Mr Mohsen Pourali Tabrizagh and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Elisabeth Laing |
| Judgment Date | 11 June 2014 |
| Neutral Citation | [2014] EWHC 1914 (Admin) |
| Docket Number | Case Nos: CO/5524/2013 CO/10023/2012 CO11811/2012 CO/9031/2013 CO/7357/2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 June 2014 |
The Queen on the application of
[2014] EWHC 1914 (Admin)
Mrs Justice Elisabeth Laing
Case Nos: CO/5524/2013
CO/585/2013
CO/10023/2012
CO11811/2012
CO/9031/2013
CO/7357/2011
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephen Knafler QC, Declan O'Callaghan (instructed by Duncan Lewis) for TABRIZAGH
Stephen Knafler QC, Declan O'Callaghan (instructed by Duncan Lewis) for SYED
Stephen Knafler QC, Philip Nathan (instructed by Duncan Lewis) for ALI
Stephen Knafler QC, Declan O'Callaghan (instructed by Duncan Lewis) for MOHAMED
Stephen Knafler QC, Ms Keelin McCarthy (instructed by Duncan Lewis) for KARAJ
Greg Ó Ceallaigh (instructed by Turpin Miller) for AB
Alan Payne and Matthew Donmall (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 14 – 15 May 2014
The Claimants in these cases have all made asylum claims in the United Kingdom. They have previously made claims in Italy, or (in 2 cases) have been in Italy, and resist their return to Italy under the Dublin Regulation. Their case, in outline, is very simple. They argue that they should have an in-country right of appeal against removal to Italy, because removal to Italy will expose them to a real risk that the rights conferred on them by article 3 of the European Convention on Human Rights ("the ECHR") will be breached. Their claims that they will be exposed to such risks are arguable, they say, which means that the Defendant should not have certified them as 'clearly unfounded'. Those certificates should, therefore, be quashed.
The Defendant ("the Secretary of State"), by contrast, argues that the Claimants' claims that they will experience ill treatment in Italy reaching the article 3 threshold are bound to fail, and that she was therefore entitled to certify those claims as clearly unfounded. There is nothing in the general situation in Italy, or in the particular circumstances of any of the Claimants, which would require her not to certify their claims (and thus ensure that they have an in-country right of appeal).
The issues to which the rival arguments give rise are:
(1) what is the test for deciding whether a claimant has an arguable article 3 claim as result of the Secretary of State's intention to return him to Italy; and
(2) whether the evidence on which the Claimants rely satisfies that test.
But the context in which these issues arise is the certificates to which I have referred. It is common ground that the question for me is whether, if these issues were before the First-tier Tribunal (Asylum and Immigration Chamber) ("the FTT") and the Claimants were relying on an argument that their article 3 rights would be breached on return to Italy, their appeals would be bound to fail. I must therefore take the Claimants' factual cases at their highest, but that does not relieve me of the task of considering whether there is any merit in their legal arguments. Nor does it mean that I am bound uncritically to accept the reports on which the Claimants rely, if, either, they are seriously flawed, or unreliable, or if there is other relevant material to which the FTT would be bound to give greater weight, such that I can be confident that their claims would be bound to fail.
A. The facts
Mohsen Pourali Tabrizagh
The Claimant in this case, T, is from Iran. He was born in 1989. He has made 2 witness statements. In his second, he says that he became involved in politics just before the 2009 election. He supported the Green Movement. He took part in demonstrations after the result was announced. 3 months later he was told that his house had been raided and his parents arrested. His depression was exacerbated by not being able to go home; the authorities were looking for him. He stayed with a friend, and tried to kill himself.
He moved elsewhere in Iran before going to Turkey. Many people were executed for supporting the Green Party. His brother found an agent to help him escape to Turkey. After a month, he was then put on a lorry and taken to Europe.
