UK HIGH COURT CONFIRMS THAT DUBLIN TRANSFER OF ASYLUM SEEKERS TO ANOTHER EUROPEAN COUNTRY (HUNGARY) IN CERTAIN CIRCUMSTANCES IS UNLAWFUL

The case in the High Court (Ibrahimi & Abasi v SSHD [2016] EWHC 2048 (Admin)) concerned two Iranian asylum claimants and their potential transfer to Hungary following rejection of their asylum claims by the Secretary of State for the Home Department ("SSHD") pursuant to Dublin III Regulation. SSHD certified their asylum claims on "Safe Third Country" grounds.

SSHD argued that in these cases there is no need to consider the merits of the individual claimants' contentions for asylum because under the relevant legislation in the EU, which governs this area, it is Hungary, and not the United Kingdom, that must review their asylum claims. SSHD further asserted that the system for assessing asylum in Hungary adheres sufficiently to EU and international law for Hungary to be considered a "safe" country where there is no material risk of refoulement or any other violation of the applicants' fundamental rights.

The issue in the case concerned "chain refoulement" because it was argued by the two applicants that if they are removed from Hungary they will be channelled along a chain of other countries including Serbia, Macedonia, Greece and Turkey. It was argued that none of these States are "safe" and in all they are at risk of removal to Iran.Essentially SSHD argued that the two claimants should be sent to Hungary because "there was insufficient evidence of systemic or other failings in the Hungarian asylum system to rebut the strong presumption that Hungary would comply with its legal obligations. For this reason, the Secretary of State concluded that there was no risk to life or freedom by removal to Hungary and the Secretary of State did not proceed to examine the position in other States along the refoulement chain leading, ultimately, to Iran."

The applicants argued that their transfer to Hungary would be a breach of the non-refoulement principle, which is safeguarded by Article 3 of the ECHR and Article 4 of the EU Charter of Fundamental Rights.

The High Court ruled in favour of the applicants in this instance. The court referred to UNHCR and AIDA reports concerning systemic and or operational risks in the asylum and judicial systems, the judge seriously doubted the applicants would be able to apply for asylum in Hungary. The High Court further noted that the SSHD should not use "broad and sweeping generalisations about presumptions of compliance" of an EU Member State. The court stated that "a full blown up-to-date analysis of risks and safety" is required, if the SSHD is to justify the Dublin transfers.

However, despite the positive outcome for the claimants in this case the decision of the court is clear - the judgment considered the position as it currently stands. Therefore, it is not a bar to SSHD to conduct a thorough analysis of the facts and situation as it develops and to form new conclusions in the future.