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	European Court of Human Rights
You are here: BAILII >> Databases >> European Court of Human Rights >> B.S. & Ors v the United Kingdom - 7935/09 [2011] ECHR 740 (12 April 2011) URL: http://www.bailii.org/eu/cases/ECHR/2011/740.html Cite as: [2011] ECHR 740

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FOURTH SECTION

DECISION

AS TO THE ADMISSIBILITY OF

Application no. 7935/09
by B.S. and 232 other applications

against the United Kingdom

The European Court of Human Rights (Fourth Section), sitting on 30 November 2010 as a Chamber composed of:

Lech Garlicki, President,
Nicolas Bratza,
Ljiljana Mijović,
David Thór Björgvinsson,
Ján Šikuta,
Päivi Hirvelä,
Mihai Poalelungi, judges,
and Lawrence Early, Section Registrar,

Having regard to the above application lodged on 10 February 2009,

Having deliberated, decides as follows:

THE FACTS

  The applicant, Ms B.S. is an Iranian national who was born in 1983 and lives in Cardiff. She was represented before the Court by Duncan Moghal Solicitors, Newport. The United Kingdom Government (“the Government”) were represented by their Agents, Ms H. Upton and Mr M. Kuzmicki of the Foreign and Commonwealth Office.

A.  The circumstances of the case

  The facts of the case, as submitted by the applicant, may be summarised as follows.

  The applicant travelled overland from Iran through Turkey and spent a week in Anatolia, trying to board a ship to Italy. She eventually managed to board a boat, and describes a situation of extreme overcrowding, filthy conditions, little food or water and violence between the crew of the ship and the other passengers. The ship appears to have broken down or been intercepted and put into port in Greece on or around 11 November 2007, where the applicant and her son, together with the other passengers were taken to hospital. She claims that around 200 of those persons also rescued from her boat were returned to their countries of origin. The applicant and her son were in hospital for seven days before being transferred to a camp. During their stay in this camp the applicant made contact with a solicitor who promised to obtain her release in exchange for the sum of 300 Euros. He gave her papers to sign and took her to be fingerprinted. They were subsequently transferred to a different camp in Athens on 23 November 2007. Here, the applicant was approached by an agent, whom she refers to as “mafia”, and who offered to help her. Instead, he took her and her son to his house, where he kept them for several weeks and subjected the applicant to physical and sexual abuse. The agent, Bajar Abdulla, was arrested in connection with people trafficking and smuggling, and it appears that the applicant was forced by his associates, by means of threats to her son, whom they had taken away from the applicant, to testify at his trial. Following the trial, she was taken elsewhere by the associates and kept as an unpaid servant, and subjected to continual threats and abuse. The applicant managed to run away on or around 12 February 2008. She eventually managed to travel over the border to Italy concealed in a truck, and from Italy travelled overland to the United Kingdom (UK), hidden in a series of vehicles.

  The applicant arrived in the UK on 31 March 2008 and claimed asylum on 15 April 2008. Her asylum claim was refused and certified on third country grounds on 31 October 2008, after a EURODAC search indicated that she had previously claimed asylum in Greece.

  The applicant’s representatives made representations on her behalf dated 6 August 2008, which stated that the applicant’s removal to Greece would seriously compromise her mental health and possibly result in her suicide. The Home Office responded by letter dated 1 September 2008, in which it stated that depression was a widely recognised illness for which treatment was available internationally, including within Greece. It was also noted that Greece was bound by Council Directive 2003/9/EC of 27 January 2003, which laid out minimum standards for the reception of asylum seekers, including immediate access to free healthcare where required. It was not therefore accepted that the applicant’s removal to Greece would put the United Kingdom in breach of its Convention obligations. The applicant’s asylum claim was also certified as clearly unfounded, meaning that she had no right of appeal against the refusal of asylum from within the United Kingdom.

  Ms Julie Morgan, the Member of Parliament for the constituency in which the applicant currently resides, contacted the then Minister for Borders and Immigration (Mr Byrne), on behalf of the applicant on 19 September 2008. She expressed her concern about the potential return of the applicant to Greece given her recurrent depressive disorder and severe post traumatic stress disorder (PTSD), and her fears for the applicant’s son should he be removed from his current stable environment, particularly given his mother’s mental state.

