31 MAY 2016
Pour & Ors v The Secretary of State for the Home Department  EWHC 401 (Admin)
Asylum-Human Rights-Safe Third Country Grounds
A failed asylum seeker, whose claims had been certified by the Secretary of State on safe third country grounds, was incapable of overcoming the weighty presumption that Cyprus, being a Member State of the EU, would fulfill its international obligations. It was also not established that there was a genuine risk of refoulement to Iran. Where there are violations of an EU Directives—no matter how extensive, continued, and systemic—this would not of itself lead to the prevention of returns under Regulation 343/2003 or Regulation 604/2013.
1 March 2016
1. Iranian nationals applied for judicial review of asylum decisions taken by the Secretary of State.
2. The Claimants claimed asylum in the UK after their asylum claims in Cyprus had been rejected by the Refugee Reviewing Authority, which dealt with administrative appeals.
3. A further right of appeal lay with the Cypriot Supreme Court. The Secretary of State declined to decide their claims substantively on the basis that Cyprus was deemed to have accepted responsibility for them under Regulation 343/2003 (“Dublin II”) or Regulation 604/2013 (“Dublin III”). She then certified their asylum claims on safe third country grounds under Schedule 3, Part 2, paras. 3-5 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 and certified their human rights claims as clearly unfounded under Schedule 3, Part 2, para. 5(4) of the same Act.
4. According to the applicants, the absence in Cyprus of any automatic suspensory remedy or legal aid for Supreme Court applications contravened various Directives, which led to a real risk of refoulement.
5. The Claimants also challenged the rationality of the Home Secretary’s decision vis-à-vis the human rights claims on the basis that, if returned to Cyprus, there was a reasonable prospect that they would be detained in breach of their Article 5 ECHR rights.
6. It was argued by the Claimants that the Cypriot procedure for dealing with Dublin returnees was systemically liable to permit refoulement.
7. It was further argued that that that systemic failure created a real risk of detention in breach of Article 5 ECHR (or Article 6 of the Charter of Fundamental Rights of the European Union).
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8. The application was refused.
9. To overcome the significant evidential presumption that Cyprus, as an EU Member State, would comply with its international obligation, the applicants had to establish that a real risk of refoulement could result from adverse Authority decisions. However, there was no reason why the RRA decisions would not be in their favour if their representations merited further examination, nor was there any reason to suppose that adverse decisions would not be reached on the same basis of careful scrutiny that they would receive in the UK from a judicial body. The risk of refoulement was confined to adverse decisions that were based on an error of law and which, if corrected, would result in a different outcome on the asylum claim.
10. It was not for the court to determine whether Cyprus was in breach of existing Directives, but even if the applicants showed that the Cypriot legal order was defective in the way they contended, that did not of itself show that there was a real risk of refoulement. The most that could be said was that, had all Directives been fully complied with, there could be no real risk of refoulement. That was not enough to show a real risk of refoulement.
11. Breaches of EU Directives, however extensive, repeated or systemic, would not of themselves lead to the prevention of Dublin returns. That would require one Member State to rule on another's compliance with EU law, which was a task for the CJEU and would add impermissibly to the criteria governing Dublin returns. Although it was open to the applicants to show that their human rights would be flagrantly breached by their return to Cyprus, that was a hard task in view of the evidential presumption of compliance. There was no such evidence.
12. Although it was likely that P would be detained on his return to Cyprus, it would be for the Cypriot authorities to assess his mental health and there was no evidence that any detention would breach his rights under Article 3 ECHR.
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