R Mohsen Pourali Tabrizagh and Others v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Underhill,Lady Justice Sharp |
| Judgment Date | 17 September 2014 |
| Neutral Citation | [2014] EWCA Civ 1398 |
| Docket Number | C4/2014/2124+2162+2171+2170+2169 |
| Court | Court of Appeal (Civil Division) |
| Date | 17 September 2014 |
[2014] EWCA Civ 1398
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MRS JUSTICE LAING)
Royal Courts of Justice
Strand
London, WC2A 2LL
Lord Justice Underhill
Lady Justice Sharp
C4/2014/2124+2162+2171+2170+2169
The Queen on the Application of
Mr S Knafler QC and Mr D Callaghan (instructed by Duncan Lewis) appeared on behalf of the Applicants Tabrizagh, Ali, Mohammed, and Karaj
Mr S Knafler QC and Mr G Ó Ceallaigh (instructed by Turpin & Miller LLP) appeared on behalf of the Applicant AB (Sudan)
This is an application for permission to appeal against a decision of Mrs Justice Elisabeth Laing concerning the return of asylum seekers and beneficiaries of international protection ("BIPs") to Italy under the Dublin II Convention. There were six claimants before her but only five have sought to appeal. I need only give the barest outline of the background. Full details can be found in the judgment below, which, I should say at this stage, is admirably well structured and comprehensive.
Two of the applicants are Sudanese nationals, two are from Iran, and one from Albania. All have made asylum claims in this country. All were in Italy for varying periods before coming here. Three were afforded the status of BIP in Italy and would continue to enjoy or would resume that status on return. The other two would be simply asylum-seekers. Their claims for asylum in this country were on 12 May 2014 refused by the Secretary of State and certified pursuant to paragraph 54 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 on the basis that they could be returned to Italy under Dublin II and that Italy was a safe third country. Their claims are for judicial review of that certification on the basis that if returned to Italy they face a real risk of breach of their rights under article 3 of the European Convention of Human Rights as a result of failures of support which are liable to be caused by the well-recognised difficulties which Italy faces as a country on the front line of immigration by asylum seekers and others across the Mediterranean. The primary focus of the case was on the absence of accommodation for asylum seekers and BIPs.
The claims were heard together over two days in May 2014. In her judgment handed down on 11 June 2014 the Judge dismissed all six claims. She subsequently refused permission to appeal.
When the first of the cases came before me on the papers I directed an oral inter partes hearing, and the same direction has now been made in the other cases.
The applicants have been represented by Mr Stephen Knafler QC leading, in most of the cases, Mr Declan O'Callaghan but in one of them Mr Greg Ó Ceallaigh.
I can summarise the Judge's reasoning as follows. She directed herself that the essential question was whether, if the applicants were able to appeal to the First Tier Tribunal, their claims based on article 3 would be bound to fail. (That way of putting it may in fact have been formally over-generous to the applicants, since, as the Judge recognised at paragraphs 160–161 of her judgment, the court is not strictly speaking deciding that question for itself but rather reviewing the Secretary of State's conclusion about it. However, that refinement can be ignored for present purposes.) She found that any such appeals would indeed be bound to fail. She considered first two "generic issues" which I will take in turn.
The first generic issue concerns the well-established presumption that member states of the European Union will comply with their obligations under the European Convention of Human Rights. The Judge formulated the issue as being "whether the argument, by those claimants who are, or might be, asylum seekers on their return, that the evidential presumption is displaced, is bound to fail before the FTT". She directed herself that the presumption could be displaced by evidence of the kind identified by Lord Kerr in his judgment in EM (Eritrea) v Secretary of State for the Home Department [2014] UKSC 12, [2014] 2 WLR 409, which encapsulated the position following the decision of the Court of Justice of the European Union in NS (Afghanistan) v Secretary of State for the Home Department 62010CJ0411"> [2013] QB 102. She said, at paragraph 148 of her judgment:
"Lord Kerr observed, at paragraph 66, when discussing the decision of Kenneth Parker J at first instance, that that Judge's view approximated to his own: that is, NS required it to be shown that there were "omissions on a widespread and substantial scale" or "substantial operational problems", rather than "inherent deficiencies in the system". He went on to say, "Practical realities lie at the heart of the inquiry" (judgment, paragraph 68; see also paragraphs 69–70).
