FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY

OF

Application no. 32733/08

by K.R.S.

against the United Kingdom

The

European Court of Human Rights (Fourth Section), sitting on 2 December

2008 as a Chamber composed of:

Lech Garlicki, President,

Nicolas

Bratza,

Ljiljana Mijović,

David Thór Björgvinsson,

Ján Šikuta,

Päivi Hirvelä,

Mihai Poalelungi, judges,

and Fatoş Aracı, Deputy

Registrar,

Having regard to the above application lodged on 10 July

2008,

Having regard to the interim measure indicated to the respondent

Government under Rule 39 of the Rules of Court,

Having regard to the

decision to grant anonymity to the above application under Rule 47 § 3

of the Rules of Court,

Having deliberated, decides as follows:

THE

FACTS

The applicant, Mr K.R.S., is an Iranian national who was born in

1975 and lives in Harmondsworth. He was represented before the Court by

Mr K. Murphy, a lawyer practising in Woodford Green, London, with

Scudamore Solicitors. The United Kingdom Government (“the Government”)

were represented by their Agent, Ms H. Upton of the Foreign and

Commonwealth Office.

I. THE CIRCUMSTANCES OF THE CASE

A. The applicant’

s domestic proceedings

The facts of the case, as submitted by the

applicant, may be summarised as follows.

The applicant arrived in the

United Kingdom on 11 November 2006 and claimed asylum. It was

discovered that the applicant had travelled through Greece before

arriving in the United Kingdom. As a consequence, a request was made to

Greece for it to accept responsibility for the applicant’s asylum

claim. Greece accepted responsibility on 12 December 2006.

On 14

December 2006 the Secretary of State declined to give substantive

consideration to the applicant’s asylum claim because under the Asylum

and Immigration (Treatment of Claimants, etc) Act 2004 (“the 2004 Act”:

see domestic law and practice below) the applicant could be returned to

Greece.

The applicant subsequently absconded and later was detained in

an immigration enforcement operation. Directions were then set for the

applicant’s removal to Greece at 8.20 a.m. on 23 May 2008.

On 15 May

2008 the applicant’s representatives wrote to the Secretary of State

for the Home Department requesting that removal be deferred pending the

outcome of the R (Nasseri) v Secretary of State for the Home Department

[2008] EWCA Civ 464 (see domestic law and practice below). The Court of

Appeal had given judgment in that case on 14 May 2008 and it appeared

that the unsuccessful party, Nasseri, was to petition the House of

Lords for leave to appeal.

On 15 May 2008 the Secretary of State

responded that the applicant had failed to identify how Nasseri applied

to his case. The Secretary of State said that the concerns that had

been expressed by the United Nations High Commissioner for Refugees and

others about Greek procedures related to “interrupted” cases, cases

where the applicant left Greece before their asylum claim was decided

and where there was a risk that an asylum applicant might not be

readmitted into the asylum process in Greece. The present applicant’s

case did not fall into this category. He was being returned to Greece

having originally entered the territory of the EU through that country.

There had been no criticism regarding access to the Greek asylum system

in those cases.

On the same day the applicant’s solicitors responded

that there was nothing in the Court of Appeal’s judgment in Nasseri

that suggested it had proceeded on the basis that it was merely

considering “interrupted” cases. No response was received from the

Secretary of State.

On 21 May 2008, the applicant brought judicial

review proceedings challenging the decision to remove him to Greece.

The removal directions set for 23 May 2008 were cancelled. In her

acknowledgment of service contesting the judicial review proceedings,

the Secretary of State relied on the Court of Appeal’s judgment in

Nasseri that the relevant provisions of the 2004 Act were not

incompatible with the investigative obligation under Article 3 of the

Convention and that, upon an examination of all of the evidence in

relation to Greek practices and procedures, there was no evidence of a

risk of unlawful refoulement to Greece. Furthermore there were no

proceedings pending before the House of Lords in Nasseri.

On 16 June

2008, the High Court refused the applicant permission to apply for

judicial review for the reasons set out in the Secretary of State’s

acknowledgment of service.

Removal directions to Greece were then reset

for 14 July 2008. On 10 July 2008 the applicant lodged an application

with this Court.

On 11 July 2008, the President of the Section to which

the case had been allocated decided to apply Rule 39 of the Rules of

Court, indicating to the Government that it was desirable in the

interests of the parties and the proper conduct of the proceedings that

the applicant should not be expelled to Greece pending the Court’s

decision. In his letter informing the Agent of the Government of the

United Kingdom of this decision, the Section Registrar stated:

“This

indication has been made in light of the UNHCR report dated 15 April

2008 (a copy of which is attached). The parties’ attention is drawn to

paragraph 26 of the report that states that ‘In view of EU Member

States’ obligation to ensure access to fair and effective asylum

procedures, including in cases subject to the Dublin Regulation, UNHCR

advises Governments to refrain from returning asylum seekers to Greece

under the Dublin Regulation until further notice. UNHCR recommends that

Governments make use of Article 3(2) of the Dublin Regulation, allowing

States to examine an asylum application lodged even if such examination

is not its responsibility under the criteria as laid down in this

Regulation’.

