EM (Eritrea) and Others v Secretary of State for the Home Department  UKSC 12 – read judgment
The Supreme Court overturned the Court of Appeal’s decision on the correct test for when an asylum seeker or refugee resists their return to another EU country (here Italy) in which they first sought or were granted asylum. The parties before the court all agreed that the test applied by the Court of Appeal, namely a requirement for a systemic deficiencies in the listed country’s asylum procedures and reception conditions was incorrect.
The Supreme Court agreed and held that even when the Dublin II Regulation was engaged, the correct test was that laid down in Soering v United Kingdom (1989) 11 EHRR 439 – the removal of a person from a member state of the Council of Europe to another country was contrary to the ECHR “where substantial grounds have been shown for believing that the person concerned… faces a real risk [in the country to which he or she is to be removed] of being subjected to [treatment contrary to article 3 of the Convention].”
Dublin II (Regulation 343/2003) provides that in certain circumstances the asylum claims must be processed by the EU member state within which an asylum seeker initially enters the EU – the ‘State of first arrival’. Asylum seekers, and those who have been granted asylum (i.e. refugees), may therefore be returned to that first EU state by any other member state in which they subsequently arrive. However, in the UK, an asylum seeker or refugee has a statutory right of appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002 against such a decision to remove him to the first EU state. That rights is exercisable from within the UK unless the Home Secretary certifies the claim as clearly unfounded. Certification can be issued if ‘on any legitimate view’ the claimant’s assertion that his enforced return would constitute a violation of his human rights would fail on appeal: ZT v Kosovo  1 WLR 348.
The Claimants had all arrived first in Italy. W, an Iranian national, claimed that, if returned to Italy, he would be homeless and without treatment for his psychological disorders. X, Y and Z, Eritrean nationals, claimed that they had been homeless and destitute in Italy, and Y and Z, who were women, also claimed that they had been repeatedly raped. Y and Z were reportedly suicidal at the prospect of returning to Italy.
However, Italy is a ‘listed country’ for the purposes of Dublin II appeals, and as such challenges to removals to Italy are to be certified as clearly unfounded unless the Home Secretary is satisfied to the contrary. However, the Home Secretary decided in these cases that the claim that Italy was in systemic breach of its international obligations regarding the treatment of refugees was clearly unfounded, and that there was no other distinct reason to abstain from removal. The claimants were therefore prohibited from appealing the decision to remove them to Italy, solely by virtue of the Home Secretary’s certification that their cases were unfounded. The Claimants brought challenges against both the Home Secretary’s certification and against the removal directions made in respect of them.
The Court of Appeal’s decision
The Court of Appeal summarised the Claimants’ factual case as to the reality of the Italian asylum and refugee system being “in large part dysfunctional, with the result that anyone arriving or returned there, even if they have children with them, faces a very real risk of destitution.” The Court of Appeal held that if “the matter stopped there” they would be bound to conclude that there was a triable issue in all four cases – i.e. that the return of the Claimants to Italy would entail a real risk that they would be subjected to inhuman and degrading conditions. The Home Secretary’s certification would therefore have no effect and the Claimants would have to allowed a right of appeal in the UK against their removal to Italy.
However, the Court of Appeal went on consider the effect of the ECtHR’s decisions in KRS v United Kingdom  48 EHRR SE8, MSS v Belgium and Greece  53 EHRR 2, and the CJEU’s decision in Case C-411/10 and C-493/10 NS (Afghanistan) v SSHD  AB 102. The Court of Appeal held that in NS v SSHD the CJEU had distinguished between a true systemic deficiency as opposed to operational problems, even if operational problems created a substantial risk that asylum seekers would treated in a manner incompatible with their fundamental rights. Accordingly, without proof of a systemic deficiency in the country of first arrival’s system of refugee protection, “proof of individual risk, however grave, and whether or not arising from operational problems in the state’s system, cannot prevent return under Dublin II.” For the Claimants to be able to bring an appeal against their return to Italy, they were therefore required to establish that there were:
“systemic difficulties in the asylum procedure and in the reception conditions of asylum seekers… [which] amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment.”
