Where,
however, the risk emanates from non-state bodies, that is not so: any harm
inflicted by non-state agents will not constitute article 3 ill-treatment
unless in addition the state has failed to provide reasonable protection. If someone is beaten up and seriously
injured by a criminal gang, the member state will not be in breach of article 3
unless it has failed in its positive duty to provide reasonable protection
against such criminal acts. This
provides the answer to Mr Nicol's reliance on the UK's obligation
under Article 3 being a negative obligation and thus absolute. The argument begs the vital question as
to what particular risk engages the obligation. Is it the risk merely of harm or
is it the risk of proscribed treatment?
In my judgment it is the latter.
The very identification of the issue for determination by the House in
the agreed statement of facts and issues illustrates the confusion:
"If,
on removal to another country, there is a real risk that a person would suffer
torture or inhuman or degrading treatment or punishment from non-state agents,
will removal violate article 3 of the ECHR, or must the person concerned also
show that there is in that country an insufficiency of state protection against
such ill-treatment?"
Non-state agents do not subject
people to torture or the other proscribed forms of ill-treatment, however
violently they treat them: what, however, would transform such violent
treatment into article 3 ill-treatment would be the state's failure to
provide reasonable protection against it."
31. Later in the judgment, at paragraph 27, with
regard to HLR v France, Lord Brown says:-
"27. Mr Nicol seeks to argue that these two conclusions
were merely opposite sides of the same coin ie that by definition if there was
no real risk there was no adequate protection and vice versa. He stresses in this regard the word
'obviate' in para 40.
Again, however, I find the argument impossible. As Sedley LJ pointed out in McPherson
v Secretary of State for the Home Department [2002] INLR 139, 147, para 22,
the court's apparent requirement that the protection is sufficient to
'obviate' the risk 'cannot be right'. What the state is expected to do is take
reasonable measures to make the necessary protection available". The key to understanding the meaning of
the word 'obviate' in para 40 of HLR v France was provided
by my noble and learned friend, Lord Hope of Craighead, who pointed to the
Collins Robert 4th ed dictionary translation of the French verb
obvier as 'to take precautions against'. Nothing in the court's reasoning
suggests that it regarded its conclusion on the issue of 'appropriate
protection' as affected, let alone determined, by its already stated
conclusion on risk. To my mind it
is clear that the applicant had to succeed on two independent points to
establish his article 3 claim and in fact he succeeded on neither."
32. The summary in the headnote of the judgment
provides a useful synopsis. It
states:-
"On the claimants'
appeal -
Held, dismissing the appeal, that
on a claim against removal on article 3 grounds the court had to make an
assessment of conditions in the receiving country so that it could determine
whether or not there was a real risk that the person concerned would suffer
harm if returned there; that the harm in question was such as would amount to
proscribed ill-treatment contrary to article 3; and that, accordingly, since
any harm inflicted by non-state agents would not constitute article 3
ill-treatment unless in addition the state had failed to provide reasonable
protection, to avoid expulsion on article 3 grounds an applicant did have to
establish, in addition to showing that he would be at real risk of suffering
serious harm from non-state agents, that the receiving country did not provide
for those within its territory a reasonable level of protection against such
harm".
ECHR: Article 3 and Mental Health Issues
33. Case law was also cited to us with regard to
considerations relating to an appellant's mental health in determining
asylum applications. In J v Home
Secretary [2005] EWCA Civ 629 the applicant claimed that he would commit
suicide if returned to his country of origin, in that case Sri Lanka, because
he had been in an enforced slave labour and had been subject to the "most
horrific torture at the hands of the Sri Lankan army".
The court had before it the opinion of a consultant psychiatrist who had
said that the appellant in that case exhibited features of a severe depressive
disorder and had attempted suicide and continues to present with such a
risk. It could be aggravated if he
had to return to Sri Lanka. This
view was supported by the opinion of a second consultant psychiatrist who
stated (see paragraph 6 of the judgment):-
"If [J] is sent back to Sri
Lanka [
] his existing suicidal ideation is greatly increased because he is
likely to have lost all hope. Hopelessness has a serious, significant
association with completed suicide.
In my opinion, if he does not
manage to kill himself in the UK there is a high risk he would try to commit
suicide en route and may therefore pose a threat to other passengers in his
desperation to kill himself.
If he is prevented from killing
himself either in the UK or while being returned I think it is likely that he
would commit suicide upon his arrival in Sri Lanka....."
34. In that case Dyson LJ drew a distinction
between 'foreign cases' and 'domestic cases' and at
paragraph 16 said this:-
"16. In our judgment, Mr Beal is right to submit that
it is necessary to draw a clear distinction between 'foreign cases'
and 'domestic cases'.
These are the labels which, for convenience, Lord Bingham used in Ullah
v Secretary of State for the Home Department [2004] UKHL 26, [2004] 2 AC 323 paras [7] and [9]. By
'foreign cases' he meant those cases where it is not claimed that
the state complained of has violated the applicant's ECHR rights within
its own territory, but where it is said that the conduct of the state in
removing a person from its territory to another territory will lead to a
violation of the person's ECHR rights in that other territory. By 'domestic cases' he meant
cases concerning claims based on the ECHR where a state is said to have acted
within its own territory in a way which infringes the enjoyment of an ECHR
right within that territory.
