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||Neutral Citation Number:  EWHC 1504 (Admin)
||Case No: CO/5115/2015 AND CO/4711/2015
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE IRWIN
|| THE QUEEN (on the application of)
JWYTAR ANWAR MOHAMMED
- and -
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Hugh Southey QC and Greg Ó Ceallaigh (instructed by Duncan Lewis Solicitors) for the Claimants
Alan Payne and Jack Anderson (instructed by The Government Legal Department) for the Defendant
Hearing dates: 4th and 5th May 2016
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice Irwin :
- The claimants are both Iraqi nationals who have sought asylum in the United Kingdom, having previously travelled through Austria. Austria has accepted that it is the State responsible for determining their claims for asylum under the Dublin III Regulation (Regulation 604/2013) ["Dublin III"].
- Each claimant challenges the decision by the Defendant to certify his human rights claim as "clearly unfounded" on the ground that they have an arguable claim that their removal to Austria would expose them to a real or substantial risk of inhuman or degrading treatment in breach of Article 3 of the European Convention on Human Rights ["ECHR"] and/or Article 4 of the Charter of the European Union. Each claimant also challenges the decision to detain him, claiming that the detention was unlawful.
- By way of a late amendment, each claimant adds a third Ground as follows:
"Ground 3: In refusing to consider the claimants' asylum claims and in seeking to remove them to Austria, the Defendant acts in breach of Article 18 (read with Articles 41 and 47) of the Charter of Fundamental Rights of the European Union."
Jamal Abdulkadir – the Facts
- Mr Abdulkadir is a national of Iraq, born on 1 July 1986. He had his fingerprints taken in Austria on 16 July 2015. He entered the UK clandestinely on the back of a lorry on 18 August 2015. The evidence is that having arrived in Kent, Mr Abdulkadir, along with other illegal entrants, ran from the back of a lorry. The driver contacted the police who apprehended the claimant. He was detained and fingerprinted, resulting in the Eurodac confirmation that his fingerprints had been taken in Austria as an asylum applicant on 16 July 2015. He then claimed asylum in England.
- Mr Abdulkadir's statement recounts his involvement with the Kurdish fighters known as the Peshmerga, fighting against ISIS from 2014. His asylum claim is based on that involvement and on fear of retribution by ISIS.
- Mr Abdulkadir's account is that he travelled to Austria via Turkey and Bulgaria. He describes being arrested and detained in Austria and kept in dirty, unsanitary and cramped conditions. He says he was subject to abuse and assault by the Austrian police as he refused to be fingerprinted and he alleges he was fingerprinted by force. Once fingerprinted, he was released. He says that he slept on the streets for five days and then used hidden money to travel on through France and to the UK, via Calais.
- Mr Abdulkadir claims that he is suffering from post traumatic stress. He has bad dreams every night and "a lack of sleep as I replay all the horrific scenes I have witnessed".
- The claimant underwent an asylum screening interview in England on 24 August 2015. In answer to the question "Do you currently suffer from any illness, disease or trauma injuries?" the claimant answered "No". On 15 September 2015, Austria accepted responsibility for consideration of Mr Abdulkadir's asylum claim. On 19 September, his asylum claim was certified pursuant to Schedule 3 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 to the effect that the asylum application would not be examined in the UK, since he would be sent to Austria as a "safe third country". Removal directions were set on 28 September and on the same day the claimant wrote a letter before action, challenging his removal. On 30 September, the removal directions were cancelled for "organisational reasons" at the request of the Austrian Dublin office. On 1 October the claimant sent a further letter challenging his removal and on 5 October requested temporary admission to the UK. On 7 October, the defendant certified Mr Abdulkadir's human rights claim not to be removed to Austria as "clearly unfounded" and wholly without merit, meaning that the claimant was precluded from appealing this certification until after he left the United Kingdom.
- On 15 October 2015, renewed removal directions were set for 23 October. On 22 October, the claimant issued the present claim and removal directions were cancelled. The claimant applied for bail to the First-Tier Tribunal ["FTT"] but this application was withdrawn on 5 November. On 10 November, the claimant's detention was reviewed and maintained. On 13 November the FTT refused bail in the face of a revived application on account of the risk of absconding and the likelihood of removal. On 16 November, the defendant filed an Acknowledgment of Service and Summary Grounds of Resistance. On 27 November, the claimant was granted permission to claim judicial review, an order received by the Defendant on 30 November. The Claimant's detention was then reviewed, his release authorised on 7 December and the claimant was released from detention on the following day. Later in this judgment, I will review more closely the decisions to detain and maintain detention.
Jwytar Anwar Mohammed – the Facts
- Mr Mohammed is an Iraqi national born on 22 October 1990 of Kurdish Sorani ethnicity. On his account he became fearful of ISIS when he discovered that the shop where he worked was owned by members of ISIS and was being used to store weapons. When he refused to join the organisation, he was attacked and threatened, and therefore fled.
- On his account, Mr Mohammed travelled through Iran, Turkey, Bulgaria and Serbia, ending in Austria. He said he had all along intended to go to the UK but was deceived by agents and left by them in Austria. After a short period, the Austrian police arrested him. He was kept in what he describes as a prison. He provided his fingerprints only after being told that if he did not do so he would have to stay in the prison. Conditions were dirty, cramped and very poor. Mr Mohammed then states that he travelled with another Kurdish man to Calais. After about nine days there, he was put into the back of a lorry by an agent. Once the lorry reached England, Mr Mohammed and his companions banged on the lorry doors to get out. According to the Defendant's records, Mr Mohammed fled from the police but was apprehended later the same day and detained in Dover Detention Centre.
- On 9 September 2015, a scan of Mr Mohammed's fingerprints through Eurodac confirmed that his fingerprints had been taken as an asylum applicant in Austria on 28 August 2015. On the same day, Mr Mohammed underwent an initial asylum screening interview. His detention was continued. On 15 September, the Defendant made a formal request to Austria under Dublin III and on 18 September Austria replied, accepting the transfer of the claimant for determination of his asylum application.
- On 19 September, the Secretary of State certified Mr Mohammed's asylum claim on third country grounds. On 23 September, removal directions were set for 5 October. However, on 28 September, the claimant's lawyers sent a Pre Action Protocol letter challenging his return to Austria and stating that "he did not claim asylum in Austria, but was instead fingerprinted". Mr Mohammed's detention was reviewed and maintained on 29 September. On this occasion he threatened to kill himself to prevent his removal from the UK. On 30 September, the claimant sent a further Pre Action Protocol letter advancing a human rights claim and objecting to return to Austria. On 1 October, the Secretary of State responded, certifying his human rights claim as being "clearly unfounded" pursuant to the 2004 Act, on third country grounds. Again, this had the consequence that the claimant could not appeal until after leaving the United Kingdom.
- On 2 October, this claimant filed the claim for judicial review. On the following day a decision was taken to maintain the claimant's detention whilst a decision was taken whether the proceedings could be expedited. On 28 October, the decision was taken against expedition. There was a further review of detention and on 30 October, the decision was taken to release the claimant. He was released on 4 November.
- In his initial screening interview of 9 September, Mr Mohammed was asked about his health. In answer to a general question about whether he had any "medical conditions", the answer recorded was "fit and well. No medication taken". In answer to the supplementary question "Is there anything else you would like to tell me about your physical or mental health?" the answer recorded was "No".
- On 7 January 2016, the claimant was granted permission to claim judicial review. On 22 January 2016, this claimant signed a witness statement which includes the claim that he suffers from mental health problems:
"I suffer from feelings of anxiety and depression and do not feel as though I have been mentally stable since I left Iraq. I feel very anxious and find myself thinking a lot about what has happened. I am currently taking tablets to help me sleep and to medicate me for my anxiety and depression."
- On 30 March 2016, the claimant filed an application to adduce further material, including a psychiatric report from Professor Katona which includes the conclusion that Mr Mohammed is suffering from Post Traumatic Stress Disorder ["PTSD"], likely to be the result of the threats and ill-treatment at the hands of his former employer in Iraq, and that he was "further traumatised" by his experiences as an asylum seeker in Austria, although the latter were not likely to be central or the cause of his core PTSD symptoms. In addition, this claimant was said to be suffering from "significant cognitive impairment … likely to reflect a lifelong learning disability". This material was served on 30 March 2016 and was considered by the Secretary of State in a letter of 21 April 2016 maintaining the decision to return this claimant to Austria following the conclusion of judicial review.