The Acting President has instructed me to inform you that

the Rule 39 measure will remain in force pending confirmation from your

authorities that the applicant, if removed to Greece and if he so

wishes, will have ample opportunity in Greece to apply to the Court for

a Rule 39 measure in the event of his onward expulsion from Greece to

Iran. Your authorities may wish to avail themselves of any bilateral

arrangements under the Dublin Convention with a view to seeking such

confirmation.”

B. Other cases brought by applicants being removed from

the United Kingdom to Greece

In early 2008, in the light of the UNHCR

report of 15 April 2008 summarised in the Section Registrar’s letter of

11 July 2008, the Court received an increasing number of Rule 39

requests from applicants in the United Kingdom who were to be removed

to Greece. Between 14 May 2008 and 16 September 2008, the Acting

President of the Fourth Section applied Rule 39 in a total of eighty

cases.

On 3 June 2008 the Agent of the Government wrote to the Court

noting the Government’s understanding that Rule 39 had been applied due

to a concern that the applicants might, on arrival in Greece, be

immediately removed to their onward destinations without having had the

opportunity to make an asylum claim to the domestic authorities or,

should the need arise, an application to the Court under Rule 39. The

letter continued:

“UK Border Agency (UKBA) has been advised by the Head

of the Greek Dublin Unit that Asylum seekers returned to Greece under

the Dublin Regulation [see relevant international and European Union

law below] are given the opportunity to lodge an asylum claim on

arrival. If they do so they are kept in a holding centre for up to 2

days while their application is registered. They are then provided with

a ‘pink’ card which entitles them to work and to access benefits while

their application is considered. Furthermore, no asylum seeker is

returned by the Greek authorities to such countries as Afghanistan,

Iraq, Iran, Somalia, Sudan or Eritrea, even if their asylum application

is rejected by the Greek authorities. In this event they are given a

letter telling them to leave Greece within a specified time but no

action is then taken to enforce their removal...UKBA has written to the

Greek Dublin Unit for written confirmation of the above and express

confirmation that the opportunity to apply for asylum extends equally

to the opportunity to make an application to the Court and a reply is

expected within two weeks.

Furthermore, it is standard practice in

Dublin Regulation removal cases to Greece for the United Kingdom to

obtain from the Greek authorities clarification that the individual

concerned will be able to submit an asylum application upon arrival in

Greece should he or she wish to do so.”

The letter included two witness

statements from UKBA officials to this effect and a letter from the

Greek Dublin Unit in respect of one applicant to this Court. The Greek

Dublin Unit’s letter undertook to allow the individual to submit an

asylum application in Greece upon arrival.

In a further letter of 23

July 2008, the Agent of the Government drew the Court’s attention to a

letter of 11 July 2008 from the Head of Aliens Division (Asylum

Section) of the Greek Dublin Unit. That letter stated:

“In general, no

alien who submits an asylum application is put in detention for that

sole reason. In any case, the expulsion procedure that regards illegal

aliens or asylum applicants, who were firstly arrested for illegal

entry, is going through various stages of remedy (administrative or

judicial) [sic]. No asylum applicant is expelled, unless all the stages

of the asylum procedure are finished and all the legal rights for

review have been exhausted, according to the provisions of the Geneva

Convention and the non refoulement clause. Furthermore, according to

the Procedural Rules of the European Court of Human Rights, they have

the right to appeal against any expulsion decision and have a Rule 39

indication on their case.”

In his reply of 6 August 2008, the Section

Registrar sought confirmation that, according to the terms of the

letter of 11 July 2008, the Greek authorities not only ensured the

right of an asylum applicant returned to Greece to apply for a Rule 39

measure but also guarantee him ample opportunity to avail himself of

that right while still on the territory of Greece. The Agent of the

Government of the United Kingdom in turn sought such confirmation from

the Agent of the Government of Greece. On 12 November 2008, the United

Kingdom Agent forwarded a letter dated 4 November 2008 from the Greek

Agent. This stated:

“We hereby advise you that it is the objective of

the Greek State, though its competent bodies and in accordance with the

current legal framework (Presidential Decrees 220/2007, 90/2008 and

96/2008), to ensure the unhindered submission of applications for

asylum by all aliens who declare before any Greek Authority, at the

entry points or on Greek territory, either verbally or in writing, that

they request asylum in our country or ask in any way not to be deported

to other countries from fear of persecution for reasons of race,

religion, nationality, social class or political views.

