Third Country Removals to France and the Charter of Fundamental Rights

By Raza Halim

Toufique Hossain (Duncan Lewis) and I are running two cases in the Administrative Court challenging decisions to certify asylum claims and removal to France under the Dublin II Regulation. The Claimants in both cases are Non-Arab Darfuri Sudanese nationals, which augments their claims further still for reasons set out below.

Both cases argue that removal to France would give rise to a real risk of a breach of the Claimants’ fundamental rights to asylum (Art. 18) and to an effective remedy (Art. 47) under the Charter of Fundamental Rights and Freedoms.

The claims rely upon the Strasbourg court’s decision in I.M. v France ECHR 043 (2012), where the applicant in that case had had his case determined within the ‘priority procedure’, or in more familiar terms, the detained fast track, in France. The Strasbourg court in I.M. held that the absence of an effective suspensive remedy following refusal by the French authorities of an asylum claim made within the priority procedure and prior to a determination of that claim by the first-instance court, amounted to a violation of Article 13 taken together with Article 3 ECHR where the applicant had not had an effective remedy in practice by which to assert his complaint under Article 3 of the Convention. It was held to be no answer to the absence of such a remedy that the applicant had recourse to Rule 39 of the Rules of the ECtHR to prevent removal.

The Strasbourg court also provided comment on the applicant having been adversely affected by the conditions in which he had had to prepare his claim and the inadequate legal and linguistic assistance provided, as well as the short deadlines imposed and the practical and procedural difficulties in producing evidence for applicants within the priority procedure. Interviews prior to decision-making were brief despite the complexity of the issues involved and where the applicant was making an asylum claim for the first time. To that end the Court outlined what Art. 13 demanded in a removal setting in order that an effective remedy is to be deemed available.

In both cases, the Secretary of State in written and oral submissions has sought to rely upon the line of authorities culminating in the CJEU’s decision in NS v United Kingdom (C-411/10) and the ECtHR’s judgment in M.S.S. v Belgium and Greece (30696/09)). She has also sought to argue that I.M. was a case restricted to its own facts and that in any event, redress was to be sought in France by making any such complaint against that country by way of an application to Strasbourg.

The strength of these claims is augmented by the profile of the claimants, who are both Non-Arab Darfuris from Sudan. Domestic country guidance authority governing returns to Sudan in AA (Non-Arab Darfuris – relocation) Sudan CG [2009] UKAIT 00056 is exceptionally stark and unqualified in its finding that “All non-Arab Darfuris are at risk of persecution in Darfur and cannot reasonably be expected to relocate elsewhere in Sudan.”

It is being argued in these claims that where there exists evidence that Non-Arab Darfuri Sudanese nationals (either accepted as such by the French authorities or not yet finally determined by the French Courts because of the effect of removal action) are being removed by the French authorities to Sudan, any removal by the United Kingdom of these Claimants to France would potentially amount to refoulement for the purposes of the 1951 Convention Relating to the Status of Refugees, where Article 33 can be breached indirectly as well as directly (see Adan in the House of Lords).

Both claims have now been granted permission by the Administrative Court on the papers and following an oral hearing respectively, the latter having previously been adjudged to have been totally without merit, and both requiring at one stage paper and telephone applications for injunctive relief. The claims are listed for trial in October 2013.

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