R (EM (Eritrea)) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Sedley |
| Judgment Date | 17 October 2012 |
| Neutral Citation | [2012] EWCA Civ 1336 |
| Docket Number | Case No: C4/2012/1711, C4/2011/3187: C4/2012/0437: C4/2012/0314 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 October 2012 |
[2012] EWCA Civ 1336
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Richards
Lord Justice Sullivan
and
Sir Stephen Sedley
Case No: C4/2012/1711, C4/2011/3187: C4/2012/0437: C4/2012/0314
Monica Carss-Frisk QC, David Chirico and Mark Symes (instructed by Wilson Solicitors LLP) for the Appellants EM & AE
Monica Carss-Frisk QC, David Chirico and Mark Symes (instructed by Sutovic & Hartigan Solicitors) for the Appellant EH
Monica Carss-Frisk QC and Melanie Plimmer (instructed by Switalskis Solicitors) for the Appellant MA
Alan Payne (instructed by the Treasury Solicitors) for the Secretary of State
Hearing dates : 18—20 September 2012
This is the judgment of the court.
The principal issue
Albeit in differing circumstances, these four cases raise one central question: is it arguable that to return any of the claimants to Italy, either as an asylum-seeker pursuant to Council Regulation 343/2003 (better known as the Dublin II Regulation) or as a person already granted asylum there, would entail a real risk of inhuman or degrading treatment in violation of article 3 of the ECHR? If this is arguable, the Home Secretary's certification of each of the cases as clearly unfounded will fall, giving the entrant a right of in-country appeal against the decision to remove him or her to Italy.
The central answer advanced on behalf of the Home Secretary is that there is a presumption of law and of fact that Italy's treatment of asylum-seekers and refugees is compliant with its international obligations; that the presumption is rebuttable; but that, in the absence in the present cases of a legally sufficient rebuttal, evidence of a real risk to the claimants of inhuman or degrading treatment in Italy cannot prevent their return. If this is right, the claims will all have been properly certified, subject to a separate issue in MA's case as to whether it can be tenably argued that removal will violate a Convention right within the United Kingdom.
The legal framework
The Dublin II Regulation gives legal force within the European Union to what began as a treaty providing for asylum claims to be processed and acted on by the first member-state in which the asylum-seeker arrives, and for asylum-seekers and refugees to be returned to that state if they then seek asylum or take refuge elsewhere in the EU. The assumption underlying this system is that every member state will comply with its international obligations under what were initially the 1951 Refugee Convention and the European Convention on Human Rights but now include the Qualification Directive and the EU Charter. (There appears to be no system of cost-equalisation geared to the differing geopolitical burdens thrown on member states.)
When, therefore, it was established in MSS v Belgium [2011] ECHR 108 that Greece was in systemic default of its international obligations, the Grand Chamber of the European Court of Human Rights held Belgium to have breached article 3 of the Convention by returning asylum-seekers there. The argument of the appellants in the present group of cases is that the same can now be shown to be true of Italy, setting the United Kingdom in the same position as Belgium in MSS.
By virtue of s. 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 and of para. 5(4) in part 2 of Sch. 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004, claims concerning removals to a listed country (of which Italy is one) are to be certified as clearly unfounded unless the Home Secretary is satisfied that they are not. The Home Secretary in each instance has decided that the contention that Italy is in systemic breach of its material international obligations is clearly unfounded, and that there is no separate reason to abstain from removal. Certification forbids any appeal while the applicant remains in the United Kingdom.
In deciding whether the Home Secretary was entitled to conclude that the statutory presumption applied to each of these cases, Alan Payne, her counsel, accepts that in most cases, these included, the court is as well placed as the Home Secretary is to evaluate whether a claim, if brought before an independent tribunal, would be bound to fail: see R v Home Secretary, ex p. Yogathas [2002] UKHL 36, #34; R(L) v Home Secretary [2003] EWCA Civ 25; ZT (Kosovo) [2009] UKHL 6. This concession is properly made, not least because to accord presumptive finality to the view of the Secretary of State would be to constitute her judge in her own cause. It means that we are not required to embark on the near-metaphysical question whether, even if the court takes a contrary view, a rational Home Secretary could consider the claim unfounded. The question for the court, as for the Home Secretary, is whether any tribunal could lawfully determine the material claim to be well-founded.