Consequently,

in Greece not only is there the right and the possibility to submit an

application for asylum, but the actual application is also examined

very carefully, exhaustively and as to substance...the Police Office,

as the competent authority, makes much of the ‘right for asylum’ and

the principle of non-refoulement, and they do not deport the alien from

our country, if the procedure has not been completed. This also applies

for the aliens transferred to Greece, pursuant to the provisions of the

Dublin Regulation, provided that the requirements for the

characterization of the ‘applicant’ as a national of a third country or

a non-citizen who has submitted an application for asylum for which a

final decision has not yet been made are met, as described in the

Directive 2005/85/EK [Council Directive 2005/85/EC of 1 December 2005

on minimum standards on procedures in Member States for granting and

withdrawing refugee status – see relevant European Union law below] and

Presidential Decree 90/2008”

This letter enclosed another letter dated

31 October 2008 from the Directorate for Aliens Affairs to that effect.

Attached to the letter of 31 October was a note which referred to the

fact that many applicants resisting return to Greece had the right to

submit asylum applications in Greece but had not done so because their

purpose was to go to other European Union countries. The note also

referred to the new legislative framework in Greece, which, inter alia,

made provision for: the Public Prosecutor to oversee the implementation

of the relevant domestic law in respect of aliens who are minors,

without the need for an asylum application by them; training for the

officials responsible; the right to immediate employment and education;

the issuing of travel documents for beneficiaries of subsidiary

protection and “applicants for international protection”; and the ipso

jure revocation of all decisions in respect of “interrupted claims”.

II. RELEVANT EUROPEAN UNION AND DOMESTIC LAW

A. European Union law

1.

The Dublin Convention and Regulation

The Dublin Convention (the

Convention determining the State responsible for examining applications

for asylum lodged in one of the Member States of the European

Communities, 15 June 1990) provided for measures to ensure that

applicants for asylum had their applications examined by one of the

Member States and that applicants for asylum were not referred

successively from one Member State to another. Articles 4 to 8 set out

the criteria for determining the single Member State responsible for

examining an application for asylum. Pursuant to Article 7, the

responsibility for examining an application for asylum is incumbent

upon the Member State responsible for controlling the entry of the

alien into the territory of the Member States. The United Kingdom and

Greece were both signatory States.

The Convention has been superseded

by Council Regulation (EC) No 343/2003 of 18 February 2003 establishing

the criteria and mechanisms for determining the Member State

responsible for examining an asylum application lodged in one of the

Member States by a third-country national (“Dublin II”, hereinafter

“the Dublin Regulation). The Dublin Regulation applies to all European

Union Member States, Norway and Iceland. Article 3(1) of the Regulation

provides for asylum applications to be examined by a single Member

State, according to the criteria set out in Chapter III. The criteria

for determining which Member State is responsible include where it is

established that an asylum seeker has irregularly crossed the border

into a Member State, having come from a third country (Article 10). If

responsibility can be designated on the basis of the criteria, listed

in Chapter III, Article 11 provides that the first Member State with

which the application for asylum was lodged shall be responsible for

examining it.

Article (3)2 of the Dublin Regulation allows a Member

State to examine an asylum application even if such examination is not

its responsibility. It provides:

“By way of derogation from paragraph

1, each Member State may examine an application for asylum lodged with

it by a third-country national, even if such examination is not its

responsibility under the criteria laid down in this Regulation. In such

an event, that Member State shall become the Member State responsible

within the meaning of this Regulation and shall assume the obligations

associated with that responsibility. Where appropriate, it shall inform

the Member State previously responsible, the Member State conducting a

procedure for determining the Member State responsible or the Member

State which has been requested to take charge of or take back the

applicant.”

2. Council Directive 2005/85/EC of 1 December 2005 on

minimum standards on procedures in Member States for granting and

withdrawing refugee status

The rights and standards set out in

Directive 2005/85/EC include: the right to remain in a Member State

pending the examination of an asylum application (Article 7); that

decisions on applications are given in writing and, where an

application is rejected, that the reasons in fact and law are stated in

the decision with information on how to challenge a negative decision

(Article 9); that each applicant for asylum be given appropriate

linguistic assistance and a personal interview (Articles 10 and 12);

and, subject to a number of qualifications, that applicants shall have

the right to legal assistance and representation (Article 15). Article

39 guarantees applicants the right to an effective remedy before a

court or tribunal against decisions taken against them. Member States

are to allow the United Nations High Commissioner for Refugees access

to applicants, access to information on individual applications and the

opportunity to present its views to any competent authorities (Article

21).

3. Council Directive 2003/9/EC of 27 January 2003 laying down

minimum standards for the reception of asylum seekers

The above

Directive requires that Member States ensure a dignified standard of

living to all asylum-seekers, paying specific attention to the

situation of applicants with special needs or who are detained. It

regulates matters such as the provision of information, documentation,

freedom of movement, healthcare, accommodation, schooling of minors,

access to the labour market and to vocational training. It also covers

standards for persons with special needs, minors, unaccompanied

children and victims of torture.

In a judgment given on 19 April 2007

in Commission v. Greece (Case C-72/06), the Court of Justice of the

European Communities (“the ECJ”) found that Greece had failed to

implement the Directive. It appears from the United Nations High

Commissioner for Refugees Position Paper (set out below) that it has

now done so.

B. United Kingdom immigration statutes and rules

1.

