R (SM & Ors) v Secretary of State for the Home Department (Dublin Regulation – Italy) [2018] UKUT 429 (IAC)

Summary

In contrast to earlier challenges such as Tabrizagh and MS(Afghanistan), the Upper Tribunal in SM & Ors found that the threshold for Article 3 ill-treatment may be met when returning demonstrably vulnerable asylum seekers and beneficiaries of international protection (“BIPs”) to Italy. The evidence before the Upper Tribunal was markedly different from that previously considered by the High Court in “Dublin” cases concerning Italy, such that it cannot, without more, be said a human rights claim based on Article 3 is bound to fail, if the claim is made by a particularly vulnerable person.

Background

The applicants sought judicial review of the decisions of the respondent to certify their human rights claims as “clearly unfounded”. The respondent had certified their claims on the basis that they were to be returned to Italy. SOM and RK were to be returned as asylum seekers under the Council Regulation 604/2103 (“the Dublin Regulation”) and SM as a beneficiary of international protection (“BIP”) pursuant to an agreement between the Italian and British authorities. Each of the applicants’ human rights claims involved the contention that if they were returned to Italy as asylum seekers or BIPs they would face a real risk of treatment contrary to Article 3 of the ECHR.

Threshold for Article 3

The applicants contended that if returned to Italy the authorities would not make sufficient provision for their accommodation and welfare, with the result that they would a real risk of being homeless and destitute. Ordinarily a person advancing this type of Article 3 claim would need to meet the very high threshold set out in N v United Kingdom (2008) 47 EHRR 885. Judge Canavan quoted from the judgement of Laws LJ in GS (India) v SSHD [2015] EWCA Civ 40 which explains why, insofar as asylum seekers are concerned, this threshold does not apply.

Laws LJ describes a “fork in the road” between N v United Kingdom and the case of MSS v Belgium and Greece 53 EHRR 28 a case about an Afghan asylum seeker returning from Belgium to Greece.  In that case it was found that the appellant’s destitution in Greece constituted humiliating treatment which aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. This combined with the prolonged uncertainty relating to his immigration status attained the level of severity required to fall within the scope of Article 3 of the ECHR.

There two key features of the MSS v Belgium and Greece which warranted the “fork in the road” were i) there was a positive obligation on Member States, in the form of the domestic legislation that transposes the European Reception Directive, to provide accommodation and decent material conditions to impoverished asylum and ii) the considerable weight to be attached to the applicant’s status as an asylum seeker and as such a member of a “particularly underprivileged and vulnerable population group” in need of special protection.

Sales LJ in the case of R (HK Iraq) & Others v SSHD [2017] EWCA Civ 1871 said that in MSS v Belgium and Greece the focus was on the situation of extreme material poverty of the asylum seeker but that the reasoning in that case should not be restricted to these matters. Chapter IV of the Reception Directive states that Member States shall take into account the specific situation of vulnerable persons. The list of vulnerabilities now includes “victims of human trafficking, persons with serious illness, persons with mental disorders”. It was Sales LJ’s view that these provisions were capable of informing the application of Article 3 to identify the categories of asylum seekers who may be regarded as having special vulnerabilities which potentially heighten the standards of treatment to be expected in respect of them in the state to which they are returned.

Evidential presumption

The Tribunal referred to the significant evidential presumption that states will comply with their convention obligations in relation to asylum procedures and reception conditions.  However, Judge Canavan referred to the comment of Lord Kerr in EM (Eritrea) v SSHD [2014] UKSC 12 that an Article 3 claim of this nature “is not to be halted in limine solely because it does not constitute a systemic or systematic breach of the rights of refugees or asylum seekers”.

Certification

Each of the applicant’s human rights claims were certified under Part 2 of Schedule 3 to the Asylum and immigration (Treatment of Claimants, etc) Act 2004. The applicants submitted that “when reviewing a “clearly unfounded” certificate on public law grounds, the reviewing Tribunal must take a claimant’s case at its reasonable highest, proceeding on the basis that any legitimate conflicts in evidence or disputes about the evidence may be resolved in favour of the claimant”. Judge Canavan explained in certification cases taking a case at its “reasonable highest” will often involve an acceptance that an individual’s account of his or her experiences in a foreign country is reasonably likely to be true. The Tribunal in this case approached the evidence on that basis.

