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PDF Print Version HOUSE OF LORDS SESSION 2008–09 [2009] UKHL 23 on appeal from:[2008] EWCA Civ 464 OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Secretary of State for the Home Department (Respondent) v Nasseri (FC)(Appellant) Appellate Committee Lord Hope of Craighead Lord Hoffmann Lord Scott of Foscote Lord Brown of Eaton-under-Heywood Lord Neuberger of Abbotsbury Counsel Appellant: Respondent: Rabinder Singh QC Robert Jay QC Mark Henderson Lisa Giovannetti (Instructed by Bhatt Murphy) (Instructed by Treasury Solicitors) Hearing date: 16 MARCH 2009 ON WEDNESDAY 6 MAY 2009 HOUSE OF LORDS OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE Secretary of State for the Home Department (Respondent) v Nasseri (FC) (Appellant) [2009] UKHL 23 LORD HOPE OF CRAIGHEAD My Lords, 1. I have had the advantage of reading in draft the opinion of my noble and learned friend Lord Hoffmann. I agree with it, and for the reasons he gives I would dismiss the appeal. I also agree with the observations which have been added by my noble and learned friend Lord Scott of Foscote. LORD HOFFMANN My Lords, 2. Mr Nasseri is an Afghan national who crossed into Greece in December 2004 and claimed asylum. The application was rejected on 1 April 2005. By then he may already have been on his way to the United Kingdom, which he entered on 5 September 2005 concealed under a lorry. When detected he again claimed asylum. 3. Council Regulation (EC) No 343/2003 (“the Dublin II Regulation”) provides in article 10 that if an asylum seeker has crossed the border from a third country into a Member State, that Member State, and only that Member State, shall be responsible for examining his application. Pursuant to the Regulation, the Home Office asked the Greek authorities to accept responsibility for determining Mr Nasseri’s application. The Greek authorities agreed to do so and he was notified that he would be removed to Greece. 4. Mr Nasseri objected on the ground that there was a real risk that, if sent to Greece, he would be returned to Afghanistan to face inhuman or degrading treatment, contrary to article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms. He adduced evidence, to which I shall return later, for the purpose of showing that his application for asylum would not be properly considered in Greece. In TI v United Kingdom [2000] INLR 211, the European Court of Human Rights (“ECHR”) decided that the Dublin II Regulation did not absolve the United Kingdom from responsibility to ensure that a decision to expel an asylum seeker to another Member State did not expose him, at one remove, to treatment contrary to article 3 of the Convention. 3. Mr Nasseri submitted that section 6(1) of the Human Rights Act 1998 required the Secretary of State not to act incompatibly with Convention rights and his return to Greece would be incompatible with his rights under article 3. 5. The Secretary of State’s response was that by virtue of paragraph 3 of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, a return to Greece is deemed not to be incompatible with article 3: 3 (1) This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made an asylum claim or a human rights claim may be removed ― (a) from the United Kingdom, and (b) to a State of which he is not a national or citizen. (2) A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub- paragraph (1), as a place ― (a) where a person’s life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion, 2 (b) from which a person will not be sent to another State in contravention of his Convention rights, and (c) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention. 6. By paragraph 2, Part 2 applies to a list of countries which include Greece. Paragraph 3(2)(b) therefore creates an irrebuttable presumption that Greece is not a place from which Mr Nasseri will be sent to another State in breach of his Convention rights. 7. Mr Nasseri’s answer was that paragraph 3(2)(b) was incompatible with his Convention right under article 3 and the Court should therefore make a declaration of incompatibility under section 4(2) of the 1998 Act. He applied by way of judicial review to quash the decision or, in the alternative, for a declaration of incompatibility. But there is no dispute that, by virtue of paragraph 3(2)(b), the Secretary of State’s decision is lawful and cannot be quashed. The only question in issue is whether the Court should make a declaration of incompatibility. 8. The Secretary of State adduced evidence about the way in which asylum seekers returned under the Dublin II Regulation might expect to have their applications considered in Greece, with a view to demonstrating that there was no real risk that Mr Nasseri would be returned to Afghanistan in breach of his article 3 rights. She argued that although (as she freely admitted) the conclusive presumption in paragraph 3(2)(b) might in some other case be incompatible with an asylum seeker’s Convention rights, that was irrelevant (“academic”, the judge recorded) in the instant case because the presumption coincided with reality. Greece was a place from which he would not be sent to another State in contravention of his Convention rights. Accordingly there was no incompatibility. 9. The judge rejected this submission because in his opinion the mere fact that the Secretary of State was precluded from considering whether there was a risk of unlawful refoulement from Greece was in itself a breach of Convention rights. Mr Nasseri accepted, he said, [2008] 2 WLR 523, para 33, that the deeming provision precluded the Secretary of State and the court — 3 “from considering whether there is a risk of unlawful refoulement on removal of an asylum applicant to Greece. He merely claims a declaration that preclusion of such consideration is incompatible with the Human Rights Convention.” 10. The judge accepted this submission and said, at para 39: “Failure to conduct an adequate investigation of the risks of loss of life or torture or inhuman and degrading treatment is a breach of the substantive article and it is that investigation that the deeming provision impedes.” 11. He therefore declined to go into the question of whether there was actually a risk of unlawful refoulement and made a declaration of incompatibility. 12. In my respectful opinion the judge was wrong in saying that article 3 creates a procedural obligation to investigate whether there is a risk of a breach by the receiving state, independently of whether or not such a risk actually exists. In making this mistake the judge was in good company, because it seems to me that he fell into the same trap as the English Court of Appeal in R (SB) v Governors of Denbigh High School [2005] 1 WLR 3372; [2007] 1 AC 100 and the Northern Irish Court of Appeal in Belfast City Council v MissBehavin' Ltd [2007] 1 WLR 1420. It is understandable that a judge hearing an application for judicial review should think that he is undertaking a review of the Secretary of State’s decision in accordance with normal principles of administrative law, that is to say, that he is reviewing the decision-making process rather than the merits of the decision. In such a case, the court is concerned with whether the Secretary of State gave proper consideration to relevant matters rather than whether she reached what the court would consider to be the right answer. But that is not the correct approach when the challenge is based upon an alleged infringement of a Convention right. In the Denbigh High School case, which was concerned with whether the decision of a school to require pupils to wear a uniform infringed their right to manifest their religious beliefs, Lord Bingham of Cornhill said, in para 29: 4 “the focus at Strasbourg is not and has never been on whether a challenged decision or action is the product of a defective decision-making process, but on whether, in the case under consideration, the applicant's Convention rights have been violated.” 13. Likewise, I said, in para 68: “In domestic judicial review, the court is usually concerned with whether the decision-maker reached his decision in the right way rather than whether he got what the court might think to be the right answer. But article 9 is concerned with substance, not procedure. It confers no right to have a decision made in any particular way. What matters is the result: was the right to manifest a religious belief restricted in a way which is not justified under article 9(2)?” 14. The other side of the coin is that, when breach of a Convention right is in issue, an impeccable decision-making process by the Secretary of State will be of no avail if she actually gets the answer wrong. That was the basis of the decision of the House of Lords in Huang v Secretary of State for the Home Department [2007] 2 AC 167, in which the question was whether the removal of a migrant would infringe his right to respect for family life under article 8.
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