W, R (on the application of) v Secretary of State for the Home Department

This is a claim for judicial review by the claimant, a national of Eritrea born on 10 December 1981, which seeks to quash decisions of the defendant dated 26 March, 20 April and 15 May 2015. By those decisions the defendant declined to examine an asylum application, certified that the conditions in paragraphs 4 and 5 of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (“the 2004 Act”) are satisfied, rejected the claimant’s human rights claim and detained him with a view to removal to Italy.

The claim was issued on 29 May 2015. On 29 September 2015 Dingemans J refused permission to apply for judicial review. On 20 October 2015 the claimant applied to renew his application and on 10 November 2015 permission to apply for judicial review was granted by HHJ Bidder QC, sitting as a Deputy High Court Judge.

Under cover of a letter dated 12 April 2016 the claimant’s solicitors submitted further evidence to the defendant. That evidence was considered and a further decision made, dated 27 May 2016, again rejecting the claimant’s human rights claim and certifying under paragraph 5(4) of Part 2, Schedule 3 to the 2004 Act that the human rights claim was clearly unfounded. Without objection the claimant seeks to challenge that decision also.

At the hearing the claimant applied to amend the grounds of challenge to include a challenge to an earlier period of detention in January and February 2015. That application was opposed but I concluded that there would be no prejudice to the defendant by permitting a challenge to both periods of detention and that it would be more convenient to do so rather than in separate proceedings for damages. Accordingly, I allowed the application. The defendant had already disclosed documents relating to that earlier period of detention which form part of the bundle before the Court for this hearing.

Before turning to the facts it is convenient to summarise briefly the grounds of challenge. First, the claimant asserts that if he were returned to Italy he would be subjected to violence by pro-Eritrean government agents and that the Italian authorities would not provide sufficient protection. Accordingly, returning him to Italy would breach his rights under article 3 of the European Convention on Human Rights (“ECHR”). Further, he submits that his detention in January/February and May/June 2015 was unlawful because there was no reasonable prospect of his return to Italy having regard to his asylum claim and the lack of evidence that he was at risk of absconding. Further, it is asserted that his detention was unlawful by virtue of article 28 of Regulation (EU) No. 604/2013 (“Dublin III”).

The claimant asserts that he entered the UK unlawfully on 12 December 2014. On 5 January 2015 he contacted the Home Office’s asylum intake unit. On 16 January 2015 his solicitors wrote to the asylum intake unit asserting he was at risk of harm in Italy and enclosing a copy of a judgment of a Swiss court rejecting the claimant’s claim for asylum there on the basis that he could safely be returned to Italy.

The letter stated that the claimant was a very well-known singer who left Eritrea on 1 July 2014 and together with other performers he was flown to Italy in order to perform at the annual Eritrean liberation festival at Bologna (“the Festival”). He entered Italy on a visa obtained for that purpose. In Italy he and the other performers were under constant watch by members of two organisations: (1) the Young People’s Front for Democracy and Justice (“YPFDJ”) and (2) Eri-Blood, a pro-Eritrean government group, both of whom were allegedly used as unofficial security for the Eritrean authorities. He remained in Italy for three days before travelling unlawfully to Switzerland. Once there he claimed asylum on 12 July 2014. The application was refused by the Swiss authorities on the grounds that he could be returned to Italy. His appeal against that decision was rejected. After that he absconded and travelled unlawfully to the United Kingdom to claim asylum for a second time. In Switzerland he received threatening messages via social media and telephone from Italy. The claimant feared returning to Italy, believing he is at risk of violence at the hands of supporters of the Eritrean government.

On 19 January 2015 the claimant was interviewed, fingerprinted and detained. Checks were made against the Eurodac database and these confirmed that he had claimed asylum in Switzerland on 17 July 2014.

On 22 January 2015 the defendant submitted a request to Switzerland inviting it to accept responsibility for determining the claimant’s application for international protection. By a letter dated 26 January 2015 the Swiss authorities rejected the request on the grounds that, under the provisions of Dublin III, Italy was the Member State responsible for determining the claimant’s application. On 8 February 2015 the defendant submitted a request to Italy under article 18.1(b) of Dublin III inviting it to accept responsibility for determining the claimant’s application for international protection. On 9 February 2015 the claimant was released on bail pending a response from the Italian authorities. On 20 February 2015 Italy rejected the request but, following a challenge by the defendant, by a letter dated 19 March 2015 the Italian authorities accepted responsibility for determining the claimant’s claim for international protection pursuant to article 12.4 of Dublin III.

Following this, on 26 March 2015 the defendant declined to examine the claimant’s asylum application on the grounds that there is a safe third country to which he can be sent and certified that the conditions mentioned in paragraphs 4 and 5 of Part 2 of Schedule 3 to the 2004 Act were satisfied (this letter was not served on the claimant until 11 May 2015). The letter mistakenly referred to a proposal to remove the claimant to Switzerland. It is common ground that the defendant intended to remove the claimant to Italy. In due course that was clarified and no point is taken that the 26 March 2015 letter wrongly refers to Switzerland instead of Italy.

On 20 April 2015 the defendant provided detailed reasons why she rejected the claimant’s assertion that his removal to Italy would be a breach of article 3. In addition, the defendant certified the claimant’s human rights claim as being clearly unfounded pursuant to paragraph 5(4) of Part 2 of Schedule 3 to the 2004 Act. On 11 May 2015 the defendant confirmed that the claimant was being returned to Italy rather than Switzerland. Having heard nothing further, the defendant detained the claimant on 15 May 2015.

As already indicated, these proceedings were issued on 29 May 2015. They were accompanied by an unsigned witness statement from the claimant in which he asserted that he is a very famous singer in Eritrea and elsewhere who performed for the government both in Eritrea and abroad. He had previously been abroad to participate in performances arranged by the Eritrean authorities and when told he was being sent to Italy to perform at the Festival in July 2014 he began to make plans to flee from the Eritrean authorities. Whilst in Italy he managed to escape with the assistance of a local contact and travelled to Switzerland without his passport, which had been taken on his arrival in Italy by representatives from the Eritrean embassy. After 12 days in Switzerland he claimed asylum and while there, rumours had started circulating about him in Eritrea and in Eritrean communities in Italy and Europe. His escape from Italy was big news and supporters of the Eritrean government were looking for him. He started to receive threatening telephone calls and messages on an almost daily basis. Translations of the messages were exhibited to his witness statement in which he is threatened with violence. He asserted that there is wide support for the Eritrean government in Italy and he believed he is at risk from members of the YPFDJ and Eri-Blood not only because he deserted the Eritrean regime but also because of embarrassment caused by his failure to perform at the Festival in Italy.

Also accompanying the judicial review proceedings were extracts from a number of web pages which referred to the 40^th anniversary of the Bologna Festival and attacks on anti-Eritrean government protesters by security at the Festival known as Eri-Blood. There is also a web page referring to a visit by the Italian Deputy Minister of Foreign Affairs to Eritrea for the purpose of achieving co-operation between the two countries.

The further representations submitted on 12 April 2016 comprise an expert report from Dr John Campbell of the School of Oriental and African Studies, University of London, a letter from Elsa Chyrum, Human Rights Concern Eritrea, a second witness statement from the claimant, unsigned witness statements from Desbele Tekie, Meron Bizen, Abrahalei Tesfai, Awet Measho, Eritrean nationals living in France and Italy, and a signed witness statement from Rahwa Fessahaye-Caplan, an Advocacy Co-ordinator for Detention Action in the UK. Also included were extracts from a number of websites.

The report of Dr Campbell concluded as follows:

“46.

The creation of pro-Eritrean YPFDJ groups outside of Eritrea should be seen as part of the regime’s strategy of ensuring that the diaspora continues to pay the diaspora tax and other levies which ensure the regime’s survival. These groups police the diaspora and report all forms of dissidence to Embassy officials who in turn report individuals to Asmara.

47.

YPFDJ groups are organised, funded and directed from Asmara.

48.

Eritrea has been successful in mobilising ‘youth’ in the diaspora because many are not well integrated into their host societies and because the regime conflates patriotism with support for the ruling government.

49.

Cultural festivals are a central part of the way that the Eritrean regime attempts to secure public support and finance. These festivals are tightly organised by senior party officials, and no expense is spared in bringing supporters to the festivals and/or to co-opt and using actors and magicians to generate political support for the regime.

50.

A high profile ‘defector’ such as the Claimant would be at particular risk because he is seen as a defector and opponent of the regime. His defection in Italy is already well known among Eritreans and an opposition political organisation has directly linked him with the opposition by using his photo.

51.

The Claimant was clearly co-opted by the Ministry of Defence – he would not have been able to refuse the order – and the evidence is that all the money generated from his music was used by the regime to create support for it among the diaspora.

52.

Pro-Eritrean supporters have, since at least 2001, become increasingly violent towards those who (thought to) oppose the regime; and pro-government supporters have increasingly sought to attack and intimidate individuals – both Eritrean and European – who are critical of the regime.

53.

