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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> X v Minister for Home Affairs [2019] JRC 132 (10 July 2019) URL: https://www.bailii.org/je/cases/UR/2019/2019_132.html Cite as: [2019] JRC 132 |
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Judicial Review
- application for
judicial review
of the decision to
remove the applicant to a European Jurisdiction
Before : |
T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Blampied and Dulake |
Between |
X |
Applicant |
And |
Minister for Home Affairs |
Respondent |
Advocate L. J. Glynn for the Applicant.
Advocate S. A. Meiklejohn for Respondent.2
judgment
the deputy bailiff:
1.
This is an
application by 'X' ("the Applicant") for judicial
review
of the decision of the Minister for Home Affairs, acting through the
Jersey Customs and Immigration Service ("JCIS") ("the
Respondent") taken on or around the 15th August 2018
("the First Decision") and maintained on or around 3rd
October 2018 ("the Second Decision") (jointly "the
Decisions") to remove the Applicant to a European Jurisdiction. The Applicant arrived in Jersey
illegally and claims asylum.
2.
The Deputy
Bailiff sitting alone granted to the Applicant leave to apply for judicial
review
for the reasons set out in a judgment dated the 3rd December
2018 (see X v Minister for Home Affairs [2018] JRC 222) ("the
Leave Judgment"). The Leave
Judgment was published in anonymised form.
3.
The full
details of the background of the Applicant's application for asylum are
extensive and have been referred to at length in the affidavits filed in
support and in answer to this application for judicial review
. The Leave Judgment, however, contains an
overview of the application which, at paragraph 8 of that judgment is in the
following terms:-
4. Since leave was granted there has been an updated psychological report which deals at some length with the Applicant's mental state. That report, dated the 3rd March 2019, by Dr Boucher says, at paragraph 6.4, the following:-
"6.4 It is my opinion, that 'X''s current experiences of: ongoing immigration uncertainty; accommodation difficulties; lack of meaningful activities; and his worries regarding his father's health and that he may not see him before his death; have caused a deterioration in his psychological health, resulting in ongoing suicidal thoughts and behaviour."
The psychological evidence is undisputed.
5. The following additional facts do not appear to be in dispute. These are:-
(i) The Applicant previously entered Ireland on two occasions in May 2016 and September 2017 and each time was returned to the European Jurisdiction, on the basis that he had an extent claim in the latter jurisdiction;
(ii) The Applicant had sought to use a fake passport of the European Jurisdiction to travel to Canada in September 2017;
(iii) The Applicant travelled to Canada in November 2017 using a false document and was returned to the European Jurisdiction by the Canadian authorities on the 3rd January 2018;
(iv) The Applicant entered Gibraltar illegally on the 16th August 2016 and claimed asylum. He stated that he was fleeing ISIS and that the European Jurisdiction was not a safe country. The Gibraltar authorities refused his application on the basis of his refugee status in the European Jurisdiction. He left the jurisdiction immediately but says that this was due to his name being published in a media article;
(v) The Applicant's entry into Jersey in August 2018 followed an earlier failed attempt on the 16th July 2018; and
(vi) On the 15th August 2018 the authorities of the European Jurisdiction agreed to accept responsibility for the Applicant and continue to do so.
6.
Since
leave was granted to the Applicant to apply for judicial review
he was granted
temporary conditional release in September 2018 and lived in private
accommodation, thereafter Orchard House and then the Shelter Trust premises,
Evans House. However due to
apparent difficulties with his accommodation and without an alternative address
it became necessary to detain the Applicant at La Moye Prison where he resided
since the 5th March 2019.
He has recently been released under Temporary release conditions.
7. The grounds for the application are as follows:-
(i) The decision to remove the Applicant without investigating whether or not he could be safely returned is a breach of the procedural requirements of Article 3 of the European Convention on Human Rights (ECHR) (Prohibition Against Torture or Inhuman or Degrading Treatment or Punishment) given effect in Jersey law by virtue of the Human Rights (Jersey) Law 2000 (HRL) (Ground 1);
(ii) The decision to remove the Applicant is in breach of Article 3 ECHR because the Applicant faces a real risk of inhuman and degrading treatment on his return (Ground 2); and
(iii) The Respondent's failure to consider all material facts is unreasonable; and/or the Respondent's decision to remove the Applicant in the circumstances of the case is unreasonable (Ground 3).
