EM (Eritrea) & Others and Secretary of State for the Home Department [2012] EWCA Civ 1336; [2012] WLR (D) 282

By Dr Noelle Quenivet, ILHRU, UWE

Four individuals challenged in the Court of Appeal (Civil Division) their removal from the United Kingdom on the basis that they would face inhuman or degrading treatment in violation of Article 3 ECHR if they were to be returned to Italy. Two of them (EH and EM) had been granted refugee status by Italy whereas the two others (AE and MA) were still waiting to hear about their asylum claim.

The Dublin II Regulation (Council Regulation 343/2003) provides that asylum seekers’ claims are examined in the first Member State in which they arrive and that if they then seek asylum or take refuge elsewhere in the EU they are to be returned to the country of arrival. The premise is that all EU Member States comply with their international obligations: 1951 Convention relating to the Status of Refugees and its 1967 Protocol, the European Convention on Human Rights, the European Union Qualification Directive and the European Union Charter on Fundamental Rights and that all Member States should according to the principle of mutual confidence trust each other’s asylum and refugee mechanisms.

As the Court of Appeal explains, it is however possible to challenge one’s return to the country of arrival by rebutting this presumption of compliance with international law. Three cases are used as the basis of the Court of Appeal’s decision to deny challenge to the removal from the United Kingdom: KRS v United Kingdom [2008] ECHR 1781 and MSS v Belgium [2011] ECHR 108, both cases before the European Court of Human Rights and NS v Secretary of State for the Home Department [2011] ECR I-0000 before the Court of Justice of the European Union. Whilst the ECHR jurisprudence has persuasive value only in the instant case the ruling by the Court of Justice of the European Union is binding upon the United Kingdom. The Court of Appeal examines in detail these three decisions. Whilst in KRS the European Court of Human Rights acknowledged that Greece was abiding by its international obligations (e.g. no policy of refoulement to Iran and no block on access to its own courts) in MSS the Court came to the conclusion that systemic shortcomings in the Greek asylum and refugee mechanism combined with the individual’s personal experience sufficed to rebut the presumption of compliance. In particular the European Court of Human Rights observed that it was the duty of the Belgian authorities to verify how the Greek authorities applied their legislation on asylum in practice rather than simply assume that the asylum application would be treated in conformity with international law (para. 359). The bottom line was that Belgium was not unaware of the systematic deficiencies in the asylum procedure and reception conditions in Greece. Similarly the European Court of Human Rights, the Court of Justice of the European Union stated that a presumption of compliance with international legal standards existed but was rebuttable (para. 104). The Court distinguished a truly systemic deficiency from operational problems (para. 81). This is also the position adopted by the English Court of Appeal which explains that “the sole ground on which a second state is required to exercise its power […] 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.” (para. 62, emphasis added) In other words, systemic deficiency in the system of refugee protection is a sine qua non condition of intervention. Even proof of individual risk cannot prevent return under Dublin II.

The question is how are States to know of the systemic deficiencies of a Member State’s asylum procedure and reception conditions? In KRS and MSS the European Court of Human Rights relied heavily on documents (reports and letters) produced by the United Nations High Commissioner for Refugees (UNHCR). The Court of Justice of the European Union simply relied on the evidence presented in the MSS case (para. 90). The English Court of Appeal used a broader range of materials to determine whether Italy’s asylum procedure, reception conditions and treatment of refugees showed systemic deficiencies. Given the role of UNHCR, it started by analysing its 2012 Recommendations on Important Aspects of Refugee Protection in Italy which in its opinion made “a series of recommendations, none of which is suggestive of repairing a systemic dysfunction rather than improving a functioning one” (para. 51). As the Court of Appeal acknowledged that the report is an exercise in diplomacy and does not support the applicants’ claims it scrutinised at the request of the lawyer for the applicants a range of reports written by the Council of Europe, non-governmental organisations and lawyers. Nevertheless the Court of Appeal gives pre-eminent weight to UNHCR’s report which, in its opinion, does not describe the Italian system as dysfunctional or deficient though it accepts that the language used in the report is of crucial importance in determining what amounts to a systemic deficiency (para. 63). Consequently the four claimants can be returned to Italy. 

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