The High Court considers the safety of Austria as a safe third country for refugees


Re: Abdulkadir & Anor v Secretary of State for the Home Department [2016] EWHC 1504 (Admin)

The Iraqi national claimants challenged the decision of the Home Secretary to certify their human rights claims as “clearly unfounded”, advocating that they had an arguable claim that removal to Austria in line with the Dublin Regulations III would expose them to a real risk of ECHR, art 3 and/or EU Charter, art 4 type harm. They also challenged their detention as unlawful and argued that removal would be contrary to the EU Charter right to asylum (art 18).

The court dismissed the challenge.

It considered evidence on reception conditions in Austria, and the threshold for establishing ECHR, art 3/EU Charter, art 4 type harm. On the facts, the conditions which the claimants would face were not of a sufficient gravity to expose them to such prohibited treatment, even considering their mental health conditions. This finding was inevitable, and as such, the Home Secretary had not acted unlawfully in certifying their human rights claim as clearly unfounded.

The court also examined the argument that the claimants had been unlawfully detained, as Dublin III only permitted detention of individuals for its purposes if there was a significant risk of absconding, if detention was proportionate, if less coercive alternatives would not be effective and if removal was imminent, based on an individual assessment. It rejected the argument that the Dublin III obligations operated prior to Dublin III actually being relied on. Initial detention upon entry was thus governed by the relevant law that applied to any illegal entrants. There was a risk of absconding from the outset which justified detention. Once it became apparent that imminent removal was not possible, the claimants had both been released.

Finally, the court examined the claimants’ argument that the Austrian processing system was contrary to the EU Charter, art 18, which provided a right to asylum. It found that allowing the claimants to rely on art 18 to frustrate removal was contrary to the CJEU decision in Abdullahi, where unacceptable reception conditions amounting to inhuman and/or degrading treatment were necessary to make a return unlawful. If the court was wrong in concluding that art 18 could not be relied on in such cases, it found that on the facts, the right would not have been breached.

Hugh Southey QC was involved in this case.