S M v The Secretary of State for the Home Department
Jurisdiction | UK Non-devolved |
Judge | Mr Justice Lane,Craig,Canavan |
Judgment Date | 24 May 2018 |
Neutral Citation | [2018] UKUT 429 (IAC) |
Court | Upper Tribunal (Immigration and Asylum Chamber) |
Date | 24 May 2018 |
[2018] UKUT 429 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
Mr Justice Lane, PRESIDENT
UPPER TRIBUNAL JUDGE Craig
UPPER TRIBUNAL JUDGE Canavan
The Queen on the Application of
For SM: Mr G. Ó Ceallaigh, instructed by Duncan Lewis Solicitors
For SOM: Ms V. Laughton, instructed by Wilsons Solicitors
For RK: Mr D. Chirico, instructed by Wilsons Solicitors
For the Respondent: Mr A. Payne and Mr J. Anderson, instructed by the Government Legal Department
R (on the application of SM & Others) v Secretary of State for the Home Department (Dublin Regulation — Italy)
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the cases involve protection issues. It is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the applicants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their families. This direction applies both to the applicants and to the respondent.
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(1) Subject to paragraph (2) below, on the evidence before the Upper Tribunal, no judge of the First-tier Tribunal, properly directed, could find there is a real risk of an asylum seeker or Beneficiary of International Protection (BIP) suffering Article 3 ill-treatment if returned to Italy pursuant to the Dublin Regulation, by reason only of the situation that the person concerned may be reasonably likely to experience in Italy, as a “Dublin returnee”. The evidence does not rebut the general presumption that Italy will comply with its international obligations in such cases.
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(2) However, the evidence before the Upper Tribunal is markedly different from that previously considered by the High Court in “Dublin” cases concerning Italy, such that it cannot, without more, be said a human rights claim based on Article 3 is bound to fail, if the claim is made by a ‘particularly vulnerable person’ (as described in paragraph (3) below).
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(3) The categories of “vulnerable persons” identified in the Reception Directive are a starting point for assessing whether a person has a particular vulnerability for the purposes of this paragraph. The extent of a person's particular vulnerability must be sufficiently severe to show a potential breach of Article 3. It is difficult to specify when a particular vulnerability might require additional safeguarding to protect a person's rights under Article 3. The assessment will depend on the facts of each case. However, a person who makes general assertions about mental health problems without independent evidence or who has been diagnosed with a mild mental health condition or has a minor disability may have sufficient resilience to cope with the procedures on return to Italy, even if it entails the possibility of facing a difficult temporary period of homelessness or basic conditions in first-line reception facilities. There will be cases where a person's particular vulnerability is sufficiently serious that the risk of even a temporary period of homelessness or housing in the basic conditions of first-line reception might cross the relevant threshold. Such cases are likely to include those with significant mental or physical health problems or disabilities. Other people may have inherent characteristics that render them particularly vulnerable e.g. unaccompanied children or the elderly.
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(4) In the case of a ‘particularly vulnerable person’, the following considerations apply:
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(i) A failure by the respondent to consider whether to exercise discretion under article 17(2) of the Dublin Regulation is likely to render the certification decision unlawful;
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(ii) If the respondent considers whether to exercise such discretion but decides not to do so, the return and reception of the person concerned will need to be well-planned. Although the Italian authorities would not want to leave a particularly vulnerable asylum seeker or BIP without support, the evidence indicates that there is no general process, similar to that which exists for families with children, to ensure that particularly vulnerable persons will not be at real risk of Article 3 treatment, while waiting for suitable support and accommodation, of which there is an acute shortage. In order to protect the rights of such a person in accordance with the respondent's duties under the European Convention, the respondent would need to seek an assurance from the Italian authorities that suitable support and accommodation will be in place, before effecting a transfer.
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(iii) It follows that a failure to obtain such an assurance prior to the transfer of a particularly vulnerable person is likely to give rise to a human rights claim that is not necessarily ‘bound to fail’ before the First-tier Tribunal.