8.
Judicial
review
is generally a remedy of last resort and is used only when all other
available remedial avenues have been exhausted. The onus is on the Applicant for
judicial review
to demonstrate that the decision is unreasonable, illegal or
irrational, or suffers from a procedural irregularity or that the Minister
otherwise acted outside the rules of natural justice.
9.
There has
been no application for judicial review
of an asylum decision in this
jurisdiction before. However it is
accepted by both parties that assistance on the approach to such an application
may be derived from the decision in J v His Excellency the Lieutenant
Governor of Jersey [2018] JRC 072A in which this Court, in considering the
decision of His Excellency the Lieutenant Governor to order deportation said
with regard to the test for
judicial review
, the following:-
10. At paragraph 4 of the judgment the court went on to say the following:-
11. In our judgment this articulates the correct
test and approach in considering an application for judicial review
not only of
a decision on deportation but also of the refusal of asylum claims when it is
clear, as may more often than not be the case, the Applicant's human
rights are engaged. The test is
not, accordingly, strictly one of Wednesbury unreasonableness but also whether
the interference with the Applicant's human rights is lawful and
justifiable and proportionate in the circumstances of the case. It is, of course, still short of a full
merits
review
but it is wider in ambit than the traditional Wednesbury approach
to
judicial review
.
12. The Applicant arrived in Jersey in a small boat on the 5th August, 2018. He attended the States of Jersey Police Headquarters voluntarily and asked to make a claim for asylum and was subsequently transferred to JCIS at Elizabeth Terminal. He was there served with notice of illegal entry, detained overnight, and interviewed on Monday 6th August, 2018, during which he gave JCIS information about his background.
13. We have the benefit of seeing a transcript of the interview with the Applicant. At the beginning of the interview there is a discussion about the right of the Applicant to obtain legal advice and the interviewing officer says:-
"No...it's entirely your choice if you want to have legal advice, but for me the purpose of today is just to have a conversation to find out about you and what has led us here today."
14. The Applicant declined not only legal advice but also the services of an interpreter. He expressed the view that his English was sufficient.
15. We make no observations at this point about the detail of the interview but we note that it does not appear, in the context of discussing the need for legal advice or indeed for an interpreter, to have been made clear to the Applicant that as a result of what he said in interview the decision may have been made to deny him his claim for asylum and return him to the European Jurisdiction. We think he may have been under the mistaken belief for all or for part of the interview that he was not at any immediate risk of a decision being made.
16. In our judgment it would, in future interviews of a similar kind, be fairer to make it clear as to what the import of any interview might be so that the interviewee can take a fully informed view as to whether legal advice should be obtained and indeed he should better ensure the clarity of this answers through the services of an interpreter.
17. Following the First Decision the Applicant
applied for leave to apply for judicial review
as we have said and during the
course of a preliminary inter partes
hearing on the 13th September, 2018, that application was adjourned
so that the Respondent could consider the contents of the psychological report
from Dr Boucher that had been filed and served shortly before that
hearing. That consideration
resulted in the Second Decision.
18. JCIS confirmed that the position of the Minister remained as it was prior to that hearing in September - namely that the Applicant would be removed from the jurisdiction without substantive consideration of his claim for asylum.
19. The Respondent's power to remove an individual from Jersey in the circumstances arises out of the Immigration (Jersey) Order 1993 ("the Immigration Order") which incorporates into Jersey law certain provisions of the Immigration Act 1971.
20. It is not disputed that the Applicant in this case was lawfully detained by the Respondent pursuant paragraph 16 of Schedule 2 of the Immigration Order which provides:-
21. The Respondent decided on the removal of the Applicant from the island pursuant to paragraph 8(1)(c)(iv) of the schedule to the Immigration Order which is in the following terms:-
22. Claims for asylum are dealt with under Part 11 of the Jersey Immigration Rules ("the Immigration Rules"). Rule 327 provides the definition of an asylum application. If an application for asylum is successful an applicant would be granted refugee status, the criteria for the grant of which is set out in Rule 334 of the Rules.