While evidence about ‘Eri Blood’ is limited, it appears that they are drawn from the YPFDJ and that they operate openly in Italy and Denmark. I have not been able to find any evidence that they operate in the UK or elsewhere in Europe (though branches of the YPDFJ do operate throughout Europe). To the best of my knowledge, Eri Blood does not operate in the United Kingdom.

54.

I conclude that there is evidence that the Claimant would be at risk if he were to be returned to Italy to make an asylum application.”

In her letter dated 4 March 2016 Ms Chyrum states:

“From what I have observed and from the conversations that I have with at least a few Eritrean justice seekers and activists in Italy, the voice of the Eritrean opposition against the Eritrean government in Italy is almost non-existent. In Italy, there is no protection for people like [the claimant]. The security is very loose.

I have been informed by victims and Eritrean activists in that there have been many incidents, clashes and attacks by pro-Eritrean government to opposing young former conscripts who have defected and landed in Italy through the Mediterranean Sea.

Some of the incidents were reported to the police, but there was not proper investigation and no measures were taken against the perpetrators. Most of those who were attacked severely were forced to leave and some others who do not agree with the Eritrean government’s policy live in fear.

Based on the experiences of others, Eritrean activists in Italy, and my own experience of lobbying the Italian authorities at the European Union, and the Human Rights Council, the Italian authorities or the police will not provide protection to people like [the claimant]. It should be noted also that the Italian government is the only government in Europe that has close diplomatic and business ties with the Eritrean government.”

In his second witness statement the claimant states that he is hated by the Eritrean regime and considered to be a traitor both for defecting and for bringing shame on the government by not performing at the Festival which was the biggest show in 40 years. The situation is worse for him in Italy than elsewhere because there are lots of Eritrean regime supporters in Italy. He has received numerous threats and fears returning to Italy. He is also worried about his wife and six children who remain in Eritrea. She is aware that he was in detention in the UK. He does not know whether she has received any threats from the authorities but, if she had, he does not believe that she would tell him about it.

The witness statements from Eritrean nationals living in Italy or France describe being attacked by pro-Eritrean government supporters in Italy and complain about the lack of action by the Italian police. The last statement from Rahwa Fessahaye-Caplan refers to the embarrassment to the Eritrean government caused by the claimant’s defection.

Dublin III is the latest European regulation which seeks to establish criteria and mechanisms for determining which EU Member State is responsible for examining an application for international protection lodged in one of the Member States by a third country national. Its purpose is to avoid forum shopping and repeat applications by asylum seekers. It sets out a hierarchy of criteria for determining which member state is responsible for determining an asylum application and sets out procedures enabling that to take place. Article 12.2 provides:

“Where the applicant is in possession of a valid visa, the Member State which issued the visa shall be responsible for examining the application for international protection…”

There is no dispute that Italy issued a valid visa to the claimant for the purpose of him entering the country to perform at the Festival and that in accordance with the hierarchy in Dublin III, Italy is the Member State responsible for determining his application for international protection.

Notwithstanding the hierarchy, article 17 provides a discretion for a Member State to examine an application for asylum even though it is not responsible for doing so under the Dublin III criteria:

“By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this regulation.”

Article 3(2) provides an exception to the right of one Member State to return an asylum seeker to another Member State which is responsible for determining his application for international protection:

“Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the application procedure and in the reception conditions for applicants in that member state, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in chapter 3 in order to establish whether another Member State can be designated as responsible.”

The provisions of Dublin III are given effect in the UK by the 2004 Act. Part 2 of Schedule 3 to that Act applies to a list of safe countries which includes Switzerland and Italy. Paragraph 3 provides:

“(1)

This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made 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,

(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.”

Paragraph 4 disapplies s.77 of the Nationality, Immigration and Asylum Act 2002 and thus enables a person who has made a claim for asylum to be removed from the United Kingdom and to a state to which Part 2 of Schedule 3 to the 2004 Act applies “provided that the Secretary of State certifies that in his opinion the person is not a national or citizen of the State”.

Paragraph 5 contains important certification provisions:

“(1)

This paragraph applies where the Secretary of State certifies that-

(a)

it is proposed to remove a person to a State to which this Part applies, and

(b)

in the Secretary of State’s opinion the person is not a national citizen of the State.

(3)

The person may not bring an immigration appeal from within the United Kingdom in reliance on –

(a)

an asylum claim which asserts that to remove the person to a specified State to which this Part applies would breach the United Kingdom’s obligations under the Refugee Convention…

(4)

The person may not bring an immigration appeal within the United Kingdom in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is no clearly unfounded.”

It is common ground that the effect of these provisions is as follows. A person may be lawfully removed to one of the first list of safe countries which are presumed to be states which would adhere to their treaty obligations including those under the ECHR, unless there are substantial grounds for believing that the person to be removed faced a real risk of being subjected to treatment that violated his fundamental rights, see R(EM(Eritrea)) v Secretary of State for the Home Department [2014] AC 1321. The defendant has a discretion not to certify under paragraph 5(1); however, if she does certify, the person may not bring an in-country appeal in respect of their asylum claim. On the other hand, where a person has a human rights claim (not based on the possibility of removal from the safe country to another state) the defendant is bound to certify the claim under paragraph 5(4) as clearly unfounded unless satisfied that the claim is not clearly unfounded.

Where a person argues that their return to a first list safe country would amount to a breach of their article 3 rights the proper approach to determining the merit of that claim has been authoritatively determined by the Supreme Court in EM. There is a “significant evidential presumption” that listed states will comply with their ECHR obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory and it is against the backdrop of that presumption that any claim that there is a real risk of breach of article 3 rights falls to be addressed, paragraph 64 of EM and the judgment of Sales J in R(Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182. Although a systemic deficiency in asylum procedures and reception conditions provided for asylum seekers in the first list safe country may rebut the presumption that the state will comply with its convention obligations, it is not necessary to demonstrate systemic deficiency. The critical test remains that articulated in Soering v The United Kingdom (1989) 11 EHRR 439 namely whether there are substantial grounds for believing that the person faces a real risk that if transferred he will suffer treatment contrary to article 3, Soering paragraph 91 and see EM paragraph 58.

EM concerns Eritrean nationals who did not wish to be returned to Italy and there are many cases which consider whether the conditions for asylum seekers in Italy are such that removal of third country nationals to Italy will breach their article 3 rights. However, the present case is not concerned with that issue but rather with whether, if returned to Italy, the claimant would likely suffer violence at the hands of pro-Eritrean government agents from which he would not be protected by the Italian authorities. The correct approach towards whether a breach of article 3 would arise in those circumstances is set out by the House of Lords in R(Bagdanavicius) v Secretary of State for the Home Department [2005] 2 AC 668. Where there is a risk of violence from non-state agents the harm inflicted will not constitute article 3 ill-treatment unless, in addition, the state failed to provide reasonable protection, paragraph 24. Reasonable protection does not require the state authorities to remove the risk, rather to provide a reasonable level of protection from it, see paragraph 27 and 29. It follows that in such cases the person concerned must demonstrate not only a risk of violence but also a failure in the receiving state to provide a reasonable level of protection.

As to the meaning of “clearly unfounded” in paragraph 5(4) of Part 2 in Schedule 3 to the 2004 Act, a certificate that a human rights claim is clearly unfounded may be issued if on any legitimate view the claimant’s assertion that his enforced return would constitute a violation of his human rights would fail on appeal, see EM paragraph 6. When doing so it is customary to take the facts at their highest in the claimant’s favour, EM paragraph 8.

Turning to the law relating to the claimant’s detention, by virtue of the Immigration Act 1971 (“the 1971 Act”), a person who is refused leave to remain may be removed to a country to which there is reason to believe that he will be admitted, see Schedule 2 paragraph 9(1) of the 1971 Act. The power to detain is contained in Schedule 2 paragraph 16(2):

“If there are reasonable grounds for suspecting that a person is someone who in respect of whom directions may given under any of paragraphs 8 to 10A or 12 to 14, that person may be detained under the authority of an immigration officer pending–

(a)

a decision whether or not to give such directions;

(b)

his removal in pursuant of such directions.”

To be lawful, the power to detain must be exercised in accordance with the principles set out in R v Governor of Durham Prison, ex parte Hardial Singh [1984] 1 WLR 704 which were summarised by Lord Dyson in R(Lumba) v Secretary of State for the Home Department [2012] 1 AC 245 at paragraph 22:

There are a number of other principles that are particularly relevant to this case. First, there can be a realistic prospect of removal without it being possible to specify or predict the date by which or period in which removal can reasonably be expected to occur and without any certainty that removal will occur at all, see Muqtaar v Secretary of State for the Home Department [2013] 1 WLR 649. Second, when considering whether the overall length of time is reasonable it is not enough that, in retrospect, some part of the statutory process is shown to have taken longer than it should have done and there is a dividing line between mere administrative failing and unreasonableness amounting to illegality, see Krasniqi v Secretary of State for the Home Department [2011] EWCA Civ 1549, paragraph 12. Third, if a detained person is pursuing a hopeless legal challenge and that is the only reason why he is not being deported his detention during the challenge should be given minimal weight in assessing what is a reasonable period of detention in all of the circumstances. On the other hand, the fact that a meritorious appeal is being pursued does not mean that the period of detention during the appeal should necessarily be taken into account in its entirety for the benefit of the detained person but much more weight should be given to detention during the period when the detained person is pursuing a meritorious appeal than detention during a period when he is pursuing a hopeless one, see Lumba paragraph 121. Fourth, the risks of absconding and re-offending are always of paramount importance since if a person absconds he will frustrate the deportation for which purpose he was detained in the first place, see again Lumba paragraph 121.

