FOURTH SECTION

DECISION

Application no . 24239/09 Javad NASSERI against the United Kingdom

The European Court of Human Rights ( Fourth Section ), sitting on 13 October 2015 as a Chamber composed of:

Guido Raimondi , President, George Nicolaou , Ledi Bianku , Nona Tsotsoria , Paul Mahoney , Faris Vehabović , Yonko Grozev , judges, and Françoise Elens-Passos , Section Registrar ,

Having regard to the above application lodged on 8 May 2009 ,

Having deliberated, decides as follows:

FACTS AND PROCEDURE

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

2 . The applicant travelled from Afghanistan to Greece in December 2004 and claimed asylum. That application was rejected on 1 April 2005.

3 . On 5 September 2005 the applicant entered the United Kingdom unaccompanied and claimed asylum there. On 3 October 2005 the Secretary of State for the Home Department certified the applicant ’ s asylum claim under Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 (“the 2004 Act”) because Greece was on a list of countries deemed “safe” by paragraph 3(2 )( b) of Part 2 of Schedule 3 (“the deeming provision”). Pursuant to Council Regulation (EC) No. 343/2003 (“the Dublin II Regulation”), which provided that the first Member State an asylum seeker entered should be responsible for examining the asylum application, the Home Office asked the Greek authorities to accept responsibility for determining his claim. The Greek authorities agreed to do so and he was notified that he would be removed to Greece on 14 October 2005.

4 . On 12 October 2005 the applicant provided the Secretary of State with advice from the UNHCR which raised concerns about the safety of Greece for asylum seekers returned under the Dublin II Regulation. In particular, he claimed that if sent to Greece there was a real risk he would be returned to Afghanistan to face inhuman or degrading treatment contrary to Article 3 of the Convention. Consequently, he submitted that the Secretary of State ’ s reliance on the deeming provision was incompatible with Article 3 of the Convention.

5 . The Secretary of State declined to defer the removal directions because the deeming provision created an irrebuttable presumption that Greece was not a place from which the applicant would be sent to another State in breach of his Convention rights.

6 . On 13 October 2005 the applicant sought permission to apply for judicial review in order to quash the Secretary of State ’ s decision . Following the application a n injunction was granted preventing the applicant from being removed on 14 October 2005 . The applicant subsequently amended his judicial review application to add, in the alternative, a claim for a d eclaration of i ncompatibility.

7 . Before the domestic courts the only live issue was whether a d eclaration of i ncompatibility should be made .

8 . In a judgment given on 2 July 2007, the High Court Judge held that the fact that the Secretary of State was precluded from considering whether or not there was a risk of unlawful “ refoulement ” from Greece was itself a breach of the applicant ’ s rights under Article 3 of the Convention . The judge therefore declared that paragraph 3(2 )( b) of Part 2 of Schedule 3 to the 2004 Act was incompatible with Article 3 of the Convention.

9 . On 14 May 2008 the Court of Appeal allowed the Secretar y of State ’ s appeal against the decision of the High Court. In doing so, it held that there was no “freestanding duty to investigate” under Article 3 of the Convention. It accepted that the procedural aspect of Article 3 required “an effective official investigation” after an arguable complaint of ill-treatment had arisen . However, it found that there was no authority for the very different proposition that Article 3 included an obligation to investigate a future risk of a substantive violation. Therefore, w hile the court accepted that there was a need for “rigorous scrutiny” where an individual claimed that expulsion would expose him to Article 3 ill- treatment, it found that this was “not a distinct, separate or adjectival duty but rather a necessary incident of the substantive obligation to fulfil Article 3”.

10 . Against that background, the court noted that although the Secretary of State could not herself delete S tates from the list she was entitled, and, in fact, obliged, to monitor the S tates on the list to ensure individual compliance and, furthermore, the court was entitled, upon receiving an application for a d eclaration of i ncompatibility, to investigate whether any particular S tate fell foul of Article 3 in a specific case or generally. It therefore concluded that the list system was not in principle incompatible with Article 3.

11 . The court then considered up-to-date evidence concerning the situation in Greece and concluded that as matters stood its presence on the list did not offend the United Kingdom ’ s Convention obligations. It therefore followed that there was no case for a limited declaration of incompatibility in respect of Greece.

12 . T he court therefore discharged the d eclaration of i ncompatibility granted by the High Court Judge.

13 . The applicant was granted leave to appeal to the then House of Lords, which dismissed the appeal on 6 May 2009. The leading judgment was given by Lord Hoffmann, with whom the other judges concurred. Lord Hoffmann agreed with the Court of Appeal that there was no “freestanding duty to investigate” since the focus in Str asbourg was not on the decision ‑ making process but on whether a Convention right had been violated . Consequently, there was no right to have a decision made in any particular way, but the other side of that coin was that an impeccable decision-making process would be of no avail if the decision-maker got the answer wrong.

14 . Lord Hoffmann went on to consider whether or not the Court of Appeal was right in the reason it gave for discharging the d eclaration of i ncompatibility, namely that removal to Greece would not infringe the applicant ’ s Article 3 rights. In doing so, he had regard to the up-to-date evidence and the recent decision in K.R.S. v the United Kingdom ( dec. ), no 32733/08, 2 December 2008, which he believed confirmed the validity of the conclusions reached by the Court of Appeal. He concluded that there was no evidence of any risk that the applicant would be returned from Greece to Afghanistan.

15 . On 8 May 2009 the applicant lodged his complaint with this Court. He complained that the United Kingdom Government had acted incompatibly with his rights under Article 3 of the Convention, read alone and together with Article 13, because the deeming provision had prevented them from giving rigorous scrutiny to his complaint that he would be at risk of onward “ refoulement ” if returned to Greece.

16 . Following its judgment in M.S.S. v. Belgium and Greece [GC], no. 30696/09, ECHR 2011 , the Court communicated the applicant ’ s complaints on 23 September 2013, posing the following questions to the parties:

“1. Did the application of paragraph 3(2)(b) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 in the present case breach the applicant ’ s rights under Article 3 of the Convention, either read alone or in conjunction with Article 13 of the Convention?

2. In any case, can the applicant claim to be a victim of a violation of Article 3, or did the finding of the Court of Appeal and the House of Lords that removal to Greece would not infringe his Article 3 rights, or any of the subsequent domestic proceedings, remove his status as a victim?”

THE LAW

17 . Following communication, the Government notified the Court that the applicant had been granted asylum in the United Kingdom on 12 July 2013. In light of this development, they asked the Court to strike the application from its list of cases. However, in view of the procedural nature of the questions put to the parties, the applicant did not agree to the strike out and the Court refused the request, preferring to first see the parties ’ submissions.

19 . Therefore, i n light of the above, the Court considers that the matter has been resolved within the meaning of Article 37 § 1 (b) of the Convention and that respect for human rights as defined in the Convention and its Protocols does not require it to continue the examination of the application under Article 37 § 1 in fine .

20 . Accordingly, the case should be struck out of the list.

For these reasons, the Court, unanimously,

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

Done in English and notified in writing on 5 November 2015 .

Françoise Elens-Passos Guido Raimondi Registrar President