UK - High Court, 18 November 2011, Medhanye, R (on the application of) v Secretary of State for the Home Department [2011] EWHC 3012 (Admin)

The Court dismissed all but one of the substantive grounds of the application. It ordered that the matter be stayed pending the Court of Justice’s ruling in NS (CJEU, C‐411/10, NS v. Secretary of State for the Home Department, reference for a preliminary ruling, 18 August 2010).

The Court analysed the effect of the European Court of Human Rights’s decisions in KRS v UK and MSS v France and Belgium in assessing whether the applicant’s claim could succeed “on any legitimate view”.  It held that, first of all, that “the Courts have consistently held that evidence of aberrations does not demonstrate that a country is unsafe, so long as it has "a system which will, if it operates as it usually does, provide the required standard of protection for the asylum seeker. No country can provide a system which is 100 per cent effective. There are going to be aberrations." (see R v Home Secretary ex p. Adan (CA) [2009] 3 WLR 1274).

Secondly, the Court held that following KRS, “the existence of such a system is to be presumed”. However, the applicant can “rebut that presumption, by pointing to a reliable body of evidence demonstrating that Italy systematically and on a significant scale fails to comply with its international obligations to asylum seekers on its territory”.

Thirdly, in making that assessment “[i]t is clear from both KRS and MSS that great weight must in the present context be accorded to the position of recognised and reputable international agencies with special responsibilities in respect of the treatment of asylum seekers” and that “UNHCR's position is particularly significant”. That is apparent from the fact that, even given the abundant evidence from other sources, the ECtHR regarded UNHCR's position in respect of Greece as being "of critical importance".

Fourthly, the Court considered the published reports of UNHCR, the Council of Europe’s Human Rights Commissioner and the Director of the Italian Refugee Council alongside. It held that “in short, and in distinction from the position in MSS, there are not numerous reports from reputable organisations which "all agree" that there are serious deficiencies in Italian asylum practice”.

Fifthly, the Court considered further evidence from NGOs, the UK Border Agency’s Asylum and Immigration liaison officer in Italy and an expert report from an Italian immigration lawyer. The Court found that (i) the statistical evidence presented by the UK Border Agency’s employee would, by definition, not be reliable given problems with the data, (ii) that the NGO reports did not rebut the presumption of compliance arising out of KRS v UK, and (iii) that expert reports in such case will not normally carry significant weight.

The Court therefore concluded that “the material relied upon by the Claimant is not sufficient to overcome the presumption created by KRS, especially given that those organisations, such as UNHCR and the European Commissioner for Human Rights, whose opinions carried decisive weight in MSS, have not adopted a similar position as regards Italy's compliance with its international obligations in the relevant respect."

Finally, the Court considered the applicant’s argument that her return would breach the right of dignity guaranteed by the EU Charter, which conferred greater protection than Article 3 ECHR. After considering the Advocate-General’s opinion in NS, it decided to stay the application to wait for the decision of the Court of Justice in that case.