23. Rule 345 of the Immigration Rules provides as follows:-
24. The Decisions in this case were made without substantive consideration because the Applicant was able to return to the European Jurisdiction which was taken to be a safe country.
25. The Convention known as the Dublin III Regulation may offer guidance as to what may be considered to be a safe country. Although the Dublin III Regulation does not apply in Jersey, in terms of considering what may be acceptable norms, and in the absence of any authority here as to how one should consider a safe country, in our view regard might be usefully had to the provisions of the Dublin III Regulation. It states:-
26. Thereafter there is a definition of a 'safe third country' as:-
27. The relevant right for the purposes of this application is Article 3 ECHR which states:-
28. As indicated above, the application is based on the possible treatment of the Applicant not by the [European Jurisdiction] state but by non-state agents. A number of cases have been placed before us in connection with the application of Article 3 ECHR where the alleged treatment will be carried out by non-state agents.
29. In HLR v France [1998] 26 EHRR 29 the European Court of Human Rights said this:-
30. In Regina (Bagdanavicius) v Secretary of State for the Home Department [2005] UK HL 38 the House of Lords further considered the circumstances with regard to harm being caused by non-state agents and also gave further consideration to the word 'obviate' in HLR v France above. At paragraph 24 of the judgment, Lord Brown said:-
31. Later in the judgment, at paragraph 27, with regard to HLR v France, Lord Brown says:-
32. The summary in the headnote of the judgment provides a useful synopsis. It states:-
33. Case law was also cited to us with regard to considerations relating to an appellant's mental health in determining asylum applications. In J v Home Secretary [2005] EWCA Civ 629 the applicant claimed that he would commit suicide if returned to his country of origin, in that case Sri Lanka, because he had been in an enforced slave labour and had been subject to the "most horrific torture at the hands of the Sri Lankan army". The court had before it the opinion of a consultant psychiatrist who had said that the appellant in that case exhibited features of a severe depressive disorder and had attempted suicide and continues to present with such a risk. It could be aggravated if he had to return to Sri Lanka. This view was supported by the opinion of a second consultant psychiatrist who stated (see paragraph 6 of the judgment):-
34. In that case Dyson LJ drew a distinction between 'foreign cases' and 'domestic cases' and at paragraph 16 said this:-
35. Dyson LJ went on to indicate what the tests were in connection with foreign cases and in particular where any article 3 claim relies on the possibility of suicide or self-harm. At paragraph 25 et seq of the judgment he said:-
36. It appears to be common ground that these features are those that fall to be considered in such cases. The areas of dispute in this case appear to lie primarily in whether the Applicant's fear of ill-treatment upon which the risk of suicide is based is objectively well founded and whether the removing State (in this case Jersey) and the receiving State (in this case the European Jurisdiction) have effective remedies to reduce the risk of suicide? If the answer to the first question is 'no' and the second is 'yes' these factors will weigh heavily against there being a real risk of ill treatment and against the claim for asylum.
37. With regard to domestic cases, at paragraph 33 of the judgment in J v Home Secretary Dyson LJ said this:-
38. In the case of Y and Z v Home Secretary [2009] EWCA Civ 362 it was not disputed that the appellants had been both tortured and raped in captivity by the Sri Lankan security forces. The tests set out in J v Home Secretary above were approved. The court decided that the Appellants' fears of ill treatment were well founded and that they would not be able to avail themselves of treatment available to them in the absence of a base and family support. At paragraph 49 of the judgment Sedley LJ said this:-
39. And, at paragraphs 61 and 62, in allowing the appeals in the circumstances of that case, the court said:-
40. The facts in that case might be termed as extreme and in our judgment were markedly more severe than presented in the instant application.
41. In K H (Afghanistan) v Home Secretary [2009] EWCA Civ 1354 the appellant claimed that he suffered from post-traumatic stress disorder and depression, and had committed self-harm on a number of instances. A medical report provided by a consultant psychiatrist said that removal to Afghanistan would be a highly stressful experience and that "should his depression deteriorate clearly the risk of self-harm and indeed suicide would escalate, with [the appellant being] at particular risk of suicide in view of his previous self-harm".