Returning to Dublin III, article 28 provides so far as relevant as follows:

“1.

Member states shall not hold a person in detention for the sole reason of he or she is subject to the procedure established by this Regulation.

2.

When there is a significant risk of absconding the member states may detain the person concerned to secure transfer procedures in accordance with this Regulation, on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively.

3.

Detention shall be for as short a period as possible and shall be for no longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence until the transfer under this Regulation is carried out…”

The effect of article 28 was recently considered by Garnham J in K v Secretary of State for the Home Department (No.2) [2016] EWHC 1394 (Admin). He held that article 28.2 applies in the circumstances covered by article 28.1, namely where detention is solely for the purpose of removal under Dublin III and not when detention is authorised under some free-standing domestic law provision, see paragraph 64. Further, the detention referred to in article 28.3 is detention pursuant to article 28.1:

“The fact that the defendant then decided to employ the Dublin III provisions to effect removal to Bulgaria does not affect the legality of the detention. Article 28 governs and conditions the exercise the powers to detain when Dublin III is the source of the power to detain and remove; it does not abolish the pre-existing power under English domestic law to detain and non-UK citizen with no right to enter or remain in the UK pending their removal by whatever lawful means are available to the defendant”, see K paragraph 65.

Mr David Chirico, who appeared on behalf of the claimant, submitted that that construction of article 28 was incorrect and that article 28 has direct effect such that it may be relied upon by the claimant in these proceedings against the defendant. It will be necessary to consider that argument in more detail. However, Mr Chirico did not dispute that when considering his submission I should apply the test in R v Greater Manchester Coroner, ex parte Tal [1985] 1 QB 67 :

“a judge of first instance exercising the jurisdiction of the High Court… will follow a decision of another judge of first instance unless he is convinced that that judgment is wrong, as a matter of judicial comity” per Robert Goff LJ at p.81B.

Mr Chirico submitted that this case raises an unusual point that is not covered by the other decisions relating to returns to Italy. Those other cases look at defects in the system for dealing with asylum seekers whereas this case concerns the specific targeting of the claimant who is a well-known musician. It is no coincidence that the claimant fled from Italy where pro-Eritrean government agents work. By defecting from a high profile festival he has brought disgrace on Eritrea and has a well-founded fear of violence there from which the Italian authorities are either unwilling or unable to protect him. The assessment of that evidence is best suited to a tribunal hearing an appeal on the facts and not by judicial review.

He pointed out that the power to certify a claim under paragraph 5(1) of Part 2 of Schedule 3 to the 2004 Act is a discretionary one and that the defendant has power under article 17 of Dublin III to determine the claimant’s asylum claim herself.

The Supreme Court reaffirmed the applicability of the test in Soering v UK (1989) 11 EHRR 439 paragraph 91 that article 3 is violated “where substantial grounds have been shown for believing that the person concerned… faces a real risk of being subjected to” treatment contrary to article 3, see EM at paragraph 58. Mr Chirico relied upon a number of propositions derived from Sufi & Elmi v United Kingdom (2012) 54 EHRR 9 paragraphs 213-216. The court must assess the conditions in the receiving country against the standards of article 3 and the assessment of risk of breach of article 3 must be a rigorous one. Although the applicant must adduce evidence capable of proving there are substantial grounds for believing the applicant would be exposed to a real risk of being subjected to treatment contrary to article 3, where such evidence is adduced it is for the government to dispel any doubts about it. The assessment must focus on the foreseeable consequences of removal to the country of destination which must be considered in the light of the general situation there as well as the applicant’s personal circumstances.

He submitted that EM confirmed the need to take into account individual circumstances notwithstanding the evidential presumption that a member state will comply with its treaty obligations, EM paragraph 41. This is consistent with the decision in Bagdanavicius and is relevant to asylum claims and article 3 claims, see paragraphs 55(6) and 55 (15) in the judgment of Auld LJ in Bagdanavicius in the Court of Appeal, [2004] 1 WLR 1207. The sufficiency of state protection is judged not according to whether it would eradicate the risk of relevant harm but accordingly to whether it is a reasonable provision in the circumstances, paragraph 55(14).

Mr Chirico also emphasised the importance of “practical realities”:

“practical realities lie at the heart of the inquiry; evidence of what happens on the ground must be capable of rebutting the presumption if it shows sufficiently clearly that there is a real risk of article 3 treatment if there is an enforced return.” EM paragraph 68

It is not sufficient to look at what the Italian police system is like generally but to focus on the risk of harm to a particular individual, see Noune v Secretary of State for the Home Department [2001] INLR 526 at paragraph 28. Looking at the claimant’s personal circumstances he may need more than normal state protection.

Reliance was also placed on paragraph 339K of the Immigration Rules which states that the defendant will regard threats of persecution or serious harm as a serious indication of a well-founded fear of persecution or real risk of suffering serious harm unless there are good reasons to consider that such persecution or serious harm would not be repeated. As in this case the claimant has not been subjected to any violence, Mr Chirico submitted that in the context of this case that meant that the threats would be brought into effect. When considering the prospects of success on an appeal the defendant should take into account that evidence in witness statements may be clarified in court and that the witnesses the claimant relied upon could give evidence by video link at an appeal. A certificate that the claimant’s human rights claim would fail on appeal could only be issued if that was the case “on any legitimate view” (EM paragraph 6) and therefore the claim had to be taken at its reasonable highest.

Although this is a judicial review claim, when the court is reviewing the defendant’s decision that the claimant’s case is clearly unfounded it is effectively asking itself the same question as the defendant namely whether the claim cannot on any legitimate view succeed. If on at least one legitimate view of the facts or law the claim may succeed then the claim will not be clearly unfounded, see ZT(Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348 per Lord Phillips at paragraphs 21 to 23.

Mr Chirico drew attention to various aspects of the evidence. This identifies the importance of the event at which the claimant was to perform and his high profile. As a result, his defection has caused particular shame to the Eritrean government. After the Swiss authorities decided to return him to Italy specific threats of violence were made to him on Facebook and by phone. Because he is a famous person he is likely to be identified very easily and he is afraid he will be targeted.

Mr Chirico submitted that the defendant does not dispute the expertise of Dr Campbell from SOAS which describes the pro-Eritrean groups that operate in Italy, especially Eri-Blood, and the particular risk to the claimant. He submitted that while it may be an over-reading to say that Eri-Blood operate with the consent of the Italian police (Dr Campbell paragraph 40), it is a fact that no members of that group have been arrested for the assaults described in the witness statements relied upon by the claimant and that may be because of Italy’s close ties with Eritrea. It would be for a tribunal to decide what weight to place on that evidence and whether it represents a pattern of violence towards opponents of the Eritrean government in Italy and a pattern of the Italian authorities not protecting them.

In his criticisms of the defendant’s decisions, Mr Chirico focussed on the letter dated 27 May 2016 as that dealt with the latest evidence. If the defendant was entitled to conclude that the claim was clearly unfounded there is no need to look at the earlier decisions. On the other hand, if the defendant was not entitled to reach that view then the other decisions do not assist. He submitted that although paragraphs 14 to 19 of the 27 May 2016 letter consider the recent evidence, the defendant does not distinguish between her own view of the evidence and the separate question as to whether an appeal would be bound to fail before a tribunal judge. The comments about Dr Campbell and Ms Chyrum express a difference of opinion which would be a matter for a tribunal. She has failed to have regard to the other witness statements which are not mentioned at all. Further, paragraph 19 states that “there is no evidence that your client has been targeted in any country since leaving Eritrea” which is directly at odds with the evidence of threats against the claimant.

Mr Chirico submitted that the defendant had failed to consider whether or not to exercise her discretion to determine the asylum claim herself. This should have been done at the outset because she has no discretion to consider a human rights claim. If she considers that is clearly unfounded she must so certify under paragraph 5(4) of Part 2 of Schedule 3 to the 2004 Act. In her letter dated 26 March 2015 the defendant failed to consider exercising her discretion at all, or if she did so, her decision not to exercise her discretion is wholly unreasoned. The same is true of the letters dated 20 April 2015 and 27May 2016.

As to the defendant’s argument in this challenge that, if she had considered exercising her discretion, the decision would have been the same in any event, Mr Chirico submitted that that amounted to an unlawful fettering of her discretion. If it were otherwise the court would never grant relief if a decision-maker simply said that it would not make any difference if he or she considered a matter not previously taken into account.