17. This
has been recognised as an important distinction both in Strasbourg and in our
own jurisprudence. In cases such as
the present case the risk of a violation of article 3 or 8 must be considered
in relation to three stages. By
reference to the claim made in this case, these are: (i) when the appellant is
informed that a final decision has been made to remove him to Sri Lanka; (ii)
when he is physically removed by airplane to Sri Lanka; and (iii) after he has
arrived in Sri Lanka. In relation
to stage (i), the case is plainly a domestic case. In relation to stage(iii), it is equally
clear a foreign case. The
classification of the case in relation to stage (ii) is less easy. Since in practice arrangements are made
by the Secretary of State in suicide cases for an escort it is safer to treat
this as a domestic case."
35. Dyson LJ went on to indicate what the tests
were in connection with foreign cases and in particular where any article 3
claim relies on the possibility of suicide or self-harm. At paragraph 25 et seq of the judgment
he said:-
"25. "In our judgement, there is no doubt that in
foreign cases the relevant test is, as Lord Bingham said in Ullah,
whether there are strong grounds for believing that the person, if returned,
faces a real risk of torture, inhuman or degrading treatment or punishment. Mr Middleton submits that a different
test is required in cases where the article 3 breach relied on is a risk of
suicide or other self-harm. But
this submission is at odds with the Strasbourg jurisprudence: see, for example,
para [40] in Bensaid and the suicide cases to which we refer at para 30
below. Mr Middleton makes two
complaints about the real risk test.
First, he says that it leaves out of account the need for a causal link
between the act of removal and the ill-treatment relied on. Secondly, the test is too vague to be of
any practical utility. But as we
explain at para 27 below, a causal link is inherent in the real risk test. As regards the second complaint, it is
possible to see what it entails from the way in which the test has been applied
by the ECHR in different circumstances.
It should be stated at the outset that the phrase 'real
risk' imposes a more stringent test than merely that the risk must be
more than 'not fanciful'.
The cases show that it is possible to amplify the test at least to the
following extent.
26. First,
the test requires an assessment to be made of the severity of the treatment
which it is said that the applicant would suffer if removed. This must attain a minimum level of
severity. The court has said on a
number of occasions that the assessment of its severity depends on all the
circumstances of the case. But the
ill-treatment must 'necessarily be serious' such that it is
'an affront to fundamental humanitarian principles to remove an
individual to a country where he is at risk of serious ill-treatment':
see Ullah paras [38-39].
27. Secondly,
a causal link must be shown to exist between the act or threatened act of
removal or expulsion and the inhuman treatment relied on as violating the
applicant's article 3 rights.
Thus in Soering at para [91], the court said:
'In
so far as any liability under the Convention is or may be incurred, it is
liability incurred by the extraditing Contracting State by reason of its having
taken action which has a direct consequence the exposure of an individual to
proscribed ill-treatment' (emphasis added).
See
also para [108] of Vilvarajah where the court said that the examination
of the article 3 issue 'must focus on the foreseeable consequences of the
removal of the applicants to Sri Lanka...'
28. Thirdly,
in the context of a foreign case, the article 3 threshold is particularly high
simply because it is a foreign case.
And it is even higher where the alleged inhuman treatment is not the
direct or indirect responsibility of the public authorities of the receiving
state, but results from some naturally occurring illness, whether physical or
mental. This is made clear in para
[49] of D and para [40] of Bensaid.
29. Fourthly,
an article 3 claim can in principle succeed in a suicide case (para [37] of Bensaid).
30. Fifthly, in deciding whether there is a real
risk of a breach of article 3 in a suicide case, a question of importance is
whether the applicant's fear of ill-treatment in the receiving state upon
which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that
will tend to weight against there being a real risk that the removal will be in
breach of article 3.
31. Sixthly,
a further question of considerable relevance is whether the removing and / or
the receiving state has effective mechanisms to reduce the risk of
suicide. If there are effective
mechanisms, that too will weigh heavily against an applicant's claim that
removal will violate his or her article 3 rights."
36. It appears to be common ground that these
features are those that fall to be considered in such cases. The areas of dispute in this case appear
to lie primarily in whether the Applicant's fear of ill-treatment upon
which the risk of suicide is based is objectively well founded and whether the
removing State (in this case Jersey) and the receiving State (in this case the
European Jurisdiction) have effective remedies to reduce the risk of
suicide? If the answer to the first
question is 'no' and the second is 'yes' these factors
will weigh heavily against there being a real risk of ill treatment and against
the claim for asylum.
37. With regard to domestic cases, at paragraph
33 of the judgment in J v Home
Secretary Dyson LJ said this:-
"33. In relation to domestic cases, it is apparent that
Strasbourg applies a somewhat different approach, since the concern to avoid or
minimise the extra-territorial effect of the ECHR (ie the third of the 6
factors we have just mentioned) is absent.
But the remaining factors are equally applicable in domestic cases. The sixth factor is of particular
significance. This is not
surprising because the signatories to the ECHR have sophisticated mechanisms in
place to protect vulnerable persons from self-harm within their jurisdictions. Although someone who is sufficiently
determined to do so can usually commit suicide, the fact that such mechanisms
exist is an important, and often decisive, factor taken into account when
assessing whether there is a real risk that a decision to remove an immigrant
is in breach of article 3."