42. At paragraph 33 of the judgment Longmore LJ said:-
43. And, at paragraph 37, Sedley LJ stated:-
44. In MN v Home Secretary [2011] EWCA Civ 193 the appellant was an HIV positive person seeking to challenge expulsion on the grounds of Article 3 ECHR. She claimed that, suffering from depression, if she was forcibly removed it would lead to a high risk of suicide. At paragraph 27 Morris K LJ said this:-
45. At paragraph 32 of the judgment the court said this:-
46. In C K v Slovenia [2017] (case C-578/16 PRI) the court considered the question of serious mental health issues in connection with asylum applications. At paragraph 70 of the judgment the court made the following observation:-
47. At paragraph 73 et seq the court went on to say:-
48. And at Article 96 et seq the court said:-
49. Other cases were cited to us. In D v The United Kingdom [1997] 24 EHRR 423 the applicant had AIDS and had he been removed to St Kitts from whence he came it would have hastened his death and caused him to experience inhuman and degrading conditions because of the inadequacy of the healthcare system in that place. In the circumstances of that case Article 3 ECHR would be violated if the applicant were returned to St Kitts. At paragraph 49 of the judgment the court said:-
50. The case of D might, however, be seen as exceptional. In Bensaid v The United Kingdom [2001] 33 EHRR 10 the court discussed the threshold with regard to article 3 and said, at paragraph 40 of the judgment:-
51. In argument before us the Applicant accepted that the European Jurisdiction was in general to be considered a safe country. The question for the Court, so the Applicant argued, was the effect of any return on the Applicant's mental state in terms of the likelihood of inhumane treatment if returned. It is argued on behalf of the Applicant that because he will not feel safe if he is returned to the European Jurisdiction then any treatment that he undertakes there will simply not be successful and in that regard the Applicant repeats the assessment of Dr Boucher set out at paragraph 3 above.
52. The Applicant's argument is based upon the proposition that it is quite lawful to return an asylum seeker to a safe country under Rule 345 of the Immigration Rules without substantive consideration or enquiry unless information suggests that the Applicant's human rights might be infringed by such a removal. In those instances, following C K -v- Slovenia set out above, there is an obligation on the authorities to examine the circumstances of the case which will include the state of health of the asylum seeker in cases where the asylum seeker claims that the receiving state would not be a 'safe state' for him.
53. The Applicant here points to the fact that the Respondent was made aware at the outset of issues which should have raised concerns to the effect that a summary decision was not appropriate in this case. In particular in the interviews conducted on the 6th August 2018 the Applicant made reference to the problems he had had in the European Jurisdiction in 2015. He informed the interviewing officer that he had been attacked. In that interview he also said that he had sailed directly from Antwerp to where he was dropped off to come to Jersey and that he had chosen Jersey because it was 'not a member of the Dublin regulation'.
54. He gave details of his life in the European Jurisdiction including the fact that he owned and operated a small transportation business. He informed officers that he had in the past secured a fake counterfeit passport of that jurisdiction which he used to seek entry into Canada. The authorities of the European Jurisdiction confiscated it. He explained that he had been attacked several times and he did so by reference to his background. At one stage of his interview he said:-
"I need protection, I cannot go back to [the European Jurisdiction]. If I went back to any European country they will send me back to [the European Jurisdiction] and I can prove that I am not safe in [the European Jurisdiction]."
55. When asked to explain that further he said:-
"I have been attacked several times and the police, [of the European Jurisdiction], they try to help and I change my city I think 4 or 5 times. I have the registration of them."
56. He also informed the interviewers that his history was set out in a book that he had written and was amongst his possessions. He denied any psychiatric history during the course of his interview.
57. The Applicant argues that notwithstanding the indications given in the initial interview by the Applicant the Respondent made in effect an immediate decision and did not make any enquiries in connection with threats / violence that the Applicant said had been reported to him in the European Jurisdiction.
58. It is also argued that the Respondent has failed to reconsider the decision, in the light of the information and evidence provided to him. The Respondent maintains his argument that, as the European Jurisdiction is recognised as a safe country there does not need to be any substantive consideration of the Applicant's claim for asylum.