There is no dispute that the defendant sought to detain the claimant in order to remove him to Italy. Mr Chirico submitted that the second, third and fourth principles from Hardial Singh are relevant, namely that the period of detention must be reasonable, if it becomes apparent that the claimant cannot be removed within a reasonable period he should not be detained and the defendant should act with reasonable diligence and expedition to effect removal, see Lumba paragraph 22. When determining what is a reasonable period the court should have regard to the length of detention, the obstacles preventing removal, the diligence, speed and effectiveness of steps taken by the defendant to overcome those obstacles, the conditions of detention, the effect of detention on the claimant and the risk of absconding.

As to article 28, Mr Chirico submitted that article 28.1 contains an absolute prohibition on detention for the sole reason that the person is to be returned to another country pursuant to Dublin III procedures. It followed that articles 28.2 and 28.3 have to refer to a different situation in which the person was detained, in whole or part, for other reasons. In such cases there had to be evidence of a significant risk of absconding (article 28.2 as defined in article 2(n)) and detention had to be for as short a period as possible (article 28.3). He did not rely on the time limits which follow in article 28.3 but submitted that “as short a period as possible” was more restrictive than the reasonable period required by the second principle in Hardial Singh. Further, article 28 was plainly intended to confer a right upon an individual and therefore had direct effect.

He accepted that he had made similar submissions to Garnham J in K v SSHD No.2 [2016] EWHC 1394 (Admin) but that they had been rejected. However, he submitted that the decision in K failed to have regard to other material which had not been drawn to the judge’s attention and that the decision is under appeal (though I was informed that the application for permission to appeal has not yet been decided).

When the European Commission first introduced the draft of Dublin III, it described the new rights contained in article 4 (right to information), article 27 (right of appeal) and article 28 (detention) all together under the heading “legal safeguards for the persons falling under the Dublin procedure” (page 8). Mr Chirico submitted that all three were intended to have equivalent legal effect and article 27 has been held to have direct effect, see Ghezelbash v Staatssecretaris van Veiligheid en Justitie (No 604/20130) Case C-63/15. Further, when the Commission reported back to the European Parliament after the draft of Dublin III had been considered by the Council of Europe, it described the common position that “clear time limits” for detention had been introduced (page 5). That was a strong indication that article 28 was intended to provide rights that were directly effective. Mr Chirico said that he had not relied upon this material in K because he had not foreseen that his submissions as to article 28 would not be accepted.

Mr Chirico also relied upon two requests for preliminary rulings from the Czech Republic (Case C-528/15) and Sweden (Case C-60/16) which he submitted assume that article 28 has direct effect. Finally, he relied upon a European Court decision, El Dridi (C-61/11 PPU) 28 April 2011, on a reference for a preliminary ruling that articles 15 and 16 of Directive 2008/115 were unconditional and sufficiently precise to be relied upon by individuals against the state, paragraphs 46 and 47. Although that Directive does not apply to the UK, article 15 contains restrictions upon detention including where there is a risk of absconding which he submitted are similar to article 28.

Mr Chirico submitted that both periods of detention were unlawful because the defendant had failed to give any consideration to whether detention was lawful under article 28 and, if any such consideration had been given, there were no reasons as to why it was considered that detention was lawful under article 28. In any event, the defendant failed to apply the “significant risk of absconding” test and had failed to take into account the following: that the claimant had voluntarily approached the Home Office Unit and attended interviews, that he had an address so the defendant knew where he would be living and that there was someone responsible for him there and that the claimant had been open about his circumstances, not concealing any information about himself. There had been an excessive emphasis on the claimant’s unlawful entry into the UK and insufficient emphasis on the positive factors which reduced the risk of absconding.

There were significant delays, the defendant had not acted with reasonable expedition and it should have been clear that the claimant could not be removed within a reasonable period of time. The defendant had wrongly applied to Switzerland to take back the claimant despite being aware that the Swiss court had ruled he should be returned to Italy. No request was made to Italy until after the claimant had been granted bail. Further, the submissions made by the claimant’s solicitor on 16 January 2015 made it clear the defendant would have to consider the claimant’s human rights claim before he could be removed. That decision was not made until 20 April.

Further, it was unreasonable to detain the claimant again on 15 May 2015 on the grounds that no challenge had been made to that letter. At that stage the claimant’s solicitor was still trying to clarify the inconsistency between the 26 March decision which said the claimant was to be removed to Switzerland and the 20 April letter which said he was going to be removed to Italy. The defendant failed to have regard to the fact that the claimant had been complying with his conditions of bail and the sureties in place.

It should have been clear from 22 May 2015 at the latest when detailed judicial review grounds were served that there was no prospect of removing the claimant within a reasonable time. Despite that he was not released until 23 June 2015.

Accordingly, even if the submissions as to article 28 failed, the claimant’s detention had been unlawful as a matter of domestic law, being in breach of the second, third and fourth Hardial Singh principles.

Mr John-Paul Waite, counsel for the defendant, submitted that there were two overwhelming obstacles to the claimant’s article 3 case. First, in order to succeed it is not enough for the claimant to show that he would be subjected to proscribed treatment in Italy, he must in addition show that the Italian authorities have failed to provide protection against such treatment.

He relied upon Horvath v Secretary of State for the Home Department [2001] 1 AC 489, in which Lord Hope, who gave the speech with whom the majority agreed, said this:

“To sum up therefore on this issue, I consider that the obligation to afford refugee status arises only if the person's own state is unable or unwilling to discharge its own duty to protect its own nationals. I think that it follows that, in order to satisfy the fear test in a non-state agent case, the applicant for refugee status must show that the persecution which he fears consist of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection. The applicant may have a well-founded fear of threats to his life due to famine or civil war or of isolated acts of violence or ill-treatment for a Convention reason which may be perpetrated against him. But the risk, however severe, and the fear, however well founded, do not entitle him to the status of a refugee. The Convention has a more limited objective…” see p.499G-500A

As to the level of protection required, in Horvath Lord Clyde, with whom Lord Browne-Wilkinson agreed, said that

“A question arises… as to the level of protection which is to be expected of the home state… I do not believe that any complete or comprehensive exposition can be devised which would precisely and comprehensively define the relevant level of protection. The use of words like "sufficiency" or "effectiveness", both of which may be seen as relative, does not provide a precise solution. Certainly no one would be entitled to an absolutely guaranteed immunity. That would be beyond any realistic practical expectation. Moreover it is relevant to note that in Osman v United Kingdom (1998) 29 EHRR 245 the European Court of Human Rights recognised that account should be taken of the operational responsibilities and the constraints on the provision of police protection and accordingly the obligation to protect must not be so interpreted as to impose an impossible or disproportionate burden upon the authorities. At the least, as is noted in condition (iii) in rule 334 which I have quoted earlier, the person must be able to show that if he is not granted asylum he would be required to go to a country where his life and freedom would be threatened. There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case.” see p.510E-H

He submitted that in Bagdnavicius the House of Lords confirmed that these principles also apply to Article 3:

“Where, however, the risk emanates from non-state bodies… any harm inflicted by non-state agents will not constitute article 3 ill-treatment unless in addition the state has failed to provide reasonable protection.” per Lord Brown at paragraph 24

The standard of protection required is “reasonable measures to make the necessary protection available”, see Bagdanavicius paragraph 27.

Second, Mr Waite submitted that there is an evidential presumption that member states including Italy will comply with their obligations under the ECHR. In NS(Afghanistan) v Secretary of State for the Home Department [2013] QB 102, which concerned the removal of asylum seekers to Greece, the European Court emphasised the importance of Member States having confidence in each other’s respect for fundamental rights and stated “it must be assumed that the treatment of asylum seekers in all member states complies with the requirements of” the ECHR, paragraph 80.

When responding to the question as to whether there is “in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected”, Mr Waite submitted there is no objective evidence at all about the capabilities of law enforcement in Italy. Dr Campbell does not profess to have any expertise in Italian law enforcement and the witness statements from individuals are not evidence of any systemic failure to provide protection.

He drew attention to the facts of Noune and Osman (1998) 29 EHRR 245 as demonstrating the nature of the evidence required to even come close to being able to make out a case under article 3 where the persecution is by non-state agents. In Noune the court had the benefit of an expert report which specifically addressed the protection offered by state security forces which were described as “over-stretched and quite incapable of providing protection to most of those at risk”, see paragraph 14. Even then the appeal was only allowed because the tribunal had asked itself the wrong question. In Osman there were found to have been repeated failings by the police and missed opportunities to protect the deceased but there was no violation of article 2.

Here there is no objective evidence to rebut the assumption that the Italian state will comply with the ECHR or of any systemic flaws in their system of protection. Nor is there any evidence that any particular section of the community does not have protection under the legal system. Mr Waite drew attention to the evidence in the individual witness statements that the police were investigating the assaults which had been reported including taking witness statements. The fact that no one had been arrested did not indicate insufficient protection was provided. Further, even if the Italian authorities were aware of the claimant’s specific circumstances there is no evidence to suggest they would not act and the case is no different to that in Bagdanavicius where the claimants argued they would be targeted as Roma on their return to Lithuania.