The Supreme Court’s decision
Lord Kerr gave the only judgement. He began by acknowledging that there was an obvious need for a workable system to implement Dublin II. He held that the “essential underpinning” of Dublin II was that asylum seekers could not be allowed to move around the EU, applying to successive Member States for refugee status in the hope of finding a more benevolent approach to their claims. Similarly, the principle that the state of first arrival should normally be required to deal with the application was “fundamental to an effective and comprehensive system of refugee protection.” Accordingly, the presumption that other EU States would comply with their international obligations reflected principle and pragmatic considerations.
However, Lord Kerr held that such a presumption should not extinguish the need to examine whether those the obligations would in fact be fulfilled when evidence is presented that it is unlikely that they will be. The presumption “should not operate to stifle the presentation and consideration of evidence” that an individual applicant will be subject to violation of fundamental rights “consequence of enforced return” to a listed country. Furthermore, it should not required that an applicant must show as an “first and indispensable requirement” that there is a systemic deficiency in order to rebut the presumption. Lord Kerr also held that an exclusionary rule based only on systemic failures would in arbitrary in conception and practice, and that a violation of Article 3 rights is not intrinsically dependent on the failure of a system.
Lord Kerr went onto to consider NS v SSHD. He stated that the Court of Appeal’s interpretation would give rise to an inevitable tension between the Home Secretary’s obligation to abide by EU law and her duty under s.6 of the Human Rights Act. However, he held that what the CJEU was in fact concerned with in NS was the effect of systemic deficiencies in particular national systems on the application of the presumption of compliance. The CJEU was not concerned with the question of whether those deficiencies had to be present before removal to the state of first arrival could be resisted. The source of the risk identified by the CJEU that asylum seekers might be treated in a manner incompatible with their fundamental rights was therefore major operational problems in a given member state, i.e. not systemic deficiencies arising from intrinsic weaknesses in the EU system for the treatment of asylum seekers.
Lord Kerr concluded that the test for preventing removal to the state of first arrival was – whether it can be shown that the conditions that the asylum seeker would be required to live if returned under Dublin II are such that there is a real risk that they will be subjected to inhuman or degrading treatment. However, there would be a significant evidential presumption that listed states will comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory.
The claims should therefore be remitted to the Administrative Court to examine the evidence and determine whether there was a real possibility that the Claimants would be subject to treatment in violation of the ECHR if they were returned to Italy. The Court would have to examine the foreseeable consequences of sending the Claimants back, taking into consideration both the general situation in Italy and the Claimants’ personal circumstances. Those circumstances would include whether they were asylum seekers who had previously been granted refugee status or not – both categories were potentially within the ambit of Dublin II.
Once again, the Supreme Court have been forced to engage with the perennial and inevitably politically charged issue of how asylum seekers should be treated on arrival into the United Kingdom. Clarity and consistency can often be lost in the welter of conflicting populist prejudices, conflicting claims of pragmatism against principle, and competing national, EU and ECHR laws.
As Lord Kerr rightly observed, the Dublin II presumptions as to the willingness and ability of other EU member states to abide by basic standards of treatment are a necessary part of any system of Europe wide co-operation in dealing with the endless flow of would be asylum seekers trying to enter the EU. However, those presumptions are fundamentally challenged when the numbers of asylum seekers varies so dramatically between countries within the Dublin II system, together with varying degrees of public willingness and national fiscal ability to fund proper arrangements for the reception, care and processing of asylum seekers.
The Supreme Court’s decision is therefore based both on a welcome reassertion of the Soering Strasbourg jurisprudence over the higher threshold test applied by the Court of Appeal on the seeming authority of NS, and on a pragmatic acceptance that the Dublin II presumptions and consequent listings may need to be given less authoritative weight. In future Dublin II cases, Italian or otherwise, it will be essential to evaluate all the facts of the case, including any individual characteristics which might make an asylum seeker more vulnerable.
It should be emphasised that the Supreme Court remitted the question as to the actual adequacy of Italy’s reception conditions for asylum seekers: a group of cases has been identified to test the issue, presently listed to be heard together before a High Court Judge after 1 May 2014. Furthermore, on the 12th of February, the ECtHR heard the case of Tarakhel v Switzerland, which again concerns the reality of the conditions in Italy vis a vis Article 3.
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