Asylum conditions in Italy not severe enough to prevent removal of refugees from the UK

19 October 2012 by

 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. 

Background Facts

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) [2012] 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 [2011] 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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  1. MS Mahkaw says:

    The person/institution in authority should consider how to make relief for refugees who have risk in the first state of arrival.

    MS Mahkaw

  2. MA says:

    From the judgement:
    “In July 2012 the UNHCR published Recommendations on Important Aspects of Refugee Protection in Italy. It sets out some recent figures for inward migration to a country which until the 1960s was a source of net emigration: between 4 and 5 million in a population of 60 million are migrants, 61,000 of them refugees. But its report, in contrast to the reports on Greece, does not suggest that the asylum system is systemically deficient. In fact it asks Italy to use article 3(2) to avoid returning asylum seekers to Greece. It notes improvements in legal and procedural protection, while calling for further improvements. It also notes a recognition rate of the order of 30%.

    The report goes on to describe the reception system which is outlined earlier in this judgment. It records that in 2011 the system was deemed insufficient, and that in consequence central and local government reached an agreement for the relocation of up to 50,000 persons within Italy. Having expressed “appreciation for the improvements to the reception system”, the UNHCR sets out a number of concerns about Italy’s inability to cope with sudden influxes, the uneven quality of provision and the care offered to the vulnerable. The report also records that the 6-month time limit in reception centres (something that does not quite correspond with the government guidance referred to earlier in this judgment) is being dropped.”

    It goes on to make a series of recommendations, none of which is suggestive of repairing a systemic dysfunction rather than improving a functioning one.

  3. MA says:

    Two points:
    1. The Court seems to have missed this evidence of ‘systemic deficiency’…..

    2. Which UNHCR report did the Court take into consideration? To quote the most recent report for Italy:
    “In its ongoing efforts to support governments in developing and maintaining high-quality asylum systems, UNHCR focuses on the harmonization of legislation and practice relating to refugee status and subsidiary protection. It is mainly concerned about diverging standards in the treatment of asylum-seekers; the use of detention at different stages of the asylum procedure; the lack of consistent quality in decision-making, and the continuing need for age- and gender-sensitive responses for particular groups. The xenophobia, discrimination and racism observed in the subregion are also a cause for alarm.”

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