59. It is argued by the Applicant that even, which is not accepted, were the Court make the decision that the Respondent's initial decision was reasonable it was unreasonable for him to continue with that decision after information was provided to him. The Applicant had raised concerns of potential human rights infringements and it should have been clear to the Respondent that the risk of serious harm to the Applicant should he be returned to the European Jurisdiction from non-state actors was real and that the authorities of the European Jurisdiction had been unable to 'obviate the risk'.
60. Furthermore it is argued that, whether or not the European Jurisdiction is a safe country, Dr Boucher's evidence shows a very real risk that the Applicant will take his own life if he is returned there. Even if he were handed over to a medical unit that would not present an effective long-term solution. Dr Boucher's opinion is that the Applicant's mental health difficulties will not improve by psychological therapy or treatment in the European Jurisdiction because that treatment would be ineffective where the Applicant feels under threat. It is argued that even were it to be determined that the risk to the Applicant on a return to the European Jurisdiction is not a real risk, or considered to be a real risk but not one that amounts to inhumane or degrading treatment, the Applicant's subjective fear of removal bears upon the question of whether it is correct to permit his return to the European Jurisdiction.
61. It is argued, in summary, that it is the likelihood of the Applicant committing suicide (or the impossibility of him recovering from his mental illness whilst he remains under threat) as a result of his removal to the European Jurisdiction by the Jersey authorities which would amount to the inhuman and/or degrading treatment and would be in breach of the Applicant's article 3 rights in accordance with CK v Slovenia and Y and Z.
62. It is accordingly argued that the decision and further the ongoing failure by the Respondent to give substantive consideration to the Applicant's claim for asylum is therefore incompatible with ECHR.
63. With regard to Ground 1 the Respondent disputes that there was no investigation prior to the first decision about whether or not the Applicant could be safely returned. There were a number of enquiries made before making the first decision to remove the Applicant to the European Jurisdiction. In particular the Respondent draws our attention to enquiries made of that jurisdiction about whether or not they would receive the Applicant back and of the Home Office for guidance. This illustrates, so it is argued, that enquiries had been made and in particular with the Home Office in an email of 16th August 2018 which highlights the concerns raised by the Applicant's then legal adviser in the following terms:-
"However, his legal adviser has raised the question with us that as 'X' has been subject to attacks in [the European Jurisdiction] by ISIS fundamentalists and that he has been rehoused on several occasions and as such he feels persecuted in [the European Jurisdiction]. The authorities are aware of this and have assisted him."
64. Once the Respondent had been provided with the psychological evidence referred to above in order to consider it an adjournment was sought. In addition further enquiries were made. During those enquiries JCIS established:-
(i) That its belief that the Applicant had an extant claim for asylum in the European Jurisdiction was wrong and in fact the Applicant had been granted refugee status there;
(ii) As a person with refugee status, the Applicant had the same status as a citizen of the European Jurisdiction in that restrictions on movement within the European Jurisdiction did not apply and he had the same access to healthcare. Specifically:-
"The Applicant is entitled to comprehensive health care, including psychiatric care. His access to healthcare and in particular access to psychiatric care has been confirmed both by the Home Office Asylum Liaison Officer for [the European Jurisdiction] and the Foreigners Office for the state of [the European Jurisdiction], where the Applicant currently resides."
(iii) The letter provided by the authorities of the European Jurisdiction to the Applicant under the aegis of which he could seek assistance did not come into existence because of the persecution that the Applicant might face there but rather for a different reason which is not necessary to refer to in this judgment.
65. The Respondent accepts that JCIS has not, in making the Decisions, carried out a substantive consideration of the asylum claim although further enquiries have been made by reason of this application. The Respondent asserts that JCIS has given consideration to the Applicant's claims of persecution, the steps taken in the European Jurisdiction to mitigate risks, and to the Applicant's mental health. Substantive consideration was not carried out, however, because the Applicant had already been granted refugee status in the European Jurisdiction and the European Jurisdiction had confirmed it. As noted above, the Respondent relies on Rule 345 of the Immigration Rules quoted above.
