R (on the application of Bassil Abdu Adam) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | The Honourable Mr Justice Langstaff |
| Judgment Date | 09 June 2016 |
| Neutral Citation | [2016] EWHC 1352 (Admin) |
| Docket Number | Case No: CO/445/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 June 2016 |
[2016] EWHC 1352 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Administrative Court
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Langstaff
Case No: CO/445/2015
Mr Chirico (instructed by Sutovic and Hartigan) for the Claimant
Mr Hansen (instructed by Government Legal Department) for the Defendant
Hearing date: 19.4.16
Approved Judgment
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
On 17 th September 2013 the Claimant first came to notice of the UK Authorities. He was a national of Eritrea. He applied for asylum. It emerged, following a Eurodac check, that he had been finger printed in Italy on 15 th August. The Secretary of State proposed to return him to Italy under the provisions of the Dublin II Regulation. He claimed that to do so would be unlawful. She certified this claim as manifestly unfounded and gave notice of his removal to Italy on 22 nd January 2015. Prior to, and with a view to removal, he was taken into detention with effect from 20 th January 2015. He was released on 19 th February, having brought proceedings by way of judicial review in the meantime. The certification of the claim was repeated by the Secretary of State on 4 th March 2015, and that view was maintained in a recent letter of 28 th September 2015.
By these proceedings, the Claimant challenges the entitlement of the Secretary of State to certify his claim as manifestly unfounded, and challenges the lawfulness of his detention for all or some of the period between 20 th January and 19 th February.
Certification and Removal
Under the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 (" 2004 Act"), the Claimant may be removed from the United Kingdom to Italy notwithstanding that he has made an asylum claim in respect of Eritrea, since Italy is a state to which paragraph 5(4) of Part 2 of Schedule 3 to the 2004 Act applies. He asserts that if he is removed to Italy he faces a real risk of treatment contrary to Articles 3 and 8 of the European Convention of Human Rights. The Defendant is required by paragraph 5 (4) to certify such a claim as clearly unfounded unless she is satisfied that the claim is not clearly unfounded.
The parties are agreed that the approach of the court must be to ask whether on the basis of the factual material before her the Secretary of State was entitled to certify the claim as clearly unfounded. To do so, it is agreed that I must base my decision on the facts known to her at the time she made her decision, in the light of the law as it is now known to be.
The Law
I gratefully adopt the analysis of the law as it stood in mid 2014 as set out by Mrs Justice Laing in her the judgment in R (Tabrizagh) v Secretary of State for the Home Department [2014] EWHC 1914 (Admin), not least because the Court of Appeal (Underhill, Sharp LJJ) gave a fully reasoned decision dismissing a renewed application for permission to appeal against her decision on 17 th September 2014: [2014] EWCA Civ 1398, in which Lord Justice Underhill specifically gave permission for the decision to be cited (paragraph 33). The Court of Appeal recognised she had correctly set out the law.
It is necessary for me only to identify the salient features. First, there is binding domestic authority at the highest level of the approach to be taken: EM (Eritrea) v Secretary of State for the Home Department [2014] 2 WLR 409, SC; [2014] UKSC 12. The case concerned the application of Article 3 of the ECHR: "no one shall be subjected to torture or to inhuman or degrading treatment or punishment". The parties before the Supreme Court agreed that the test laid down in Soering v United Kingdom (1989) 11 EHRR 439 to determine the proper approach to this continued to hold the field: that the question was whether substantial grounds had been shown for believing that the person concerned "faces a real risk [in the country to which he or she is to be removed] of being subjected to [treatment contrary to Article 3 of the Convention]" (paragraph 91 of Soering).
At paragraph 58 in the judgment of Lord Kerr JSC (with which the other members of the court agreed) he said:
"I consider that the Court of Appeal's conclusion that only systemic deficiencies in the listed country's asylum procedures and reception conditions will constitute a basis for resisting transfer to the listed country cannot be upheld. The critical test remains that articulated in Soering… the removal of a person from a member state of the Council of Europe to another country is forbidden if it is shown that there is a real risk that the person transferred will suffer treatment contrary to Article 3 of ECHR…"
This led to the conclusion expressed at paragraph 63 and 64, as follows:-
"Where, therefore, it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his removal to that state is forbidden. When one is in the realm of positive obligations (which is what is involved in the claim that the state has not ensured that satisfactory living conditions are available to the asylum seeker) the evidence is more likely to partake of systemic failings but the search for such failings is by way of a route to establish that there is a real risk of Article 3 breach, rather than a hurdle to be surmounted.
64. There is, however, what Sales J described in R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin) at [42(i)] as a 'significant evidential presumption' that listed States will comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory. It is against the backdrop of that presumption that any claim that there is a real risk of breach of Article 3 rights falls to be addressed."
It is not difficult to comprehend that where there are systemic deficiencies in the receiving state which are clearly and cogently established in evidence, there are likely to be substantial grounds to believe that any returnee to that state would face a real risk of being subjected to inhuman or degrading treatment contrary to Article 3, without the need additionally to examine circumstances personal and individual to the returnee — unless it could be said with confidence that they were such that the risk arising from systemic deficiency would not materialise in the case of that particular returnee: but such a case, where individual factors insulate a returnee from systemic deficiencies from which the returnee would otherwise suffer, is likely to be exceptional. This possibility is thus of theoretical rather than practical relevance. Though consideration must be given both to the situation applicable generally in the country of return and the applicant's personal circumstances, including his or her previous experiences (see Hussein v Netherlands, Application Number 2725/10 at paragraphs 69 & 78, and Daytbegova v Austria Application Number 6198/12 at paragraphs 61, 67–69) the first may be sufficient on its own to establish a real risk, as may be the second, but an holistic view of the effect of both, taken together, must be adopted.
Since mid-2014, the decisions in the domestic courts of R (EM) Eritrea and R (Tabrizagh and others) have been considered by Lewis J in R (MS) and others v Secretary of State for the Home Department [2015] EWHC 1095 (Admin). He addressed in his judgment three claims for judicial review in each of which the Secretary of State had certified the claim as clearly unfounded within the 2004 Act. He applied the law as stated in EM recognising that there is a significant evidential presumption that a Member State of the EU will comply with its obligations under EU law and international law, against the backdrop of which any claim that there are substantial grounds for believing that return would involve a real risk of a breach of Article 3 fell to be addressed. Such a presumption would generally be rebutted if an applicant produced sufficient evidence to show that there were substantial operational problems in the receiving state, but further and separately it would be rebutted if it could be shown on the facts of a particular case that there were substantial grounds for believing that there was a real risk that the individual applicant would face treatment contrary to Article 3 if returned. He commented that "that involved a rigorous assessment of the situation in the receiving country, examining the foreseeable consequences of sending a Claimant to the receiving country and the Claimant's circumstances, including his or her previous experience there; an assessment of the practical realities lies at the heart of that enquiry" (see his judgment paragraph 90). He thus first examined whether there were systemic failings, and secondly the individual situation of the Claimants. Of the three cases before him, two were brought by individuals recognised already to be entitled to benefit from international protection ("BIP"s). The third was an asylum seeker, as is the Claimant before me. In her case, she suffered from chronic post traumatic stress disorder and severe depression. Removing her to Italy was likely to make her more depressed, and could result in a significant risk of suicide. She was diagnosed as HIV positive, though was currently asymptomatic, having been raped repeatedly and subjected to sexual violence. In the cases of MS, and NA– the other two – each also...
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