Immigration update

Over the years the Luxembourg and Strasbourg courts have seen a number of challenges to the interaction between European and UK laws for the protection of refugees and asylum seekers. The issues focus on which has primacy and the effect of opt-outs by the UK. Some recent cases have brought these tensions into sharp relief and underline the necessity to be aware not only of domestic legislation but also the sometimes competing European claims to interpretation.

Joined cases C-411/10 NS v UK (Saeedi) and C-493/10 ME and Ors v Ireland (23 December 2011) were references for a preliminary ruling from the Court of Appeal (UK) and High Court (Ireland) on:

• the interpretation of article 3(2) council regulation (EC) 343/2003 establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in a member state by a third country national;
• the fundamental rights of the European Union including articles 1,4,18, 19(2) and 47 of the Charter of Fundamental Rights of the European Union (the charter); and
• whether the UK has, through protocol 30 of the Treaty on the Functioning of the European Union, secured an opt-out from the provisions recognising the rights, freedoms and principles set out in the charter.

The reference arose in proceedings between asylum seekers who were to be removed to Greece pursuant to regulation 343/2003 from the UK/Ireland. The judgment states, in accordance with settled case law, 'member states must not only interpret their national law in a manner consistent with European law but also make sure they do not rely on an interpretation of an instrument of secondary legislation which would be in conflict with the fundamental rights protected by the European Union legal order or with the other general principles of European Union law'.

The judgment refers to the texts which constitute the Common European Asylum System (CEAS) and make it possible to assume that all participating states observe fundamental rights including rights based on the Geneva Convention and the 1967 protocol and the ECHR. However, it also states that it was not inconceivable that the system may, in practice, experience major operational problems meaning that there is a 'substantial risk that asylum seekers may, when transferred to that member state, be treated in a manner incompatible with their fundamental rights'.

The Court of Justice of the European Union (CJEU) states that regulation 343/2003 does not require a conclusive presumption of compliance with fundamental rights, which could itself be regarded as undermining the safeguards that are intended to ensure compliance with fundamental rights by the European Union and its member states. The CJEU refers, in reaching its own findings, to findings by the European Court of Human Rights (ECtHR) in MSS v Belgium & France (app no 30696/2009, 21 January 2011) that Belgium had breached article 3 ECHR by returning an asylum seeker to Greece for determination of his asylum claim because of a systemic deficiency in their asylum procedures and in the reception conditions for asylum seekers.

The CJEU also examined whether the extent of protection under the charter conferred on a person to whom regulation 343/2003 applies (in particular articles 1: human dignity, 18: right to asylum and 47: effective remedy) is wider than the protection conferred by article 3 ECHR. The CJEU refers to the prohibition of removal in circumstances where there were substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of article 4 of the charter. It found that articles 1, 18 and 47 of the charter do not lead to a different answer.

By the time of the reference the UK was no longer pursuing its argument that protocol 30 meant that the UK was not bound by the charter. However, the CJEU confirmed that because the charter is part of the primary legislation of the EU it can be relied upon by any person where there is an issue of EU law to be considered.

Although specific to Greece, the principles set out are likely to have far-reaching ramifications for other countries within the EU. For example, the Hungarian Helsinki Committee (www.helsinki.hu) has recently published an information sheet (December 2011) calling into question the efficacy of asylum procedures introduced by Hungary in December 2010.

Asylum appeal rights

TN (Afghanistan) [2011] EWHC 3296 (16 December 2011) considers whether there is a tension between UK and EU law in relation to appeal rights under section 82 and section 83 of the Nationality Immigration and Asylum Act 2002. TN is an Afghan minor who had been refused asylum but granted discretionary leave to remain for a period of less than one year thus preventing an appeal on the merits of his asylum claim, according to section 83. It was submitted, in essence, that the restriction on appeal rights to minors who received less than 12 months' discretionary leave to remain was a denial of an effective remedy and contrary to the appellant's best interests, which were a paramount consideration.