66. As we have indicated, there appears to be no real dispute that the European Jurisdiction is generally to be considered a safe country. It is argued by the Respondent that the Applicant is seeking to argue that the European Jurisdiction is not a safe country in the particular context of this application and accordingly it is further argued the service was wrong not to give substantive consideration to the application for asylum. However, so the Respondent argues, the Applicant has simply failed to meet the high threshold to establish that position.
67. In our judgment it is not correct to say that the Respondent made no enquiries as the email referred to above clearly shows. In the context of this application the enquiries made by JCIS, particularly after the adjournment and before the Second Decision, were sufficient.
68. With regard to the second ground of the appeal, the Respondent argues that the European Union itself considers that each member state may be considered for the purposes of asylum applications as safe. In Protocol (24) to the Treaty on the Function of the European Union on the question of asylum, the article states:-
69. Although that protocol does not apply in terms to Jersey it is an indication that the European Union, which is of course a quintessentially ECHR jurisdiction, views matters in that light.
70. The Respondent in general, so it is argued, follows the same guidance as the Home Office in respect of removing persons to third countries. The guidance states:-
71. Further the Respondent argues that part 2 of schedule 3 of the Asylum and Immigration (Treatment of Claimants Etc) Act 2004 lists the European Jurisdiction as a 'safe country'.
72. The Respondent says that the Applicant has provided no substantial evidence that such is not the case other than statements in his affidavits and some uncorroborated photographs of a knife and ISIS symbol in a kitchen to substantiate his assertion that he would face the threat of harm, much less, so it is argued, inhuman or degrading treatment such as would fall within article 3 ECHR. It is also apparent that the authorities of the European Jurisdictions have already rehoused the Applicant on no less than four occasions to ensure his protection and to prevent any persecution and suffering on his part.
73. The Respondent argues therefore that the authorities of the European Jurisdiction have gone to reasonable and proportionate lengths not only by rehousing him but by providing him with such a protective letter that he can use to seek assistance from law enforcement authorities anywhere in the European Jurisdiction. This, so the Respondent argues, illustrates that jurisdiction has indeed taken the appropriate steps to reduce the risk of harm to the Applicant. It is quite clear on all of the facts that the European Jurisdiction is in fact taking proactive preventative steps to protect the Applicant.
74. The Respondent relies on the principles in HLR v France as clarified in R (Bagdanavicius) v Secretary of State for the Home Department in support of the proposition that all the receiving country needs to do is to provide 'reasonable protection'. In our judgment the wording in R (Bagdanavicius) v Secretary of State for the Home Department that the state is expected to provide 'reasonable protection' is the correct terminology and not the wording in HLR v France which refers to the requirement that the receiving state 'obviate the risk'.
75. Thus, it is argued by the Respondent, the European Jurisdiction state has provided reasonable protection and indeed it is difficult to consider what more the authorities there could have done in that regard. Indeed, the Respondent argues that where the Applicant himself has accepted, as this Applicant readily has, that the authorities of the receiving country are in fact assisting him and taking steps to protect him then JCIS was entitled to follow Rule 345 of the Immigration Rules and give no substantive consideration to the application.
76. In CK v Slovenia, as stated above, the Court of Justice of the European Union held that a deporting state must 'exclude the possibility' that the transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment and 'eliminates serious doubts' with regard to the transfer on the state of health of the person by taking the necessary precautions. CK v Slovenia also makes it clear that the threat of suicide does not require the expelling state to refrain from enforcing the expulsion provided it ensures that concrete measures are taken to prevent such threats.
77. The Respondent argues that necessary precautions will in fact be taken to prevent any threats of suicide being realised. The Applicant would have the benefit of psychiatric assistance and would be in fact detained, presumably under careful watch, for as long as he remains in Jersey. Thereafter he would be transferred with escorting officers and appropriate medical care and will receive the appropriate care on his arrival in the European Jurisdiction. The authorities of the European Jurisdiction would be kept fully informed and warned of any difficulties.
78. It is accepted in principle by the Respondent that a risk of suicide can provide the basis of an article 3 claim against a person's expulsion, but the threat of suicide cannot be used as 'a licence for emotional blackmail by asylum seekers' as said in the case of Y and Z.