The four cases
Two of these cases, those of EH and AE, come before this court pursuant to CPR 52.15(3) and (4). Permission to apply for judicial review was refused at first instance but was granted on application to this court, which has retained the substantive cases. In these two cases, therefore, the court sits as a forum of judicial review.
The other two cases, those of EM and MA, are appeals against substantive decisions of the Administrative Court. Permisssion to appeal was granted by the trial judge, Kenneth Parker J, in EM's case and by Rix LJ in MA's case, having been refused by Langstaff J.
The four cases have been argued on the same basis. The Home Secretary accepts that MA should have the benefit of any finding in favour of the other three notwithstanding her somewhat different situation; but in MA's case a separate ground has been advanced contingently on the failure of the principal ground.
The factual detail of the four cases has been painstakingly set out for us by counsel. No disrespect is intended to those who have worked so hard on it if this judgment refers only to parts of it. Likewise we shall not make detailed citations from the judgments below. That of Langstaff J in MA (Eritrea) is recorded at [2012] EWHC 56 (Admin); that of Kenneth Parker J in EM (Eritrea) at [2011] EWHC 3012 (Admin) and [2012] EWHC 1799 (Admin). In the other two cases permission to apply for judicial review was refused in reasoned judgments after argument before deputy judges – C.M.G. Ockelton, recorded at [2011] EWHC 3826 (Admin), and Stephen Males QC, recorded at [2012] EWHC 512 (Admin).
Mr Payne accepts that for present purposes the court may consider fresh material that has come into being since the hearings in the Administrative Court. He has waived any objection to fresh or late evidential material and, without objection, has put in some of his own.
The appellants
The accounts set out below summarise the claimants' cases at face value. This is because, when deciding whether an asylum claim is capable of succeeding, it is ordinarily necessary to take the facts at their highest in the claimant's favour.
(i) EH
EH is an Iranian national who initially arrived in Italy and must have made himself known to the authorities there, since he was fingerprinted on 11 November 2010. After a short while he left the country and made his way eventually to the United Kingdom, where on 11 March 2011 he applied for asylum on the ground that he had been tortured as a political detainee in Iran. The Italian authorities were contacted and accepted responsibility for his claim under Dublin II. His claim was certified as meeting the conditions set out in paragraphs 4 and 5 in part 2 of Sch.3 to the 2004 Act, and the case has proceeded on the basis that this was a certification that the claim was clearly unfounded. Removal directions were set.
The judicial review proceedings now before this court seek to challenge the decision to certify and the removal directions on the ground that there is a real risk that EH will be subjected in Italy to inhuman and degrading conditions. He relies not on his own experience of reception in Italy, which was brief, but on that of others.
There is a great deal of evidence that EH is now severely disturbed and suffering from PTSD and depression, both of which require treatment. It is sufficient for present purposes that we accept that this is the case, and that there is on the evidence (to which we will come) a real risk that EH, whether as an asylum-seeker or as an accepted refugee, will find himself street-homeless if returned to Italy.
(ii) EM
EM is an Eritrean national who left the country for fear of persecution as an Orthodox Pentecostal Christian. He made his landfall on Lampedusa, where he was fingerprinted and then placed in a hotel in Badia Tedalda. After about 2 months he and the other asylum-seekers there were told, presumably by a corrupt official, that they must each pay €120 for further processing of their applications. Having no money, he was given a train ticket to Milan, where for some three weeks he found himself homeless and destitute, living among other asylum-seekers in similar circumstances.
A fellow asylum-seeker helped him to travel clandestinely to the United Kingdom, where he claimed asylum. His fingerprints having been found to correspond with fingerprints on record in Italy, Italy was asked to accept responsibility for his claim and, having failed to respond, was deemed to have accepted responsibility....
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