38. In the case of Y and Z v Home Secretary
[2009] EWCA Civ 362 it was not disputed that the appellants had been both
tortured and raped in captivity by the Sri Lankan security forces. The tests set out in J v Home Secretary
above were approved. The court
decided that the Appellants' fears of ill treatment were well founded and
that they would not be able to avail themselves of treatment available to them
in the absence of a base and family support. At paragraph 49 of the judgment Sedley
LJ said this:-
"49. It is clear from the jurisprudence of the
Strasbourg court that, save in exceptionally compelling cases, the humanitarian
consequences of returning a person to a country where his or her health is
likely to deteriorate terminally do not place the returning state in breach of
art. 3. This understanding has most
recently been restated by the Grand Chamber in N v United Kingdom
(26565/05, 27 May 2008), a case concerning the repatriation of a Ugandan
national suffering from HIV/AIDS:
42.
....Aliens
who are subject to expulsion cannot in principle claim any entitlement to
remain in the territory of a Contracting State in order to continue to benefit
from medical, social or other forms of assistance and the services provided by
the expelling State. The fact that
the applicant's circumstances, including his life expectancy, would be
significantly reduced if he were to be removed from the Contracting State is
not sufficient in itself to give rise to breach of Article 3. The decision to remove an alien who is
suffering from a serious mental or physical illness to a country where the
facilities for the treatment of that illness are inferior to those available in
the Contracting State may raise an issue under Article 3, but only in a very
exceptional case, where the humanitarian grounds against the removal are
compelling. In the D case
the very exceptional circumstances were that the applicant was critically ill
and appeared to be close to death, could not be guaranteed any nursing or
medical care in his country of origin and had no family there willing or able
to care for him or provide him with even a basic level of food, shelter or
social support.
43. The
Court does not exclude that there may be other very exceptional cases where the
humanitarian considerations are equally compelling. However, it considers that it should
maintain the high threshold set in D v the United Kingdom and applied in
its subsequent case law, which it regards as correct in principle, given that
in such cases the alleged future harm would emanate not only from the
intentional acts or omissions of public authorities or non-State bodies, but
instead from a naturally occurring illness and the lack of sufficient resources
to deal with it in the receiving country.
50. The
first distinction which it is appropriate to draw in relation to the present
case is that, in contrast with what is envisaged at the end of ยง43 of N,
the anticipated self-harm would be the consequence of the acts of the Sri
Lankan security forces, not of a naturally occurring illness. It would be, if it were to occur, the
product of fear and humiliation brought about by the brutality to which both
appellants were subjected before they fled."
39. And, at paragraphs 61 and 62, in allowing the
appeals in the circumstances of that case, the court said:-
"61. The upshot of the material findings and of the
expert evidence which (for reasons I have given) stood unshaken, is that,
although some psychiatric care is available in Sri Lanka, these two appellants
are so traumatised by their experiences, and so subjectively terrified at the
prospect of return to the scene of their torment, that they will not be capable
of seeking the treatment they need.
Assuming (what cannot be certain) that they come unscathed through
interrogation at the airport, with no known family left in Sri Lanka and no
home to travel to, the chances of their finding a secure base from which to
seek palliative and therapeutic care that will keep them from taking their own
lives are on any admissible view of the evidence remote.
62. None
of this reasoning represents a licence for emotional blackmail by asylum
seekers. Officials and immigration
judges will be right to continue to scrutinise the authenticity of such claims
as these with care. In some cases the
Home Office may want to seek its own or a joint report. But there comes a point at which an
undisturbed finding that an appellant has been tortured and raped in captivity
has to be conscientiously related to credible and uncontradicted expert
evidence that the likely effect of the psychological trauma (aggravated in the
present cases by the devastation of home and family by the tsunami), if return
is enforced, will be suicide."
40. The facts in that case might be termed as
extreme and in our judgment were markedly more severe than presented in the
instant application.
41. In K H (Afghanistan) v Home Secretary
[2009] EWCA Civ 1354 the appellant claimed that he suffered from post-traumatic
stress disorder and depression, and had committed self-harm on a number of
instances. A medical report
provided by a consultant psychiatrist said that removal to Afghanistan would be
a highly stressful experience and that "should his depression deteriorate
clearly the risk of self-harm and indeed suicide would escalate, with [the
appellant being] at particular risk of suicide in view of his previous
self-harm".
42. At paragraph 33 of the judgment Longmore LJ
said:-
"The truth is that the
presence of mental illness among failed asylum seekers cannot really be
regarded as exceptional. Sadly even
asylum seekers with mental illness who have no families can hardly be regarded
as 'very exceptional'.
If this case is to be regarded as a very exceptional one, there will
inevitably be cases which will be indistinguishable. A person with no family would have to be
equated with a person who has a family but whose members are unwilling or
unable to look after him or her. I
cannot think that Baroness Hale had such a wide category in mind. In order for a case to be 'very
exceptional' it would have to be exceptional inside the class of person
with mental illness without family support. Perhaps a very old or very young person
would qualify but hardly an ordinary adult."
