NA (Sudan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | McFarlane,Underhill,Simon LJJ |
| Judgment Date | 01 November 2016 |
| Neutral Citation | [2016] EWCA Civ 1060 |
| Court | Court of Appeal (Civil Division) |
| Date | 01 November 2016 |
[2016] EWCA Civ 1060
COURT OF APPEAL
McFarlane, Underhill and Simon LJJ
Mr R Husain QC and Mr D Chirico instructed by Wilsons Solicitors LLP, for NA;
Mr R Husain QC, Ms L Dubinsky and Ms H Short instructed by Wilsons Solicitors LLP, for MR;
Ms L Giovannetti QC, Ms S Blackmore and Mr R Harland instructed by the Government Legal Department, for the Secretary of State.
AM v Switzerland 2015 ECHR 37466/13 (dec)
AME v Netherlands 2015 ECHR 51428/10 (dec)
AS v Switzerland 2015 ECHR 39350/13
ATH v Netherlands 2015 ECHR 54000/11 (dec)
Abubeker v Austria and Italy 2013 ECHR 73874/11
Bensaid v United Kingdom 2001 ECHR 44599/98; (2001) 33 EHRR 10; [2001] INLR 325
D v United Kingdom 1997 ECHR 30240/96, ECtHR; (1997) 24 EHRR 423
Danian v Secretary of State for the Home Department [1999] EWCA Civ 3000; [2000] Imm AR 96; [1999] INLR 533
Daytbegova and Magomedova v Austria 2013 ECHR 6198/12; (2013) 57 EHRR 12
Demirkaya v Secretary of State for the Home Department [1999] EWCA Civ 1654; [1999] Imm AR 498; [1999] INLR 441
EM (Eritrea) and Others v Secretary of State for the Home DepartmentUNK [2012] EWCA Civ 1336; [2013] 1 WLR 576
GS (India), EO (Ghana), GM (India), PL (Jamaica), BA (Ghana) & KK (DRC) v Secretary of State for the Home DepartmentUNK [2015] EWCA Civ 40; [2015] 1 WLR 3312; [2015] Imm AR 608; [2015] INLR 446
Hagos v Netherlands and Italy 2013 ECHR 9053/10 (dec)
Halimi v Austria and Italy 2013 ECHR 53852/11 (dec)
Hussein and Others v Netherlands and Italy 2013 ECHR 27725/10; (2013) 57 EHRR 1
Hussein Diirshi and Others v Netherlands and Italy 2013 ECHR 2314/10
IA v Secretary of State for the Home Department [2014] UKSC 6; [2014] 1 WLR 384; [2014] 1 All ER 1015; [2014] Imm AR 613; [2014] INLR 559
JA and Others v Netherlands 2015 ECHR 21459/14 (dec)
MSS v Belgium and Greece 2011 ECHR 30696/09; (2011) 53 EHRR 2; [2011] INLR 533
N v United Kingdom 2008 ECHR 26565/05; (2008) 47 EHRR 39; [2008] Imm AR 657; [2008] INLR 335
R v Secretary of State for the Home Department, ex parte Thangarasa; R v Secretary of State for the Home Department, ex parte YogathasUNK[2002] UKHL 36; [2003] 1 AC 920; [2002] 3 WLR 1276; [2002] 4 All ER 800; [2003] Imm AR 227; [2002] INLR 620
R (on the application of Asefa) v Secretary of State for the Home DepartmentUNK [2012] EWHC 56 (Admin)
R (on the application of EM (Eritrea) and Others) v Secretary of State for the Home Department [2014] UKSC 12; [2014] AC 1321; [2014] 2 WLR 409; [2014] 2 All ER 192; [2014] Imm AR 640; [2014] INLR 635
R (on the application of Gashi) v Secretary of State for the Home Department [2003] EWHC 1198; [1999] Imm AR 415
R (on the application of MS) v Secretary of State for the Home DepartmentUNK [2015] EWHC 1095 (Admin)
R (on the application of Medhanye) v Secretary of State for the Home DepartmentUNK [2011] EWHC 3012 (Admin); [2012] 1 CMLR 42
R (on the application of NS) v Secretary of State for the Home Department (Case C-411/10); [2012] 3 WLR 1374; [2012] All ER (EC) 1011; [2012] 2 CMLR 9
R (on the application of Rogee) v Secretary of State for the Home DepartmentUNK [2015] EWHC 3645 (Admin)
R (on the application of Tabrizagh) v Secretary of State for the Home DepartmentUNK [2014] EWHC 1914 (Admin)
R (on the application of Tabrizagh, Ali, Mohammmed and Karaj) v Secretary of State for the Home DepartmentUNK [2014] EWCA Civ 1398
R (on the application of W) v Secretary of State for the Home Department (Dublin returns – Italy) (IJR) [2015] UKUT 70 (IAC); [2015] Imm AR 642
SB v Finland 2014 ECHR 17200/11 (dec)
SMH v Netherlands 2014 ECHR 5868/13 (dec)
Saadi v Italy 2008 ECHR 37201/06; (2009) 49 EHRR 30; [2008] Imm AR 519; [2008] INLR 621
Soering v United Kingdom 1989 ECHR 14038/88, ECtHR; (1989) 11 EHRR 439
Tarakhel v Switzerland 2014 ECHR 27217/12; (2015) 60 EHRR 28; [2015] Imm 282
Vilvarajah and Others v United Kingdom 1991 ECHR 13163/87, ECtHR; (1992) 14 EHRR 248
Wasif v Secretary of State for the Home Department; Hossain v Secretary of State for the Home DepartmentUNK[2016] EWCA Civ 82; [2016] 1 WLR 2793; [2016] Imm AR 585; [2016] INLR 697
Y and Z (Sri Lanka) v Secretary of State for the Home DepartmentUNK [2009] EWCA Civ 362; [2010] INLR 178
ZL and VL v Secretary of State for the Home DepartmentUNK [2003] EWCA Civ 25; [2003] 1 WLR 1230; [2003] 1 All ER 1062; [2003] Imm AR 330; [2003] INLR 224
ZT (Kosovo) v Secretary of State for the Home DepartmentUNK [2009] UKHL 6; [2009] 1 WLR 348; [2009] 3 All ER 976; [2009] INLR 310
Asylum and Immigration (Treatment of Claimants, etc) Act 2004, paragraphs 1, 2 & 5 of Schedule 3
Directive 2013/33/EU, Articles 2, 17–19, 21 & 25
Directive, 2011/95/EU (“the Qualification Directive”), Articles 24, 26–32 & 34
European Convention on Human Rights, Article 3
