R (on the application of EM (Eritrea)) v Secretary of State for the Home Department [2014] UKSC 12

Four Eritrean and Iranian asylum seekers and refugees resisted removal from the UK to Italy under the Dublin II Regulation, alleging article 3 ECHR breaches. The Supreme Court held that a 'systemic deficiency' in Italy's asylum system was not required; the Soering real risk test applies.

Facts

The appeals concerned four claimants (EM, EH, AE and MA), all of whom had first entered Italy and either claimed or been granted asylum there before travelling to the United Kingdom. Under Council Regulation 343/2003 (Dublin II), Italy was, or was deemed to be, the member state responsible for their asylum claims. The Home Secretary certified each of their human rights claims as ‘clearly unfounded’ under paragraph 5(4) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004, thereby precluding an in-country appeal against removal.

Each appellant relied on personal experiences and independent reports of destitution, homelessness, insanitary accommodation, and (in the cases of AE and MA) serious sexual violence encountered in Italy. Medical evidence attested to PTSD, depression and suicidality in several of the appellants.

Issues

The principal issue was whether an asylum seeker or refugee resisting return to Italy under Dublin II must establish that there are ‘systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers’ amounting to substantial grounds for believing that they would face a real risk of inhuman or degrading treatment contrary to article 3 ECHR, as suggested at para 94 of R (NS) (Afghanistan) v Secretary of State for the Home Department [2013] QB 102. A secondary issue was whether refugees fell to be treated differently from asylum seekers.

Arguments

The appellants, supported by UNHCR as intervener, and unusually the respondent Secretary of State, all agreed that the Court of Appeal had erred in holding that a systemic deficiency was the sole basis for resisting a Dublin II transfer. They contended that the correct test remained that in Soering v United Kingdom (1989) 11 EHRR 439, namely whether substantial grounds have been shown for believing that the person concerned faces a real risk of article 3 ill-treatment. The appellants argued that, taking their evidence at its reasonable height, there was at least a triable issue in each case.

AE and MA additionally argued that, being refugees, their transfer fell outside Dublin II and outside the scope of EU law. The Secretary of State accepted that refugees were not returned under Dublin II but relied on Strasbourg authority (Hassan v Netherlands and Italy) distinguishing the vulnerability of asylum seekers from the position of refugees.

Judgment

Lord Kerr, giving the leading judgment with which the other Justices agreed, held that the Court of Appeal’s conclusion that a systemic deficiency was a necessary precondition to resisting transfer could not be upheld. The critical test remained that in Soering: removal is forbidden where substantial grounds are shown for believing there is a real risk of article 3 ill-treatment.

Lord Kerr analysed paragraphs 80, 81, 86, 89 and 94 of the CJEU’s judgment in NS. He held that in para 81 ‘that system’ referred back to the common European system of treatment of asylum seekers in all member states referenced in para 80, not to the system operating within a particular member state. The CJEU had recognised that any system, however sound in design, might experience major operational problems in a given member state; it had not created a new precondition requiring proof of intrinsic systemic deficiency.

Lord Kerr further observed that para 89 of NS demonstrated that infringement of fundamental rights was evidence of systemic deficiency, not that systemic deficiency had to be demonstrated before a fundamental rights violation could bar transfer. The focus of para 94 was on the transferring state’s awareness of a real risk of inhuman or degrading treatment. Systemic deficiencies in MSS and NS had happened to be the means by which such knowledge arose, but there was no reason in principle or logic why the same knowledge acquired by other means should not have the same effect.

The Court further reasoned that requiring proof of systemic deficiency would create an unacceptable tension between the Home Secretary’s duty under EU law and her obligation under section 6 of the Human Rights Act 1998 not to act incompatibly with Convention rights. An article 3 violation is not intrinsically dependent on the failure of a system, and gross violations can occur without any systemic failure whatsoever.

A significant evidential presumption remains that listed states (including Italy) will comply with their international obligations, as recognised in R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin). However, that presumption is rebuttable by sufficient evidence that it would be unsafe to rely upon it.

On the position of UNHCR, Lord Kerr endorsed the Court of Appeal’s recognition of its special authority and reaffirmed the view expressed in IA (Iran) v Secretary of State for the Home Department [2014] UKSC 6 as to UNHCR’s unrivalled expertise. Its July 2012 and July 2013 reports on Italy, though less pointed than those on Greece, must be judiciously considered.

Refugees and asylum seekers

Lord Kerr held that Dublin II applies to anyone who has applied for asylum in the transferring country, irrespective of whether they have previously been recognised as a refugee in the receiving country. Whether refugee status makes an article 3 violation more or less likely will depend on the particular evidence in each case.

Disposal

All four cases were remitted to the Administrative Court for examination of the evidence, applying the Soering real risk test, with rigorous assessment of the foreseeable consequences of return, having regard to the general situation in Italy and each claimant’s personal circumstances, following Chahal v United Kingdom (1997) 23 EHRR 413, Vilvarajah v United Kingdom (1991) 14 EHRR 248 and Saadi v Italy (2009) 49 EHRR 30.

Implications

The decision clarifies that the correct threshold for resisting a Dublin II transfer on article 3 grounds is the Soering ‘real risk’ test, not the more demanding requirement of demonstrating a systemic deficiency in the receiving state’s asylum procedures and reception conditions. This restores consistency with wider ECHR jurisprudence and avoids the anomalous result that a proven risk of serious article 3 ill-treatment could be disregarded merely because it did not stem from an intrinsic systemic failure.

The judgment preserves a significant evidential presumption of compliance by EU member states with their international obligations, reflecting the practical necessity of a workable Dublin system, but confirms the presumption is rebuttable. Where positive obligations are engaged (as in cases of destitution and inadequate reception conditions), evidence of systemic failings is likely to feature prominently, but as a route to establishing real risk rather than as an independent hurdle.

The decision is important for asylum seekers and refugees facing removal under Dublin II, for the Home Office in the exercise of its certification powers under section 92(4) and Schedule 3 to the 2004 Act, and for practitioners in immigration and human rights law. It reaffirms the pre-eminent status of UNHCR materials in evidencing conditions in receiving states, while cautioning that the absence of a UNHCR call for suspension of transfers is not to be lightly dismissed but also does not preclude individual challenges.

The Court did not resolve the factual question of conditions in Italy, which fell to be determined on remittal, and expressly declined to address definitively the potential conflict between EU law obligations and section 6 HRA duties, since NS was interpreted so as to avoid such conflict. The precise weight to be given to UNHCR’s more muted Italy reports, and any different treatment of those with refugee status under the Qualification Directive, remain matters for evidential evaluation in each case.

Verdict: Appeals allowed. The Court of Appeal’s decision that a systemic deficiency in the receiving state’s asylum procedures and reception conditions was a necessary precondition to resisting transfer under Dublin II was overturned. The correct test is the Soering real risk test. All four cases were remitted to the Administrative Court for examination of the evidence.

Source: R (on the application of EM (Eritrea)) v Secretary of State for the Home Department [2014] UKSC 12