UK - The Queen on the application of Mr Mohsen Pourali Tabrizagh, Mr Tahir Syed, Mr Saeed Ali, Mr Ali Omar Mohammed, Mr Edmond Karaj, AB (Sudan) v Secretary of State for the Home Department

Country of Decision:
Country of Applicant:
Date of Decision:
11-06-2014
Citation:
[2014] EWHC 1914 (Admin)
Court Name:
High Court, Queens Bench Division, Administrative Court
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Headnote: 

The case considered an application against the decision of the Secretary of State denying the Claimants a right of in-country appeal against the removal of the Claimants to Italy under the Dublin Regulation. The Claimants argued that their removal to Italy would expose them to a real risk of a breach of their rights under Article 3 of the European Convention on Human Rights (ECHR). The court found that there was no evidence to rebut the presumption that Italy would comply with its obligations under EU laws or of special vulnerability in the personal circumstances of any of the Claimants, to support the assertion that Article 3 of the ECHR would be breached by the Claimants’ removal to Italy. 

Facts: 

T is an Iranian national who fled Iran due to persecution from the authorities for becoming involved in politics. He entered Italy as an irregular immigrant and had his fingerprints collected at the time of entry but did not claim asylum in Italy and instead fled to the UK.

 S is a Pakistani national whose asylum claim was refused in Italy although he was granted a permit of stay, after which he left Italy for the UK and was subsequently returned to Italy.

A is an Iranian national who was granted humanitarian protection by Italy although its term had expired at the time of this case and would have to be renewed upon his return to Italy.

M is a Sudanese national who was granted subsidiary protection status in Italy.

K is an Albanian national who fled Albania due to being persecuted for his sexual orientation. Although he entered Italy prior to entering the UK, his fingerprints were not collected and he did not apply for asylum.

AB is a Sudanese national who was granted refugee status in Italy although this would need to be renewed upon his return to Italy.

Each of the claimants were denied a right of in-country appeal to the First Tier Tribunal (FTT) in the UK against their removal to Italy under the Dublin Regulation on safe third country grounds.

Decision & Reasoning: 

The court noted that there is a presumption of compliance (with its obligations under EU and international laws) in favour of Italy which would need to be displaced in order to show that there was a real risk of a breach of the Claimants’ Article 3 rights. This presumption is to be accorded due weight as indeed it has been accorded in the past in other admissibility decisions handed down by the ECtHR. 

The court considered in detail the ratio in the case of MSS v Belgium to determine its approach to a claim for a breach of Article 3 rights. It noted that this decision held that Article 3 does not require contracting parties to provide everyone with a home or impose an obligation to maintain a particular standard of living. However, there is an obligation to provide accommodation and decent material conditions to an impoverished asylum seeker and the failure to do so would attain the level of severity required to fall foul of Article 3 ECHR.

The court also discussed the EM (Eritrea) case and noted that the standard for establishing an Article 3 challenge was whether there was a real risk of the applicant being subjected to inhuman and degrading treatment if returned under the Dublin Regulation. Any such assessment should focus on the circumstances of the country to which the removal will take place and on the applicant’s personal circumstances. Although evidence of systemic shortcomings would not always be required in such cases, it would be easier to evidence a risk in the applicant’s case (particularly where a removal has not yet taken place) if a more widespread problem was shown to exist in the country of removal.

As to the circumstances prevailing in Italy, the court noted that the UNHCR report (2012 and 2013) does not call for any member state to suspend Dublin returns to Italy (whereas it has done so in the past in the cases of Greece and Bulgaria). Instead the reports reveal a general picture of compliance by Italy with its EU and international obligations while noting some operational difficulties with its asylum system (such difficulties being attributed to a surge in the number of asylum seekers in the 2012/2013 period). In terms of the reports offered in evidence by the Claimants, the court noted the Braunschweig Report was older than the 2013 UNHCR report and in any case, the FTT would be bound to prefer the analysis of the UNHCR report as it was also more authoritative along with being more up to date. The accuracy of the report of the Swiss Refugee Council was called into question by the court noting that its conclusion that Italy’s asylum system had “systemic deficiencies” was not substantiated by any material in the report. Accordingly the court found that the evidential presumption of compliance in favour of Italy had not been displaced.

