R (on the Application of Weldegaber) v Secretary of State for the Home Department (Dublin Returns - Italy) (IJR)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice McCloskey,McCloskey J |
| Judgment Date | 12 February 2015 |
| Neutral Citation | [2015] UKUT 70 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 12 February 2015 |
[2015] UKUT 70 (IAC)
In the Upper Tribunal
(Immigration and Asylum Chamber)
Mr Justice McCloskey, President
In the matter of an application for judicial review
R (on the application of Weldegaber) v Secretary of State for the Home Department (Dublin Returns — Italy) IJR
1. Dublin cases require the Respondent to undertake a thorough and individuated examination of the situation and circumstances of the person concerned.
2. The European Court of Human Rights in Tarakhel v Switzerland [App.no. 29217/12 (GC)] was not purporting to promulgate a general rule or principle that a sending state is required to secure specific assurances from the destination state as to accommodation or the like.
3. In light of the considerable body of relevant background country information considered by the Respondent, it was open to her to find that there was neither systemic deficiency nor serious operational failure in the conditions prevailing in Italy for the reception, processing and treatment of asylum seekers.
On the renewed application of the Applicant for permission to apply for judicial review, heard on 05 January 2015 and following consideration of all documents lodged and having heard the parties' respective counsel, Ms Harriet Short (instructed by Barnes, Harrild and Dyer Solicitors) and Ms Amelia Walker (instructed by the Treasury Solicitor).
This is a Dublin Regulation case. It is a renewed application for permission to apply for judicial review, in the wake of the refusal decision on the papers of Upper Tribunal Judge Freeman, dated 18 October 2014. The renewal application is stamped with the date of 28 October 2014. The Respondent subsequently sought to remove the Applicant from the United Kingdom. This was prohibited by a stay order of this Tribunal, dated 15 December 2014. The underlying decision of the Respondent was to remove the Applicant to Italy for the purpose of processing and determining his asylum application.
The Applicant is a national of Eritrea, aged 31 years. In common with many Dublin Regulation return to Italy cases, which have been marked by landmark decisions, both domestic and European, during the past year, the present case has something of a history. It suffices to record that an earlier decision was voluntarily withdrawn and remade by the Respondent. This is contained in the Respondent's letter dated 23 July 2014. This was initially the target decision. Its effect was to reject the Applicant's case that his removal to Italy would infringe his rights under Article 3 ECHR. It embodies the following key assessments and conclusions:
(a) The evidence on which the Applicant relies “does not even arguably approach the level of weight and significance to establish a case that [the Respondent] could not be unaware that systemic deficiencies or serious operational difficulties in the asylum procedure in Italy amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment.”
(b) “…… the evidence and claims advanced by you do not come close to rebutting the presumption that Italy will treat [you] in compliance with the requirements of the EU Charter, the Geneva Convention and the ECHR”.
(c) Finally, the Applicant's human rights claim was certified as clearly unfounded, per paragraph 5(4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants) Act 2004.
The initial target decision no longer exists in isolation. Rather, it now co-exists with a more recent decision of the Respondent dated 02 January 2015. Both counsel concurred with my suggestion that this should be treated as supplementing and merging with the initial decision. Both decisions are now challenged and I grant permission to amend the Claim Form accordingly.
The stimulus for the more recent decision of the Respondent was the submission of further representations by the Applicant's solicitors. It records the certification of the Applicant's case under Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants) Act 2004, on 23 August 2011, following receipt of acceptance of responsibility by the Italian authorities under the Dublin Regulation. The materials submitted with the further representations included a substantial volume of reports and kindred documents pertaining to asylum procedures and reception conditions in Italy. The decision maker accorded very little weight to those predating 2013 and, correspondingly, particular attention was given to the more recent materials. It was concluded that the materials submitted did not suffice to displace the significant evidential presumption that EU Member States will comply with their ECHR and other international law obligations. It was further concluded that the evidence provided did not establish any systemic failings in the asylum processing and reception arrangements and conditions prevailing in Italy. Finally, it was concluded that no serious risk of exposing the Applicant to treatment proscribed by Article 3 ECHR in the event of a forced return to Italy was demonstrated. This is my condensed digest of a characteristically comprehensive letter.
Pursuant to the decision in R v SSHD, ex parte Yogathas [2002] 3 WLR 1276, the duty imposed on the Secretary of State in making this species of certification decision is to carefully examine the individual's case and supporting evidence and to be reasonably and conscientiously satisfied that the asserted human rights violation “ must clearly fail”, per Lord Bingham at [14]. Lord Hope devised the test at [34] in these terms:
“ The question to which the Secretary of State has to address his mind ….. is whether the claim is so clearly without substance that the appeal [to the FtT] would be bound to fail”.
More prescriptive guidance to the correct approach for the decision maker is contained in the decision of the Court of Appeal in R (L) v SSHD [2003] EWCA Civ 25. This contains the following notable formulation:
“ If on at least one legitimate view of the facts or the law the claim may succeed, it will not be clearly unfounded. If that point is reached, the decision maker cannot conclude otherwise.”
I remind myself that in the matter of certification decisions and challenges the facts of the claimant's case are to be evaluated at their reasonable zenith: EM (Eritrea) [2014] UKSC 12, at [8].
In a recent renewed permission application, a return to Italy case, in the Administrative Court, NMA v SSHD [CO/7110/2013], which I granted permission to cite, I formulated the correct approach to a permission application in these terms:
“[4] ….. In summary, given the low threshold governing the present application for permission, the test is whether it is arguable that there is a reasonable doubt as to whether the Claimant's substantive human rights claim may succeed.”
In granting permission to apply for judicial review, I highlighted that the standout feature of that challenge was its individuality, composed of the Claimant's gender, background, past experiences, psychological condition and personal vulnerabilities, supported by medical and psychological evidence: see [5]. Furthermore, significantly, various pieces of “country” evidence relating to conditions prevailing in Italy not considered in Tabrizagh [2014] EWHC 1914 (Admin) formed part of the claim. I further noted that the Supreme Court has held that it is necessary to consider not only the general situation in the country of proposed destination but also “ the Claimant's personal circumstances, including his or her previous experience”: EM (Eritrea) [2014] UKSC 12, at [70].
The Applicant in this case is described as a national of Eritrea, now aged 31 years. He asserts that he was forced to flee from Eritrea, where he was pursuing studies for the priesthood, following an initial raid by the Eritrean authorities and his later detention by the Ethiopian authorities, ultimately fleeing to Sudan. Then he travelled to Italy and onwards to Holland, where the authorities returned him to Italy....
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