R (on the Application of EM (Eritrea)) and Others v Secretary of State for the Home Department [Sup Ct]

JurisdictionEngland & Wales
JudgeLord Kerr,Lord Carnwath,Lord Hodge,Lord Toulson,Lord Neuberger
Judgment Date19 February 2014
Neutral Citation[2014] UKSC 12
Date19 February 2014
CourtSupreme Court

[2014] UKSC 12

THE SUPREME COURT

Hilary Term

On appeal from: [2012] EWCA Civ 1336

before

Lord Neuberger, President

Lord Kerr

Lord Carnwath

Lord Toulson

Lord Hodge

R (on the application of EM (Eritrea))
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
R (on the application of EM (Eritrea)) (EH)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
R (on the application of EM (Eritrea)) (MA)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)
R (on the application of EM (Eritrea)) (AE)
(Appellant)
and
Secretary of State for the Home Department
(Respondent)

Appellant

Monica Carss-Frisk QC

Raza Husain QC

David Chirico Mark Symes

(Instructed by Wilson Solicitors LLP; Sutovic and Hartigan Solicitors)

Respondent

Lisa Giovannetti QC

Alan Payne

(Instructed by Treasury Solicitors)

Appellant

Monica Carss-Frisk QC

Raza Husain QC

Melanie Plimmer

(Instructed by Switalskis Solicitors)

Intervener (United Nations High Commissioner for Refugees)

Michael Fordham QC

Marie Demetriou QC

(Instructed by Baker & McKenzie LLP)

Respondent

Lisa Giovannetti QC

Alan Payne

(Instructed by Treasury Solicitors)

Heard on 6 and 7 November 2013

Lord Kerr (with whom Lord Neuberger, Lord Carnwath, Lord Toulson and Lord Hodge agree)

1

Is an asylum seeker or refugee who resists his or her return from the United Kingdom to Italy (the country in which she or he first sought or was granted asylum) required to establish that there are in Italy " systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers … [which] amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment…" (emphasis added). This formulation is taken from para 94 of R (NS) (Afghanistan) v Secretary of State for the Home Department 62010CJ0411"> [2013] QB 102. The mooted requirement that there be a systemic deficiency lies at the heart of this appeal.

2

That is the first and principal issue. It also constitutes the critical finding of the Court of Appeal. But, somewhat unusually, it is an issue on which there is no significant dispute between the parties. The appellants, the interveners (UNHCR), and the respondent all assert and agree that the Court of Appeal was wrong to hold that "… the sole ground on which a second state is required to exercise its power under article 3(2) of Regulation 343/2003 to entertain a re-application for asylum or humanitarian protection, and to refrain from returning the applicant to the state of first arrival, is that the source of risk to the applicant is a systemic deficiency, known to the former, in the latter's asylum or reception procedures" (emphasis added) — [2012] EWCA Civ 1336; [2013] 1 WLR 576, para 62.

3

The parties are also agreed that the test laid down in Soering v United Kingdom (1989) 11 EHRR 439 on this issue continues to hold the field. That case had established that the removal of a person from a member state of the Council of Europe to another country is contrary to the European Convention on Human Rights (ECHR) "where substantial grounds have 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]" — para 91 of Soering.

The Dublin II Regulation and domestic legislation
4

Council Regulation 343/2003 is commonly known as the Dublin II Regulation. In certain circumstances it provides that asylum claims must be processed and acted on by the member state of the European Union in which an asylum seeker first arrives. Asylum seekers and those who have been granted asylum (refugees) may therefore be returned to the first member state by any other member state of the EU in which asylum seekers and refugees subsequently arrive.

5

But where a person claims that his removal from the United Kingdom would expose him to the risk of breach of his human rights and/or article 3 ill-treatment within the member state to which it is proposed to return him, he has a statutory right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002 against a decision to remove him. This right is exercisable from within the United Kingdom unless the Secretary of State certifies the claim to be " clearly unfounded". By virtue of section 92(4)(a) of the 2002 Act and of para 5(4) in Part 2 of Schedule 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.