Conclusions

The Tribunal found in an ‘ordinary case’ of an asylum seeker or BIP who is not particularly vulnerable the evidence is not sufficiently consistent or cogent to show a general risk of Article 3 ill-treatment sufficient to rebut the presumption of compliance. The evidence did not indicate that the periods of delay in registering an asylum claim and accessing the reception system have increased to such a significant extent since they were last considered by the courts that an ‘ordinary’ asylum seeker would face long periods of homelessness of the kind that would engage the threshold required to show a breach of Article 3.

However, the Tribunal found that the threshold for Article 3 ill-treatment may be met in cases involving demonstrably vulnerable asylum seekers and BIPs. The significant difference between this case and previous cases is (i) the nature and extent of the evidence produced by the parties and (ii) the fact that UNHCR expressed particular concerns about vulnerable persons and made a direct recommendation to the UK to use the discretionary clause of the Dublin Regulation in a proactive and flexible way in cases involving vulnerable people and those with family in the UK. This recommendation was considered in the context of the clear and consistent evidence showing an acute lack of capacity in the SPRAR system that provides supportive accommodation and, in any event, the small proportion of places which are likely to be suitable for people with significant physical and mental vulnerabilities.

BIPs who can demonstrate significant mental and physical health problems or disabilities are likely to be in the same position in terms of access to accommodation as asylum seekers. There is no basis on which to distinguish between them.

The Tribunal concluded that failure to consider whether to exercise discretion provided for in the Dublin Regulation in cases involving demonstrably vulnerable individuals is likely to render a decision unlawful. If the respondent chose not to exercise the discretion the return of the particularly vulnerable asylum seeker or BIP will need to be well planned. In order to protect their rights in accordance with the respondent’s duties under the ECHR, it would need to seek an assurance from the Italian authorities that support and accommodation is in place before effecting transfer. Failure to seek such an assurance is likely to give rise to a human rights claim that is not necessarily bound to fail before the FTT.

Individual cases

SM

SM is a national of Sudan who claims to have suffered persecution at the hands of the Janjaweed in the course of which he was beaten and his father was murdered. He was recognised as a refugee in Italy. A psychological report found that SM was suffering from chronic and severe PTSD and major depression arising from traumatic experiences in Sudan and compounded by experiences in Italy. In the doctor’s opinion a return to Italy was likely to exacerbate SM’s depressive symptoms and add to his existing PTSD symptoms.

In the Tribunal assessment, SM’s condition was sufficiently serious to bring him within the category of demonstrably vulnerable individuals. It was incumbent on the respondent to examine his position in order to determine whether to exercise discretion to examine his claim in the UK. SM’s application for judicial review accordingly succeeded and his decision was quashed

SOM

SOM is a national of Somalia. She claimed asylum in the UK in 2015 having been fingerprinted in Italy. She would be returning to Italy as a lone female. She suffers from Moderate Major Depressive Disorder Anxiety but the psychological report indicated that she was not suffering from a serious psychiatric illness or psychological condition such that she could not cope with some of the potential challenges of registering a claim in Italy.

Her claim was argued on the basis of systemic failings within the support given to asylum seekers and BIPs within Italy. The Tribunal did not consider that SOM’s vulnerability was of sufficient severity as to have required the respondent to consider exercising its discretion or to obtain appropriate assurances. Her application was dismissed.

RK

RK is an Eritrean national. His claim which the Tribunal took at its highest, was that he was forced to serve for nearly 20 years in the Eritrean Army as a minesweeper but he deserted in 2014 after having been arrested and detained following his conversion to Pentecostalism. His body display significant scarring which is consistent with his account of torture. In Libya he was badly injured when the truck he was travelling in was ambushed by soldiers. He was beaten and witnessed two women being killed.

He was diagnosed as having PTSD and major depressive episode for which he was receiving treatment. He also suffers musculoskeletal pain, bladder incontinence and pre-diabetes.

The Tribunal found that in light of his ill-treatment which contributed to serious mental and physical disabilities, RK fell within the category of vulnerable persons in regards to whom the respondent was required to consider exercising its discretion or obtaining appropriate assurances. His claim succeeded and his decision was quashed.

One Pump Court’s Victoria Laughton and David Chirico were instructed.

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