Primary and secondary legislation

a. First list of safe countries

Pursuant to the Dublin Regulation, Part 2 of Schedule 3 to the Asylum

and Immigration (Treatment of Claimants, etc) Act 2004 establishes a

“first list of safe countries” which covers the other twenty-four

European Union Member States at the time (prior to the accession of

Romania and Bulgaria), Norway and Iceland.

Paragraph 3 of Part 2 of

Schedule 3 provides:

“(1) This paragraph applies for the purposes of

the determination by any person, tribunal or court whether a person who

has made an asylum claim or a human rights claim may be removed—

(a)

from the United Kingdom, and

(b) to a State of which he is not a

national or citizen.

(2) A State to which this Part applies shall be

treated, in so far as relevant to the question mentioned in sub-

paragraph (1), as a place—

(a) where a person’s life and liberty are

not threatened by reason of his race, religion, nationality, membership

of a particular social group or political opinion,

(b) from which a

person will not be sent to another State in contravention of his

Convention rights, and

(c) from which a person will not be sent to

another State otherwise than in accordance with the Refugee

Convention.”

b. The Immigration Rules

Sections 1(4) and 3(2) of the

Immigration Act 1971 provide for the making of Immigration Rules by the

Secretary of State. Paragraph 345 of the Immigration Rules states:

“(1)

In a case where the Secretary of State is satisfied that the conditions

set out in Paragraphs 4 and 5(1), 9 and 10(1), 14 and 15(1) or 17 of

Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.)

Act 2004 are fulfilled, he will normally decline to examine the asylum

application substantively and issue a certificate under Part 2, 3, 4 or

5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants,

etc.) Act 2004 as appropriate.

(2) The Secretary of State shall not

issue a certificate under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum

and Immigration (Treatment of Claimants, etc.) Act 2004 unless:

(i)

the asylum applicant has not arrived in the United Kingdom directly

from the country in which he claims to fear persecution and has had an

opportunity at the border or within the third country or territory to

make contact with the authorities of that third country or territory in

order to seek their protection; or

(ii) there is other clear evidence

of his admissibility to a third country or territory.

Provided that he

is satisfied that a case meets these criteria, the Secretary of State

is under no obligation to consult the authorities of the third country

or territory before the removal of an asylum applicant to that country

or territory.”

2. R (Nasseri) v. the Secretary of State for the Home

Department [2008] EWCA Civ 464

In the above case, the High Court had

concluded that paragraph 3 of Part 2 of Schedule 3 was incompatible

with Article 3 because it precluded both the Secretary of State and the

court from considering any question as to the law and practice on

refoulement in Greece. The Secretary of State successfully appealed to

the Court of Appeal. Laws LJ (who delivered the leading judgment)

considered the extent to which the evidence demonstrated that removal

of an asylum seeker to Greece would violate the United Kingdom’s

obligations under Article 3. He concluded that:

“There are clearly

concerns about the conditions in which asylum-seekers may be detained

in Greece. It is not however shown that they give rise to systematic

violations of Article 3.

...such evidence as there is, and in

particular the recent UNHCR Paper, shows that the relevant legal

procedures are to say the least shaky, although there has been some

improvement.

...But in truth there are currently no deportations or

removals to Afghanistan, Iraq, Iran, Somalia or Sudan, and as I

understand it no reports of unlawful refoulement to any destination.

That seems to me to be critical. I would accordingly hold, on the

evidence before us, that as matters stand Greece’s continued presence

on the list does not offend the United Kingdom’s Convention

obligations.”

In H (Iran); Zego (Eritrea); Kadir (Iraq) v. Secretary of

State for the Home Department [2008] EWCA 985 the Court of Appeal

affirmed its judgment in Nasseri.

III. RELEVANT COUNCIL OF EUROPE TEXTS

A. Recommendations of the Committee of Ministers

1. Recommendation R

(97) 22

Recommendation R (97) 22 (containing guidelines on the

application of the safe third country concept) where relevant provides

as follows:

“1. In order to assess whether a country is a safe third

country to which an asylum-seeker can be sent, all the criteria

indicated below should be met in each individual case:

a. observance by

the third country of international human rights standards relevant to

asylum as established in universal and regional instruments, including

compliance with the prohibition of torture, inhuman or degrading

treatment or punishment;

b. observance by the third country of

international principles relating to the protection of refugees as

embodied in the 1951 Convention and the 1967 Protocol relating to the

Status of Refugees, with special regard to the principle of non-

refoulement;

c. the third country will provide effective protection

against refoulement and the possibility to seek and enjoy asylum;

d.

the asylum-seeker has already been granted effective protection in the

third country or has had the opportunity, at the border or within the

territory of the third country, to make contact with that country’s

authorities in order to seek protection there before moving on to the

member state where the asylum request is lodged or, that as a result of

personal circumstances of the asylum-seeker, including his or her prior

relations with the third country, there is clear evidence of the

admissibility of the asylum-seeker to the third country.”

2.