43. And, at paragraph 37, Sedley LJ stated:-
"37. I agree that we are compelled by authority to
dismiss this appeal. If the bare
prospect of inhuman treatment were enough to secure the protection of Art. 3
this appeal and many like it would succeed. But, as I said in ZT [2005] EWCA Civ 1421:
"The
reasoning of the House in N accepts, in effect, that the internal logic
of the Convention has to give way to the external logic of events when these
events are capable of bringing about the collapse of the Convention
system... [T]he underlying message of N and Razgar, and of Ullah
too, is that the ECHR is neither a surrogate system of asylum nor a fallback
for those who have otherwise no right to remain here. It is for particular cases which
transcend their class in respects which the Convention recognises. None of this could find any place in an
originalist reading of the Convention; but just as the Convention has grown
through its jurisprudence to meet new assaults on human rights, it is also
having to retrench in places to avoid being overwhelmed by its own logic. If what result are rules rather than
law, that may be an unavoidable price to be paid for the maintenance of the
Convention system. One had much
rather it were not so."
44. In MN v Home Secretary [2011] EWCA Civ 193 the appellant was an HIV positive person seeking to challenge expulsion on
the grounds of Article 3 ECHR. She
claimed that, suffering from depression, if she was forcibly removed it would
lead to a high risk of suicide. At
paragraph 27 Morris K LJ said this:-
"Whatever the shortcomings of
her immigration history, it is impossible not to sympathise with an appellant
who is not only HIV positive but also afflicted by mental health
difficulties. However, it is clear
from the authorities that, in both respects and particularly in relation to the
issue of suicide risk, the bar to removal is set high."
45. At paragraph 32 of the judgment the court said
this:-
"The Secretary of State was
clearly entitled, bound even, to reject Professor Katona's view about the
availability and accessibility of medical facilities in Tanzania in relation to
both HIV and mental health. The
Professor referred to no objective evidence whereas the available objective
evidence had driven the AIT to precisely the opposite conclusion. The assessment of suicide risk by the
Secretary of State has to be seen in the context of the appellant's fears
about medical facilities in Tanzania not being objectively well-founded. Given the evidence about the
availability of treatment, it must follow that the suicide risk is
reduced. This is the very territory
traversed by Dyson LJ in his fifth principle in J. It also overlaps with his sixth
principle. These matters were
carefully considered by the Secretary of State in her well-reasoned decision
letter. Having regard to J,
she was undoubtedly entitled to come to a decision adverse to the
appellant. Whilst suicide risks
can never be quantified with exactitude, I know of no case in which, absent a
legal flaw, facts on a level with those in the present case have produced a
favourable outcome for an appellant.
I am entirely satisfied that the Secretary of State was entitled to
conclude that an appeal to an Immigration Judge raising suicide risk based on
Articles 3 and 8 would have had no realistic prospect of success, given the
evidence and the legal principles established in the authorities to which I
have referred. I do not hesitate to
say that, if I had concluded that it was for us to come to our own view about
these matters, I too would have concluded that an appeal to an Immigration
Judge, based on the material that was before the Secretary of State, would not
have a realistic prospect of success." [our underlining].
46. In C K v Slovenia [2017] (case C-578/16
PRI) the court considered the question of serious mental health issues in
connection with asylum applications.
At paragraph 70 of the judgment the court made the following
observation:-
"...in those
circumstances, and in accordance with the mutual confidence between Member
States, there is a strong presumption that the medical treatments offered to
asylum seekers in the Member States will be adequate...."
47. At paragraph 73 et seq the court went on to
say:-
"73. That said, it cannot be ruled out that the
transfer of an asylum seeker whose state of health is particularly serious may,
in itself, result, for the person concerned, in a real risk of inhuman or
degrading treatment within the meaning of Article 4 of the Charter,
irrespective of the quality of the reception and the care available in the
Member State responsible for examining his application.
74. In
that context, it must be held that, in circumstances in which the transfer of
an asylum seeker with a particularly serious mental or physical illness would
result in a real and proven risk of a significant and permanent deterioration
in his state of health, that transfer would constitute inhuman and degrading
treatment, within the meaning of that article.
75. Consequently,
where an asylum seeker provides, particularly in the context of an effective
remedy guaranteed to him by Article 27 of the Dublin III Regulation, objective
evidence, such as medical certificates concerning his person, capable of
showing the particular seriousness of his state of health and the significant
and irreversible consequences to which his transfer might lead, the authorities
of the Member State concerned, including its courts, cannot ignore that
evidence. They are, on the
contrary, under an obligation to assess the risk that such consequences could
occur when they decide to transfer the person concerned or, in the case of a
court, the legality of a decision to transfer, since the execution of that
decision may lead to inhuman or degrading treatment of that person (see, by
analogy, judgment of 5 April 2016, Aranyosi and Caldararu, C-404/15 and
C-659/15 PPU, EU:C:2016:198, paragraph 88).
76. It
is, therefore, for those authorities to eliminate any serious doubts concerning
the impact of the transfer on the state of health of the person concerned. In this regard, in particular in the
case of a serious psychiatric illness, it is not sufficient to consider only
the consequences of physically transporting the person concerned from one
Member State to another, but all the significant and permanent consequences
that might arise from the transfer must be taken into consideration."