79. With regard to the fifth factor set out by Dyson LJ in J v The Home Secretary (at paragraph 36 above) the Respondent argues that on the Applicant's case, if accepted at face value, the authorities of the European Jurisdiction have protected him and moved him at least four or five times. The treatment from non-state actors is only proscribed under article 3 ECHR if the state has failed to provide reasonable protection and therefore the fear of ill treatment is not, so the Respondent argues, well founded.
80. The sixth factor (also at paragraph 36 above) is a consideration of whether there are effective remedies to reduce the risk of suicide. We accept that the European Jurisdiction has facilities more than capable of dealing with persons with mental health problems and that the Applicant has the right to avail himself of such services. The authorities of the European Jurisdiction would be expected, so the Respondent argues, to take reasonable steps.
81. We have of course considered the Applicant's affidavits and the assertions of fact contained in then. Even taking the assertions made by the Applicant at face value and in the light of the principles in the case law, with regard to this part of the application, in our judgment the Applicant's fears of steps being taken against him by non-state agents in the European Jurisdiction by reason of his background, even were they well founded, have been met by the more than reasonable and appropriate steps taken by the authorities there to address those risks. In our judgment the case law did not require the Minister nor does it require us to be satisfied that the authorities of the European Jurisdiction have obviated those risks in the sense of removing them completely but merely that they have taken reasonable and appropriate steps to protect the Applicant from them. Indeed on our understanding of the facts it is difficult for us to see what more the authorities of the European Jurisdiction could have done.
82. This, to our mind, quite justifies the concession in our view appropriately made by the Applicant's counsel at the beginning of the hearing before us that it is accepted that the European Jurisdiction is a 'safe country'.
83. What then of the subjective fear of the Applicant were he to be returned to the European Jurisdiction and the enhanced risk that he would commit suicide? We accept that he has presented as exhibiting suicidal ideation and we further accept that he has made apparent attempts on his life in Jersey.
84. There is, however, in such cases a high threshold to be passed in matters of potential suicide and looking at the authorities cited to us it seems to us that a case of the extreme nature of Y and Z for example is the type of case that passes that high threshold.
85. We keep in mind that it is not difficult for someone quite convincingly to show signs that they would wish to commit suicide and that the authorities in a returning state should not be held to ransom by such threats. Sadly, genuine suicidal ideation amongst asylum seekers is not unusual.
86. We are satisfied that were the Applicant to be returned to the European Jurisdiction the risk of suicide whilst in Jersey could and will be met by appropriate supervision and measures, the journey back to the European Jurisdiction will be similarly safeguarded because the Applicant will be accompanied at all times and we are satisfied that the authorities of the European Jurisdiction will do all that is reasonably necessary to protect the Applicant from any attempts at suicide and that he would thereafter be afforded recourse to appropriate treatment.
87. In the circumstances the European Jurisdiction is a safe country and the return of the Applicant to that jurisdiction will in the circumstances not infringe the Applicant's article 3 ECHR rights.
88. We think, on balance, that the First Decision taken by JCIS on behalf of the Minister was potentially flawed by reason of the misleading nature of the initial interview. Even were that to be the case, however, in our judgment the Second Decision was taken after due consideration of the relevant facts, including the Applicant's mental state, and after further enquiry with the relevant authorities in the European Jurisdiction. Even were we to be wrong about that, however, we have given anxious consideration to the material before us and on the authorities as we understand them, we are satisfied that were the Minister to take the decision again, he would inevitably be driven to making the same decision, that is to refuse the Applicant's application for asylum, which is the decision that we would have taken ourselves. In summary:-
(i) With regard to the threats posed by the non-state agents we are not satisfied that they amount to "torture or inhuman or degrading treatment or punishment" in any event but not least because of the steps that have been taken by the authorities of the European Jurisdiction to address that risk appropriately;
(ii) With regard to the Applicant's mental health, in our judgment, suitable arrangements can, should and will be put in place to protect him during the process of his removal from Jersey, transit to the European Jurisdiction and his reception there, and thereafter. We are satisfied that the European Jurisdiction has a more than sufficient system of healthcare, including psychiatric care, to assist the Applicant.
89. We have scrutinised this application anxiously
as we are required to do but, in our judgment, for the reasons set out above,
we refuse the Applicant's application for judicial review.