The lorry stopped in a country he later discovered was Italy. His fingerprints were taken. The Eurodac database shows that this was on 20 September 2012. No-one explained why. He was then released onto the street. He was afraid and alone. The Italian police did not help him. He was homeless for two nights and hungry. It was cold and it was raining. When he went to the police for help he was sent away and they said that if he went back they would beat him up.
Drunken people beat him up and took his money. He thinks he was targeted because he looked different. His watch was taken. He thinks they were racist. The police got annoyed with him for asking them for help. One threatened him with a truncheon. He met many asylum seekers who said they had been racially abused. Many, men and women, said that they had been raped and it was not safe for asylum seekers to be there.
After 2 days he was put back in touch with the agent who had brought him to Italy. He was eventually taken to the United Kingdom, where he was arrested (on 26 November 2012). The conditions in the detention centre in the United Kingdom were much better than anything in Italy. He has been several times to the GP for depression, but not recently, as talking about his past experiences makes his depression worse. He does not want to go back to Italy. When he found out he might have to, he became suicidal and cut himself.
According to the authorities, T was fingerprinted in Italy as an illegal entrant on 20 September 2012. There is no record of his having claimed asylum in Italy. He never received SPRAR or CARA accommodation, so he would be eligible for that, if he were to return to Italy, and if he were to claim asylum in Italy.
His asylum claim was certified on third country grounds on 7 January 2013. The decision letter records that "The Secretary of State will normally decline to examine the asylum application substantively if there is a safe third country to which the applicant can be sent." There were no reasons for departing from that practice in his case.
On 18 January 2013, his solicitors wrote to the Secretary of State to say that T's removal to Italy would breach his article 3 rights. This claim does not seem to have been particularised in any way, and T's solicitors raised no issues about his individual circumstances. The Secretary of State said in a letter dated 18 January 2013 that his claim was "totally without merit", having regard to the principles established in four cases, two of which I consider below. The Secretary of State certified the article 3 claim as "clearly unfounded".
There is a report dated 4 September 2013 from a consultant psychiatrist, who had not seen T's medical records. His impression is that "there is a vulnerability to mental disorder" but it is not clear what. T meets the criteria for adjustment disorder. The most worrying part of his presentation was his self-harming behaviour. If he were returned to Italy this would be likely to delay his recovery and worsen his adjustment disorder. His post-traumatic symptoms would be likely to get worse. He might become depressed. His risk of suicide was greater than that of his peers, but still, in absolute terms, relatively low. There was at least a moderate probability that T's mental health would deteriorate if he were returned to Italy. He would have more nightmares and might then become depressed. The preferred option was a period of monitoring. A course of anti-depressants might be appropriate. He could be treated in a primary setting.
This report did not persuade the Secretary of State to change her position (see her letter of 27 November 2013). If T did suffer from PTSD, treatment was available in Italy. The Reception Directive (see further, below), guarantees access to medical treatment for asylum seekers. The claim that Italy would not comply with its legal obligations was wholly without merit. T's case "did not even arguably" approach the threshold established by the Court of Appeal in EM (Eritrea). The claimant had not adduced any evidence from the United Nations High Commissioner for Refugees ("the UNHCR") or the European Commission, let alone "regular and unanimous reports of international NGOs".
The medical evidence did not establish a breach of article 3.
Further representations were submitted on 7 April 2014. The Secretary of State rejected these in a letter dated 17 April 2014. By this time, the Supreme Court's decision in EM (Eritrea) had been published. The letter summarised the effect of that decision. It listed the 17 reports which had been relied on by T. They did not rebut the "significant evidential presumption" that Italy would comply with its obligations. They did not add significantly to the material which had been considered by the European Court of Human Rights ("the ECtHR") in 6 cases in which it had declared similar applications inadmissible in 2013. The evidence did not rebut the assumption of compliance by Italy with her obligations.
The Secretary of State applied the Soering test, and asked, first, whether there were systemic deficiencies which could displace the evidential presumption that Italy would abide by its legal obligations. The Secretary of State then asked whether there was evidence of other factors which would give rise to a real risk of a breach of article 3 on...
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