The lengthy judgment sets out in full and useful detail the various national and international provisions and the jurisprudence relevant to its consideration. It concludes: 'Neither generally nor specifically in the case of the claimant do the provisions of sections 82 and 83 of the 2002 Act offend any relevant principle of European law or conflict with the directives composing the European system of asylum. In particular, I reject the submission that the claimant, as an unaccompanied asylum-seeking child, either has been or is being denied an effective remedy, as article 39 of the procedures directive requires.' Despite this, the judgment is worth reading for its careful analysis of the European and domestic provisions, the jurisprudence and their interaction.

The qualification directive

On 13 December 2011 the Court of Appeal in HM and RM (Iraq) [2011] EWCA Civ 1536 allowed an appeal against a country guidance decision of the Upper Tribunal (HM (Iraq) CG [2010] UKUT 331 (IAC) (HM)), quashing the decision and remitting it back to the Upper Tribunal. The Court of Appeal made no order retaining any of the findings in HM. The Upper Tribunal had considered whether it was appropriate to make a reference to the CJEU and concluded that in the light of guidance in Elgafaji v Staatssecretaris van Justitie (Case C-465/07, 17 February 2009) and the subsequent Court of Appeal judgment of QD (Iraq) and another v Secretary of State for the Home Department [2009] EWCA Civ 620 on 24 June 2009, further reference was not necessary.

Paragraph 67 of HM summarised what it saw as the law on article 15c of council directive 2004/83/EC (the qualification directive). Before the Court of Appeal it was submitted, although not substantively argued, that the tribunal's conclusions on article 15(c) were unsound in law. It is not clear from the Court of Appeal judgment whether it was the summary that was challenged or the application of the facts found; that issue was not pursued because of the decision of the Court of Appeal to quash the determination in any event.

AMM and others (conflict; humanitarian crisis; returnees; FGM) Somalia CG [2011] UKUT 00445 (IAC) (28 November 2011) considered article 15(c) and refers to paragraph 67 of HM. In AMM, however, the Upper Tribunal examines the law in relation to both the CJEU and the ECtHR position and by direct reference to Elgafaji (the CJEU interpreting article 15(c)) and Sufi & Elmi v the United Kingdom [2011] ECHR 1045 (the ECtHR interpreting article 3 ECHR).

Thus, although HM has been quashed, the interpretation of article 15(c) benefits from the detailed exposition set out in AMM.

In addition to article 15(c), AMM considers article 15(b) and the extent to which this can be said to reflect article 3 ECHR. Paragraphs 332 to 337 merit close reading as identifying the problem of interpretation and the possible difference in view between the CJEU and the ECtHR.

The following extracts from the head note summarise the current view; the quashing of HM by the Court of Appeal does not interfere with these principles:

'2) There is nothing jurisprudentially problematic with the Strasbourg court's judgment in Sufi & Elmi v the United Kingdom, as regards article 3 of the ECHR. The court's finding, that the predominant cause of the humanitarian crisis in southern and central Somalia was due to the current warring parties, meant that the high threshold (identified, inter alia, in N v United Kingdom [2008] ECHR 453) for finding an article 3 violation in the case of naturally occurring phenomena did not need to be met.

'3) That high threshold is, however, still capable of being crossed in cases of sufficient exceptionality. In deciding what constitutes an exceptional case, regard must be had to all the factors, including the actions of the parties to a conflict, albeit that those actions are not the predominant cause of the humanitarian crisis.

'4) Despite the suggestion in the judgment in Sufi & Elmi that there is no difference in the scope of, on the one hand, article 3 of the ECHR (and, thus, article 15(b) of the qualification directive) and, on the other, article 15(c) of the directive, the binding Luxembourg case law of Elgafaji (as well as the binding domestic authority of QD (Iraq)) makes it plain that article 15(c) can be satisfied without there being such a level of risk as is required for article 3 in cases of generalised violence (having regard to the high threshold identified in NA v United Kingdom [2008] ECHR 616).

The difference appears to involve the fact that, as the CJEU found at [33] of Elgafaji, article 15(c) covers a 'more general risk of harm' than does article 3 of the ECHR; that article 15(c) includes types of harm that are less severe than those encompassed by article 3; and that the language indicating a requirement of exceptionality is invoked for different purposes in NA v United Kingdom and Elgafaji respectively.'