- Once again, I review the detail of the decisions to detain and maintain detention of this claimant more closely later in this judgment.
Conditions for Asylum Seekers in Austria – Factual Material
- By virtue of its geography, Austria has been hit by the mounting crisis of migration over recent years, generated largely by war and dislocation in the Middle East.
- Much of the information placed before the Court by these claimants comes from reports by the AIDA Project (Asylum Information Database), which is funded by the European Union. The AIDA Project is jointly coordinated by the European Council on Refugees and Exiles ["ECRE"]. The AIDA report on Austria for December 2014 gives an overview of matters in 2013. There were 17,500 applicants for asylum in that year. The build-up of Syrian refugees had begun. As of 31 December 2013 there were 915 applications for asylum without a final decision twelve months after the application. However, 80 per cent of asylum applications were decided within six months.
- The report also dealt with reception conditions and accommodation. There were 12,780 places in reception centres. There were 7,000 places in private accommodation. As of 29 December 2013, 21,902 people (including 14,371 asylum seekers) were supported by "Basic Care". Asylum seekers were accommodated in more than 700 facilities of different size and capacity, with a quota system for each of the nine Federal Provinces. There was already some difficulty in obtaining the required number of places in Federal Provinces, with some pressure on the initial assessment centres, particularly Traiskirchem.
- By the end of 2014, the Austrian Interior Ministry was operating twelve reception centres, including eight centres opened in the latter half of 2014. Financial provision was given to asylum seekers and they were, once processed, permitted to work, although it seems relatively few did so (p.68). Only a small proportion of asylum seekers were detained.
- The AIDA report for December 2015 demonstrates how the situation had changed over the intervening year. The report followed a fact-finding visit by a delegation from the ECRE to Austria. The introduction of the report reads as follows:
"Austria has faced equally demanding challenges in view of the large number of arriving asylum seekers. As a "last stop before Germany", the country has witnessed hundreds of thousands travelling from East to West to cross its borders, with over 500,000 persons entering since August 2015. At the same time, over 68,000 persons had registered applications for international protection in Austria until the end of October, while more are facing obstacles to formally accessing the asylum procedure. In light of the challenges faced by the country, the European Commission visited Austria in September 2015 and announced the disbursement of €5,030,000 in emergency assistance under the Asylum, Migration and Integration Fund (AMIF).
At the same time, however, the volume of arrivals and applications seems to have exposed and exacerbated deeper shortcomings in the Austrian asylum system. The procedural complexity of asylum registration and the pressing issues of homelessness, housing in inadequate conditions and obstacles to accessing protection including the application of the Dublin III Regulation, leave many asylum seekers in a state of legal limbo and intensify risks of destitution."
- A particular problem affecting Austria arose from the closure of borders by Hungary. This is of particular importance given that the majority of applicants for asylum entering Austria travel through Greece and Hungary. It appears the legal changes and conditions in Hungary have led the Austrian Federal Administrative High Court to rule against transfers to Hungary from Austria pursuant to Dublin III, in several individual cases. According to the AIDA report, application of Dublin III return to Hungary from Austria is liable to be precluded "in most cases".
- The AIDA report records that the Austrian asylum system underwent a substantial reform in July 2015. Amongst other measures, this reform abrogated the need for an asylum seeker to lodge a formal application only at one of the initial reception centres. Now the application could be lodged with an agent of the Public Security Service or a security authority, in practice the police. Under the new regulations, the police have the responsibility to conduct the initial questioning ("Erstbefragung") and then to send a report to the immigration authorities. The July reform also "expanded the rights to free legal assistance and representation".
- In May/June 2015 and again in September, the Austrian authorities instituted border control restricting or limiting foreign nationals from entering the country. The Austrian government notified the European Commission of its intention to prolong those controls during October 2015, justifying the measure on the grounds of "threats to public policy and internal security", constituting an extraordinary measure available under the Schengen Borders Code.
- Press reports submitted by these claimants show that the Austrian government acknowledged in July 2015 that conditions at refugee centres were inadequate. Federal Chancellor Faymann stated that, although much had been done by the Federal States to create more accommodation space, "it was not enough". The report suggests that more than 2,000 refugees at the asylum processing centre in Traiskirchen, outside Vienna, had been "left homeless for weeks, in raving heat of around 40°C and rainstorms, wrapped in blankets on the grass and in the street". It was against this background that the Chancellor announced a new draft law which would enable the Federal Government to force local communities to meet their quotas for hosting refugees. The law aimed at providing accommodation for 80,000-160,000 migrants.
- In early August 2015, the Austrian branch of Amnesty International inspected the Traiskirchen reception centre and made highly critical public comments of conditions there. The number of beds, healthcare and other services, and washing facilities were said to be inadequate. Accommodation was inadequate, access to adequate sanitary facilities limited, and the food supply said to be problematic. In a statement responding to these comments, the Austrian Interior Ministry stated that the rise in the number of refugees had created an exceptional situation but that the Ministry was working to improve conditions. The Amnesty report received considerable press coverage, echoing the criticisms made. The focus was, however, largely on conditions at Traiskirchen rather than more broadly on the Austrian system generally.
- On 6 and then 19 August 2015, the Austrian branch of Médecins sans Frontičres visited Traiskirchen. This report also was highly critical of the conditions in the camp. Part of the summary of the report reads:
"Two visits, on 6 and 19 August respectively, have revealed an immediate need for action. Current conditions upon arrival in Traiskirchen not only violate the rights, but the dignity of asylum seekers in this country. Medical and psychosocial care for people arriving in the centre is completely inadequate and needs to be extended without further delay. Housing conditions and sanitary facilities may be described as harmful to human health. This report summarizes the results and recommendations obtained in Traiskirchen in detail."
- Internet reports also from 19 August record that the Austrian President, Chancellor, Vice Chancellor and Interior Minister had paid an unannounced visit to Traiskirchen in the same week. Chancellor Faymann was quoted after the visit describing the conditions at the camp as "unacceptable" and appealing for help to Austria's States. The Government had agreed new powers to allocate asylum seekers to particular regions of the country. This new law would come into force on 1 October. The Chancellor also called for a common EU policy on refugees and for a fair distribution of refugee quotas across EU countries. In an observation echoed by other contemporary reports, Chancellor Faymann noted the significant voluntary efforts of the Austrian people bringing tents, food, clothing and sanitary supplies to the refugees at Traiskirchen.
- In late August, Vienna was the location of a conference of EU leaders to discuss the migration crisis. German Chancellor Merkel commented that there were more refugees in the world now than at any time since the Second World War. 107,500 migrants had crossed into the EU in the previous month.
- The problems continued into the autumn. According to an Al Jazeera report of 18 September, Austria received an influx of 27,000 refugees over the previous weekend alone, and conditions in Traiskirchen were again very poor, with much overcrowding, poor food and water supplies and poor security. Reports from the period again note voluntary efforts by the Austrian people to help. In a report of 24 September, the Austrian Interior Minister Johanna Mikl-Leitner accepted in public that the "situation in Traiskirchen is no longer tolerable for the asylum seekers". Voluntary efforts continued to try to relieve the problem. The Catholic relief organisation Caritas was said to be assisting 17,000 refugees and had received offers of help from 7,000 volunteers over recent months. The Austrian state broadcaster ORF had recently set up a website aimed at providing accommodation for refugees.
- It was against this backdrop that the first witness relied on by the claimants made her statement, dated 1 October 2015. Dr Julia Ecker is a specialist Austrian immigration lawyer. Her statement was made in connection with a different set of proceedings, but has been included in the agreed bundle. She set out to give an overview of "how Austria treats failed asylum seekers who are returned under the Dublin Convention". Her evidence is as to procedure. If the asylum claim of a Dublin returnee had been closed before the asylum seeker left Austria then it would not be reopened. The only course would be for the returnee to seek to apply a second time. If (as is the case with these claimants) the asylum claim had not been closed, it would be progressed.
- This picture was confirmed by another witness, Kathrin Kessler, an employee of Caritas in Austria, dealing with refugees. She described a similar procedural position to Dr Ecker and added that if an asylum seeker had merely been fingerprinted in Austria before moving on then:
"This could mean that they have not submitted their application for international protection at the competent first instance authority."
