Real risk of inhuman and degrading treatment in EU to be assessed before removing asylum seekers

(Eritrea) and Others v Secretary of State for the Home Department [2014] UKSC 12 –  read judgment

According to the Supreme Court's most recent ruling, claims by asylum seekers or refugees who resist their return to another EU country in which they first sought or were granted asylum are to be taken into consideration “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].”

The ruling overturned the Court of Appeal’s decision on the correct test to be applied for such claims, namely a requirement for systemic deficiencies in the listed country’s asylum procedures and reception conditions.

if claimants thus give evidence that they would be subject to destitution or inhuman and degrading conditions upon their return to their State of first arrival", even if the systemic breach of its international obligations regarding the treatment of refugees has been claimed by Home Office as clearly unfounded, removal can be challenged.

Under Dublin II, (Regulation 343/2003) 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.

The Claimants in the case heard by the Supreme Court had all arrived first in Italy. 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 claimants gave evidence of the real possibility that they would be subject to treatment in violation of the ECHR if they were returned.

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.

In reaching its decision, the Supreme Court considered the inevitable tension between the Home Secretary’s obligation to abide by EU law and her duty under s.6 of the Human Rights Act.

Lord Kerr, who gave the only judgement, held that the presumption that other EU States would comply with their international obligations reflected principle and pragmatic considerations, but 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.

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.
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.


Read more on the Supreme Court's decision on the UK Human Rights Blog: Supreme Court rules on EU conditions for asylum seekers.

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