Recommendation R (98) 13

In Recommendation R (98) 13 (on the right of

rejected asylum seekers to an effective remedy against decisions on

expulsion in the context of Article 3 of the European Convention on

Human Rights) the Committee of Ministers recommended:

“[T]hat

governments of member states, while applying their own procedural

rules, ensure that the following guarantees are complied with in their

legislation or practice:

1. An effective remedy before a national

authority should be provided for any asylum seeker, whose request for

refugee status is rejected and who is subject to expulsion to a country

about which that person presents an arguable claim that he or she would

be subjected to torture or inhuman or degrading treatment or

punishment.

2. In applying paragraph 1 of this recommendation, a remedy

before a national authority is considered effective when:

2.1. that

authority is judicial; or, if it is a quasi-judicial or administrative

authority, it is clearly identified and composed of members who are

impartial and who enjoy safeguards of independence;

2.2. that authority

has competence both to decide on the existence of the conditions

provided for by Article 3 of the Convention and to grant appropriate

relief;

2.3. the remedy is accessible for the rejected asylum seeker;

and

2.4. the execution of the expulsion order is suspended until a

decision under 2.2 is taken.”

3. Recommendation R (2003) 5

The above

recommendation (on measures of detention of asylum seekers) contains,

inter alia, a number of recommendations on the conditions of detention

of asylum seekers, which include ensuring a standard of living adequate

for their health and well-being; separate accommodation within

detention facilities between men and women, as well as between children

and adults; a right of access to the UNHCR; legal assistance; and

appropriate arrangements for minors.

B. Resolution 1471 (2005) of the

Parliamentary Assembly of the Council of Europe

In Resolution 1471

(2005) (Accelerated asylum procedures in Council of Europe member

states) the Parliamentary Assembly invited the governments of the

member states to ensure, inter alia, that minimum procedural safeguards

were met in accelerated asylum procedures, including the right to an

individual determination of one’s claim and the right to an effective

remedy under Article 13 of the Convention. It also called on Member

States to provide adequate social and medical assistance in places of

detention.

C. The Committee for the Prevention of Torture

On 8 February

2008 the Committee for the Prevention of Torture and Inhuman or

Degrading Treatment or Punishment (“the CPT”) published its report on

it visit to Greece from 20 to 27 February 2007. Having reviewed the

conditions of detention for asylum seekers, the report recommended: The

report stated:

“With respect to all the centres visited, the CPT calls

upon the Greek authorities to ensure that:

- repair work is

carried out immediately so that:

§ all centres have functioning

toilet and shower facilities with a constant supply of water, at an

appropriate temperature;

§ appropriate artificial lighting is

installed, and access to natural light and ventilation improved.

- all detainees are allocated a bed/plinth and provided with a

clean mattress and clean bedding;

- occupancy rates be revised

so as to offer a minimum of 4m² of space per detainee;

- all

detainees are provided with the necessary products and equipment to

keep their accommodation clean, as well as with products for personal

hygiene (i.e. toilet paper, soap, toothpaste, toothbrush, etc.);

- all detainees have unimpeded access to toilet facilities;

- all detainees are allowed to spend a large proportion of the

day outside their cells and have at least one hour of outdoor exercise

a day. (emphasis in original)”

The Committee also noted that there was

no regime offering purposeful activities to detainees, that staffing

arrangements in the detention facilities were totally inadequate and

that proper health care services had to be provided to detainees.

IV.

RELEVANT OBJECTIVE INFORMATION

A. UNHCR Position on the return of

asylum seekers to Greece under the “Dublin Regulation” (“the UNHCR

Position Paper”)

On 15 April 2008, the United Nations High Commissioner

for Refugees published the above paper in which it advised the European

Union Member States to refrain from returning asylum seekers to Greece

under the Dublin Regulation until further notice. It also recommended

that they make use of Article 3(2) of the Dublin Regulation (see

relevant European Union law above) and examine asylum applications

themselves. The Position Paper criticised reception procedures for

“Dublin returnees” at Athens airport and the Central Police Asylum

Department, which was responsible for registering asylum appeals. It

also expressed concerns in respect of those whose asylum claims were

deemed to be “interrupted” as a result of their having left Greece

before their claims had been decided:

“While a number of positive

changes in the practice have been noticed in 2007, the legal framework

underpinning the practice of ‘interruption’ continues to leave room for

different interpretations and fails to guarantee that ‘Dublin

returnees’ with ‘interrupted claims’ are granted access to the

procedure. This situation calls into question whether ‘Dublin

returnees’ will have access to an effective remedy as foreseen by

Article 13 of the European Convention on Human Rights as well as

Article 39 of the Asylum Procedures Directive [Council Directive

2005/85/EC of 1 December 2005 on minimum standards on procedures in

Member States for granting and withdrawing refugee status – see

relevant European Union law above]. Of relevance is the decision taken

by the European Commission on 31 January 2008 to refer a case to the

European Court of Justice against Greece for the infringement of the

Dublin Regulation based on Greece’s failure to enact legislative

amendments to abolish the practice of ‘interruption’. (footnotes

omitted)”

The Position Paper also characterised the percentage of

asylum seekers who were granted refugee status as “disturbingly low”

and criticised the quality of asylum decisions, noting in particular

their short, standardised format and the absence of legal reasoning in

some decisions.