This last point is potentially relevant to the procedural complaint made by these claimants which I address below. Ms Kessler goes on to state that the reception situation for refugees has "deteriorated lately due to a rise in the numbers of refugees". Apart from Traiskirchen, the information available to Caritas was that all reception centres run by the central Austrian immigration authorities are "currently overcrowded and do not take any more [new] asylum seekers". Ms Kessler confirmed that the non-governmental organisation Diakonie had confirmed that "since last weekend persons who are currently applying for asylum are not sheltered by the MOI anymore and do not have access to the services under the basic welfare system, including health insurance". Asylum seekers have been so informed by the Austrian immigration authority, the "Bundesamt für Fremdenwesen und Asyl" ["BFA"]. Leaflets issued by the BFA requested asylum seekers to inform the BFA about where they were staying.
- Ms Kessler went on to describe that there were a range of emergency shelters in different places set up by the Red Cross, Caritas and other NGOs. Ms Kessler said she had heard of cases where refugees had not received shelter and she had been told that not everyone who wished to apply for asylum "had the opportunity to do so at the moment and therefore cannot access the basic welfare systems that are generally in place for asylum seekers". She gave no instance of this from her own experience or knowledge.
- Dr Ecker obtained for the claimants' lawyers a copy of relevant documentation issued by the BFA at around this time. The relevant text reads (in translation):
"( You claimed international protection at a security agency or at the public security service. You are now in the registration procedure. Your application will be checked now with regards to your travelling route and whether Austria is in charge of your application.
- On this occasion we are sorry to inform you that it is currently not possible to provide you with a place in a care facility in one of the federation's distribution facilities. According to [Regulation] there will not be the possibility of a free of charge transport to one of the care facilities of the federation or to introducing you at a initial reception centre.
- Regardless of the above, your application for international protection has been registered and will be processed in due form. The current situation will have no influence at all on your application of asylum.
Dr Ecker makes clear in a second statement that such a letter was issued to "several asylum seekers". The letter "became viral" once publicised. In her further witness statement of 18 November 2015, Dr Ecker makes it clear that she has no "specific information on how many letters of this kind were issued". They were by then not being issued any more. In her view this documentation was withdrawn because of criticism of the Austrian authorities, rather than because the "situation for basic service has improved".
- With regards to your obligation to cooperate … we would like to ask you to be present and available for the "Bundesamt für Fremdenwesen" in order to proceed with your application. Please also inform them straight away about your current place of residence."
As I have said, the later AIDA report was published in December 2015. In addition to summarising the history of the migration crisis to that point, the report addresses a specific procedural problem arising from the number of refugees and the changed system for registering applications for asylum I have touched on above. The asylum system is, in effect, unlocked by the "initial questioning". The change in procedure means the police can conduct this first interview. Following such a first interview the BFA receives a report from the police, which enables the BFA to issue an order to the police, stating where the asylum applicant is to be referred. The order will stipulate whether the applicant is to be provided with free travel to a specific reception centre and/or given other practical help. By operation of law the application for international protection is deemed to be formally lodged on the issuance of the BFA's order for further action.
The 2015 AIDA report recites that:
"As reported by NGOs persons currently expressing the wish to apply for asylum in Vienna are given appointment dates for the Erstbefragung in February 2016. Unaccompanied children experience even greater delays with some cases being called for appointments as late as May or June 2016. Until that point the asylum seeker has no documentation certifying his or her status and cannot have access to basic services as a result. Lately, thanks to a "Vienna refugee aid" card, a document with a social insurance number issued by the city of Vienna - unrelated to registration by the BFA - asylum seekers in Vienna can access healthcare and other services. However, this has not been witnessed in other regions in Austria at the time of writing."
As I have noted, an asylum application is only considered to be lodged in general once the BFA has submitted an order for action. An order for action cannot always be issued because the federal reception facilities cannot accommodate the applicant. The report suggests that therefore "applications cannot always be formally registered". The authors of the report describe this as:
"the circularity of the registration procedure, whereby an asylum seeker left homeless by the unavailability of reception places in practice cannot lodge an application until he or she communicates a registered address."
The report suggests this "poses a critical obstacle to access to protection in most parts of Austria". The report points out that a number of NGOs make their best efforts to fill this gap by allowing their offices to be used as a registered address for newly arrived asylum seekers.
The AIDA report does not quantify the numbers of those caught in this "circularity". A concern expressed by the authors is that the Austrian authorities have not fulfilled their obligations in providing Eurostat with the statistics on first instance decisions on asylum claims in 2014 and 2015 "thereby systematically failing to comply with its obligations under the Migration Statistics Regulation".
The AIDA report also does not quantify the numbers of those asylum seekers assisted by NGOs through the provision of a registered address thereby unlocking the registration procedure.
The report summarises the position for asylum seekers in the following terms. The "most serious consequence" of the increase in numbers "is the increased risk of homelessness and destitution and, as a result, limited access to the actual asylum procedure itself…" The unavailability of accommodation operates to prevent asylum seekers from being able formally to lodge a claim which the authors describe as "an undue hindrance to access to the asylum procedure which is not in line with the general EU law principle and good administration. According to some NGOs, the reception system is 'near collapse' …"
The December 2015 report also addresses the working of the Dublin III procedure in Austria. Austria is a major Dublin requesting country, issuing 16,000 Dublin requests between January and October 2015. The main member states in respect of which requests were issued were Hungary, Italy and Bulgaria. As already will be clear, problems have arisen in relation to Hungary, but the BFA was said to be continuing to conduct procedures for Hungary. In relation to Italy, individualised guarantees on reception conditions had been sought.
The report records a much lower number of returns to Austria under the Dublin regulation, calculated at 405 people since the beginning of 2015. The information available suggested that people returning to Austria under the Dublin regulation:
"… would not be treated more or less preferentially than other applicants in the country. The conditions facing returnees would also depend on whether the person in question have (sic) already had prior access to the asylum system in Austria, for instance by obtaining a white card and entering an accommodation structure at the regional level … in any case, given the general deficiencies in access to the procedure and reception conditions documented in chapter II and chapter III, it is arguable that Dublin returnees would run risks of destitution and undue delays with regard to registering an asylum application in Austria. These risks need to be closely scrutinised by member states issuing outgoing Dublin requests to Austria in order to ensure that the application of the Regulation does not result in exposing asylum seekers to risks of destitution."
Further evidence post-dates the December 2015 Report. Internet coverage from March 2016 quotes figures for asylum seekers during 2016 to that date at 15,000 applications. The closure of the western Balkan route for refugees had "dramatically reduced the number of people crossing" Austrian borders. The Austrian government is quoted as saying it is prepared to accept 37,500 asylum applications during 2016 (compared with 90,000 in 2015). A statement from the interior minister Mikl Leitner is quoted as follows:
"It could mean that, to keep to the upper limit, people arriving at the state's borders will be sent back to secure neighbouring countries, even if they apply for asylum."
At the end of March 2016, the witness Peter Marhold signed his statement, relied on by the claimants. He is the co-founder and chairman of an NGO called "Helping Hands Vienna". He has long experience of working with asylum seekers and migrants, and the organisation provides legal and other counselling to migrants. He observes that the Austrian asylum law is long and complicated and there is "a great difference between the law in theory and the law in practice". He, too, notes the vast number of incoming migrants in the summer of 2015 meant that the Austrian system was "unable to cope". As at the end of March 2016, he notes that there were fewer migrants currently entering Austria, but despite that his view is that the asylum system "has collapsed and is unable to cope".
It is necessary to look at some of the detail of what Herr Marhold says. He explains that the reception centres provided by the government during 2015 became overwhelmed. However, he states:
"If there is no room within Vienna for incoming asylum seekers to stay in government-provided accommodation, they will be moved to a Bundesland where accommodation is available or should be available according to a quota being agreed between federal and provinces governments. If there is no room in government-provided accommodation in another province, then they will be placed in emergency or temporary accommodation… This emergency or temporary accommodation is predominantly provided by and run by Austrian civil society."
Herr Marhold amplifies his description of the response by civil society and his statement continues:
"This therefore means that there is no guarantee of accommodation, despite the entitlement under [Austrian law]. If the goodwill of the people of Austria diminishes, there will be fewer people willing to help and provide accommodation to asylum seekers … There are no provisions to keep this system of emergency accommodation running. The asylum system would have collapsed in an even more dramatic fashion than it already has had non-governmental organisations and civil society not made efforts to cover the government's failings. The sheer number of asylum applications in 2015 has meant that many NGOs have been overwhelmed."
Herr Marhold goes on to confirm the "circularity" identified in the 2015 AIDA report, namely that until an asylum seeker has a registered address a formal application cannot be lodged.