The judge concluded that the evidence placed before the Secretary of State was not, applying that approach, capable of displacing that presumption (see paragraph 166). She had reviewed the relevant evidence in detail, including in particular two reports from the United Nations High Commissioner for Refugees ("UNHCR") dated July 2012 and July 2013; a report dated December 2012 prepared for the Brunswick Administrative Court, pursuant to an order of 28 September 2012 to take evidence, which was based on work done in October and November 2012; and a report dated October 2013 based on a fact finding mission carried out between May and June 2013 by the Swiss Refugee Council ("the SRC") — see paragraphs 76 to 99 of her judgment. The latter two reports, putting it very broadly, painted a blacker picture of conditions for asylum-seekers and BIPs in Italy, particularly as regards the availability of accommodation, than the UNHCR reports, but she had some criticisms of them.
The judge gave the reasons for her conclusion at paragraphs 167–169 of her judgment:
"167. Though it is not decisive, the starting point for the FTT would have to be that the UNHCR has not asked any member state to suspend removals to Italy. Not only that, but in its two most recent reports on Italy, the UNHCR, while making robust and objective criticisms, has not painted a picture which begins to meet the relevant test. It says in its 2013 report that there have been significant improvements. It is true that there has been a steep increase in arrivals in 2014, but against the backdrop of Italy's response to the NAE, and the substantial recent increase in accommodation places I do not consider that the FTT could possibly conclude, on the current material, that the presumption is displaced.
168. Mr Knafler QC may well be right that, as things stand, all the new accommodation is either full, or very nearly so. But that, taken with evidence of gaps in provision, and some failings, would not enable the FTT to displace the presumption of compliance in circumstances where Italy has, to date, made impressively sincere efforts to cope with surges in arrivals.
169. The issue is not, contrary to the submission of Mr Knafler QC, whether the SRC and Braunschweig reports are "capable of belief" such that, if they are, the evidential presumption is displaced. There are two questions. First, what weight could the FTT rationally give those reports, if and to the extent that they differ from the UNHCR's "pre-eminent and possibly decisive" assessment? The answer to that question is "Very little". Second, could the FTT find that (where they do not differ from the UNHCR report) they show "omissions on a widespread and substantial scale" or "substantial operational problems" sufficient to displace the significant evidential presumption of compliance? That is, substantial operational problems with the whole asylum acquis, not just operational problems with some aspects of it. The answer to that question is, "No"."
The judge made it clear that she did not regard her conclusion that the evidential presumption was not displaced as decisive of the issue whether all or any of the applicants were at risk of breach of their rights under article 3. Rather, its role was, as she put it at paragraph 166, as:
"… a very important part of the inquiry when the allegation is that there is a generalised risk of article 3 ill treatment in Italy which arises regardless of the returnee's profile."
The second generic issue concerned those applicants who were, or would on any event be shortly after their return, BIPs. The judge defined three particular issues under that head at para 170 as follows:
"whether the FTT could conclude that
a) EM (Eritrea) requires BIPs and asylum claimants to be treated similarly;
b) the approach of the House of Lords to article 3 claims based on destitution is different from that of the ECtHR;
c) a breach or likely breach of Italy's obligations under the revised Reception Directive to provide integration facilities is a breach of article 3."
As so summarised, the issues may seem somewhat opaque but the only one which matters for present purposes is (b). The background to that is as follows. The Strasbourg Court had in no fewer than five decisions in the first half of 2013 dismissed challenges by both asylum-seekers and BIPs that their return to Italy from other Convention countries gave rise to a breach of their article 3 rights because of conditions in Italy. The two cases which particularly concerned BIPs are Hussein v The Netherlands and Italy (Application no 27725/10) and Hassan v The Netherlands and Italy (Application number...
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