Mr Waite submitted that the claimant had been provided with reasons why the defendant considered it appropriate to return him to Italy. The whole point of Dublin III was to provide for the allocation of responsibility for the determination of asylum claims and the claimant had provided no reasons over and above those of his human rights claim why there were exceptional circumstances justifying the defendant accepting responsibility for his asylum claim. There is no obligation in every case where the defendant is satisfied that a person should be returned to another Member State for her to give express consideration to a claim for international protection on some other basis, the latter can be inferred from the former. Further, the decision to contest these proceedings reflects the defendant’s decision not to exercise any residual discretion and remitting the matter to her would serve no useful purpose as the decision would be the same.

Mr Waite submitted that, on its true construction, article 28 sits alongside domestic law and does not supplant it. He relied upon the construction given to it in K namely that article 28.1 only applies to persons detained solely because they are subject to Dublin III procedures and that article 28.2 applies to such persons so that detention for the purpose of Dublin III is lawful if it satisfies the conditions laid down in article 28.2, see K paragraphs 63 to 67. Further, in domestic law it is difficult to justify detention unless there is a risk of absconding so that in practice article 28.2 did not add anything to domestic law in that respect. This court should not depart from K unless satisfied that it was clearly wrong, see R v Greater Manchester Coroner, ex parte Tal [1985] 1 QB 67 at p.81B.

The last sentence to preamble (20) to Dublin III provides that:

“As regards the general guarantees governing detention, as well as detention conditions, where appropriate, member States should apply the provisions of Directive 2013/33/EU also to persons detained on the basis of this Regulation.”

Article 8 of Directive 2013/33/EU contains provisions governing detention of persons claiming international protection which are different from those in article 28 of Dublin III. Further, the UK has opted out of Directive 2013/33/EU. Mr Waite submitted that this indicates that article 28 was not intended to be an exhaustive code governing detention.

If the claimant’s interpretation was correct it would preclude detention in a range of circumstances that would make no sense, for example, if more than 3 months had passed since the receiving country had accepted its responsibility to take a person back and the transferring country wished to detain as an immediate prelude to removal.

As to the El Dridi case, Mr Waite said that he had been given very short notice of the claimant’s reliance upon the decision and would wish to take instructions before making any submissions about it.

On the facts Mr Waite submitted that the claimant had already absconded from Switzerland after the ruling that he should be returned to Italy showing his determination to evade immigration controls. As to the first decision to detain, the detention reviews refer both to the risk of absconding and the reasonable prospect of removal. This was a perfectly ordinary case of a person being detained while the Dublin III mechanisms were put in place and there was no illegality.

As to the second decision to detain, by that time the claimant had been the subject of several adverse decisions by the defendant and it was reasonable to conclude that he was at risk of absconding. That applies regardless of whether he was going to be removed to Switzerland or Italy. Further, it was not a straightforward case where the issue of judicial review proceedings should have automatically led to the claimant’s release. There had been recent decisions holding that returns to Italy would not be a breach of article 3 and the defendant was entitled to a proper period to consider the position including whether to apply for expedition. In that context Mr Waite relied upon a witness statement of Vijay Shah dated 7March 2016, in particular paragraph 12, which details the consideration given to the claimant’s case. That was prolonged after the claimant’s solicitors applied for a stay of the proceedings in order to amend their grounds following the decision dated 11June 2015 not to release the claimant.

To the extent that such consideration had taken longer than it might have done, Mr Waite relied upon the decision in Krasniqi paragraph 12 and submitted it was an administrative failing rather than such an unreasonably long period as to amount to illegal detention.

Although there was some difference in emphasis on the applicable law in the submissions of counsel for the claimant and defendant, there is no real disagreement as to the correct principles to apply to determination of the challenge to the defendant’s decisions to return the claimant to Italy.

The starting point is that where the risk of ill treatment proscribed by article 3 arises from non-state agents, there will be no breach of article 3 unless in addition to the risk of ill treatment, the state has failed to provide a reasonable level of protection against such harm, see Bagdanavicius at paragraphs 11 and 24.

As to the standard of protection required, the state is not required to absolutely prevent the proscribed ill treatment from occurring, rather

“There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly there must be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case” Horvath per Lord Clyde at p.510

Lord Clyde went on (p.511A-D) to describe as “helpful guidance” passages from the judgment of Stuart-Smith LJ in Horvath in the Court of Appeal ([2000] INLR 15 at paragraph 22) as follows:

“In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and punish offenders. It must be remembered that inefficiency and incompetence is not the same as unwillingness, unless it is extreme and widespread. There may be many reasons why criminals are not brought to justice including lack of admissible evidence even where the best endeavours are made; they are not always convicted because of the high standard of proof required, and the desire to protect the rights of accused persons. Moreover, the existence of some policemen who are corrupt or sympathetic to the criminals, or some judges who are weak in the control of the court or in sentencing, does not mean that the State is unwilling to afford protection. It will require cogent evidence that the State which is able to afford protection is unwilling to do so, especially in the case of a democracy.”

Although EM did not concern a risk of ill treatment by non-state agents, the “significant evidential presumption” that Member States will comply with their ECHR obligations must in my judgment apply not only to the conditions for reception of asylum seekers (EM paragraph 64) but also to affording reasonable protection to persons at risk of violence from non-state agents. Failure to afford such protection would be as much a breach of article 3 as failure to provide appropriate conditions for the reception of asylum seekers. However, it is plainly right that it is not necessary for the claimant to demonstrate that there are systemic deficiencies in the protection from violence afforded by the member state. As the Supreme Court made clear in EM, the existence of systemic deficiencies may demonstrate that there is a real risk of a breach of article 3, but it is not a hurdle to overcome, see paragraph 63. The issue is whether the individual concerned will be subject to violation of his fundamental rights to which the personal circumstances of the individual will be relevant, see paragraph 41.

When these judicial review proceedings were issued in May 2015 the evidence relied upon by the claimant was contained in his (unsigned) witness statement and some web pages attached to the Grounds of Claim. His witness statement details his personal background and fame, the activities of the YPFDJ and Eri-Blood, his trip to Italy, then Switzerland and the UK, the threats he says he has been receiving since leaving Italy and his fear of violence if he returns there. It says nothing whatsoever about any past or anticipated failure by the Italian authorities to protect him although there is a brief general comment that there is wide support for Eritrea in Italy and a good relationship exists between the countries.

The webpages refer to (1) a visit by the Italian deputy Minister for Foreign Affairs to Eritrea to improve relations between the countries and deal with the problem of migrants leaving Eritrea for Italy, (2) a statement by the Head of Political Affairs of the PFDJ at a seminar for participants in the 40^th Anniversary of Bologna Festival in July 2014 that the objective of Eritreans is to build a potent nation and (3) an accusation that security staff wearing Eri-Blood t-shirts at the Festival attacked anti-government protestors. Again, there is no evidence whatsoever as to any failure of law enforcement by the Italian authorities.

There is some pre-action correspondence from the claimant’s solicitors, but this makes no mention of problems with the Italian authorities, apart from a confusing reference to the Tarakhel case (Tarakhel v Switzerland (2015) 60 EHRR 28) and general reception conditions for asylum seekers in Italy. For the avoidance of doubt, it was no part of the claimant’s case before me that there are any grounds for resisting his return to Italy based on general conditions for asylum seekers.

In my judgment it is quite clear that, at that stage, there was no evidence to support the second pre-requisite of a successful article 3 claim on the grounds of violence by non-state agents, namely that the Italian authorities would not provide a reasonable level of protection against any violence towards the claimant from pro-Eritrean government agents.

Further evidence was served under cover of the claimant’s solicitor’s representations dated 12April 2016. It is worth noting at the outset what this evidence does not say. There is no allegation that there are any systemic deficiencies in the Italian system of law enforcement or that citizens generally are not provided with reasonable protection:

“…we do not suggest that the Italian authorities are in general terms unable or unwilling to provide protection against criminal activities in Italy” (letter from Bindmans dated 12April 2016 page 5)

Instead the argument is summarised thus:

“We do however, argue, for all the reasons set out in our client’s previous grounds, that there is a real risk that, in the light of his unusually high profile, the particular notoriety of his defection from what was to be a major festive event, the likely level of antagonism towards him from pro-government organisations, the strength of the Eri-Blood movement in Italy, that this particular claimant will not be offered protection of the effectiveness required by law.”

I note that the reasons given why the claimant would not be offered protection do not in themselves necessarily demonstrate that that would be the case. Even if Eri-Blood is a movement which uses violence against Eritrean dissidents in Italy, it does not follow that the Italian authorities do not offer reasonable protection against that.

The evidence which is said to support the assertion that the claimant will not be offered protection by the Italian authorities is summarised on page 4 of the representations dated 12 April 2016 as falling into three categories: (1) evidence of Eritrean “oppositionists” who have provided witness statements about their experiences at the hands of pro-Eritrean regime supporters in Italy, (2) a statement by Dr Campbell that Eri-Blood operates with the consent of the Italian police and (3) the passages in Ms Chyrum’s letter quoted at paragraph 16 above.

