R (on the application of Hassan and Another) v Secretary of State for the Home Department (Dublin – Malta; Charter Art 18) IJR


[2016] UKUT 452 (IAC)

The Upper Tribunal considered the lawfulness of returning two asylum-seekers to Malta, where they claimed their fresh asylum claims would not be fairly determined, thus breaching their rights under Articles 4 and 18 of the Charter of Fundamental Rights of the European Union. The Respondent Secretary of State argued that there was no such risk, per Hagos v Secretary of State for the Home Department (Dublin returns – Malta) IJR [2015] UKUT 271 (IAC); that Article 18 could not form the basis of a legal challenge to removal under the Dublin III Regulation; and that if it could, the Applicants would need to demonstrate a ‘flagrant breach’ of Article 18.

The Panel held:

(i) There have been significant developments in Malta during recent years. While there may be imperfections in the Maltese asylum decision making processes, these are not sufficient to preclude returns under the Dublin Regulation and, in particular, do not amount to a breach of Article 18 of the EU Charter.

(ii) While Article 18 of the EU Charter confers rights of a procedural nature, the evidence does not establish that these will be infringed in the event of either of the Applicants pursuing a fresh asylum claim in Malta.

(iii) The limitations of the mechanisms available under Maltese law for challenging refusal of asylum decisions do not infringe Article 18 of the EU Charter.

(iv) In judicial review, decisions of the Administrative Court are not binding on the Upper Tribunal: Secretary of State for Justice v RB [2010] UKUT 454 (AAC) applied.

(v) Per curiam: Article 18 of the EU Charter provides an avenue for challenging transfer decisions under the Dublin Regulation.

(vi) Per curiam: Where a Dublin Regulation transfer decision is challenged under Article 18 of the EU Charter, the ECHR “flagrant breach” standard does not apply. Rather, the test is whether there is a real risk of a breach of Article 18.

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