The Position Paper also noted that since the adverse

finding of the ECJ in Commission v. Greece (see above), Council

Directive 2003/9/EC had been transposed into Greek law on 13 November

2007. However, its implementation continued to present serious flaws.

The paper stated:

“UNHCR remains concerned about the extremely limited

reception facilities for asylum-seekers as this situation is seriously

compromising the full implementation of the Presidential Decree on the

Reception Conditions and urges the Government of Greece to promptly

issue the awaited ministerial decision that should establish the

criteria for the provision of a daily financial allowance. Furthermore,

UNHCR calls upon the Government of Greece to ensure that the situation

of children is given primary consideration and that the current

reception conditions for unaccompanied minors are urgently reviewed.”

B. Relevant reports by non-governmental organisations

1. The Norwegian

Organisation for Asylum Seekers, the Norwegian Helsinki Committee and

Greek Helsinki Monitor

On 9 April 2008 three non-governmental

organisations, the Norwegian Organisation for Asylum Seekers, the

Norwegian Helsinki Committee and Greek Helsinki Monitor, published a

report entitled “A gamble with the right to asylum in Europe-Greek

asylum policy and the Dublin 2 Regulation”. The report called on other

European countries to apply Article 3(2) of the Dublin Regulation and

on the Greek authorities to review their asylum policy so that it

complied with Greece’s international obligations. The report stated:

“Greek asylum policy is better understood if one considers the

following:

1. Keeping asylum seekers in police custody is a common

practice, and we were told several stories of asylum seekers being

abused while detained by the police. It is unacceptable that some of

those fleeing from persecution in their home country are beaten up by

the police in an EU state instead of receiving help and protection.

2.

25,113 asylum applications were submitted in 2007, but the authorities

have dedicated very limited resources to handle them, which is yet

another example of Greece’s reluctance to deal with asylum according to

its international obligations.

3. From more than 20,000 asylum cases

that were given first instance examination in 2007 only 8 persons were

given residence permit, 0.04 per cent of the applicants. 17,000

decisions were appealed, of which 6,448 were examined. Only 155

applications were granted, after the examination of appeals, that is

2.4 per cent. These are depressing figures.

4. Very few asylum seekers

are given legal assistance in Greece, even if they are entitled to

this. Access to legal assistance is all the more important given the

low percentage of applications that are granted. The number of lawyers

to whom NGOs mediate access, approximately 15, is not in proportion to

the need.

5. Unaccompanied minors are not guaranteed a place at a

reception centre, nor education, a legal guardian or other assistance

they are entitled to through the UN Children’s Convention.

6.

Approximately 750 available places at reception centres are far from

sufficient. The majority of asylum seekers are left to fend for

themselves, as best they can.

It is impossible to respect the asylum

seekers’ legal protection and fundamental social rights with resources

as limited as those made available by Greek authorities. For instance,

only 10-12 police officers are assigned to interview more than 20,000

asylum seekers arriving in Greece in the course of a year. The asylum

interviews are therefore very short and superficial. Most of the asylum

seekers we have talked to told us that authorities used between two and

five minutes to interview them, and that the grounds for seeking asylum

were not the main topic. Furthermore, these were among the lucky ones

who got access to the asylum procedure at all, for it is difficult for

asylum seekers to even lodge an application for asylum in Greece.

...

In our opinion the deficiencies in the Greek asylum process, documented

through this report, entail that there is a discord between the

preconditions on which the Dublin II Regulation was founded and

procedural practices followed in Greece. In our opinion the Greek

system does not guarantee even minimum basic legal protection for the

asylum seekers.”

2. Amnesty International

In a press release dated 28

February 2008 and entitled “No place for an asylum-seeker in Greece”,

Amnesty International stated:

“Greece must urgently improve the current

situation for refugees and asylum-seekers in the country. We call on

the Greek authorities to comply with their obligations under

international human rights, refugee and European law.

We note the

decision of the Norwegian Immigration Appeals Board to suspend

returning refugees and asylum-seekers to Greece under the Dublin II

Regulation. We consider the decision to be particularly important in

light of the poor conditions in which immigration detainees are held in

Greece, and the lack of legal guarantees with regard to examination of

their asylum claim. We call on Member States to make use of Article 3.2

of the Dublin II Regulation allowing Member States to examine an asylum

application ‘even if such examination is not its responsibility under

the criteria laid down in this Regulation’.

...

We recall that a

procedure against Greece was launched by the European Commission at the

European Court of Justice for infringing the Dublin II Regulation. It

is our understanding that this is because of the lack of legal

guarantees with regard to a substantive examination of the asylum claim

by Greek authorities after transfer to Greece.