  On 22 September 2008, the applicant’s representatives again made representations to the Home Office regarding the applicant’s state of health, and the fact that Norway had halted returns to Greece under the Dublin II Regulation (Council Regulation 343/2003/EC) as a result inter alia of the concerns raised by UNHCR. The Home Office responded on the same day, pointing out that the United Kingdom had legislation in place which required it to treat Greece as a country to which persons could be safely removed without fear that they would be persecuted. It was also noted that the applicant’s medical issues had already been dealt with in the letter dated 1 September 2008.

  The new Minister for Borders and Immigration (Mr Woolas), responded to Ms Morgan by letter dated 26 November 2008, acknowledging that he was aware of criticisms of Greek asylum practices and procedures made by the UNHCR and others, but stating that there were mental health facilities and psychiatric treatment available in Greece, provided by the national health care service, from which the applicant could benefit. He also stated that the Greek authorities would be made aware of the applicant’s medical needs in advance of her return, in order that arrangements for her reception could be made.

  The applicant has submitted medical evidence from more than one source which indicates that she is suffering from significant symptoms of PTSD. It appears that this has resulted from her treatment in Greece. Her depression dates from her time in Iran, where she lost a baby at the age of sixteen.

  On 20 December 2008, the applicant lodged an application before this Court and requested an interim measure to prevent her expulsion. The applicant and her son were taken into immigration detention on 31 March 2009, pending their removal to Greece which was set for 3 April 2009. On 2 April 2009, the Acting President of the Fourth Section of the Court decided to apply Rule 39 of the Rules of Court and indicated to the Government of the United Kingdom that the applicant should not be expelled until further notice. The applicant and her son were released from immigration detention following the application of Rule 39 by the Court.

B. Rule 39 indications in respect of other applicants

  In the course of the Court’s consideration of this case and other cases involving applicants who lodged applications challenging their return to Greece under the Dublin II Regulation, the Acting President of the Section has applied Rule 39 in another 232 cases against the United Kingdom. Those applications are set out in the annex to this decision.

C. Subsequent developments

  On 23 September 2010, after the parties’ observations had been received in the B.S. case, the Agent of the Government wrote to the Court to set out the Government’s approach to handling claims for asylum made by individuals in circumstances where, pursuant to the terms of the Dublin II Regulation, their claims fell to be considered substantively in Greece. The letter stated:

“As of 16 September 2010, and until further notice, the UK government has decided that it will not seek to remove any such persons to Greece, notwithstanding that Greece is the member state responsible for dealing substantively with their asylum claim.

This decision has been made on pragmatic grounds (explained further below) and does not represent an admission with respect to any individual, or generally, that removal to Greece would be other than entirely lawful and in accordance with the provisions of the Dublin II Regulation. Moreover, and for the avoidance of doubt, it remains the position of the UK government that removal of persons to Greece generally pursuant to the terms of the Dublin II Regulation is in accordance with all of the United Kingdom’s obligations under international law and in particular complies with the European Convention on Human Rights and with the Charter of Fundamental Rights of the European Union.

The Court may be aware that the lead domestic case of Saeedi raises issues relating to the removal of asylum applicants to Greece under the terms of the Dublin II Regulation. Although the applicant’s claim was dismissed by the High Court, the Claimant has now appealed to the Court of Appeal where the case is known as NS v SSHD & Others (C4/2010/0943).

On 12 July 2010 the Court of Appeal decided that in order to resolve the issues raised in NS v SSHD it was necessary for a preliminary reference to be made to the Court of Justice of the European Union (CJEU). The Court of Appeal has therefore referred several questions to the CJEU for decision and NS v SSHD has been stayed pending a ruling on those questions.

Unfortunately, an inevitable side-effect of this has been a large and growing number of cases raising issues similar to those in NS v SSHD which have also been stayed pending the decision in the lead case. Estimates of the time likely to be required for the CJEU to rule on the preliminary reference range from 3 months (if the court agrees to consider the case under an accelerated process) to 17 months (if not). It will then be necessary for the Court of Appeal to conduct a hearing and to decide the case in light of the CJEU ruling. In the meantime a growing backlog of unresolved applications for permission to seek judicial review is building up, at a considerable cost to the UK Borders Agency and thus to the taxpayer.