As to the first, a number of the Eritrean oppositionists describe being assaulted by members of Eri-Blood at a protest which took place at the Festival at which the claimant was due to perform (Meron Bizen and Awet Measho). Both express the view that the police are doing nothing about it and no one has been arrested. Desbelie Tekie says he was assaulted a day after a fight between pro and anti-Eritrean government groups and although he does not know who assaulted him, he believes it was pro-Eritrean government supporters. He too states that the police contacted him in order to take a statement but that no one has been arrested. Abrahalei Tesfai says he was assaulted a few days before the Festival in 2014 and was able to identify two of his attackers as pro-Eritrean government supporters who live in England and that the police have taken no action.

However, it is clear from all of this evidence that the police have taken action. The witnesses state that the police contacted them and took a statement from them about the attacks, in two cases by asking the witness to return from abroad to do so, a proactive approach which is not consistent with an unwillingness to investigate and prosecute crime. Several of the witnesses say that the police tell them they are still investigating. Further, there could be any number of reasons why no one has been arrested including it not being possible to identify the suspect and not being able to trace an identified suspect.

I note that the incidents referred to appear to be limited in number and mainly concentrated around the Festival. In his statement Abrahalei Tesfai also asserts that “we regularly report incidents at the hands of government supporters to the police but they do not do anything to protect the foreigners here”. However, that assertion is vague and unsupported, nor is there any indication of the nature of the incidents. Not every verbal or even physical altercation will amount to ill-treatment which would be proscribed by article 3, see Bagdanavicius paragraph 24.

The high point of Dr Campbell’s report is the assertion in paragraph 40 that “It seems clear that Eri-Blood operates with the consent of the Italian police (members have not been arrested) possibly because Italy is seeking to work with the Eritrean government.” There are a number of points to make about this. First, even Mr Chirico described this as an “over reading” of the situation. Second, the assertion is not supported by any evidence referred to in Dr Campbell’s report which contains no other reference to the position of the Italian authorities towards any conflict between pro and anti-Eritrean government groups. The assertion appears to be derived purely from the reference in parenthesis to the fact that members of Eri-Blood have not been arrested. For the reasons I have already given, that is not evidence of any failure to provide reasonable protection. Third, as to Italy working with the Eritean government, the web pages on which Dr Campbell relies refer to discussions by Norway, Britain and Italy with Eritrea to address the issue of migration from Eritrea. This is hardly surprising and provides no foundation for any complaint that Italian authorities are unwilling to operate the criminal justice system where Eritrean oppositionists are concerned.

Turning to Ms Chyrum’s letter, I have already quoted the relevant passages in paragraph 16 above. The letter does not refer to any specific incidents and draws on the experience of others. These may be the oppositionists whose statements form the first category of evidence relied upon in the representations dated 12April 2016 which would involve double counting. For example, Desbele Tekie says he was put in touch with the claimant’s solicitor by Ms Chyrum.

When evaluating the assertion in the letter that the Italian authorities and police “will not provide protection” to the claimant, it would be right to have regard to the fact that other assertions by Ms Chyrum are contradicted by other evidence relied upon by the claimant. Taking a claim at its reasonable highest does not entail failing to subject the evidence to careful scrutiny or failing to take into account evidence which is unhelpful to the claimant.

It is clear from Dr Campbell’s report and the witness statements of the oppositionists that Ms Chyrum’s statement that “the voice of the Eritrean opposition against the Eritrean government in Italy is almost non-existent” is incorrect. Dr Campbell’s report refers to dissidents in Italy and the statements all refer to anti-Eritrean government groups and protests. Further, the assertion that “the Italian government is the only government in Europe that has close diplomatic and business ties with the Eritrean government” is not supported by evidence and is inconsistent with the references in Dr Campbell’s evidence already mentioned.

Ms Chyrum also refers to an incident in the UK when it is said that the police and MI5 stepped in which she contrasts with the position in Italy. However, the fact that the British system of justice may be more effective than that in Italy, if that is the case, does not demonstrate that the Italian authorities do not offer “reasonable protection”.

In my judgment, far from displacing the “significant evidential presumption” that Italy would comply with its’ ECHR obligations, the evidence demonstrates that there is a system of justice in Italy for the detection, prosecution and punishment of crime which the Italian police have been willing to operate in the case of opponents of the Eritrean government. The fact that this has not resulted in the perpetrators of assaults against four such opponents being arrested is not evidence of unwillingness to operate that system. If, which is not substantiated by the evidence, the failure to bring any perpetrators to justice is evidence of inefficiency or incompetence, that is not the same as an unwillingness to operate the machinery of justice, see the passages in Horvath quoted at paragraph 75 above.

Mr Chirico emphasised the need to have regard to the claimant’s personal circumstances and practical realities, that his fame and the circumstances of his defection make him particularly vulnerable to attacks in Italy. However, there is no evidence at all that as a high profile individual he would not receive commensurate protection from the Italian authorities. There is no evidence that the Italian authorities have been alerted by the claimant to his circumstances and his concerns nor that enquiries have been made as to what steps they would take to afford him “reasonable protection” or offer assurances that any incidents against him would be properly investigated and prosecuted. The experiences of less well known individuals are not evidence that the claimant would necessarily be treated the same way. Further, sufficiency of state protection is not a guarantee of protection from violence but of reasonable provision in the circumstances, Bagdanavicius.

I also accept the submission of Mr Waite that none of the evidence relied upon comes from any independent expert in the Italian legal system. It would be a serious step for a UK court or tribunal to conclude that another EU Member State would be unwilling to operate its criminal justice system for the protection of any opponent of the Eritrean government, let alone someone in the claimant’s position. As Stuart-Smith LJ said in Horvath “It will require cogent evidence that the State which is able to afford protection is unwilling to do so, especially in the case of a democracy” (paragraph 22). In my judgment, in the absence of clear and direct evidence that the Italian authorities have failed to provide the claimant or others in a similar position with reasonable protection from violence by pro-Eritrean government supporters, the court or tribunal would expect a thorough and independent analysis from an expert in the Italian criminal justice system and its operation in relevant cases before beginning to contemplate taking such a step.

Therefore, whatever the risks to the claimant of violence from pro-Eritrean government agents, in my judgment the evidence not only fails to support the claim that the Italian authorities would not afford him “reasonable protection” such that his return to Italy would be a breach of article 3, it provides no proper basis upon which a tribunal considering the facts could reach such a conclusion.

Mr Waite did not dispute Mr Chirico’s submission based on ZT (Kosovo) that the issue for the court is the same as the defendant namely whether on at least one legitimate view of the facts or law the claim may succeed. For the reasons already given I consider that the claim cannot on any legitimate view succeed. I also agree with Mr Chirico that the 27 May 2016 letter supersedes the earlier decision letters in this respect. The criticism that the letter simply expresses a difference of opinion is misplaced. In order to reach a view as to whether a claim is clearly unfounded the defendant must of necessity examine the evidence and reach a view about it.

On the issue as to whether the Italian authorities would provide “reasonable protection”, the letter draws attention to the lack of evidence to support Dr Campbell’s assertion in paragraph 40 of his report that Eri-Blood operates with the consent of the Italian police (paragraph 17), the lack of evidence that a sufficiency of protection would not be available to him (paragraph 19) and states there is no arguable basis for suggesting that the Italian authorities would not investigate, prosecute and punish any crime against the claimant (paragraphs 45 and 46). Paragraph 47 addresses the correct test from Bagdanavicius namely whether the member state has failed to provide reasonable protection against criminal acts and states in paragraph 52 that “a sufficiency of protection would be available to [the claimant] and that the contrary is not arguable”.

In my judgment, the defendant’s conclusion that returning the claimant to Italy would not be a breach of article 3 on the grounds that the Italian authorities offer reasonable protection against violence and that the claim is clearly unfounded is unimpeachable. In those circumstances it is not necessary for me to consider whether the defendant’s conclusions as to the risk of violence by pro-Eritrean government agents are sustainable. I note that in his oral submissions Mr Waite focussed on the issue of “reasonable protection”. In his reply Mr Chirico did not submit that, if the court found for the defendant on the issue of reasonable protection, it would still be necessary to find for the defendant on the first issue (risk of violence) in order for the defendant’s decision to be lawful. Indeed, in Bagdanavicius the House of Lords expressly did not decide the case on the alternative argument that the sufficiency of state protection is an integral part of the ‘real risk’ test (paragraphs 12 and 13) and made it clear that these are “two independent points”, paragraph 27.

There is no dispute that the defendant has a power to decide to determine the claimant’s asylum claim herself both under article 17 of Dublin III and paragraph 5(1) of Schedule 3 to the 2004 Act notwithstanding that Italy is the member state responsible for doing so pursuant to the hierarchy in Dublin III. The issue is whether the defendant failed to consider exercising that power.