As to whether the personal circumstances of any of the Claimants could give rise to an issue under Article 3, the court noted:

·         In T’s case that his medical condition does not reach the threshold required in N v UK and there are no other circumstances which could give rise to a risk under Article 3;

·         In S’ case, it was difficult to ascertain whether S would claim asylum on return to Italy however, regardless, there was nothing in his personal experiences in Italy to suggest Article 3 risk – he had been provided accommodation in Italy while he was there for instance;

·         In A’s case, he would have to renew his humanitarian protection on return to Italy but nothing in his personal circumstances suggested he would be prevented from doing this or exposed to Article 3 violations while he waiting for this to be renewed. Further his medical condition did not meet the N v UK threshold;

·         In M’s case, he would be able to renew his subsidiary protection on return to Italy and even though the Italian authorities displayed ‘deplorable’ conduct during his last stay (refusing medical attention, refusing accommodation and assistance with finding a job, discrimination on grounds of religion) there was no reason to conclude this creates an Article 3 risk on return;

·         In K’s case, the fear of his three cousins who live in Italy was not sufficient to create Article 3 risk;

·         In AB’s case, he provided no evidence of his assertion that Italian officials had provided him no support during his last stay in Italy, and he would be able to renew his refugee status on return.

In addition, the court approved the position upheld in other cases (both domestic and ECtHR) that in the case of a beneficiary of international protection (BIP), cannot successfully make an Article 3 claim on the basis of the difference in resources and economic opportunities between the sending and receiving state. In terms of ensuring integration BIPs, the court noted the UNHCR report finding that there were some shortcomings in the Italian system on this front. However, the UNHCR did not consider that this was of sufficient concern to halt returns of BIPs to Italy. However, the court noted that even the breach of the obligation to ensure integration of BIPs does not give rise to an issue under Article 3. 

Outcome: 

The court denied the motion of the Claimants requesting judicial review of the Secretary of States decision denying the Claimants the right to an in-country appeal.

Subsequent Proceedings : 

The applicants applied for permission to appeal the High Court’s judgment to the Court of Appeal. The latter subsequently refused permission to appeal on the 17 September 2014 reiterating the High Court’s findings.

Conditions in Italy for asylum seekers were later examined by the European Court of Human Rights in Tarakhel v Switzerland. The court found that a violation of Article 3 of the Convention on Human Rights would ensue if the Swiss authorities were to send an Afghan couple and their six children back to Italy under the Dublin Regulation without having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together.

Observations/Comments: 

The court appears to have placed heavy reliance on the report of the UNHCR. Although the court stated this was not a decisive factor, the judgement has noted several times the lack of any statement in the UNHCR report suggesting that states should suspend Dublin Regulation removals to Italy. 

This case summary was written by Linklaters LLP. 

 

Other sources cited: 

Reports:

·         UNHCR Report dated July 2013;

·         UNHCR Report dated 2012;

·         a report dated December 2012 prepared for the Braunschweig Administrative Court;

-         a report dated October 2013 by the Swiss Refugee Council.

 

Case Law Cited: 

UK - Soering v UK (1989) 11 EHRR 439

UK - ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6

UK - R v Secretary of State for the Home Department ex parte Thangarasa and Yogathas [2002] 3 WLR 1276

ECtHR - N v United Kingdom (Application no. 26565/05)

ECtHR - KRS v United Kingdom (Application no. 32733/08)

ECtHR - Cruz Varas & Others v Sweden (Application no. 15576/89)

UK - Secretary of State for the Home Department v MB [2007] UKHL 46, [2008] 1 All ER 657, [2008] 1 AC 440, [2007] 3 WLR 681; affg [2006] EWCA Civ 1140, [2007] QB 415, [2006] 3 WLR 839

UK - House of Lords, Limbuela v Secretary of State for the Home Department [2005] UKHL 66

UK - EM (Eritrea) v Secretary of State for the Home Department [2014] UKSC 12

ECtHR- Hussein Diirshi v. the Netherlands and Italy and 3 other applications, nos. 2314/10, 18324/10, 47851/10 & 51377/10

ECtHR- Abubeker v. Austria and Italy, no. 73874/11

ECtHR- Daybetgova and Magomedova v. Austria, no. 6198/12

ECtHR- Vilvarajah and Others v. the United Kingdom, Application Nos. 3163/87 13164/87 13165/87 13447/87 13448/87

ECtHR - Miruts Hagos v. the Netherlands and Italy (dec.), no. 9053/10

ECtHR - Mohammed Hassan and Others v. the Netherlands and Italy (dec.), no. 40524/10