United Kingdom: Supreme Court rules that appellants challenging Dublin transfer do not need to prove 'systemic deficiencies' in destination State

Monday, February 24, 2014

In EM (Eritrea) v SSHD [2014] UKSC 12, delivered on 19 February 2014, the UK Supreme Court unanimously decided that asylum seekers who appeal against their transfer to another Member State under the Dublin Regulation do not need to prove ‘systemic deficiencies’ in the asylum system of the destination State in order to successfully prevent removal.

This decision overturns the Court of Appeal’s October 2012 judgment. The Supreme Court sets out what it regards as ‘the correct approach’ [58]: Dublin returns must not take place where ‘substantial grounds have been shown for believing that the person concerned … faces a real risk’ in the destination Member State of inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights (ECHR).

The Supreme Court held that proving ‘systemic deficiencies’ in the reception conditions and asylum procedure is but one route to establishing a real risk of ill-treatment, rather than ‘a hurdle to be surmounted’ [63]. A ‘rigorous assessment’ of both the general situation and the individual’s personal circumstances, including his or her previous experiences, is required [70].

The Supreme Court concluded that the Court of Justice of the European Union, in N.S. and Others, did not intend to make ‘systemic deficiencies’ a necessary condition to stop a Dublin return [55].

The judgment arises from the joined appeals of three Eritrean asylum seekers and one from Iran against their return to Italy under the Dublin Regulation. With the correct legal approach now clarified by the Supreme Court, the factual merits of the individual cases will be dealt with by the High Court to determine whether their removal to Italy is prohibited by the risk of ill-treatment.

The ruling comes a week after the Grand Chamber of the European Court of Human Rights heard the case of Tarakhel v. Switzerland which will decide whether the Dublin removal of an Afghan family to Italy would violate their Convention rights.

Read the judgment of the Supreme Court and the official Press Summary.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.

Dublin Transfer
Inhuman or degrading treatment or punishment
Procedural guarantees
Reception conditions