6

Such a certificate can be issued if "on any legitimate view" the claimant's assertion that his enforced return would constitute a violation of his human rights would fail on appeal: R (Yogathas) v Secretary of State for the Home Department [2003] 1 AC 920, by Lord Hope at para 34; R (L) v Secretary of State for the Home Department [2003] EWCA Civ 25; [2003] 1 WLR 1230 and ZT (Kosovo) [2009] 1 WLR 348.

7

The Home Secretary in each of these appeals 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 that the claims are clearly unfounded has the effect of prohibiting any appeal while the applicant remains in the United Kingdom.

The appellants' circumstances
8

Sir Stephen Sedley, who delivered the judgment of the court in the Court of Appeal, summarised the accounts given by the appellants in paras 13 to 28 of that judgment. The brief description of their circumstances which follows is drawn mainly from that synopsis. By way of preamble Sir Stephen correctly observed that, when deciding whether an asylum claim is capable of succeeding, it is customary to take the facts at their highest in the claimant's favour. That is the approach that I intend to follow in my consideration of these cases. Where, therefore, it is stated that a particular event took place or that a certain factual proposition is established, this is for the purposes of considering the appellants' cases at their reasonable height. It does not betoken any final finding or conclusion.

EH
9

EH is an Iranian national aged 32. He arrived in Italy on 11 November 2010 or thereabouts. It is recorded that his fingerprints were taken on that date. A short time later he left Italy and made his way to the United Kingdom. On 11 March 2011 he applied for asylum in this country on the ground that he had been tortured while a political detainee in Iran. When it became clear that he had first claimed asylum in Italy, the Italian authorities were contacted about EH. They failed to respond within the time stipulated in Dublin II and they were deemed to have accepted responsibility for his claim. (It appears that the Italian authorities subsequently accepted responsibility for the claim.) EH's claim was certified as being clearly unfounded. Removal directions were set. EH launched judicial review proceedings to challenge both the decision to certify and the removal directions. He claimed that there was a real risk that he would be subjected in Italy to inhuman and degrading conditions. He relied not on his own experience of reception in Italy, which was brief, but on that of others.

10

There is an abundance of evidence that EH is now severely disturbed and suffering from PTSD and depression, both of which require treatment. The Court of Appeal found that there was a real risk that EH, whether as an asylum-seeker or as an accepted refugee, will be homeless if returned to Italy. For the purposes of the present appeal that finding cannot be challenged.

EM
11

EM is an Eritrean national. It is believed that he was born on 8 January 1989. He is an Orthodox Pentecostal Christian. His father was of the same faith and had been arrested by the Eritrean authorities for having arranged prayer meetings at the family home. His uncle was concerned that EM would also be arrested on suspicion of following his father's faith and made arrangements for him to leave Eritrea. EM arrived in Italy at Lampedusa, and was first recorded as being there on 21 August 2008. He was fingerprinted and placed in a hotel in Badia Tedalda in the Arezzo province. After about 2 months he and the other asylum seekers there were told that they must each pay €120 for further processing of their applications. Having no money, he and other asylum seekers, who were likewise without funds, were given train tickets to Milan. For some three weeks after he arrived there he was himself homeless and destitute, living among other asylum-seekers in similar circumstances.

12

A fellow asylum seeker helped him to travel clandestinely to the United Kingdom, where he claimed asylum on 11 November 2008. His fingerprints were found to correspond with fingerprints on record in Italy. On 18 November 2008 Italy was asked to accept responsibility for his claim and, having failed to respond, was deemed to have accepted responsibility. Removal directions were set, but were challenged by an application for judicial review. On 1 June 2010 the Home Secretary certified EM's asylum claim as clearly unfounded. This was also challenged in the judicial review proceedings.

AE
13

AE fled from Eritrea because she and her husband had been ill treated by the authorities after their arrest on suspicion that her husband was helping people to leave the country illegally. She arrived in Italy in August 2008 and was screened. After this she was placed in a hotel at Bibbiano in the north of Italy in the Emilia-Romagna region. She was accommodated there for some three months and about halfway through her stay she was...

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103 cases
2 books & journal articles
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    • 12 September 2023
    ...113 .........................................................594 R (on the application of EM (Eritrea) and Others v SSHD (Respondent), [2014] UKSC 12 ......................................................................................690 R (on the application of Gornovskiy) v Secretary of......
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