R (on the application of Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin) (11 August 2011)

The case concerned a challenge to the removal of a mandate refugee to the Republic of Cyprus under the Dublin Regulations II. In a judgment by Mr Justice Sales, the judicial review claim was refused on all grounds.

Significantly, the judgment provides guidance on the domestic approach to cases under the Dublin Regulations II following the European Court of Human Rights judgment in MSS v Greece & Belgium, concerning the return of an asylum-seeker to Greece. There must be reliable sources of evidence showing a real risk of refoulement or human rights breaches in the receiving state to engage the ECHR obligations of the sending state.

The Claimant relied on published reports from international bodies and local NGOs, two of which provided expert reports. It was held that reports from local NGOs carried considerably less weight than reports from international bodies. Unlike international bodies, local NGOs do not have the resources nor the general perspective on acceptable standards of protection for asylum-seekers. They risked being “one-sided”. Furthermore, it was not appropriate for MSS-type claims to refer to private expert reports.

The judge found that whilst certain criticisms can be made about aspects of the asylum procedures in Cyprus, there was no equivalent pattern of adverse reporting from respected international organisations as in the context of Greece. It was significant that the UNHCR itself (as opposed to its implementing partner) had not made adverse comments. The availability of the Rule 39 procedure from Cyprus to the ECtHR was a significant factor. The detention and living conditions for asylum-seekers in Cyprus did not give rise to the same serious problems as arose in Greece.

In addition, the judgment confirms that the UKBA can lawfully apply the Dublin Regulations II to mandate refugees. The UKBA’s policy provides that mandate refugees who apply in-country for settlement in the UK must be considered under the Geneva Convention. Whilst the wording of the policy was criticised, the judge held that the policy did not give rise to a legitimate expectation, in the absence of a clear and unambiguous statement, that the SSHD would herself consider the claim and will not seek to apply the Dublin Regulations II.

Leave to appeal is being considered.