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Note: underlined headings are bookmarked in the electronic version
Page | |
GLOSSARY | 7 |
INTRODUCTION | 8 |
LEGAL FRAMEWORK | 8 |
THE EVIDENCE | 18 |
Introduction to the evidence | 18 |
Scope of the assessment | 18 |
Summary of the evidence | 19 |
Comments on the ‘Fact-finding Mission Report’ | 21 |
Overview of the situation in Italy | 24 |
Overview of the asylum procedure | 30 |
Initial registration ( fotosegnalamento) | 30 |
Formal registration ( verbalizzazione and C3 form) | 30 |
Interview and decision by the Territorial Commission (CTRPI) | 30 |
Suspension of the procedure | 31 |
Access to reception and accommodation | 32 |
Reception and accommodation | 32 |
Emergency facilities – CPSA / Hotspots | 33 |
Temporary reception facilities – CAS | 34 |
First-line reception facilities – Regional Hubs (CARA / CDA) | 37 |
Second-line reception facilities – SPRAR | 38 |
Other sources of support and accommodation | 45 |
Vulnerable persons | 45 |
Transfers under the Dublin Regulation | 52 |
Overview of the procedures | 52 |
Issues relating to registration and reception | 55 |
Rome | 57 |
Milan | 62 |
Venice | 67 |
Bari, Brindisi and Lecce | 68 |
Naples | 70 |
Living conditions | 70 |
Access to healthcare | 73 |
Beneficiaries of International Protection (BIPs) | 76 |
Assistance on return | 78 |
Renewal of permits | 78 |
Accommodation and integration | 80 |
The Tribunal's observations on the evidence | 84 |
GENERAL CONCLUSIONS | 88 |
A. ‘Ordinary cases’ (not exhibiting particular vulnerabilities or disabilities) | 88 |
B. Vulnerable persons (including asylum seekers and BIPs) | 91 |
C. Beneficiaries of International Protection | 95 |
THE INDIVIDUAL CASES | 96 |
Findings relating to SM | 97 |
Findings relating to SOM | 98 |
Findings relating to RK | 99 |
ANNEX | |
Schedule of Background Evidence | 101 |
AIDA | Asylum Information Database |
AMIF | Asylum, Migration and Integration Fund |
ANCI | National Association of Italian Municipalities Associazione Nationale Comuni Italiani |
ASGI | Association for Juridical Studies on Immigration Associazione per gli Studi Giuridici sull'Immigrazione |
CARA | Centre for the Reception of Asylum Seekers Centro di accoglienza per richiedenti asilo |
CAS | Emergency Accommodation Centre Centro di accoglienza straordinaria |
CDA | Accommodation Centre for Migrants Centro di accoglienza |
CNDA | National Commission for the Right of Asylum Commissione nazionale per il diritto di asilo |
CPSA | First Aid and Reception Centre Centro di primo soccorso e accoglienza |
CTRPI | Territorial Commission for the Recognition of International Protection Commissione territoriale per il reconoscimento della protezione internazionale |
MEDU | Doctors for Human Rights Medici per i diritti umani |
MSF | Doctors without Borders Medecins Sans Frontieres |
SPRAR | System of Protection for Asylum Seekers and Refugees Sistema di protezione per richiedenti asilo e rifugiati |
SRC | Swiss Refugee Council |
This is the judgment of the Tribunal, primarily written by Upper Tribunal Judge Canavan, but to which the other two members have contributed. The applicants each seek judicial review of the decisions of the respondent to certify their human rights claims as clearly unfounded. Pursuant to Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, the respondent certified the applicants' claims on the basis that each of them is to be returned to Italy. Part 2 applies, inter alia, to Italy since that State is listed in paragraph 2. Paragraph 5(4) requires the respondent to certify such a claim unless satisfied that the claim is not clearly unfounded.
Each of the applicants contends that he or she has a well-founded fear of persecution or other serious ill-treatment, if returned to their respective country of nationality.
The respondent contends that since the applicants travelled to Italy from their home countries, before making their way to the United Kingdom, Italy is the EU state that is responsible for determining the applicants' claims to international protection. The respondent, accordingly, intends to return the applicants to Italy by means of the process contained in Council Regulation 604/2103 (“the Dublin Regulation”).
Article 3 of the Dublin Regulation provides as follows:
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“1. Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zone. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter 3 indicate is responsible.
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