We have repeatedly

expressed concerns to the Greek authorities about its treatment of

asylum-seekers and failure to provide effective asylum procedures. The

organisation is concerned to receive reports that asylum-seekers have

been held in conditions amounting to arbitrary detention pending the

examination of their claim. Asylum-seekers are often interviewed about

their claim in the absence of an interpreter and lawyer. Lawyers report

that in practice, individuals can expect to have their claim rejected

at first instance. We have repeatedly called on the Greek authorities

to take concrete measures to improve the conditions for asylum-seekers

including by resolving the legal limbo in which they are left – without

documents and without access to any social services in practice. In a

letter to the Greek authorities sent on 7 February 2008, the

organization expressed its concern for the well-being of an estimated

2,500 people, including unaccompanied children as young as nine years

old evicted from their makeshift homes in the port area of Patras. Most

of the evicted people are believed to be asylum-seekers from

Afghanistan. Greece does not return people to Afghanistan and yet does

not process their asylum application in a prompt, fair way, leaving

them in limbo without legal status and therefore without rights.”

COMPLAINTS

The applicant complains that his expulsion to Greece from

the United Kingdom would breach Article 3 of the Convention, which

provides that:

“No one shall be subjected to torture or to inhuman or

degrading treatment or punishment.”

The Court also considers it

necessary to recall Article 13 of the Convention, which provides that:

“Everyone whose rights and freedoms as set forth in [the] Convention

are violated shall have an effective remedy before a national authority

notwithstanding that the violation has been committed by persons acting

in an official capacity.”

THE LAW

I. THE COURT’S ASSESSMENT

In

assessing whether there would be a breach of Article 3 if the applicant

were to be removed from the United Kingdom to Greece, the Court

considers it necessary first to recall the general principles on

Contracting States’ obligations under Articles 3 and 13 of the

Convention as stated in its case-law before considering the particular

questions of the United Kingdom’s responsibility under the Convention.

A. Contracting States’ obligations under Articles 3 and 13 of the

Convention

Expulsion by a Contracting State may give rise to an issue

under Article 3, and hence engage the responsibility of that State

under the Convention, where substantial grounds have been shown for

believing that the person concerned, if deported, faces a real risk of

being subjected to treatment contrary to Article 3. In such a case,

Article 3 implies an obligation not to deport the person in question to

that country (Saadi v. Italy [GC], no. 37201/06, § 125, 28 February

2008; NA. v. the United Kingdom, no. 25904/07, § 109, 17 July 2008).

The assessment of the existence of a real risk must necessarily be a

rigorous one (see Chahal v. the United Kingdom, 15 November 1996, § 96,

Reports of Judgments and Decisions 1996 V; and Saadi v. Italy, cited

above, § 128) which implies that there must be a meaningful assessment

of the applicant’s claim (Jabari v. Turkey, no. 40035/98, § 40, ECHR

2000 VIII). While it is in principle acceptable for Contracting States

to set procedural requirements for the submission and consideration of

asylum claims and to regulate any appeals process from adverse

decisions at first instance, the automatic and mechanical application

of such procedural requirements will be considered at variance with the

protection of the fundamental value embodied in Article 3 of the

Convention (Jabari, cited above, § 50).

Similarly, the notion of an

effective remedy under Article 13 requires independent and rigorous

scrutiny of a claim that there exist substantial grounds for fearing a

real risk of treatment contrary to Article 3 (Jabari, cited above, §

40). The remedy required by Article 13 must be “effective” in practice

as well as in law. It must take the form of a guarantee and not of a

mere statement of intent or a practical arrangement (Čonka v. Belgium,

no. 51564/99, §§ 75 and 83, ECHR 2002 I) and it must have automatic

suspensive effect (Gebremedhin [Gaberamadhien] v. France, no. 25389/05,

§ 66, ECHR 2007 ....).

B. The responsibility of the United Kingdom

Having regard to these general principles, the Court also considers it

necessary to recall its ruling in T.I. v. the United Kingdom (dec.), no

43844/98, Reports 2000-III that removal to an intermediary country

which is also a Contracting State does not affect the responsibility of

the United Kingdom to ensure that the applicant is not, as a result of

the decision to expel, exposed to treatment contrary to Article 3 of

the Convention. In T.I. the Court also found that the United Kingdom

could not rely automatically in that context on the arrangements made

in the Dublin Convention concerning the attribution of responsibility

between European countries for deciding asylum claims. Where States

established international organisations, or mutatis mutandis

international agreements, to pursue co-operation in certain fields of

activities, there could be implications for the protection of

fundamental rights. It would be incompatible with the purpose and

object of the Convention if Contracting States were thereby absolved

from their responsibility under the Convention in relation to the field

of activity covered by such attribution (Waite and Kennedy v. Germany

[GC], no. 26083/94, § 67, ECHR 1999 I).

The Court finds that this

ruling must apply with equal force to the Dublin Regulation, created

within the framework of the “third pillar” of the European Union.

Returning an asylum seeker to another European Union Member State,

Norway or Iceland according to the criteria set out in the Dublin

Regulation, as is proposed in the present case, is the implementation

of a legal obligation on the State in question which flows from its

participation in the asylum regime created by that Regulation. The

Court observes, though, that the asylum regime so created protects

fundamental rights, as regards both the substantive guarantees offered

and the mechanisms controlling their observance.

