R MS v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Lewis |
| Judgment Date | 22 April 2015 |
| Neutral Citation | [2015] EWHC 1095 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6869/2013; CO/901/2014 |
| Date | 22 April 2015 |
[2015] EWHC 1095 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Lewis
Case No: CO/6869/2013;
CO/7110/2013;
CO/901/2014
Raza Husain QC and Duran Seddon and Greg Ó Ceallaigh (instructed by Wilson Solicitors LLP) for the Claimant MS
Raza Husain QC and David Chirico and Harriet Short (instructed by Wilson Solicitors LLP) for the Claimant NA
Raza Husain QC and David Chirico (instructed by Duncan Lewis) for the Claimant SG
Lisa Giovannetti QC and Sasha Blackmore and Robert Harland (instructed by The Treasury Solicitor) for the Defendant (in all three cases)
Hearing dates: 24 – 26 March 2015
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
INTRODUCTION
These are three claims for judicial review of decisions of the Defendant, the Secretary of State for the Home Department, rejecting the claim of each Claimant that returning each of them to Italy would result in a real risk that each of them would be exposed to inhuman and degrading treatment contrary to Article 3 of the European Convention on Human Rights ("ECHR") and certifying the claim as clearly unfounded within the meaning of paragraph 5(4) of Schedule 3 to the Immigration and Asylum (Treatment of Claimants, etc.) Act 2004 ("the 2004 Act"). The hearing of a fourth claim was adjourned as the Claimant wished to adduce further evidence relating to her particular case.
In brief, the three Claimants applied for asylum in the United Kingdom. Prior to their arrival in the United Kingdom, two of the claimants, NA and MS, had been in Italy and had applied for asylum there. NA had been granted refugee status and MS had been granted leave to remain on the basis that he qualified for humanitarian protection. For convenience, persons recognised as refugees, or as entitled to protection under international law, are referred to in this judgment as "BIPs". The third claimant, SG, had been in Italy prior to travelling to the United Kingdom but had not claimed asylum there. The Claimants contend that they have at least an arguable case that return to Italy would involve a real risk of a breach of Article 3 ECHR and that the Defendant acted unlawfully by certifying their claims as clearly unfounded as, on one legitimate view, a tribunal considering their claims could conclude that the living conditions in Italy for those seeking asylum or for BIPs generally, or for these particular Claimants on the facts of their cases, are such that there is a real risk that they will suffer inhuman or degrading treatment contrary to Article 3 ECHR if returned to Italy.
By way of background, the appropriate approach to considering such claims has been determined by the Supreme Court in R (EM (Eritrea)) v Secretary of State for the Home Department [2014] AC 1321. The issue, and the evidence about conditions in Italy, has recently been considered in detail by the High Court in R (Tabrizagh and others) v Secretary of State for the Home Department) [2014] EWHC 1914 (Admin.). Elisabeth Laing J. held that the evidence did not establish a real risk that the claimants in those cases, one of whom suffered post-traumatic stress disorder, would suffer treatment contrary to Article 3 ECHR if returned to Italy and dismissed the claims that the Defendant had acted unlawfully by certifying those claims as clearly unfounded. The Court of Appeal refused permission to appeal: see R (Tabrizagh and others) v Secretary of State for the Home Department [2014] EWCA Civ. 1398. There are also decisions of the European Court of Human Rights dealing with the return of individuals to Italy, including individuals suffering from severe psychological mental health conditions. The European Court found that the claims that the return of these individuals to Italy would breach Article 3 ECHR were manifestly unfounded.
The Claimants in the present cases however contend that circumstances are now different. They contend that a recent decision of the Grand Chamber of the European Court of Human Rights in Tarakhel v Switzerland, judgment being given on 4 November 2014, and recent evidence demonstrate that, on one legitimate view, a tribunal could conclude there are substantial grounds for believing that there is a real risk that (a) any individual asylum seeker, or any person granted refugee status or humanitarian protection (b) any vulnerable such person or, (c) or at least these three Claimants would be subjected to treatment contrary to Article 3 ECHR if they were returned to Italy.