48. And at Article 96 et seq the court said:-
"96. In the light of all of the foregoing
considerations, the answer to Questions 2, 3 and 4 is that Article 4 of the
Charter must be interpreted as meaning that:
- even where there are no substantial grounds for
believing that there are systemic flaws in the Member State responsible for
examining the application for asylum, the transfer of an asylum seeker within
the framework of the Dublin III Regulation can take place only in conditions
which exclude the possibility that that transfer might result in a real and
proven risk of the person concerned suffering inhuman or degrading treatment,
within the meaning of that article;
- in circumstances in which the transfer of an
asylum seeker with a particularly serious mental or physical illness would
result in a real and proven risk of a significant and permanent deterioration
in the state of health of the person concerned, that transfer would constitute
inhuman and degrading treatment, within the meaning of that article;
- it is for the authorities of the Member State
having to carry out the transfer and, if necessary, its courts to eliminate any
serious doubts concerning the impact of the transfer on the state of health of
the person concerned by taking the necessary precautions to ensure that the
transfer takes place in conditions enabling appropriate and sufficient
protection of that person's state of health. If, taking into account the particular
seriousness of the illness of the asylum seeker concerned, the taking of those
precautions is not sufficient to ensure that his transfer does not result in a
real risk of a significant and permanent worsening of his state of health, it
is for the authorities of the Member State concerned to suspend the execution
of the transfer of the person concerned for such time as his condition renders
him unfit for such a transfer, and
- where necessary, if it is noted that the state
of health of the asylum seeker concerned is not expected to improve in the
short term, or that the suspension of the procedure for a long period would
risk worsening the condition of the person concerned, the requesting Member
State may choose to conduct its own examination of that person's
application by making use of the 'discretionary clause' laid down
in Article 17(1) of the Dublin III Regulation."
49. Other cases were cited to us. In D v The United Kingdom [1997] 24 EHRR 423 the applicant had AIDS and had he been removed to St Kitts from
whence he came it would have hastened his death and caused him to experience
inhuman and degrading conditions because of the inadequacy of the healthcare
system in that place. In the
circumstances of that case Article 3 ECHR would be violated if the applicant
were returned to St Kitts. At paragraph 49 of the judgment the court said:-
"49. It is true that this principle has so far been
applied by the Court in contexts in which the risk to the individual of being
subjected to any of the proscribed forms of treatment emanates from
intentionally inflicted acts of the public authorities in the receiving country
or from those of non-State bodies in that country when the authorities there
are unable to afford him appropriate protection (see, for example, the Ahmed
judgment, loc. cit., p.2207, para.44).
Aside from these situations and
given the fundamental importance of Article 3 (art. 3) in the Convention
system, the Court must reserve to itself sufficient flexibility to address the
application of the Article (art. 3) in other contexts which might arise. It is not therefore prevented from
scrutinising an applicant's claim under Article 3 (art. 3) where the
source of the risk of proscribed treatment in the receiving country stems from
factors which cannot engage either directly or indirectly the responsibility of
the public authorities of that country, or which, taken alone, do not in
themselves infringe the standards of that Article (art. 3). To limit the application of Article 3
(art. 3) in this manner would be to undermine the absolute character of its
protection. In any such contexts,
however, the Court must subject all the circumstances surrounding the case to a
rigorous scrutiny, especially the applicant's personal situation in the
expelling State."
50. The case of D might, however, be seen as
exceptional. In Bensaid v The
United Kingdom [2001] 33 EHRR 10 the court discussed the threshold with
regard to article 3 and said, at paragraph 40 of the judgment:-
"40. Owing to the absolute
character of the right guaranteed, the Court does not rule out the possibility
that Article 3 of the Convention (art. 3) may also apply where the danger
emanates from persons or groups of persons who are not public officials. However, it must be shown that the risk
is real and that the authorities of the receiving State are not able to obviate
the risk by providing appropriate protection."
51. In argument before us the Applicant accepted
that the European Jurisdiction was in general to be considered a safe
country. The question for the
Court, so the Applicant argued, was the effect of any return on the
Applicant's mental state in terms of the likelihood of inhumane treatment
if returned. It is argued on behalf
of the Applicant that because he will not feel safe if he is returned to the
European Jurisdiction then any treatment that he undertakes there will simply
not be successful and in that regard the Applicant repeats the assessment of Dr
Boucher set out at paragraph 3 above.
Arguments
52. The Applicant's argument is based upon
the proposition that it is quite lawful to return an asylum seeker to a safe
country under Rule 345 of the Immigration Rules without substantive
consideration or enquiry unless information suggests that the Applicant's
human rights might be infringed by such a removal. In those instances, following C K
-v- Slovenia set out above, there is an obligation on the authorities
to examine the circumstances of the case which will include the state of health
of the asylum seeker in cases where the asylum seeker claims that the receiving
state would not be a 'safe state' for him.
53. The Applicant here points to the fact that the
Respondent was made aware at the outset of issues which should have raised
concerns to the effect that a summary decision was not appropriate in this
case. In particular in the
interviews conducted on the 6th August 2018 the Applicant made
reference to the problems he had had in the European Jurisdiction in 2015. He informed the interviewing officer
that he had been attacked. In that
interview he also said that he had sailed directly from Antwerp to where he was
dropped off to come to Jersey and that he had chosen Jersey because it was
'not a member of the Dublin
regulation'.