The Court notes the

concerns expressed by the UNCHR whose independence, reliability and

objectivity are, in its view, beyond doubt. It also notes the right of

access which the UNHCR has to asylum seekers in European Union Member

States under the European Union Directives set out above. Finally, the

Court notes that the weight to be attached to such independent

assessments of the plight of asylum seekers must inevitably depend on

the extent to which those assessments are couched in terms similar to

the Convention (see, mutatis mutandis, NA., cited above, § 121).

Accordingly, the Court attaches appropriate weight to the fact that, in

recommending that parties to the Dublin Regulation refrain from

returning asylum seekers to Greece, the UNHCR believed that the

prevailing situation in Greece called into question whether “Dublin

returnees” would have access to an effective remedy as foreseen by

Article 13 of the Convention. The Court also observes that the UNHCR’s

assessment was shared by both Amnesty International and the Norwegian

Organisation for Asylum Seekers and other non-governmental

organisations in their reports.

Despite these concerns, the Court

considers that they cannot be relied upon to prevent the United Kingdom

from removing the present applicant to Greece, for the following

reasons.

The Court notes that the present applicant is Iranian. On the

evidence before it, Greece does not currently remove people to Iran (or

Afghanistan, Iraq, Somalia or Sudan – see Nasseri above) so it cannot

be said that there is a risk that the applicant would be removed there

upon arrival in Greece, a factor which Lord Justice Laws regarded as

critical in reaching his decision (see above). In reaching this

conclusion the Court would also note that the Dublin Regulation, under

which such a removal would be effected, is one of a number of measures

agreed in the field of asylum policy at the European level and must be

considered alongside Member States’ additional obligations under

Council Directive 2005/85/EC and Council Directive 2003/9/EC to adhere

to minimum standards in asylum procedures and to provide minimum

standards for the reception of asylum seekers. The presumption must be

that Greece will abide by its obligations under those Directives. In

this connection, note must also be taken of the new legislative

framework for asylum applicants introduced in Greece and referred to in

the letters provided to the Court by the Agent of the Government of

Greece through the United Kingdom Agent. In addition, if Greece were to

recommence removals to Iran, the Dublin Regulation itself would allow

the United Kingdom Government, if they considered it appropriate, to

exercise their right to examine asylum applications under Article 3.2

of the Regulation.

Quite apart from these considerations, and from the

standpoint of the Convention, there is nothing to suggest that those

returned to Greece under the Dublin Regulation run the risk of onward

removal to a third country where they will face ill-treatment contrary

to Article 3 without being afforded a real opportunity, on the

territory of Greece, of applying to the Court for a Rule 39 measure to

prevent such. It is true that the Greek authorities, in their letters

of 31 October and 4 November 2008, have not specifically addressed this

matter, even though they were requested to do so. However, the Court

notes in this regard that assurances were obtained by the Agent of the

United Kingdom Government from the Greek “Dublin Unit” – in particular

in the letter dated 11 July 2008 from the Head of Aliens Division

(Asylum Section) of that unit – that asylum applicants in Greece have a

right to appeal against any expulsion decision and to seek interim

measures from this Court under Rule 39 of the Rules of Court. There is

nothing in the materials before the Court which would suggest that

returnees to Greece under the Dublin Regulation, including those whose

asylum applications have been the subject of a final negative decision

by the Greek authorities, have been, or might be, prevented from

applying for an interim measure on account of the timing of their

onward removal or for any other reason.

The Court recalls in this

connection that Greece, as a Contracting State, has undertaken to abide

by its Convention obligations and to secure to everyone within their

jurisdiction the rights and freedoms defined therein, including those

guaranteed by Article 3. In concrete terms, Greece is required to make

the right of any returnee to lodge an application with this Court under

Article 34 of the Convention (and request interim measures under Rule

39 of the Rules of Court) both practical and effective. In the absence

of any proof to the contrary, it must be presumed that Greece will

comply with that obligation in respect of returnees including the

applicant. On that account, the applicant’s complaints under Articles 3

and 13 of the Convention arising out of his possible expulsion to Iran

should be the subject of a Rule 39 application lodged with the Court

against Greece following his return there, and not against the United

Kingdom.

Finally, in the Court’s view, the objective information before

it on conditions of detention in Greece is of some concern, not least

given Greece’s obligations under Council Directive 2003/9/EC and

Article 3 of the Convention. However, for substantially the same

reasons, the Court finds that were any claim under the Convention to

arise from those conditions, it should also be pursued first with the

Greek domestic authorities and thereafter in an application to this

Court.

C. Conclusion

For the above reasons, the United Kingdom would

not breach its obligations under Article 3 of the Convention by

removing the applicant to Greece. Accordingly, it is appropriate to

lift the interim measure indicated under Rule 39 of the Rules of Court

and to reject the application as manifestly ill-founded pursuant to

Article 35 §§ 3 and 4 of the Convention.

For these reasons, the Court

unanimously,

Declares the application inadmissible.

Fatoş Aracı Lech

Garlicki

Deputy Registrar President