The claimants rely on a witness statement by Norbert Kittenberger, dated 30 March 2016. Herr Kittenberger is the head of the legal department at an NGO in Vienna dealing with asylum seekers. Much of his statement repeats matters already summarised. Herr Kittenberger expresses his concern as to what may happen when the limit of 37,500 asylum applicants is reached. He says that the reaction of the Austrian government is "unclear". His concern for Dublin returnees is not that they would be rejected at the border but that "Austria would accept the asylum applications but not process them due to lack of capacity". He, too, makes reference to the systemic problem that entitlements to accommodation and other support do not arise before an application is formally lodged. He adds the point that accommodation is more difficult for single males than for others. Herr Kittenberger notes that during the period of "limbo" before an application is lodged, the Vienna refugee aid cards provide assistance for "essential services such as healthcare", although some providers have refused to accept the card as evidencing entitlement. Herr Kittenberger adds that even once asylum seekers have lodged their application they may only take up employment three months after registration and until that point must rely on basic services.
Press reports from the end of March 2016 appear to qualify the suggestion of absolute upper limit on asylum seekers entering Austria. Chancellor Faymann is quoted as saying that Austria would do everything that was "politically possible" to explain that Austria could only take in a certain number of refugees. It is suggested that the government has received expert legal advice to the effect that an absolute upper limit would breach European law. However, it may be that the government could claim that "public order and inner security" were endangered by the number of migrants permitting a limit to be applied.
On 10 April 2016, a public statement from AIDA noted that there was to be a vote on an amending law permitting the implementation of border controls "for the maintenance of public order and internal security". Essentially the proposal was that once an application for asylum was made, the Austrian authorities might have the power to reject the applicant at the border and/or issue a decision to return through the initial interview process under the amended law. Rejection at the border would be precluded where ECHR rights arise. The statement continues as follows:
"In the cases where return is not possible under Articles 2, 3 or 8 ECHR, or where an appeal against the return decision before the Administrative Court is successful, the asylum application shall be processed. Yet, it remains unclear how appeal rights can effectively be exercised if asylum seekers are removed to the countries from where they entered Austria."
The new law, therefore, if correctly described in the AIDA statement, explicitly respects Article 3 rights (as well as Articles 2 and 8).
According to a BBC report of 27 April, the Austrian legislature has passed the legal changes.
Article 3 Claims, said to be "clearly unfounded": the law
As with its predecessor (Dublin II), council regulation 604/2013 provides that, in circumstances that apply here, asylum claims are to be processed and acted on by the member state of the European Union in which the asylum seeker first arrives. Asylum seekers may therefore be returned there by any other member state of the EU.
A bar to such return is made out by a valid claim that return would expose the individual to inhuman and/or degrading treatment in breach of Article 3 of the ECHR by recital (39) to Dublin III. The regulation "seeks to ensure full observance" of the right recognised under Article 4 of the Charter of Fundamental Rights of the European Union, which is in effectively identical terms to Article 3 of the Convention.
Where a person claims that his removal from the United Kingdom would expose him to Article 3 ill-treatment within the state to which he is to be returned, he has a statutory right of appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002. By Section 77 of that Act, a person with an asylum claim may not be removed from the United Kingdom whilst such a claim is pending. However, the effect of Section 5 of the Asylum and Immigration (Treatment of claimants, etc.) Act 2004 is that where such a human rights claim is asserted in relation to another member state, then no immigration appeal may be brought:
"(4) … if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify human rights claim to which this – paragraph applies unless satisfied that the claim is not clearly unfounded."
These cases have, of course, been so certified.
A case is to be regarded as "clearly unfounded" when it is "bound to fail", see R (Yogathas) v SSHD  1 AC 920.
No appeal can be brought in relation to Austria on the ground of the risk of refoulement since, under paragraph 3(2) of part 2 of schedule 3 of the 2004 Act, there is a statutory presumption that those returned to safe third countries such as Austria will not be refouled in a manner which breaches their ECHR rights, or rights arising under the refugee convention. Even if the claimants' claims were unable to be processed in Austria, there is no basis for finding they would be returned to a third country other than those properly deemed to be safe by Austria. That step would be lawful, and provides no bar to removal from the United Kingdom (see: Mirza v Bevándorlási és Állampolgársági Hivatal C-695/15 PPU).
The Dublin III regulation forms part of the Common European Asylum System ["CEAS"]. Alongside other directives, the rationale is to harmonise asylum procedures across the EU. This was summarised by Advocate General Jääskinen in Puid v Bundesrepublik Deutschland Case C4/11, 18 April 2013. As Ouseley J observed in Pour v SSHD  EWHC 401 (Admin):
"31. The aim behind the CEAS was the establishment of a complete body of rules, founded on respect for international law, including the principle of non-refoulement. The examination of an asylum claim is restricted to one member state, and transfer of the asylum seeker to the state responsible for processing the claim, if asylum is sought elsewhere… There are common basic standards, and an important aim is to reduce secondary movements caused by disparities in standards."
The mutuality and application of common standards throughout member states which underpin the CEAS is an important starting point for considering a challenge to certification of an Article 3 claim as being "clearly unfounded". In R(EM (Eritrea))v SSHD  AC 1321. The lead judgment was given by Lord Kerr with whom all the other justices agreed. Lord Kerr stated:
"40. The need for a workable system to implement Dublin II is obvious…. The recognition of a presumption that members of an alliance of states such as those which comprise the European Union will comply with their international obligations reflects not only principle but pragmatic considerations. A system whereby a state which is asked to confer refugee status on someone who has already applied for that elsewhere should be obliged, in every instance, to conduct an intense examination of avowed failings of the first state would lead to disarray."
However, as the Court went on to recognise in paragraph 41 of the judgment of Lord Kerr, that presumption:
"41. …should not extinguish the need to examine whether in fact those obligations will be fulfilled when evidence is presented that it is unlikely that they will be. There can be little doubt that the existence of a presumption is necessary to produce a workable system but it is the nature of a presumption that it can, in appropriate circumstances, be displaced. The debate must centre, therefore, on how the presumption should operate. Its essential purpose must be kept clearly in mind. It is to set the context for consideration of whether an individual applicant will be subject to violation of his fundamental rights if he is returned to the listed country. The presumption should not operate to stifle the presentation and consideration of evidence that this will be the consequence of enforced return."
Lord Kerr subsequently re-emphasised the strength of the presumption in the following terms:
"64. There is, however, what Sales J described in R (Elayathamby) v Secretary of State for the Home Department  EWHC 2182 (Admin), at para 42(i) as "a significant evidential presumption" that listed states will comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory. It is against the backdrop of that presumption that any claim that there is a real risk of breach of article 3 rights falls to be addressed."
The fundamental Article 3 test is clear. At paragraph 3 of Lord Kerr's judgment he said:
"3. The parties are also agreed that the test laid down in Soering v United Kingdom (1989) 11 EHRR 439 on this issue continues to hold the field. That case had established that the removal of a person from a member state of the Council of Europe to another country is contrary to the European Convention…
"where substantial grounds have been shown for believing that the person concerned ... faces a real risk [in the country to which he or she is to be removed] of being subjected to [treatment contrary to article 3 of the Convention]" – para 91 of Soering."
It follows that the correct approach in this case is to apply the Soering test to the evidence which has been submitted, bearing in mind the presumption as described.
The approach in EM (Eritrea) was confirmed as "authoritative clarification" of the law by the Court of Appeal, rejecting the application for permission to appeal in Tabrizagh and Others v SSHD  EWCA Civ 1398: see, in particular, paragraph 33.
Later in the course of his judgment, Lord Kerr dealt with the position of the United Nation's High Commissioner for Refugees ["UNHCR"], see paragraphs 71-74 of the judgment. I need not repeat those passages here. It is clear that UNHCR is regarded as having "unique and unrivalled expertise", (paragraph 72) and that the criticisms of the situation in Greece coming from UNHCR was of vital importance in the Greek return cases, particularly MSS v Belgium and Greece (2011) 53 EHRR 2.
I accept that the absence of any intervention by UNHCR in relation to Austria does not mean that the UNHCR has given Austria "a clean bill of health". However, as in the case of EM (Eritrea), it is of obvious significance here that UNHCR has made no recommendation of the general suspension of returns to Austria (see paragraph 74 of Lord Kerr).