Human Rights Act 1998, sections 1 & 6
Nationality, Immigration and Asylum Act 2002, sections 82 & 92
Human rights — Article 3 of the ECHR — inhuman and degrading treatment — inadequate conditions for asylum seekers in Italy — vulnerable returnees under the Dublin Regulation — mental health problems — suitable accommodation and support — Tarakhel v Switzerland2014 ECHR 27217/12 explained — presumption of compliance — procedure and process — certification — Secretary of State's discretion to certify — whether judicial review correct forum
The Claimants, NA and MR, were from Sudan and Iran respectively. Both arrived in the UK via Italy and claimed asylum. NA had already been granted refugee status in Italy, and was therefore a beneficiary of international protection (“BIP”). MR had not claimed asylum in Italy. Both suffered significant mental health problems. Pursuant to paragraph 5(4) of Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (“the 2004 Act”) the Secretary of State for the Home Department certified that their claims that removal to Italy was in breach of their human rights were clearly unfounded. The Claimants could therefore be returned to Italy without a United Kingdom right of appeal by virtue of Regulation 604/2013 (“the Dublin regime”), which provided that asylum seekers must claim asylum in the Member State in which they first arrived.
The Claimants brought judicial review proceedings challenging the certification of their claims on the grounds that the conditions in Italy for asylum seekers and BIPs were so inadequate that there was a serious risk that they would suffer inhuman and degrading treatment and that their enforced return would constitute a breach of their rights under Article 3 of the ECHR. In NA's case, the High Court held that there was no legitimate ground for concluding that there were major operational problems in the system for receiving refugees and asylum seekers in Italy, such as to rebut the presumption that Italy would comply with its obligations under Article 3 of the ECHR. That decision was followed in MR's case.
Before the Court of Appeal, the Claimants submitted that the effect of the decision in Tarakhel v Switzerland2014 ECHR 27217/12 was that it was unlawful to return vulnerable people to Italy without obtaining specific assurances that they would be suitably accommodated. They also submitted that the Court in NA's case had erred in its approach to the evidence submitted in relation to the risks faced by vulnerable Dublin returnees to Italy and had failed to give effect to the authorities about the application of Article 3 of the ECHR where a mentally ill person was removed from the United Kingdom.
Held, dismissing the appeals:
(1) The High Court in NA's case had not been wrong to treat the reasoning in Tarakhel as being confined to the case of families with children and as not extending that reasoning to cases of vulnerable people generally. The Strasbourg court's reasoning in Tarakhel did not mean that the presumption of compliance did not apply to Italy. The High Court was positively obliged to take as the starting point that Italy would meet the obligations of the Convention: EM (Eritrea) v Secretary of State for the Home Department[2014] UKSC 12 followed. That was a “significant evidential presumption”, not for theoretical reasons, but because it was reasonable as a matter of practical reality to believe that a Member State of the Council of Europe would comply with its obligations under the Convention unless there was evidence that there was a real risk that it would not. There was no indication that the decision in Tarakhel had intended to depart from that approach (paras 152 – 157).
(2) The High Court in NA's case had considered published reports and statistics about the availability and accessibility of accommodation within the System for Protection of Asylum Seekers and Refugees (“SPRAR”) in Italy. In most cases the Court had attributed weight to them appropriately. It had been overly dismissive of two reports but, if those reports were given the weight which they merited, the evidence did not show, or even arguably show, that NA was at a real risk of not being found SPRAR accommodation. The fact that she had had previous appalling experiences in Italy was not relevant to the question of what support she would receive in the different circumstances of a Dublin return. Generalisations about past ill-treatment being a good indicator of future risk were appropriate in the context of the risk of persecution, but should not be unthinkingly applied in a different context. NA was especially vulnerable, which meant that her arrival would be pre-notified. There was a conflict in the evidence as to the consequences of pre-notification, but that was no reason for the Court to find that there was a risk of her receiving no support. Arrangements might not be perfect at the beginning, but temporary...
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