Pursuant to an order of Master Giddens of 11 February 2015, amended grounds of challenge have been filed in all three Claimants' cases. In accordance with that order, this hearing is to deal with the issues relating to the consideration of the lawfulness of removal to Italy (including certification of the Claimants' claims) but not the determination of any other issues such as the lawfulness of any forced detention or decisions of trafficking or decisions on a Claimant's status and treatment in the United Kingdom.
Given the range of legal and factual submissions made, this judgment is lengthy. It first sets out the material facts relating to each of the three Claimants and the facts relating to the situation they face if they are returned to Italy. Secondly, the judgment summarises the relevant European Union law dealing with asylum seekers and BIPs. Thirdly, the judgment considers the relevant case law of the European Court of Human Rights. Fourthly, the judgment summarises the legal principles set out by the Supreme Court in EM (Eritrea) for deciding these issues in the context of a challenge to a decision that a claim is clearly unfounded. Finally, the judgment considers the application of those principles both to asylum seekers and BIPs generally, and in the particular cases of these three Claimants considered against the overall context.
THE FACTS
The Individual Claimants
The facts of the three individual claimants can be summarised as follows. By way of preliminary observation, however, when deciding whether the Defendant was entitled to certify a human rights claim as clearly unfounded, the facts relied upon by the Claimants are assumed to be true. As explained by Lord Kerr in EM (Eritrea) [2014] A.C. 1321 at paragraph 8 in such cases:
"it is customary to take the facts at their highest in the claimant's favour …..Where, therefore, it is stated that a particular event took place or that a certain factual proposition is established, that is for the purposes of considering the appellants' cases at their reasonable height. It does not betoken any final finding or conclusion."
MS
MS is a national of Afghanistan. His date of birth is 28 May 1970. He was subjected to threats and beating in Afghanistan by the Taliban. In 2010, he left Afghanistan and ultimately arrived in Italy having travelled via Iran, Turkey and Greece. An agent arranged for MS to travel by boat, with others, from Greece to Italy. MS arrived in Italy in about late October or late December 2010. The boat deposited MS and the others in Italy. He and some of the others walked to a train station. Eventually, he travelled to Rome.
In Rome, MS went to a police station. After three hours there, an interpreter was found. He was given a permit to stay for one month. He spent time sleeping in overcrowded tents near the train station in Rome. He became ill. He subsequently went to a camp near Rome used, it appears, to accommodate asylum seekers. In any event, at the camp MS said he wished to claim asylum. He was fingerprinted. He was told he could not be accommodated there for a week. He spent that week living on the streets and eating from bins. After one week, he returned to the camp. He was provided with clothing, food and accommodation. The accommodation consisted of 5 beds in a container.
After some months, probably at a date between about January and July 2011, MS went to another camp in Mineo in Sicily. He was allocated a room, shared with two others. Each occupant had a bed and a blanket.
The information provided by the Italian authorities is that MS was granted humanitarian protection on 19 July 2011. In his witness statement, MS states that he was given a residence permit, called a "Soggiorno", which was valid for a year, and was also given another document which MS said he understood was a passport but was probably an identity card. Attached to his witness statements, are photocopies of a card with the words "permesso di soggiorno" and a document entitled "carta di'identita".
MS left the camp and was left in a city in Sicily. He began to feel ill and suffer panic attacks. He stayed for a week with a stranger but then had to leave that accommodation. He subsequently applied for and received a work card and what he refers to as a hospital card. This is, it seems, a reference to a document known as a "Tessera Sanitaria" which gives access to health services. Attached to MS's witness statement is a photocopy of a card bearing the words "Tessera Sanitaria". MS sought medical assistance at an emergency unit of a hospital but was told...
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