In their decision in Tarakhel v Switzerland (2015) 60 EHRR 28, application number 29217/12, the Grand Chamber of ECtHR quoted extensively from the decision of the Supreme Court in EM (Eritrea) and approved the approach taken (see: Tarakhel paragraph 104).
In paragraphs 93-105 of their judgment, the Grand Chamber recapitulated the proper approach, including the test from Soering. There must be "substantial grounds… for believing that the person concerned faces a real risk of being subjected to … inhuman or degrading treatment … in the receiving country" (paragraph 93). The ill-treatment must "attain a minimum level of severity. The assessment of this minimum is relative: it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects …" (paragraph 94). Article 3 does not oblige the receiving state to provide everyone with a home, nor with "financial assistance to enable them to maintain a certain standard of living" (paragraph 95). Considerable importance is attached to "the applicant's status as an asylum seeker … a member of a particularly underprivileged and vulnerable population group in need of special protection" (paragraph 97).
In touching upon the facts in the various Greek cases, and the facts before them in Tarakhel, the Court noted what they described in the Italian context as "the glaring discrepancy" (paragraph 110) between the places available in accommodation and those asylum seekers requiring accommodation. In paragraph 114 the Court noted that the Italian position could not properly be compared to the situation in Greece at the time of the MSS judgment, the latter being demonstrably more severe. However, in the Italian context the Court concluded:
"115. While the structure and overall situation of the reception arrangements in Italy cannot therefore in themselves act as a bar to all removals of asylum seekers to that country, the data and information set out above nevertheless raise serious doubts as to the current capacities of the system. Accordingly, in the Court's view, the possibility that a significant number of asylum seekers may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, cannot be dismissed as unfounded."
The Court in Tarakhel was considering the particular vulnerability of the applicants in that case, who were a couple with young children. In paragraph 119, the Court focussed on the particular needs of children seeking asylum. The Court therefore concluded:
"120. In the present case, as the Court has already observed (see paragraph 115 above), in view of the current situation as regards the reception system in Italy, and although that situation is not comparable to the situation in Greece which the Court examined in M.S.S., the possibility that a significant number of asylum seekers removed to that country may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, is not unfounded. It is therefore incumbent on the Swiss authorities to obtain assurances from their Italian counterparts that on their arrival in Italy the applicants will be received in facilities and in conditions adapted to the age of the children, and that the family will be kept together."
The Court thus ruled that, although there was no bar to all removals of asylum seekers to Italy, appropriate individual guarantees must be obtained from the Italian authorities before the particular applicants in Tarakhel could be removed there.
In the course of argument I was referred to the cases of Hussein v Netherlands and Italy (2013) 57 EHRR SE 1, Khlaifia and Others v Italy (2015) (Application Number 16483/12), and R (MS) v SSHD  EWHC 1095 (Admin). The ECHR in Khlaifia emphasised, as had Lord Kerr in EM (Eritrea), that asylum seekers are recognised to be a vulnerable group. That I take fully into account. The Court also commented (paragraph 128) that the very serious practical problems facing member states arising from the current refugee crisis cannot "exempt the … state from its obligations" in reference to Article 3, which are "fundamental" and "cast in absolute terms". I accept those observations. Beyond observing that Lewis J, in the last mentioned case, applied the approach of the Supreme Court in EM (Eritrea), it does not appear to me that these further authorities add anything important to the approach to be taken.
Conclusions on Ground 1
I must reach an overall judgment on the evidence presented, focussed on the prospects for these claimants. In my view the evidence concerning these individuals gives rise to no special case and founds no special need, distinguishing them from the generality of asylum seekers in their position. They are young men without dependent children. Their case is therefore not comparable to that of the appellants in Tarakhel. Even assuming that either is suffering from any condition affecting their mental health, the evidence falls very far short of the standard laid down in D v The United Kingdom (1997) 24 EHRR 423, and as a consequence such considerations cannot found a potential breach of Article 3. Nor in my view is such evidence the basis for a requirement for special assurances.
I have borne well in mind the submissions from both sides on the absence of any report or communication from UNHCR in relation to Austria. I have set out above the relevant judicial dicta on the "special position" to be ascribed to UNHCR. I certainly do not treat the absence of any such intervention as meaning that Austria has been given a "clean bill of health". However, the authorities do indicate that the presence of such an intervention would be significant. It cannot be the case that UNHCR is unaware of developments in Austria. On the contrary, it must be obvious that UNHCR will be attending most closely to the refugee crisis in Europe, including Austria. The fact that the organisation has chosen not to intervene, at least as yet, as they did in relation to Greece, is of some significance.
I have paid the closest attention to the successive reports from AIDA. I accept that AIDA is a reputable and authoritative source of information.
It is clear that during 2015 Austria was put under considerable pressure of numbers. It is clear that, particularly in relation to Traiskirchen and the other central reception centres during mid to late 2015, there were relatively short periods when asylum seekers were homeless and without adequate support. On the other hand, it is also clear that the authorities have responded in a number of ways to ameliorate the position. There has been a very considerable effort by central federal government to improve accommodation and support. There has been real pressure by the federal authorities on the provincial authorities to comply. The legal system has been changed more than once, expanding the pool of state representatives who can conduct the critical "first questioning". At the same time, the Austrian government has sought to reduce the pressure on resources by maximising the returns elsewhere. There can be no possible legitimate criticism of that. Later in this judgment I address the claimants' arguments focussed on Article 18. However, on this ground, in relation to the prospective return of these claimants to Austria, the steps taken by the Austrian authorities to limit the future influx of refugees and, in particular, asylum seekers should mean that the problems may be less acute than they have been.
I well understand the argument that the system of registering a claim only following a first interview means that there is a risk of circularity: no claim for accommodation can officially arise until an asylum seeker has formally registered a claim, but no claim will be registered without the provision of an address. However, there is before me no clear evidence as to the numbers of individuals who have fallen foul of this circularity, such that their treatment has reached the standard of inhuman or degrading treatment. The evidence from the NGOs (and indeed in the AIDA report) carries no firm statistics, nor are there any concrete individual examples.
I also bear in mind that the Austrian system appears on the evidence to be a partnership between the state, the provincial authorities and civil society, in particular charities and NGOs. To date there has been a remarkable response from Austrian civil society and by such organisations as Caritas. I cannot discount this evidence, and indeed it seems to me important in the overall picture.
For all these reasons I have come to the conclusion that, although giving rise to concern, the evidence taken as a whole does not establish such a risk that these claimants would suffer treatment in breach of Article 3 if returned as to overturn the presumption established in authority that Austria as a member state will meet its obligations in relation to Article 3 of the Convention.
I conclude that such would be the inevitable result of proceedings before a First Tier Tribunal. I therefore further conclude that claims before the Tribunal by these claimants would be "bound to fail". For that reason, the certification of those claims by the defendant was lawful.
As I have set out above, this claimant entered illegally on 18 August 2015 and was detained, having run from the back of a lorry. His detention was authorised on that day. The box ticked on the relevant form giving the reason for detention stated that there were "reasonable grounds to suspect directions may be given for [the claimant's] removal". No specific risk factors were ticked. The notice to the detainee was marked "there is insufficient reliable information to decide on whether to grant you temporary admission or release". The decision to detain had the box marked with the text "you have not produced satisfactory evidence of your identity, nationality or lawful basis to be in the UK". The box in relation to the risk of absconding was not ticked. The evidence from Mr Jon Morris, the relevant witness and official on behalf of the defendant, is that the factors which were marked "are all indications that he posed such a risk [of absconding] especially in the light of the circumstances in which he was apprehended".
Following the asylum screening interview on 24 August, the claimant was the subject of a detention Minute dated 26 August 2015. The relevant passage of the Minute reads:
"subject's email containing more photographs has been intercepted by security department. They have referred the case to Counter Terrorism Unit and have requested that the detainee not be released/transferred until CTU have investigated".
Mr Morris confirms that after a period of time the CTU confirmed the claimant was not of interest.
On 3 September the Secretary of State decided to refer this claimant pursuant to the Dublin procedure. A Minute of that date on the notes reads:
"Assessed as a detained TCU definite runner to Austria under Article 18.1b of Dublin III regs. CIO (Chief Immigration Officer) Crooks has authorised TCU detention based on CTU's interest …"
Mr Morris confirms his view is that even if there had not been security interest in this claimant, in the light of the circumstances of his apprehension and the absence of "positive factors to mitigate against the risk of absconding" this claimant would have been detained on the basis of absconding risk, and with a view to the likely prospects of swift removal.
