EW, R (on the application of) v Secretary of State for the Home Department  EWHC 2957 (Admin) (18 November 2009) In this case, the England and Wales High Court held that the extradition of an asylum seeker to a safe third country did not constitute refoulement even if that country was not able to provide temporary accommodation and financial support. The right to freedom from cruel, inhuman and degrading treatment is entrenched in the International Covenant on Civil and Political Rights, the Victorian Charter of Human Rights and, relevantly for this case, the European Convention on Human Rights. However, the Court in EW found that this right did not impose a positive obligation to ensure a ‘general right to accommodation or a minimum standard of living’ and, as such, would not be breached by the extradition. The Court stated that ‘the setting of such a minimum standard – no matter how low – is a matter for social legislation, not the courts’.
The claimant, EW, was an asylum seeker from Eritrea who had entered Europe through Italy. Soon after arriving in Italy he fled and was later then found by officials in the United Kingdom. Under the Dublin II Regulation – an agreement between European states on asylum seekers – EW should have been returned to Italy as he first applied for asylum there. However, EW made an application to the Secretary of State in the UK to grant him asylum on the basis that his removal would constitute a breach of the England’s non-refoulement obligations. EW claimed that if he were returned to Italy, he would face ‘a real risk of destitution and humiliation’. The Secretary denied his application. EW then appealed the Minister’s decision on the basis that his extradition would constitute refoulement because: 1) in Italy he was at risk of destitution; and 2) ‘patent failures of the Italian authorities’ meant that his right to freedom from cruel, inhuman and degrading treatment would not be protected.
EW’s application for asylum was refused. Hickinbottom J determined that no right to accommodation or a minimum standard of living could be found in the Dublin II Regulation, European law or domestic law. He asserted that, if a standard were to be set, this should be done by the legislature and not the courts.
While it was recognised that the situation faced by asylum seekers in Italy is more difficult than that faced in the UK, there were no grounds to find that extradition would constitute refoulement. It was noted that not even Italians themselves have a guaranteed right to housing. Even though EW could not join a housing wait-list until he was granted asylum, he had failed to show his expected standard of living would be so low that it would constitute ‘inhuman and degrading’ treatment.
The Court did acknowledge that there may be some circumstances in which ‘poor living conditions can amount to inhuman and degrading treatment’, but only if such conditions stem from ‘treatment’ and not a ‘mere failure’ to prevent destitution: see also R (Limbuela) v Secretary of State for the Home Department  UKHL 66, .
In the present case, Hickinbottom J found that if EW were to return to Italy, he would be provided with accommodation according to Italian law for several weeks. If, after that time, his application had still not been determined, he would cease to be provided with accommodation but would still not be in a situation which could be classified as ‘cruel, inhumane and degrading’. This is particularly the case as he would most likely be homeless for only a few weeks before his application was determined.
The Court noted that it was not the role of one European state to police the adherence to human rights obligations of another state. Despite this, upon his assessment, he found that there was no evidence of systematic, routine or even regular frustration of the asylum-seeker application process by Italian authorities. Nor was there an unreasonable delay in the determination of an application for asylum or inadequate information on the asylum process provided to asylum seekers. The situation that EW would have faced in Italy was a result of stressed resources and not an intentional avoidance of human rights obligations by Italian authorities.
Relevance to Victorian Charter
Section 10 of the Victorian Charter of Human Rights protects against ‘cruel, inhuman and degrading treatment’. It is notable that s 3 of the Charter defines an ‘act’ as including a ‘failure to act’. Accordingly, it is to be hoped that Victorian Courts take a more progressive approach to the positive obligations associated with the prohibition against ill-treatment than that taken by the England and Wales High Court in this case. This more progressive approach would be consistent with that which is emerging from the European Court of Human Rights (see, eg, Z v United Kingdom (2001) 34 EHRR 97 in which the UK was found to have a positive obligation to act to protect children from abuse and neglect), the UN Human Rights Committee (see, eg, Concluding Observations on Australia in which the Committee recommended that the state take action to ensure the protection of the human rights of homeless people, including the right to life) and Canadian courts (see, eg, Victoria v Adams, 2009 BCCA 563).
The decision is available at http://www.bailii.org/ew/cases/EWHC/Admin/2009/2957.html.
Eva Wilson is a volunteer with the Human Rights Law Resource Centre