R (on the application of EM (Eritrea)) v Secretary of State for the Home Department; R (on the application of EM (Eritrea)) (EH) v Secretary of State for the Home Department; R (on the application of EM (Eritrea)) (MA) v Secretary of State for the Home Department; R (on the application of EM (Eritrea)) (AE) v Secretary of State for the Home Department  UKSC 12 (19 February 2014)
The UK Supreme Court has held that returning an asylum seeker to the country whether they first claimed asylum is prohibited, if it can be established that there is a real risk that the person transferred will suffer inhumane or degrading treatment – which is prohibited by article 3 of the European Convention on Human Rights.
The Supreme Court overturned the UK Court Appeal’s decision that there needs to be systemic deficiencies in the asylum procedures of the receiving state before a transfer of an asylum seeker should be prevented under the Dublin Regulation.
The appellants arrived in the UK through Italy. EH, an Iranian national, claimed that if he returned to Italy he would be homeless and would not have any medical treatment for his psychological disorders. EM, AE and MA, all Eritrean nationals, claimed that if they returned to Italy, they would be homeless and destitute in Italy. AE and MA, who are women, claimed that they were repeatedly raped in Italy, despite being recognised as refugees.
As Italy is a member country of the Dublin Regulation, it is presumed that Italy is a safe country for returning asylum seekers. Therefore, in order to prevent the transfer of the asylum seekers back to Italy, the Home Secretary must be satisfied that the appellants’ claims that they will be subject to degrading and inhumane treatment are not clearly unfounded.
However, the Home Secretary certified all of the appellants’ claims as clearly unfounded because Italy was not in systemic breach of its international obligations to treat asylum seekers in accordance with the European Convention.
The Home Secretary’s decision was challenged in judicial review proceedings, on the basis that the proposed transferees would be subject to inhumane and degrading treatment if they were sent back to Italy. However, the UK Court of Appeal rejected the appellants’ claim and held that the correct test in determining whether the appellants’ should not be sent back to Italy was whether “there were systemic flaws in Italy’s asylum procedure that would cause the appellants to suffer inhumane and degrading treatment”.
The Court of Appeal held that Italy was not in systemic breach of its obligations under the European Convention. Therefore, the decision of the Home Secretary was held to be legally correct. The decision was appealed to the UK Supreme Court.
The UK Supreme Court unanimously allowed the asylum seekers’ appeal and remitted all four cases to the Administrative Court to determine on the facts whether there is a real possibility, that if the asylum seekers returned to Italy, they would be subject to treatment in violation of the European Convention.
The Court held that the Court of Appeal’s view – that only a systemic breach by the receiving country of its human rights obligations would justify not returning an asylum seeker to that country – was incorrect.
The Court of Appeal considered that it was bound by the decision of the European Court of Justice in NS (Afghanistan) v Secretary of State for the Home Department. The Court of Appeal understood the ECJ’s decision to mean that there needs to be systemic deficiencies in the receiving country’s asylum process before preventing the transfer of asylum seekers back to the member state responsible. However, the Supreme Court held that the NS decision needed be read according to the context in which it was given. Although the judgment made reference to systemic deficiencies, this was because it was established that the relevant country in question had systemic deficiencies in its asylum procedure. The ECJ’s focus on systemic deficiencies was not in relation to the test that had to be applied, but rather on the member state’s awareness of such breach.
The UK Supreme Court held that the test applied by the Court of Appeal was unduly narrow and meant that those:
who would suffer breach of their article 3 rights [inhumane or degrading treatment] other than as a result of a systemic deficiency in the procedure and reception conditions provided for the asylum seeker will be unable to avail of those rights in order to prevent their enforced return to a listed country where such violation would occur.
The Supreme Court considered this an unworkable solution, as it meant that if an applicant could establish a systemic failure, even if the consequences were not as substantial as those established by the appellants, then enforced return could be resisted under the Dublin Regulation.
The Supreme Court set out what it regards as the “correct approach”:
The removal of a person from a member state of the Council of Europe to another country is forbidden if it is shown that there is a real risk that the person transferred will suffer treatment contrary to article 3 of ECHR [inhumane or degrading treatment].
The UK Supreme Court’s decision is a welcome development and provides certainty given it upholds the longstanding jurisprudence in this area established by Soering v United Kingdom (1989) 11 EHRR 439. The narrow test applied by the Court of Appeal was artificial and had the potential to result in undesirable consequences. For instance, it was possible to send an asylum seeker back to a country where he or she may have suffered inhumane or degrading treatment purely because systemic deficiencies in the receiving country could not be proved – which Lord Kerr specifically considered to be an absurd result.
The European Convention presumes that Italy (being a member state of the Dublin Regulation) is a safe country for the return of asylum seekers. The purpose of this presumption is to increase legal certainty regarding the examination of asylum claims and to prevent asylum seekers from “forum shopping”. However, this presumption will be rebutted if there is a real risk that the person will suffer cruel and inhumane treatment in the receiving country.
The decision can be found online at: http://supremecourt.uk/decided-cases/docs/UKSC_2012_0272_Judgment.pdf
Hael Musa is a solicitor in King & Wood Mallesons Melbourne Human Rights Law Group.