Mr Morris's evidence suggests that the next detention review was on 4 September. He describes how the detention review summarised the background and expressly concluded that this claimant was likely to abscond if given temporary admission or release. Detention was authorised pending a formal request to Austria. On 6 September a formal request was sent to Austria pursuant to the Dublin III regulation.
On 8 September 2015, the claimant's detention was reviewed. He was assessed as posing a high risk of absconding. The review stated:
"Subject was encountered in the UK on 18/8/2015 after entering clandestinely. Subject was served with an IS.96ENF and detained on the same date, and claimed asylum. Subject is a single male with no known family or close ties in the UK. No known medical conditions or special needs. Cat. 1 EURODAC hit to Austria for 16/07/2015. FR made to Austria on 06/09/2015 under Article 18.1(b) of the Dublin III Regulation – response awaited. In view of subject's previous disregard for immigration law and method of entry, the risk of absconding is high. There are no compassionate factors or exceptional reasons to justify release at this time and as subject has already demonstrated a disregard for immigration law, there is no reason to expect that he will now comply with any conditions or not abscond if released. Subject has no family or close ties in the UK so there is no incentive for him to remain in one place, and no one to influence him to comply with any conditions if he were to be released. A reply is expected from Austria by 21/09/2015 and should acceptance be received, RDs are estimated to be set within two to three weeks. Subject's removal from the UK is considered a realistic prospect so to facilitate this and to prevent absconding prior to removal, detention should be maintained."
On 15 September, the claimant's detention was again reviewed. The risk of absconding was described as "significant". There was also said to be "reason to believe that you will fail to comply with any conditions attached to the grant of temporary admission or release", and it was noted that the claimant had not produced any basis of identity, nationality or lawful basis to remain in the United Kingdom, nor did he have close ties which would have made it likely he would remain in one place. There was in the body of the review a continuing reference to the fact that the claimant was said to be "of interest to CTU" and should not be released until CTU have been contacted. Mr Morris repeats his view that, even absent the security concern, the other factors would have been likely to mean the claimant would have been detained. On the same day, 15 September, Austria formally accepted responsibility for the applicant.
The applicant's claim for asylum was refused and certified as clearly unfounded on 19 September. On 28 September, removal directions were set for 6 October. However, two days later on 30 September, those removal directions were cancelled for operational reasons in Austria.
On that day a Pre Action Protocol letter was received from the claimant's solicitors challenging removal to Austria on Article 3 grounds. That application was refused and certified on 7 October. Removal directions for Austria were re-set on 15 October.
In the meantime a detention review took place on 13 October. The basis remained as before. The notice to the claimant dated 15 October contains marks against the fact that the claimant's removal from the United Kingdom was thought to be imminent, that he had "used or attempted to use deception in a way that leads us to consider [he] may continue to deceive and that he had not produced any evidence of identity, nationality or lawful basis to be in the United Kingdom." The box indicating that it was thought the claimant was likely to abscond was not ticked.
On 22 October 2015, judicial review application was served on the claimant's behalf and the removal directions set for the following day, 23 October, were cancelled.
On 5 November 2015, the claimant withdrew the bail application which had been advanced on his behalf.
On 10 November, there was a further review of the claimant's detention which was maintained. The review noted that the position on detention should be reviewed if the judicial review could not be expedited. The reviewer considered the claimant would prevent a high risk of absconding if released. Mr Morris expresses his agreement with that view, in the light of the information available at that point.
On 13 November, this claimant did apply for bail. The First Tier Tribunal Judge agreed that the claimant represented a flight risk and that his detention remained proportionate.
On 27 November, the claimant received permission to apply for judicial review. The Order granting permission was served on the relevant part of the Home Office on 4 December 2015. Following receipt of the Order, the relevant officials contacted CTU advising of the intention to release the applicant. He was in fact released from detention on 8 December.
As indicated, Mr Mohammed was detained on 8 September. This claimant fled from the back of a lorry. After a period the claimant was detained by British Transport Police. Following contact with immigration officers, this claimant claimed asylum. He was interviewed on the same evening, noted to be fit and well and without medical concerns, and was detained. He was served with a Notice of Detention pursuant to Schedule 2, paragraph 16 of the Immigration Act 1971. He had not produced satisfactory evidence of his identity, or his nationality, or lawful basis to be in the United Kingdom, and the relevant form was ticked that the reason for detention was "there was insufficient evidence to decide whether to grant him temporary admission or release".
There is a box on the relevant form for "absconding". That was not ticked. According to the witness statement of Jon Morris, the combination of illegal entry, the lack of United Kingdom ties, the failure to provide evidence of identity, and the underlying circumstances of his arrival and his initial flight, taken together "suggest that the applicant was an absconder risk".
On 9 September, the Eurodac search picked up the Austrian fingerprints as an asylum applicant on 28 August. Therefore, within a day of detention, the defendant was aware that the prospect of removal to Austria was opened up. On 14 September, there was a review of the claimant's detention. The review summarised the background and concluded that detention was to be maintained "as the subject's removal from the UK is considered to be a realistic prospect". Again there was no specific comment on the risk of absconding in the written review. It is Mr Morris's evidence that, once again, the combination of circumstances indicated that the claimant was regarded as presenting a high risk of absconding.
On 15 September, the defendant made a formal request to Austria pursuant to Dublin III to take the claimant back.
On the same day, a seven day detention review was conducted. The circumstances were rehearsed and on this occasion there was a formal conclusion that "in view of the subject's previous disregard for immigration law and method of entry, the risk of absconding is high". There was also a conclusion that there was a realistic prospect of removal within two to three weeks. Detention was necessary to prevent absconding prior to removal.
On 18 September, Austria formally accepted responsibility for the claimant under the Dublin III regulations.
On 19 September, the claim for asylum was refused and certified as wholly unfounded. It was against that background that the next review of detention was carried out on 22 September. The background was rehearsed and it was noted that removal directions were to be set shortly. Removal was described as being "near imminent". The risk of absconding remained high. Mr Morris adds the rather obvious point that imminent removal "is generally considered to be a factor which increases the risk of absconding".
On 23 September removal directions were set for 5 October 2015.
On 24 September, the clamant was served with removal directions and the letter refusing his asylum claim. He then informed staff at the removal centre that he would kill himself if an attempt was made to return him to Austria. That threat was renewed on the same day. The note records that there were "no medical issues" arising in the case and the risk assessment was completed.
Four days later on 28 September, the removal directions for 5 October were cancelled as the arrangements for that date involved an unescorted removal. In the light of the suicide threat, the removal had to be rescheduled at a date when medical escorts could be provided. On the same day, the claimants' solicitors wrote, inter alia, requesting release. On the following day, 29 September, removal directions were re-set for 12 October. However, on 2 October the application for judicial review was submitted and as a consequence removal directions were subsequently cancelled.
There was a review of detention on 6 October. The claimant's removal to Austria was considered to be "not imminent" because of the judicial review proceedings. The assessment of absconding risk was "high", the claimant was understood to be well with no known medical conditions. It was decided to maintain detention whilst monitoring progress on the judicial review case. The recommendation was expressed as follows:
"Subject a UK illegal entrant and failed asylum seeker who has shown complete disregard for UK and EU immigration laws. Subject has no close family/relationship/friendship ties to the UK and has no legal basis of stay in the UK."
On 25 October 2015, the decision was taken not to seek expedition of the claim for judicial review and a request was made to propose release. On 30 October a decision to release was taken and on the following day, according to Mr Morris, the file was passed to a case worker to facilitate release. On 4 November 2015 this claimant was released from detention and granted Temporary Release with reporting conditions.
The Claimants' Submissions
Mr Southey submits that the defendant's powers of detention in regard to these claimants were circumscribed, in part because of the wording of Dublin III. In addition to the limits read into the power by R v Governor, Durham Prison, ex parte Hardial Singh  1 WLR 704, he submits the power is limited by policy, by Article 5 of ECHR and by the requirements of Community law. In essence it is the last, in the form of the Dublin III regulation, which forms the centrepiece of Mr Southey's argument.
Council Regulation 343/2003 "Dublin II" contained no provisions expressly bearing on powers of detention. However, Article 28 of Regulation 604/2013, Dublin III does so. The relevant text reads as follows:
"1. Member States shall not hold a person in detention for the sole reason that he or she is subject to the procedure established by this Regulation.
