Secretary of State for the Home Department v Nasseri

Factual and Procedural Background

The Appellant, an Afghan national, entered The United Kingdom clandestinely in September 2005 after previously seeking asylum in Greece. Pursuant to Council Regulation (EC) No 343/2003 (“Dublin II”), responsibility for examining his asylum claim lay with Greece. The Respondent, the Secretary of State, therefore decided to remove him to Greece.

The Appellant sought judicial review, contending that return to Greece would expose him, indirectly, to treatment contrary to Article 3 of the European Convention on Human Rights (“ECHR”). Because paragraph 3(2)(b) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 deems listed states such as Greece safe, the Secretary of State maintained that the decision was lawful. At first instance the judge issued a declaration of incompatibility, concluding that the statutory “conclusive presumption” prevented any investigation into the real risk of refoulement and thus breached Article 3.

The Court of Appeal set aside that declaration after examining evidence and finding no real risk that Greece would remove the Appellant to a country where he would face ill-treatment. The present opinion—issued by the Appellate Committee of the House of Lords—addresses the Appellant’s further appeal.

Legal Issues Presented

1. Whether removal of the Appellant to Greece under the Dublin II Regulation would expose him to a real risk of treatment contrary to Article 3 ECHR.
2. Whether paragraph 3(2)(b) of Part 2 of Schedule 3 to the 2004 Act is incompatible with Article 3 ECHR, thereby justifying a declaration of incompatibility under section 4(2) of the Human Rights Act 1998.
3. Whether Article 3 imposes a “freestanding duty” on the Respondent to investigate potential refoulement risks irrespective of the actual existence of such risks.

Arguments of the Parties

Appellant's Arguments

• Paragraph 3(2)(b) creates an irrebuttable presumption that Greece will respect Convention rights, preventing any substantive inquiry and thereby breaching Article 3.
• Article 3 entails a procedural obligation on the Respondent to investigate the risk of refoulement; failure to do so is itself a violation, warranting a declaration of incompatibility.
• Evidence from UNHCR, Amnesty International and other sources demonstrates systemic deficiencies in Greek asylum procedures, creating a real risk of indirect return to Afghanistan.

Respondent's Arguments

• The statutory presumption coincides with reality: evidence shows Greece does not remove Dublin returnees to countries where they face ill-treatment; therefore no incompatibility arises.
• Article 3 safeguards are substantive, not procedural; the correct question is whether a real risk exists, not whether an investigation occurred.
• Courts should not issue abstract declarations of incompatibility where, on the facts, the Appellant’s Convention rights are not violated.

Table of Precedents Cited

Court's Reasoning and Analysis

No freestanding procedural duty. The court held that Article 3 protects against actual exposure to inhuman or degrading treatment; it does not impose an independent obligation merely to investigate. Consequently, the statutory presumption is not itself a breach unless it results in exposure to risk.

Assessment of real risk. Examining UNHCR notes, NGO reports, and the recent decision in KRS v United Kingdom, the court found no evidence that Greece repatriates Dublin returnees to Afghanistan, Iran, Iraq, Somalia or Sudan. Recent Greek legislative reforms and the availability of interim measures under Rule 39 were additional safeguards.

Approach to declarations of incompatibility. A declaration is a remedy of last resort. Because the Respondent’s act of removal was not incompatible with Article 3 on the facts, issuing a declaration would be unnecessary and inappropriate.

Role of other EU institutions. The court observed that enforcement of EU asylum standards primarily rests with the European Commission and Greece itself; other Member States are entitled to proceed on the assumption—though not an irrebuttable presumption—that fellow Member States will honour their Convention and EU obligations.

Holding and Implications

APPEAL DISMISSED.

The House of Lords affirmed the Court of Appeal’s decision: removal of the Appellant to Greece would not violate Article 3, and paragraph 3(2)(b) of Schedule 3 to the 2004 Act is not incompatible with the Convention on the facts of this case. As a result, the declaration of incompatibility was set aside and the Secretary of State’s removal decision remains lawful.

Implications are confined to the parties: the Respondent may proceed with removal. The judgment does not create new precedent but clarifies that courts should focus on actual risk rather than abstract procedural concerns when assessing Article 3 claims.