EM (Eritrea) and others v Secretary of State for the Home Department – read judgment
A member state was entitled to return a refugee to the EU state of first embarkation unless it is proved that there are “systematic deficiencies” in the asylum procedures of the receiving state.
These four cases raised one central question: was it arguable that to return any of the claimants to Italy, either as an asylum-seeker pursuant to the Dublin II Regulation or as a person already granted asylum there, would entail a real risk of inhuman or degrading treatment in violation of Article 3 of the ECHR? In determining that question, the evidence provided by the UN Refugee Agency was decisive for the court.
The Dublin II Regulation provides for a system whereby asylum claims are processed and acted on by the first member-state in which the asylum-seeker arrives. Under this Regulation asylum-seekers and refugees may be returned to that state if they then seek asylum or take refuge elsewhere in the EU. The assumption underlying this system is that every member state will comply with its international obligations under not only the 1951 Refugee Convention and the European Convention on Human Rights but also the Qualification Directive and the EU Charter.
The claimants had applied for asylum in Italy before eventually making their way to the United Kingdom. They all claimed to have suffered various hardships in Italy. MA, an Eritrean national, had two children settled in school in the United Kingdom and relied upon Article 8 to argue that she should be allowed to remain with her children in the United Kingdom. The home secretary had certified their claims for asylum as unfounded by virtue of Regulation 343/2003 and Section 92(4)(a) and schedule 3 of the Nationality, Immigration and Asylum Act 2002 , and ordered their removal to Italy.
The claimants argued that they would be at real risk of inhuman or degrading treatment if returned to Italy. The secretary of state submitted that there was a presumption of law that Italy’s treatment of asylum seekers was compliant with its international obligations and, in order to rebut the presumption, the appellants had to show that Italy was in systematic breach of its obligations. It was her case that Article 3 considerations did not come into the picture unless and until it could be shown that Italy is in systemic rather than sporadic breach of its international obligations, and that the requisite standard and mode of proof of this was beyond anything adduced in the present cases. She relied on the UNHCR’s report on the status of asylum seekers in Italy, which had not suggested that the Italian asylum system was systematically deficient.
The court dismissed all four claims.
The Court’s reasoning
Any finding of facts by a court of law on the scale involved here was necessarily a problematical exercise, prone to influence by accidental factors such as the date of a report, or its sources, or the quality of its authorship, and conducted in a single intensive session. The NGO evidence concerning the Italian asylum procedure was “troubling” but considerable weight had to be accorded to the far more sanguine – and more recent – UNHCR report. It was necessary to accord special status to the UNHCR in this context; the High Commissioner for Refugees is an internationally respected office with an expert staff and the authority of the General Assembly. Therefore the judgment of the UNHCR remained pre-eminent and possibly decisive in that exercise.
The Court was bound by the 2011 case of NS v Secretary of State for the Home Department (C-411/10)  All E.R. (EC) 1011 in which the European Court of Justice ruled that the presumption of compliance by the receiving state with human rights obligations could only be rebutted by proof of “systemic deficiencies in the asylum procedure” (see post on this case). Without it, proof of individual risk, however grave, and whether or not arising from operational problems in the state’s systems, could not prevent a return under the 2003 Regulation. If the question was whether each appellant faced a real risk of inhuman or degrading treatment if returned to Italy, their claims would plainly be arguable. However, that was not the law. The decision in NS had set a threshold in return cases which existed nowhere else in refugee law. The sole ground on which a second state was required to refrain from returning the applicant to the state of first arrival, was that the source of risk to the applicant was a systematic deficiency, known to the second state, in the first state’s asylum and reception procedures.
Short of that, even powerful evidence of individual risk was of no avail.
The totality of the evidence about Italy, although extremely troubling, did not come up to that mark. Therefore three of the four claims were incapable of succeeding under Article 3 of the convention. The secretary of state was justified in certifying them as unfounded.
As far as MA’c claim was concerned, the interests of children were a “paramount consideration” in gauging the proportionality of an interference with private life under Article 8 but that did not mean they were a trump card (ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4) . MA’s daughter was an adult who could not legitimately have her interests aggregated with MA. Her son, aged 14, was only in the UK because his mother had been able to resist removal for four years. The court was required to deem conditions for refugees in Italy to be compliant with international obligations. The case against MA’s removal was too exiguous to stand up when set against the history of her entry and the legal/policy imperatives for returning her to Italy.
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