2. When there is a significant risk of absconding, Member States may detain the person concerned in order to secure transfer procedures in accordance with this Regulation, on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively.
3. Detention shall be for as short a period as possible and shall be for no longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence until the transfer under this Regulation is carried out."
Mr Southey parses those requirements as follows: (a) there must be a significant risk of absconding (emphasis added), (b) there must be an individualized assessment of the requirement to detain in order to secure the transfer under the arrangements, (c) less coercive arrangements must be ineffective, and (d) any detention must be proportionate.
Mr Southey points to the Secretary of State's policy in Chapter 55 of the Enforcement Instruction and Guidance, which he says:
"makes no reference … to the express requirement of the Regulation that persons subject to its procedures are not to be detained in the absence of a specific and significant absconding risk."
The relevant part of the policy reads:
"55.3.1. Factors influencing a decision to detain
All relevant factors must be taken into account when considering the need for initial or continued detention, including:
- What is the likelihood of the person being removed and, if so, after what timescale?
- Is there any evidence of previous absconding?
- Is there any evidence of a previous failure to comply with conditions of temporary release or bail?
- Has the subject taken part in a determined attempt to breach the immigration laws? (For example, entry in breach of a deportation order, attempted or actual clandestine entry).
- Is there a previous history of complying with the requirements of immigration control? (For example, by applying for a visa or further leave).
- What are the person's ties with the UK? Are there close relatives (including dependants) here? Does anyone rely on the person for support? If the dependant is a child or vulnerable adult, do they depend heavily on public welfare services for their daily care needs in lieu of support from the detainee? Does the person have a settled address/employment?
- What are the individual's expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which might afford more incentive to keep in touch than if such factors were not present? (See also 55.14).
- Is there a risk of offending or harm to the public (this requires consideration of the likelihood of harm and the seriousness of the harm if the person does offend)?
- Does the subject have a history of torture?
- Does the subject have a history of physical or mental ill health?
(See also sections 55.3.2 – Further guidance on deciding to detain in criminal casework cases, 55.6 - detention forms, 55.7 – detention procedures, 55.9 - special cases and 55.10 – persons considered unsuitable for detention).
Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified."
As part of his submissions, Mr Southey registered his concern that the practice of the defendant is in fact routinely to detain those whom it is intended to return under Dublin III. Those instructing Mr Southey had requested statistics about the detention of those subject to Dublin III, but no general information had been provided.
Moving from the general to the particular, the claimants argue that the decision-making process here was flawed in respect of both of them. The original decisions to detain contained no express reliance (in "tick-box" form) on absconding risk. The factors relied on to detain were not specific to these individual cases and thus there was no "individual assessment". Nor is there evidence of consideration of less coercive individual measures.
Mr Southey moves to emphasise that, even without reference to Article 28 of Dublin III, English law requires that decisions to detain must be individual and fact specific, see Fardous v SSHD  EWCA Civ 931, and by way of analogy, he invokes the parallel of detention on the basis of mental health; see Das v SSHD  EWCA Civ 45.
Finally, at least in the case of Mr Abdulkadir, Mr Southey submits that his detention breached the second and third principles set down in Hardial Singh from the time when his judicial review claim was lodged, since it was then apparent he could not be removed within a reasonable period of time.
Mr Payne for the Secretary of State essentially submits on the facts that the decisions to detain and maintain detention complied with all obligations of law. In both cases, he submits that the initial decision to detain was taken in respect of the claimants as persons who were apprehended as illegal immigrants and prior to the third country consideration. In respect of both claimants there was an individualised assessment of their risk of absconding and of the other factors relevant to the decision to detain, albeit recorded in a standardised written format. In each case the Secretary of State was entitled to have regard to the fact that both claimants had entered the UK unlawfully and clandestinely and that, particularly in the case of Mr Mohammed, there had been a positive attempt to escape from police. This was a firm basis for inferring there was a willingness to flout immigration laws and the control of immigration. In each case the claimants said they had chosen not to pursue their asylum claims in Austria. In each case, it was said by the claimant that he had not claimed asylum there and was intending all along to come to the UK. Mr Payne submits that this was "a blatant example of forum shopping". In each case there were no significant ties with the UK. It was relevant to the decision-makers that each was rapidly discovered to have been fingerprinted in Austria. There was thus a prospect of rapid removal which was clearly important when considering the absconding risk if they were released and the reasonableness or proportionality of detention.
In relation to the Hardial Singh principles 2 and 3, Mr Payne submits that Mr Abdulkadir was detained on 18 August as an illegal entrant and that there were at the time reasonable grounds to suspect he could be removed. At the time of his initial detention, Mr Payne submits that he did not fall to be characterised as "subject to" the Dublin III Regulation. Article 28 of the Dublin Regulations did not apply, or even if it did, it did not exclude other lawful bases for detention under domestic law.
From that point through to the hearing before the First Tier Tribunal on 13 November and until the situation was altered by the Order granting permission to claim judicial review, there continued to be a sound basis for the Secretary of State to detain Mr Abdulkadir. He was an obvious risk of absconding. He had no ties or family base in the United Kingdom and thus other methods of securing him were not obviously practicable. His removal was in prospect within a reasonable period of time and detention was both reasonable and proportionate. If and insofar as Hardial Singh principles were considered in relation to the other claimant, Mr Mohammed, then the same applied.
For present purposes, I make the assumption that, in respect of a given asylum seeker, the provisions of Article 28 apply to detention once there has been a decision to seek to return the individual pursuant to Dublin III. Before that decision is taken, it is difficult to see how any specific obligations set out in Article 28 arise. During that period, it appears to me the relevant law is that which would apply to any illegal entrant with no right to remain whom it was intended to remove.
I note that the relevant established policy in the defendant's guidance, as set out above, includes no quotation or specific reference to the terms of Article 28. I do not intend to engage in a detailed comparison of the two. I am not persuaded that they are in any conflict, nor indeed that there is any important difference between English law derived from the English statutes, the Hardial Singh principles as they have been developed and the requirement to adhere to policy on the one hand, and the content of Article 28 on the other. Certainly, I have reached the view that that is so in relation to these claimants.
I accept the submission from the Secretary of State that the facts in each case gave rise to a significant absconding risk from the beginning. I further accept that that must have been in the minds of those who took the initial decisions in each case to detain. That should have been recorded in "tick box" fashion, but I accept that Mr Payne is correct in saying that it was obvious in each of these cases that was a major consideration. In each case they arrived in a clandestine and illegal way and the evidence suggests that each did not voluntarily approach the authorities to claim asylum.
Within a short time, absconding was identified explicitly as part of the reason for detention. There was in each case good reason to consider that early removal was feasible. There was in neither case a sensible basis for considering that alternative methods would be adequate to ensuring compliance and preventing absconding. The risks of absconding in the face of imminent removal justified detention, whether considered under Article 28 or otherwise.
In each case, the matter was kept under review and it seems to me the reviews were conducted consistently with the principles laid down in Hardial Singh and with the Secretary of State's policy. Until the time when (1) judicial review proceedings were permitted and (2) it was clear the proceedings could not be expedited, it appears to me that continued detention was both reasonable and proportionate.
Once the legal proceedings were on foot, and no early resolution could be expected, the balance shifted. Continued detention had to be (and was) viewed in a different light. I do not consider the decisions to release from detention undermine the basis for the earlier decisions to detain.
I note the concern as to a possible undisclosed policy of automatic detention of those whom it is intended to return under Dublin III. Such is not demonstrated here.
I therefore reject the claimants' submissions in each case that the detention was unlawful, whether by reference to Article 28 or to the principles of English law.
Article 18 of the Charter of Fundamental Rights of the European Union
The claimants' third ground is a claim that return to Austria would breach Article 18, which addresses the right to Asylum:
"Right to Asylum
The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union. (hereinafter referred to as "the Treaties")."
The extent or effect of Article 18 was addressed by Advocate General Jääskinen in Germany v Puid (ECJ)  QB 346 at paragraph 49:
"The principle of non-refoulement forms the essence of the fundamental right to asylum guaranteed in article 18 of the Charter and article 78(1) FEU. These provisions do not create for the asylum seekers a subjective substantive right to be granted asylum, but a right to fair and effective examination of the application for asylum, together with the right not to be transferred to countries or territories in breach of the principle of non-refoulement."
The claimants rely on Recital 39 to Dublin III, which emphasises that the Regulations:
"seek to ensure full observance of the right to asylum guaranteed by Article 18 of the Charter … This Regulation should therefore be applied accordingly."