It is in those circumstances and for those pragmatic reasons that the decision to suspend removals to Greece and to decide both existing and new cases substantively has been made. For the avoidance of doubt, the UK government intends to continue to resist the judicial review application in the lead case of NS v SSHD before the CJEU. The Claimant in NS v SSHD will not be removed pending the final resolution of his judicial review claim but neither will his claim for asylum be considered substantively.

There are currently approximately 400 cases which have been stayed pending the judgment of the Court of Appeal in NS v SSHD. Given the changed circumstances it is the UK government’s intention to proceed with substantive consideration of the asylum claims in those existing cases, rendering the applicants’ current challenges to their removal to Greece for substantive consideration of their claims academic.

The UK government’s current intention is that the temporary change will also apply to new Greek asylum cases received in the future until the CJEU has given its ruling and the Court of Appeal has delivered final judgment. However, this remains subject to review and the Secretary of State reserves the right to reinstate removals in respect of new cases at any time (including at any time before the Court of Appeal judgment). The policy will, in any event, be reviewed once the Court of Appeal has delivered its judgment.

In the circumstances I would be extremely grateful if the Court could lift the Rule 39 indications in respect of the applicant’s [sic] affected by the above announcement or at least clarify that the Rule 39 indications do not prevent removal of the applicants to a country other than Greece.”

  In a letter sent the same day, the Section Registrar replied:

“In response to your request that the Court lift these Rule 39 indications and your further request for clarification that the Rule 39 indications do not prevent removal to a country other than Greece, I am instructed to seek the following initial clarifications from your Government:

- Is the substantive examination of these cases which your Government now proposes to undertake to be carried out pursuant to Article 3 (2) of the Dublin Regulation?;

- Will those applicants who are refused asylum by the Secretary of State, be given a right of appeal against the Secretary of State’s decision?

- Does the reference in the final paragraph of your letter to ‘a country other than Greece’ refer to applicants’ countries of origin or other Dublin regulation states?”

  The Agent’s response, dated 27 September 2010, provided as follows:

“(a) In short the answer is yes;

(b) Technically, there is no right to appeal against a decision to refuse asylum per se because it is not an immigration decision, which triggers a right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 (‘NIAA 2002’). However UKBA will, when refusing asylum, make a decision to remove at the same time and that decision will trigger an appeal right under section 82(2) of the NIAA 2002. At this appeal the applicant can raise both asylum and human rights grounds to argue that they should not be removed from the UK. The only circumstance in which there is a separate right of appeal against a decision to refuse asylum, is where asylum is refused but the applicant has at the same time been granted leave to enter or remain in the UK for a period exceeding one year (or for periods exceeding one year in aggregate);

(c) Until all the cases have been reviewed the UK Government cannot state with certainty which country each applicant will be returned to if their asylum/human rights claim is unsuccessful. Whilst it is expected that we will generally be returning people to their country of origin, there may be cases where another Dublin state may become responsible (for example, in family reunion cases under Article 15 of the Dublin II Regulation) or, indeed, where the person is able to be removed to another safe country (for example, if they are a dual national).

In any event the UK Government would like to make clear to the Court that prior to any proposed removal an applicant will be able to seek a Rule 39 indication against return to another country.”

  In a further letter of 28 September 2010, the Section Registrar informed the Government of the following:

“The Section has now considered the terms of your letter, and your previous letter of 23 September 2010 requesting that it lift Rule 39 in respect of those applicants whom your Government initially sought to return to Greece under the Dublin II Regulation and your further request for clarification that the Rule 39 indications did not prevent removal to countries other than Greece.

I am instructed to inform you that the Section is prepared to lift Rule 39 on the understanding that:

(1) No action will be taken to remove any applicant to Greece without prior notice to the Court;

(2) No removal action will be taken in respect of an applicant who has previously sought and received a Rule 39 indication to prevent his or her removal to Greece before that applicant has been sent a letter by the Registry informing him or her of the decision to lift Rule 39 in his or her case;

(3) All current and future Greek asylum cases (that is, cases where Greece would ordinarily be the Member State responsible under the Dublin II Regulation) will be examined by your Government under Article 3(2) of the Regulation; and

(4) All current and future Greek asylum cases will have access to the full range of appeal rights granted by your Government under the same conditions as other, non-Dublin II Regulation asylum seekers, including a reasonable opportunity to lodge an application to this Court and to seek interim measures under Rule 39.