In my judgment Mr Waite’s submissions go further than is necessary in this respect. The letter dated 26 March 2015 in which the defendant first decides to certify the claimant’s asylum claim under paragraphs 4 and 5 of Schedule 3 to the 2004 Act is key to determination of this issue. In it the defendant states that the claimant is returnable to Switzerland (an error for Italy) by virtue of paragraph 3(2) to Schedule 3 of the 2004 Act and paragraph 8(1)(c ) of Schedule 2 to the 1971 Act. The letter then continues:

“The Secretary of State will normally decline to examine the asylum application substantively if there is a safe third country to which the applicant can be sent. There are no grounds for departing from this practice in your case”

Then the letter certifies that the conditions in paragraphs 4 and 5 of Schedule 3 to the 2004 Act are satisfied.

In my judgment it is clear from this that the defendant recognises that she has a power to determine the claimant’s asylum claim herself, that normally she will not exercise this power and that she decides not to do so in this case. That is an entirely unexceptional exercise of discretion which cannot be faulted. The whole point of Dublin III is that it provides a clear basis for establishing which Member State is responsible for determining an asylum claim. It is to be expected that a Member State will normally return an asylum seeker to another Member State if that other state is responsible for determining an asylum claim in accordance with the Dublin III criteria.

The error relating to Switzerland was corrected in a letter dated 11 May 2015 and the certificate reissued on 18 December 2015 in the same terms as the letter dated 26 March 2015 but referring to Italy (apart from one typing error). Accordingly, the defendant again recognised that she had a discretion to determine the claimant’s asylum claim herself and decided not to do so.

In his submissions Mr Waite made the point that the claimant had not put forward any grounds on which the defendant should consider his asylum claim over and above the arguments made in his human rights claim relating to Article 3. In his reply Mr Chirico did not challenge this, merely submitting that the claimant was entitled to a decision. For the reasons I have already given in my judgment the defendant did consider whether to exercise her power to determine the claimant’s asylum claim herself and decided not to do so. There were no additional grounds for doing so and it was not necessary for her to give any more reasons than those contained in the letters dated 26 March and 18 December 2015 namely that in the claimant’s case there were no grounds for departing from the normal practice of returning him to the safe first list country with responsibility for determining his asylum claim.

It is convenient to deal first with the issue relating to the application of article 28 of Dublin III. There are two separate questions. First, on its true construction, does article 28.2 prohibit detention unless there is a significant risk of absconding even if the power to detain is being exercised at common law rather than pursuant to Dublin III? A similar question arises in respect of the time limit set out in article 28.3. Second, does article 28 have direct effect such that the claimant may rely upon it in this claim against the defendant? These questions are to some extent interlinked, because whether article 28 has direct effect depends upon whether it is sufficiently clear and unconditional and requires no legislative intervention, (Case 26/62 Van Gen den Loos v Nedelanse Administratie der Belastingen [1963] ECR 1).

Both of these questions were decided adversely to the claimant in K and in my view the relevant paragraphs of that decision merit setting out in full:

“Article 28 – Proper Construction

59.

The Claimants argue there is, at its lowest, a presumption of liberty under the Dublin III Regulation where a person is subject to the transfer procedure. But the Claimants go much further. First, it is said that that presumption of liberty is governed by the fundamental EU law principles of necessity and proportionality. The principles of proportionality require minimum interference and individualised consideration of the need for a person's detention. These general principles, Mr Chirico argued, cannot stand alongside any assertion that “imminent removal directions give rise, automatically or through generalising presumption, to a necessity for detention”.

60.

Second, and for present purposes of even greater significance, it is said that Article 28(2) has the effect that it is only when there is a significant risk of absconding, that Member States may detain the person concerned in order to secure transfer, and then only on the basis of an individual assessment and only in so far as detention is proportionate and other less coercive alternative measures cannot be applied effectively.

61.

Mr Chirico contended that, if that is right, these provisions very significantly reduce the grounds upon which detention may be justified in the Dublin III context. Detention, it is said, is not permitted on the sole ground that removal is imminent, or that there is a realistic prospect of removal. Domestic law, so far as it permits otherwise, is displaced.

62.

The Defendant submits that Article 28 means what it says. Article 28(1) requires that Member States should not make provision to treat foreign nationals falling within the Dublin process as a distinct class that will always be detained on the basis that they are within the Dublin process as the sole detaining criterion. Article 28(1) effectively says “do not detain foreign nationals falling within the Dublin system solely because they fall within the Dublin system where they would not otherwise be detained under national law”.

63.

The Defendant argued that the Claimants' submissions erroneously seek to do the complete converse – to require Member States to treat Dublin cases as a distinct class of case and to misapply national provisions so that detention can only be justified on a Dublin basis and so only where certain conditions apply. She says that the Claimants have conjured a “presumption of liberty” from a provision that concerns only the extent to which simply being within the Dublin process in itself can be used as a justification for detention.

64.

In the course of argument at the March 2016 hearing I put to Mr Chirico what had been my reading of Article 28(1) when I first considered it, before I had had sight of the skeleton arguments in this case. I said that Article 28(1) appeared to me to mean that a Member State could not hold a person in detention simply because he was subject to the Dublin III procedures. Mr Chirico agreed. I suggested that that carried with it the implication that, if their detention was justified on other grounds under national law, Article 28 did not make that detention unlawful. Mr Chirico agreed that that might flow from Article 28(1) if read alone, but he said such an interpretation could not survive consideration of Article 28 (2).

65.

I disagree. Further reflection has confirmed me in the view I expressed as to the natural reading of Article 28 (1). And if that is right, I fail to see how Article 28(2) has caused the radical transformation of English domestic law governing the removal of non-UK citizens for which Mr Chirico contends. Article 28(2), in my judgment, applies in the circumstances covered by Article 28(1), namely where the detention is solely for the purpose of a removal under Dublin and not when the detention is authorised under some free-standing domestic law provision.

66 The Immigration Act 1971 provides that a person who does not have current valid leave to remain is subject to administrative removal. The Claimants fall into that category. As noted above, the 1971 Act gives powers of detention provided by paragraph 16(2) of Schedule 2. That was the power exercised in the case of these Claimants. The fact that the Defendant then decided to employ the Dublin III provisions to effect removal to Bulgaria does not affect the legality of the detention. Article 28 governs and conditions the exercise of powers to detain when Dublin III is the source of the power to detain and remove; it does not abolish the pre-existing power under English domestic law to detain a non-UK citizen with no right to enter or remain in the UK pending their removal by whatever lawful means are available to the Defendant.

67.

When Article 28(2) refers to “the person concerned”, it is referring to persons described in Article 28(1), namely a person held “ in detention for the sole reason that he or she is subject to the procedure established by this Regulation”. The detention referred to in 28(3) is detention pursuant to 28(1). None of the remainder of the Article applies to a person whose detention is based on a power other than the Dublin Regulations.

68.

In those circumstances I reject the Claimants' argument that they can point to alleged breaches of that Article as being enough to render their detention unlawful.

69.

Even if were not possible to conclude with confidence that that is the proper interpretation of Article 28, it seems to me sufficiently realistic a reading of the provision as to mean that it cannot be said that the Article is sufficiently clear and unconditional, as to make reliance on it possible by a detained person in the position of these Claimants.

Conclusion on Article 28

70.

It follows that I conclude that Dublin III is capable of direct effect, that whether or not it has that effect depends on an analysis of the individual Article concerned but that Article 28 does not provide an individual with a right to challenge administrative detention by the UK in circumstances such as the present.”

In my judgment the reasoning of Garnham J as to the proper construction of article 28 is compelling and I respectfully agree with it. I need add only a few words of my own.

Article 28.1 prohibits detention for the sole reason that the person is subject to the transfer procedure in Dublin III. Article 28.2 goes on to refer to a power to detain when there is a significant risk of absconding by “the person concerned”, “in order to secure transfer procedures” in accordance with Dublin III. If “the person concerned” did not refer to the persons described in article 28.1, there would be no reason to use that language and article 28.2 would simply refer to “the person”. Further, Mr Chirico’s argument that, because article 28.1 contains an absolute prohibition on detention for the sole reason of transfer in accordance with Dublin III, article 28.2 cannot be referring to persons so detained, ignores the fact that both provisions are concerned with detention in connection with transfer. Article 28.1 applies to persons “subject to the procedure established by this Regulation”. Article 28.2 applies to persons detained “in order to secure transfer procedures in accordance with this Regulation.” The only “procedure” established by Dublin III for which a Member State might wish to detain a person is their transfer to another member state.

In this case the defendant exercised the same powers to detain in paragraph 16(2) of Schedule 2 to the 1971 Act as she did in K pending removal of persons claiming asylum to Bulgaria pursuant to Dublin III. Accordingly, and it was not suggested otherwise, there is no material difference between that case and this so far as this issue is concerned.

The material which Mr Chirico relied upon in support of his argument that the decision in K is wrong relates to the issue of whether article 28 has direct effect, they do not detract from the proper construction of the wording set out above. The pre-Dublin III material simply summarises the objective of article 28 and does not in my view detract from the need to examine the wording in order to determine its true meaning and whether it is sufficiently clear and unconditional to have direct effect. Further, notwithstanding Mr Chirico’s submission that he did not refer Garnham J to this material because he did not anticipate losing his argument, he has not stinted in his references in support of his arguments generally and I consider that if this material properly advanced his case he would have relied upon it before Garnham J.