54. He gave details of his life in the European
Jurisdiction including the fact that he owned and operated a small
transportation business. He
informed officers that he had in the past secured a fake counterfeit passport
of that jurisdiction which he used to seek entry into Canada. The authorities of the European
Jurisdiction confiscated it. He
explained that he had been attacked several times and he did so by reference to
his background. At one stage of his
interview he said:-
"I need protection, I
cannot go back to [the European Jurisdiction]. If I went back to any European country
they will send me back to [the European Jurisdiction] and I can prove that I am
not safe in [the European Jurisdiction]."
55. When asked to explain that further he said:-
"I have been attacked
several times and the police, [of the European Jurisdiction], they try to help
and I change my city I think 4 or 5 times.
I have the registration of them."
56. He also informed the interviewers that his
history was set out in a book that he had written and was amongst his
possessions. He denied any
psychiatric history during the course of his interview.
57. The Applicant argues that notwithstanding the
indications given in the initial interview by the Applicant the Respondent made
in effect an immediate decision and did not make any enquiries in connection
with threats / violence that the Applicant said had been reported to him in the
European Jurisdiction.
58. It is also argued that the Respondent has
failed to reconsider the decision, in the light of the information and evidence
provided to him. The Respondent
maintains his argument that, as the European Jurisdiction is recognised as a
safe country there does not need to be any substantive consideration of the
Applicant's claim for asylum.
59. It is argued by the Applicant that even, which
is not accepted, were the Court make the decision that the Respondent's
initial decision was reasonable it was unreasonable for him to continue with
that decision after information was provided to him. The Applicant had raised concerns of
potential human rights infringements and it should have been clear to the
Respondent that the risk of serious harm to the Applicant should he be returned
to the European Jurisdiction from non-state actors was real and that the
authorities of the European Jurisdiction had been unable to 'obviate the
risk'.
60. Furthermore it is argued that, whether or not
the European Jurisdiction is a safe country, Dr Boucher's evidence shows
a very real risk that the Applicant will take his own life if he is returned
there. Even if he were handed over
to a medical unit that would not present an effective long-term solution. Dr Boucher's opinion is that the
Applicant's mental health difficulties will not improve by psychological
therapy or treatment in the European Jurisdiction because that treatment would
be ineffective where the Applicant feels under threat. It is argued that even were it to be
determined that the risk to the Applicant on a return to the European
Jurisdiction is not a real risk, or considered to be a real risk but not one
that amounts to inhumane or degrading treatment, the Applicant's
subjective fear of removal bears upon the question of whether it is correct to
permit his return to the European Jurisdiction.
61. It is argued, in summary, that it is the
likelihood of the Applicant committing suicide (or the impossibility of him
recovering from his mental illness whilst he remains under threat) as a result
of his removal to the European Jurisdiction by the Jersey authorities which
would amount to the inhuman and/or degrading treatment and would be in breach
of the Applicant's article 3 rights in accordance with CK v Slovenia
and Y and Z.
62. It is accordingly argued that the decision and
further the ongoing failure by the Respondent to give substantive consideration
to the Applicant's claim for asylum is therefore incompatible with ECHR.
63. With regard to Ground 1 the Respondent
disputes that there was no investigation prior to the first decision about
whether or not the Applicant could be safely returned. There were a number of enquiries made
before making the first decision to remove the Applicant to the European
Jurisdiction. In particular the
Respondent draws our attention to enquiries made of that jurisdiction about
whether or not they would receive the Applicant back and of the Home Office for
guidance. This illustrates, so it
is argued, that enquiries had been made and in particular with the Home Office
in an email of 16th August 2018 which highlights the concerns raised
by the Applicant's then legal adviser in the following terms:-
"However, his legal
adviser has raised the question with us that as 'X' has been
subject to attacks in [the European Jurisdiction] by ISIS fundamentalists and
that he has been rehoused on several occasions and as such he feels persecuted
in [the European Jurisdiction]. The
authorities are aware of this and have assisted him."
64. Once the Respondent had been provided with the
psychological evidence referred to above in order to consider it an adjournment
was sought. In addition further
enquiries were made. During those
enquiries JCIS established:-
(i)
That its
belief that the Applicant had an extant claim for asylum in the European
Jurisdiction was wrong and in fact the Applicant had been granted refugee
status there;
(ii) As a person with refugee status, the Applicant
had the same status as a citizen of the European Jurisdiction in that
restrictions on movement within the European Jurisdiction did not apply and he
had the same access to healthcare.
Specifically:-
"The Applicant is
entitled to comprehensive health care, including psychiatric care. His access to healthcare and in
particular access to psychiatric care has been confirmed both by the Home
Office Asylum Liaison Officer for [the European Jurisdiction] and the
Foreigners Office for the state of [the European Jurisdiction], where the
Applicant currently resides."
(iii) The letter provided by the authorities of the
European Jurisdiction to the Applicant under the aegis of which he could seek
assistance did not come into existence because of the persecution that the
Applicant might face there but rather for a different reason which is not
necessary to refer to in this judgment.
