Saeedi in the Court of Appeal 12 July 2010

Below a Briefing from Roopa Tanna, conducting solicitor in Saeedi, now at the Immigration Advisory Service

Dear All,

I write to provide the group with an update in relation to the case of Saeedi concerning third country removals to Greece. After the tragic closure of the RMJ, the IAS very kindly stepped in at short notice so that the hearing on 12th July in the Court of Appeal could go ahead. Saeedi's counsel were Dinah Rose QC, Mark Henderson, and Alison Pickup.

The Home Secretary indicated shortly before the hearing that he now conceded that Cranston J had erred in holding that the UK's Protocol to (often referred to as an 'opt out' from) the EU Charter of Fundamental Rights meant that it could not be directly relied upon in the UK. That means that the Charter can be directly relied on in the UK as in the rest of the EU, including the rights to human dignity (Article 1), asylum (Article 18) and Article 47 (fair hearing) on which Saeedi relied.

The Home Secretary continued to oppose a reference to the Court of Justice of the European Union. After argument, the Master of the Rolls gave a judgment yesterday making a reference to the Court of Justice, staying the remainder of the case, and recording the Home Secretary's acceptance that the EU Charter of Fundamental Rights could be directly relied upon in the UK. The Master of the Rolls referred to the concern expressed by the Equality and Human Rights Commission, which had intervened in the Court of Appeal proceedings on this point, that the Home Secretary's concession should be made known so that Cranston J's judgment was not followed by other courts which were unaware of the concession. UNHCR, Amnesty, and the AIRE Centre also intervened.

The reference will deal with the scope of the rights to human dignity, asylum, and a fair hearing and the extent to which they can be relied upon to challenge transfers between Member States under the Dublin Regulation and the scope of the article 3(2) discretion (which allows member states to take responsibility for an asylum claim when it would not normally be their responsibility under the Dublin criteria). The likely timescale in the Court of Justice will depend on whether it is applies its urgent procedure, which the CA is likely to request it to do.

The reference is in relation to the EU Law aspects to the case i.e. whether the SSHD should be required to take responsibility for the claim under art 3(2) of the regulation where the evidence shows that Greece does not comply with EU fundamental rights and/or with the minimum standards in the asylum directives, as well as the question whether the deeming provision is compatible with EU law.

In relation to the remainder, particularly whether removal to Greece would breach article 3 of the ECHR (either because of conditions in Greece, which are appalling, or because of the risk of onward refoulement), the court stayed the appeal in its entirety, including the ECHR issues, pending the outcome of the reference. (Cranston J had already granted permission to appeal on all grounds.) The Court of Appeal also took note of the fact that the Grand Chamber of the ECtHR has listed a hearing of MSS v. Belgium and Greece. That case is due to be heard on 1st September and will consider the question of returns to Greece under Dublin (and will of course supersede KRS). It may well be however that that the ECtHR will not hand down judgement until the CJEU has made a preliminary ruling on the EU issues.

This means that the case is unlikely to be resolved before the end of the year. In relation to cases where JR proceedings have already been lodged, then presumably people should have had and signed a consent order agreeing for cases to be stayed pending judgement of the Court of Appeal. As yesterday's judgment was not a final judgment, those orders remain in place.

In relation to clients with RDs, Tsol had previously stated that RDs would be deferred on receipt of a CO reference and that they would agree to a stay on any JR pending the outcome of Saeedi but I have heard of one case in particular where a client was removed despite his solicitors having lodged proceedings. Due to this, we are likely to seek a written undertaking from TSols that RDs will be deferred following confirmation that proceedings have been lodged and if they refuse to do so, then we will seek to get an order from the Court. If you know of other cases where clients were removed to Greece, despite proceedings having been lodged, or if Tsol refused to agree to stays, could you please contact me direct at roopa.tanna@iasuk.org. I will keep the group advised on the issue of stays.

Regards

Roopa Tanna

Roopa Tanna
Immigration Advisory Sevice
Higher Appeals Department
1st Floor, County House
190 Great Dover Street
London
SE1 4YB
Tel: 020 7967 1201
Fax: 020 7967 1456