The requests for preliminary rulings do not reflect the views of the European Court or of the Advocate General and in my view can have little weight. Further, it appears from paragraph 2 in the request from Sweden (Case C-60/16) that it raises the issue as to whether article 28 has direct effect rather than assuming that it does. As for the El Dridi case, a decision as to whether provisions of a different Directive, albeit one concerned with detention, have direct effect can be of limited weight when considering whether article 28 has direct effect. It is therefore not necessary for me to give the defendant time to make further submissions on this case.

For these reasons I am not convinced that the decision in K is clearly wrong and I follow it. Garnham J also declined to make a reference to the CJEU for the same reasons as he gave in his decision as to the meaning and effect of article 28. For the same reasons I also decline to make a reference.

Turning to the challenge to the claimant’s detention as being contrary to the Hardial Singh principles, the periods when the claimant was detained are 19 January to 6 February 2015 when he was granted bail (19 days) and 15 May to 23 June 2015 (40 days).

As to the first period of detention, Mr Chirico drew attention to the fact that the notice to detainee dated 19 January 2015 which set out the reasons for his detention did not have the first box ticked namely that the claimant was likely to abscond. Instead the last box was ticked namely that the asylum application may be decided quickly. The reasons given for that were that the claimant does not have close ties in the UK and the application may be one that can be decided quickly. Thereafter the detention reviews starting on 21 January do state he is likely to abscond. However, in that respect Mr Chirico submitted that the defendant had failed to have regard to the fact that the claimant had an address in the UK, had voluntarily presented himself to the asylum unit and been honest about his circumstances.

In his asylum screening interview on 19 January, the claimant said that he had arrived in Italy from Eritrea by air, then travelled to Switzerland before coming to the UK. Further, the form IS.126E of the same date identifies the Eurodac match which was to Switzerland. The power to detain in paragraph 16(2) of Schedule 2 to the 1971 Act arises if there is a “reasonable ground for suspecting” that a person may be removed. That was undoubtedly the case. It would have been clear that a request could be made to Switzerland under Dublin III. Further, in my judgment the same was true so far as removal to Italy was concerned, whether on initial detention by virtue of the fact that the claimant’s solicitors had on 16 January 2015 sent a copy of the Swiss court ruling that it was safe to return the claimant to Italy, or on 26 January 2015 when the Swiss refused the request to take the claimant back on the grounds that Italy was the state responsible for determining his asylum claim.

Further, the defendant was entitled to take the view that removal might be effected within a reasonable period of time, a factor clearly relied upon at every stage of his detention, even if it was not possible to say exactly when that would be. As Mr Waite submitted, this was an ordinary case of a person being detained while Dublin III mechanisms were put in place. Although the claimant’s solicitors had opposed his return to Italy, the judgment of the Swiss Court clearly rejected the argument that he would be at greater risk of harm from violence in Italy than in Switzerland. Thus there was a reasonable expectation that the claimant could be returned to Switzerland or Italy which could be expected to take place within a reasonable period of time. The fact that it was not until 20 April that the claimant’s human rights claim was rejected has to be seen in the light of the fact that he was bailed on 6 February so there was not the same urgency.

The request to Switzerland was made on 22 January 2015, 3 days after his initial detention and the request to Italy was made on 8 February 2015, 13 days after the refusal from Switzerland on 26 January. In my judgment it was not unreasonable to make a request to Switzerland given the Eurodac hit and in any event that request only accounts for four days of the claimant’s detention (22-26 January). Further, the short delay in making a request to Italy cannot be characterised as unreasonable so as to amount to illegality or a failure to act with reasonable diligence. Even if, with the benefit of hindsight, it could be said that the defendant should have realised Switzerland would refuse to accept responsibility for the claimant’s asylum claim, having regard to all of the circumstances, including the very short additional four-day period of detention, this was plainly an administrative failing that was not so unreasonable as to amount to illegality, see Krasniqi paragraph 12.

As to the risk of absconding, although this was not referred to in the initial notice to detainee, it would have been an obvious consideration in the mind of the decision-maker given the claimant’s lack of ties in the UK which “make it likely that you will stay in one place”, see the notice to detainee which has this box ticked, and his illegal entry to the UK after absconding from Switzerland when the authorities decided to return him to Italy. It is referred to in every detention review and the fact that it does not appear on the initial notice does not render the decision to detain unlawful as being contrary to Hardial Singh principles. Whether those considerations outweighed the positive matters relied upon by Mr Chirico was a matter for the defendant. It cannot be said the defendant was unaware of them as they are clear from the claimant’s asylum interview, his solicitors letter dated 16 January 2015 and the detention reviews.

The fact that the claimant was granted bail on 6 February does not convert what was previously a lawful detention into an unlawful detention. Further, in my judgment the overall period of 19 days was not an unreasonable period in all the circumstances.

Turning to the second period of detention, by 15 May 2015 the defendant had certified the claimant’s asylum claim under paragraphs 4 and 5 of Schedule 3 to the 2004 Act (26 March 2015), had considered and rejected the human rights claim and had certified it under paragraph 5(4) of Schedule 3 to the 2004 Act (20 April 2015). Further, on 11May 2015 she had clarified that the intention was that Italy would determine the claimant’s asylum claim i.e. the claimant would be returned to Italy as specified in the letter dated 20 April.

Mr Chirico submitted that in detaining the claimant on 15 May the defendant failed to have regard to the fact that the claimant had met all his conditions of bail and there were two sureties in place. There was no proper basis on which it could be concluded that he was likely to abscond. Further, he submitted that the defendant could not properly conclude that the claimant could be removed either imminently or within a reasonable period of time, especially after these proceedings were lodged on 22May.

The reasons given for detention in the notice to detainee refer to the claimant being likely to abscond and that his removal from the UK is imminent based on him having no lawful basis to be in the UK and his previous failure to leave the UK when required to do so. By that stage the claimant had exhausted his remedies in the UK short of judicial review and there were ample grounds for concluding that he was likely to abscond as he had done in Switzerland, even though he had previously complied with his bail. Further, there were reasonable grounds for suspecting that he was a person in respect of whom removal directions may be given and within a reasonable period of time.

Mr Chirico relied upon the fact that detention reviews do not refer to the risk of absconding. However, again in my view the risk of the claimant absconding would be obvious and the fact it is not referred to after the initial reasons to detain does not render detention unlawful as being contrary to Hardial Singh principles.

Turning to the period after these proceedings were served on 22 May 2015, the claim form was not issued by the court office until 29May and the defendant was entitled to a reasonable period of time to consider the claim which had not been the subject of a formal pre-action protocol letter. As I have already held, at this stage there was no evidence to satisfy the second test set out in Bagdanavicius which is referred to in paragraph 46 of the Detailed Statement of Facts and Grounds Relied Upon. The period of detention while an unmeritorious judicial review was being pursued carries limited weight, Lumba paragraph 121.

Although no application for expedition was in fact made, the detention reviews dated 5 June and 12 June 2015 refer to the possibility of expedition as do the case record sheets for 9 and 10 June. Mr Chirico submitted that there was no evidence to support the view that Dublin III claims are likely to be expedited. However, the detention review indicates that an application for expedition was being considered and in my judgment it was reasonable both to consider applying for expedition and to continue to detain the claimant until making an application for expedition had been considered. If an application for expedition had been made and granted there was a prospect of the judicial review proceedings being concluded within a reasonable time.

There are references in the claimant’s detention reviews to attempts being made to remove him during this period. A request was made to remove him on 8 June and although this was refused by TASCOR (security staff responsible for removal) on the grounds of lack of capacity, flights were in the process of being set (detention review dated 29 May 2015). Flights were requested and a date was pending for 17 June but this was cancelled as a result of the judicial review proceedings (detention review dated 5 June 2015). Again, the fact that the defendant could not specify, whether before or after commencement of the judicial review proceedings, exactly when the claimant would be removed, does not mean that there was not a reasonable prospect of removal, see Muqtaar.

The case record sheets refer to draft summary grounds being awaited from the Government Legal Department (15 June), an agreement to giving the claimant time to send amended grounds (19 June) and receipt of a bail application (20 June). On 22 June the defendant indicated bail would not be opposed and the claimant was released on 23 June 2015.

In my judgment, the defendant was acting with reasonable diligence to effect removal and when she took the view that removal within a reasonable period was not going to be possible, the claimant was released. Again, even if, with the benefit of hindsight, it could be said that the defendant should have considered the effect of the judicial review proceedings, including the issue of expedition, more swiftly, in my judgment this was plainly an administrative failing that was not so unreasonable as to amount to illegality, see Krasniqi paragraph 12.

Further, in all the circumstances the total period the claimant spent in detention (40 days) was not unreasonable. Accordingly, the claim that detention between 15 May and 23 June was unlawful as being contrary to the second, third and fourth Hardial Singh principles is rejected.

For all these reasons this claim for judicial review fails.