65. The Respondent accepts that JCIS has not, in
making the Decisions, carried out a substantive consideration of the asylum
claim although further enquiries have been made by reason of this
application. The Respondent asserts
that JCIS has given consideration to the Applicant's claims of
persecution, the steps taken in the European Jurisdiction to mitigate risks,
and to the Applicant's mental health. Substantive consideration was not
carried out, however, because the Applicant had already been granted refugee
status in the European Jurisdiction and the European Jurisdiction had confirmed
it. As noted above, the Respondent
relies on Rule 345 of the Immigration Rules quoted above.
66. As we have indicated, there appears to be no
real dispute that the European Jurisdiction is generally to be considered a
safe country. It is argued by the
Respondent that the Applicant is seeking to argue that the European
Jurisdiction is not a safe country in the particular context of this
application and accordingly it is further argued the service was wrong not to
give substantive consideration to the application for asylum. However, so the Respondent argues, the
Applicant has simply failed to meet the high threshold to establish that
position.
67. In our judgment it is not correct to say that
the Respondent made no enquiries as the email referred to above clearly
shows. In the context of this
application the enquiries made by JCIS, particularly after the adjournment and
before the Second Decision, were sufficient.
68. With regard to the second ground of the appeal,
the Respondent argues that the European Union itself considers that each member
state may be considered for the purposes of asylum applications as safe. In Protocol (24) to the Treaty on the
Function of the European Union on the question of asylum, the article states:-
"Given the level of
protection of fundamental rights for freedoms by the member states of the
European Union, member states shall be regarded as constituting safe countries
of origin in respect of each other for all legal and practical purposes in
relation to asylum matters."
69. Although that protocol does not apply in terms
to Jersey it is an indication that the European Union, which is of course a
quintessentially ECHR jurisdiction, views matters in that light.
70. The Respondent in general, so it is argued,
follows the same guidance as the Home Office in respect of removing persons to
third countries. The guidance
states:-
"If removal is to one of the
states listed in part 2, those states are considered to be ones that would not
remove a person in contravention of the Refugee Convention or the European
Convention on Human Rights and were a person would not be at risk of
persecution....".
71. Further the Respondent argues that part 2 of
schedule 3 of the Asylum and Immigration (Treatment of Claimants Etc) Act 2004
lists the European Jurisdiction as a 'safe country'.
72. The Respondent says that the Applicant has
provided no substantial evidence that such is not the case other than
statements in his affidavits and some uncorroborated photographs of a knife and
ISIS symbol in a kitchen to substantiate his assertion that he would face the
threat of harm, much less, so it is argued, inhuman or degrading treatment such
as would fall within article 3 ECHR.
It is also apparent that the authorities of the European Jurisdictions
have already rehoused the Applicant on no less than four occasions to ensure
his protection and to prevent any persecution and suffering on his part.
73. The Respondent argues therefore that the
authorities of the European Jurisdiction have gone to reasonable and
proportionate lengths not only by rehousing him but by providing him with such
a protective letter that he can use to seek assistance from law enforcement
authorities anywhere in the European Jurisdiction. This, so the Respondent argues,
illustrates that jurisdiction has indeed taken the appropriate steps to reduce
the risk of harm to the Applicant.
It is quite clear on all of the facts that the European Jurisdiction is
in fact taking proactive preventative steps to protect the Applicant.
74. The Respondent relies on the principles in HLR
v France as clarified in R (Bagdanavicius) v Secretary of State for the
Home Department in support of the proposition that all the receiving
country needs to do is to provide 'reasonable protection'. In our judgment the wording in R
(Bagdanavicius) v Secretary of State for the Home Department that the state
is expected to provide 'reasonable protection' is the correct
terminology and not the wording in HLR v France which refers to the
requirement that the receiving state 'obviate the risk'.
75. Thus, it is argued by the Respondent, the
European Jurisdiction state has provided reasonable protection and indeed it is
difficult to consider what more the authorities there could have done in that
regard. Indeed, the Respondent
argues that where the Applicant himself has accepted, as this Applicant readily
has, that the authorities of the receiving country are in fact assisting him
and taking steps to protect him then JCIS was entitled to follow Rule 345 of
the Immigration Rules and give no substantive consideration to the application.
76. In CK v Slovenia, as stated above, the
Court of Justice of the European Union held that a deporting state must
'exclude the possibility' that the transfer might result in a real
and proven risk of the person concerned suffering inhuman or degrading
treatment and 'eliminates serious doubts' with regard to the
transfer on the state of health of the person by taking the necessary
precautions. CK v Slovenia
also makes it clear that the threat of suicide does not require the expelling
state to refrain from enforcing the expulsion provided it ensures that concrete
measures are taken to prevent such threats.
77. The Respondent argues that necessary
precautions will in fact be taken to prevent any threats of suicide being
realised. The Applicant would have
the benefit of psychiatric assistance and would be in fact detained, presumably
under careful watch, for as long as he remains in Jersey. Thereafter he would be transferred with
escorting officers and appropriate medical care and will receive the appropriate
care on his arrival in the European Jurisdiction. The authorities of the European
Jurisdiction would be kept fully informed and warned of any difficulties.
78. It is accepted in principle by the Respondent
that a risk of suicide can provide the basis of an article 3 claim against a
person's expulsion, but the threat of suicide cannot be used as 'a
licence for emotional blackmail by asylum seekers' as said in the case of
Y and Z.