The claimants further rely on Article 27 of Dublin III, a provision which did not appear in the precursor Regulations:
1. The applicant or another person as referred to in Article 18(1)(c) or (d) shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal."
Mr Southey then addresses the question whether Article 18 is justiciable at the suit of the individual asylum seeker. He begins by stating there can be no doubt that Article 18 of the Charter is engaged by a Dublin III decision. He relies on concessions to that effect by the Secretary of State in relation to Dublin II in R (NS) v SSHD  EWCA Civ 990, and confirmed by the CJEU in the same case in NS (Afghanistan) v SSHD  QB 102 at paragraph 68. It did not appear to me this proposition was challenged by Mr Payne. The issue is whether the matter must, or can, be litigated in the member state requesting removal under Dublin III, and, if so, on what basis.
Mr Southey placed considerable weight on the recent judgment of Laws LJ in CK (Afghanistan) v Secretary of State  EWCA Civ 166. The facts in that case are important. The appellants claimed that removal to France would breach their rights under Article 8 of the ECHR. Laws LJ conducted a review of authority, addressing the following issue of principle:
"9. …ECHR Article 3 aside, what if any is the scope for challenge to the removal of the affected individual to another Member State following a decision under Dublin II that the other State is responsible for the examination of his asylum claim? The issue is one of principle because its resolution requires the court to find an accommodation between two competing legal imperatives: (1) the vindication of Dublin II as a regime for the distribution at an inter-State level between the Member States of responsibility for the determination of asylum claims, and (2) the vindication of individual claims of right which might be denied by a rigorous enforcement of the inter-State regime. Miss Rowlands says the first of these predominates; Mr Ó Ceallaigh the second. The learning, unfortunately, swims between the two."
In the result, Laws LJ reached his conclusions by identifying:
"25. …a non sequitur which needs to be exposed: the proposition that Dublin II confers no right on the affected individual to challenge a decision as to which Member State is responsible for the determination of his asylum claim does not entail the further proposition that the decision to remove him to the responsible State may not be challenged on grounds other than the terms of Dublin II."
The conclusion was amplified in paragraph 30, where the judge observed that the "absence of any right to challenge a Dublin II determination as to the responsible state" whilst a right to challenge a removal decision under the ECHR subsisted, was "wholly unsurprising". Any other conclusion could not have been the intention of the European Legislature when enacting Dublin II, and would, at least potentially, conflict with the Human Rights Act 1998.
It seems to me that the ratio of CK (Afghanistan) does not assist the claimants. On this ground, these claimants do not seek to invoke rights under the ECHR but under European law in the form of the Charter.
Does the introduction of Article 27 of Dublin III alter that position? On the face of the wording, the right accorded is an individual right. Mr Southey suggests the answer to this question may be given by the CJEU in the linked cases of Karim C155/15 and Ghezelbash C63/15. He places reliance on the opinion of Advocate General Sharpston in those cases, to the effect that individuals will in fact be able to challenge Dublin III decisions on the basis of "an incorrect choice of criterion".
Mr Payne rejects this argument as being of assistance to these claimants. The issue here contemplated is not a question of "incorrect choice of criteria".
In the absence of any direct authority on the effect of Article 27, I approach this question as follows. Article 27 stipulates there must be a proper procedure for an individual to challenge transfer. However, it does not seem to me to broaden the proper basis for such a challenge. The whole thrust of the Dublin Regulation is to determine where asylum claims are to be decided, on the basis they will be properly decided by the member state receiving an asylum claimant under the arrangements. I do not see any compelling argument derived from Article 27 to the effect that individuals may litigate to prevent their transfer on a broader ground than before.
I have considered the judgment of the CJEU in Abdullahi v Bundesasylamt (ECJ)  1 WLR 1895, and in particular paragraphs 60 to 62:
"60. In the present case, the decision at issue is the decision of the member state in which Ms Abdullahi's asylum claim was lodged not to examine that claim and to transfer her to another member state. That second member state agreed to take charge of Ms Abdullahi on the basis of the criterion laid down in article 10(1) of Regulation No 343/2003 , namely, as the member state of Ms Abdullahi's first entry into EU territory. In such a situation, in which the member state agrees to take charge of the applicant for asylum, and given the factors mentioned in paras 52 and 53 above, the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that latter member state, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of article 4 of the Charter: see the NS (Afghanistan) case, paras 94 and 106, and Federal Republic of Germany v Puid (Case C-4/11)  QB 346, para 30.
61. However, as is apparent from the documents placed before the court, there is nothing to suggest that that is the position in the dispute before the referring court.
62. Having regard to the foregoing considerations, the answer to question (1) is that article 19(2) of Regulation No 343/2003 must be interpreted as meaning that, in circumstances where a member state has agreed to take charge of an applicant for asylum on the basis of the criterion laid down in article 10(1) of that Regulation—namely, as the member state of the first entry of the applicant for asylum into the European Union—the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that member state, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of article 4 of the Charter."
There are echoes in this passage of the position advanced by the Secretary of State in EM (Eritrea): notably the suggested requirement of a "systemic deficiency" before a claim may succeed based on Article 2 or Article 3 of the ECHR. The judgment in Abdullahi was not available at the time EM (Eritrea) was argued, but it may be the propositions advanced in the later case reflected the arguments before the CJEU in Abdullahi.
The Supreme Court in EM (Eritrea) rejected the supposed requirement for evidence of a "systemic deficiency" before an Article 3 claim could be established, because such a requirement conflicted with the Human Rights Act 1998. The law cannot permit an additional, artificial requirement before an Article 3 claim can arise. In my view that approach is consistent with that of Laws LJ in CK (Afghanistan). The European Convention forms part of English law, and cannot be ousted in such a fashion.
The proposition advanced by the claimants here is not based on English law, but on EU law. On this aspect of the case it is said that there is a "systemic deficiency" in the way Austria addresses asylum claims, which (for present purposes) is not shown to breach Article 3 of the ECHR, but rather shows Austria to be in breach of Article 18 of the Charter of the European Union: in other words, a matter of EU law.
In my view, there are a number of difficulties with this argument beyond the points already identified. Article 18, as quoted above, was part of the wording of the Charter from at least the Treaty of Lisbon, of December 2007, and thus long before the argument in Abdullahi. As the passage quoted above from Abdullahi makes clear, that decision was founded on Article 4 of the Charter (the homologue of Article 3 of the ECHR). Critically, the CJEU, considering European law, confined the opportunity for an asylum seeker challenging a decision of this kind, requiring the claimant to show "system deficiencies in asylum procedure and (emphasis added) in the condition for the reception of applicants" providing substantial grounds for a breach of Article 4 (not Article 18).
The approach of the claimants, for present purposes, is that they should succeed if they can show systemic deficiencies in asylum procedure, without substantial risk of breach of Article 4 of the Charter (Article 3 of HR Convention). That seems to me directly counter to the judgment of the CJEU in Abdullahi.
For these reasons, I reject this head of claim.
I should further make it clear, that if I am wrong and such a claim is valid in law, I would find that these cases would fail on the facts. The evidential presumption identified in EM (Eritrea) would undoubtedly arise in such a claim, for all the same reasons there recognised. I would not conclude on the present state of the evidence that there was such "systemic failure" in the legal system in Austria that there was a real risk of a breach of Article 18 of the Charter. Nor would I conclude that the Austrian government had, by reference to the plans and statements I have outlined earlier in this judgment, resolved to depart from its obligations under Article 18. Were that to be the case, I would find it exceedingly unlikely that UNHCR would have refrained from intervention.
For these reasons, these claims are dismissed.
Postscript to Judgment
Later in the day (21 June) when this judgment was sent to the parties under embargo, I was supplied by the Defendant with the judgment of Garnham J in Khaled v SSHD No 2  EWHC 1394 (Admin), handed down on 15 June 2016. In the course of his judgment, Garnham J addressed the questions whether Article 28 of Dublin III (1) has direct effect and (2) abolishes the "pre-existing power under English domestic law to detain a non-UK citizen with no right to enter or remain in the UK pending their removal on whatever lawful means are available to the Defendant": paragraph 65.
This issue appears to have been argued in a rather different way, and perhaps more fully, before Garnham J. However, I am fortified in my conclusions on Article 28 by the approach of Garnham J, culminating in his conclusions in paragraph 69 of the judgment in Khaled (No 2).
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