...

In addition, since the Section will continue to apply Rule 39 in respect of returns by your Government to Mogadishu, I should be grateful it you would confirm that no action will be taken to remove any applicant who was previously to be returned to Greece to Mogadishu without the aforementioned prior notice to the Court.”

  Finally, in a letter dated 4 October 2010, the Agent of the Government stated:

“I am replying to your letter of 28 September 2010 wherein you ask for confirmation of a number of matters in relation to the current UK cases which have rule 39 indications preventing return to Greece. Subject to one clarification the UK Government hereby gives its confirmation/agreement to the matters raise in points (1), (2) and (4) of the Court’s letter. In relation to point (3) the UK Government does not feel that it is in a position to give a permanent indication that “all ... future Greek asylum cases” will be examined under Article 3(2) of the Dublin II Regulation. The UK Government confirms that this will be the case for as long as the situation outlined in our letter to the Court of 23 September prevails i.e. pending resolution of the Saeedi case, both by the CJEU and our domestic courts.

The UK Government would also like to confirm that no action will be taken to remove any applicant who was previously to be returned to Greece to Mogadishu without prior notice being given to the Court.”

  In respect of B.S., the Section Registrar wrote to the Agent on 6 October 2010, referring to the above exchange of letters. The letter further observed that, pursuant to the Government’s assurances, the applicant’s substantive asylum claim fell to be considered in the United Kingdom under Article 3(2) of the Dublin Regulation; she should have access to the full range of appeal rights as apply to other, non-Dublin Regulation asylum seekers, including the right to lodge a fresh application with this Court should that prove necessary; and no action should be taken to remove her until all her appeal rights have been exhausted. Confirmation of these rights was given by the Agent of the Government on 12 October 2010. On 22 October 2010, the applicant’s representatives informed the Court that they had no objections to the case being struck out pursuant to Article 37 of the Convention (see below).

COMPLAINTS

The applicant complained that her removal to Greece would amount to a violation of Articles 3 and 8 of the Convention. Similar complaints were made by the 232 other applicants in whose cases Rule 39 was applied. Those applicants further complained that, if removed from Greece, they would be at real risk of ill-treatment in their countries of origin.

THE LAW

  Article 37 of the Convention provides:

“1.  The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that

(a)  the applicant does not intend to pursue his application; or

(b)  the matter has been resolved; or

(c)  for any other reason established by the Court, it is no longer justified to continue the examination of the application.

However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.

2.  The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”

  In order to determine whether an application should be struck out of the list pursuant to Article 37 § 1 (c) the Court must consider whether ‘‘the circumstances lead it to conclude that “for any other reason....it is no longer justified to continue the examination of [it]”. The Court recalls that it enjoys a wide discretion in identifying grounds capable of being relied upon in a strike out application on this basis; however, it also recalls that such grounds must reside in the particular circumstances of each case (Association SOS Attentats and de Boery v. France [GC], (dec.), no. 76642/01, § 37, ECHR 2006 ..., BAILII: [2006] ECHR 2001; M.H. and A.S. v. the United Kingdom (dec.), nos. 38267/07 and 14293/07, 16 December 2008, BAILII: [2008] ECHR 1861 ).

In the Court’s view, the particular circumstances of these applications are such that it is no longer justified to continue their examination.

B.S. and the other applicants’ complaints under Articles 3 and 8 of the Convention are based on the consequences of their return to Greece and the risk of expulsion from that country to their countries of origin. The applicants will now benefit from the undertakings of the Government set out in the exchange of letters between the Agent of the Government and the Section Registrar. The practical effect of these undertakings is that they will not be returned to Greece or any other country without a full examination of their claims by the Government of the United Kingdom and, moreover, they will have the opportunity to lodge new applications with the Court (including the possibility of requesting an interim measure under Rule 39 of the Rules of Court) should that need arise.

In accordance with Article 37 § 1 in fine, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the cases. Accordingly, it is appropriate to lift the interim measures indicated under Rule 39 of the Rules of Court and strike the cases out of the list.

For these reasons, the Court unanimously

Joins B.S. and the applications set out in the annex to this decision;

Decides to strike the applications out of its list of cases.

Lawrence Early Lech Garlicki
Registrar President

Annex