79. With regard to the fifth factor set out by
Dyson LJ in J v The Home Secretary (at paragraph 36 above) the
Respondent argues that on the Applicant's case, if accepted at face
value, the authorities of the European Jurisdiction have protected him and
moved him at least four or five times.
The treatment from non-state actors is only proscribed under article 3
ECHR if the state has failed to provide reasonable protection and therefore the
fear of ill treatment is not, so the Respondent argues, well founded.
80. The sixth factor (also at paragraph 36 above)
is a consideration of whether there are effective remedies to reduce the risk
of suicide. We accept that the
European Jurisdiction has facilities more than capable of dealing with persons
with mental health problems and that the Applicant has the right to avail
himself of such services. The
authorities of the European Jurisdiction would be expected, so the Respondent
argues, to take reasonable steps.
81. We have of course considered the
Applicant's affidavits and the assertions of fact contained in then. Even taking the assertions made by the
Applicant at face value and in the light of the principles in the case law,
with regard to this part of the application, in our judgment the
Applicant's fears of steps being taken against him by non-state agents in
the European Jurisdiction by reason of his background, even were they well
founded, have been met by the more than reasonable and appropriate steps taken
by the authorities there to address those risks. In our judgment the case law did not
require the Minister nor does it require us to be satisfied that the
authorities of the European Jurisdiction have obviated those risks in the sense
of removing them completely but merely that they have taken reasonable and
appropriate steps to protect the Applicant from them. Indeed on our understanding of the facts
it is difficult for us to see what more the authorities of the European
Jurisdiction could have done.
82. This, to our mind, quite justifies the
concession in our view appropriately made by the Applicant's counsel at
the beginning of the hearing before us that it is accepted that the European
Jurisdiction is a 'safe country'.
83. What then of the subjective fear of the
Applicant were he to be returned to the European Jurisdiction and the enhanced
risk that he would commit suicide?
We accept that he has presented as exhibiting suicidal ideation and we
further accept that he has made apparent attempts on his life in Jersey.
84. There is, however, in such cases a high
threshold to be passed in matters of potential suicide and looking at the
authorities cited to us it seems to us that a case of the extreme nature of Y
and Z for example is the type of case that passes that high threshold.
85. We keep in mind that it is not difficult for
someone quite convincingly to show signs that they would wish to commit suicide
and that the authorities in a returning state should not be held to ransom by
such threats. Sadly, genuine
suicidal ideation amongst asylum seekers is not unusual.
86. We are satisfied that were the Applicant to be
returned to the European Jurisdiction the risk of suicide whilst in Jersey could
and will be met by appropriate supervision and measures, the journey back to
the European Jurisdiction will be similarly safeguarded because the Applicant
will be accompanied at all times and we are satisfied that the authorities of
the European Jurisdiction will do all that is reasonably necessary to protect
the Applicant from any attempts at suicide and that he would thereafter be
afforded recourse to appropriate treatment.
87. In the circumstances the European Jurisdiction
is a safe country and the return of the Applicant to that jurisdiction will in
the circumstances not infringe the Applicant's article 3 ECHR rights.
88. We think, on balance, that the First Decision
taken by JCIS on behalf of the Minister was potentially flawed by reason of the
misleading nature of the initial interview. Even were that to be the case, however,
in our judgment the Second Decision was taken after due consideration of the
relevant facts, including the Applicant's mental state, and after further
enquiry with the relevant authorities in the European Jurisdiction. Even were we to be wrong about that,
however, we have given anxious consideration to the material before us and on
the authorities as we understand them, we are satisfied that were the Minister
to take the decision again, he would inevitably be driven to making the same
decision, that is to refuse the Applicant's application for asylum, which
is the decision that we would have taken ourselves. In summary:-
(i)
With
regard to the threats posed by the non-state agents we are not satisfied that
they amount to "torture or inhuman or degrading treatment or
punishment" in any event but not least because of the steps that have
been taken by the authorities of the European Jurisdiction to address that risk
appropriately;
(ii) With regard to the Applicant's mental
health, in our judgment, suitable arrangements can, should and will be put in
place to protect him during the process of his removal from Jersey, transit to
the European Jurisdiction and his reception there, and thereafter. We are satisfied that the European
Jurisdiction has a more than sufficient system of healthcare, including
psychiatric care, to assist the Applicant.
89. We have scrutinised this application anxiously
as we are required to do but, in our judgment, for the reasons set out above,
we refuse the Applicant's application for judicial review.
Authorities
X
v Minister for Home Affairs [2018] JRC 222.
Human Rights (Jersey) Law 2000.
J
v His Excellency the Lieutenant Governor of Jersey [2018] JRC 072A.
Immigration (Jersey) Order 1993.
HLR v France [1998] 26 EHRR 29.
Regina (Bagdanavicius)
v Secretary of State for the Home Department
[2005] UK HL 38.
J v Home Secretary [2005] EWCA Civ 629.
Y and Z v Home
Secretary [2009] EWCA Civ 362.
K H (Afghanistan)
v Home Secretary [2009] EWCA Civ 1354.
MN v Home
Secretary [2011] EWCA Civ 193.
C K v Slovenia [2017] (case C-578/16
PRI).
D v The United Kingdom [1997] 24 EHRR 423.
Bensaid v The United
Kingdom [2001] 33 EHRR 10.