This test case concerned a claim for judicial review regarding the circumstances in which an asylum seeker could be returned to the first European country they entered on route to the UK in order to pursue their asylum claim there, pursuant to the Dublin II Treaty. The claim concerned a number of different Claimants represented by different solicitors.
The claim focussed on the nature of the reception conditions and asylum procedure operating in Italy and whether the reported problems experienced by asylum seekers there amounted to a breach of Article 3 ECHR (Right not to suffer torture, inhuman or degrading treatment or punishment) such that individuals could not be expected to return there.
Italy is a party to the Dublin II Treaty. It also features on a list of countries, held by the Home Office, which are presumed to be safe to return asylum seekers. It is further presumed that the system for processing such claims and the reception conditions in ‘safe third countries’ such as Italy are compliant with international obligations.
In circumstances where an individual is found to have travelled to the UK via one of the countries on that list, he or she can be returned there under the Dublin II Treaty and it will then be the responsibility of that country to process and consider his or her asylum claim. In those cases, the Home Office is permitted to refuse that individual asylum in the UK and further ‘certify’ the claim as ‘clearly unfounded’ meaning that they may not appeal the decision to refuse them asylum whilst they remain in the UK.
The situation is similar for those granted refugee status or other status in a country featuring on the Home Office list before coming to the UK. They are expected to return to the country to enjoy the right of residence they have accrued there and on that basis any claim for asylum in the UK is refused and certified. The Home Office refused and certified each of the Claimants’ claims for asylum on the basis that they could return to Italy as a safe third country and that it had not been shown that Italy was in breach of its presumed compliance with international obligations for the reception conditions for asylum seekers and systems for processing claims. The Home Office argued that the presumption of Italy’s compliance with international standards could only be rebutted by evidence showing a systemic breakdown of the system for the reception of asylum seekers.
Erica represented MA, whilst working for another firm of solicitors in the initial judicial review, the subsequent appeal in the Court of Appeal and application for permission to appeal to the Supreme Court. MA had been granted refugee status in Italy. She claimed, however, that she and her three children had been left homeless and destitute in Italy and that, whilst living on the streets, had been raped. She claimed to feel suicidal at the thought of being returned. The other Claimants, AE, and EM, described similar experiences of living on the streets in Italy, with AE also claiming that she was raped during this time. AE had been granted refugee status in Italy whilst EM and EH had each claimed asylum in Italy but left before a decision was made on the irrespective claims. EH had not endured life on the streets in Italy but relied upon the experiences of others to argue why he should not be returned. The experiences reported by the Claimants in these four cases mirrored that of other asylum seekers who had experienced the Italian system.
MA’s claim was initially unsuccessful before the Administrative Court (Langstaff J) and then in the Court of Appeal before Richards LJ, Sir Stephen Sedley and Sullivan LJ, where the claims were joined. After securing permission to appeal the issue in the Supreme Court, the appeals were ultimately successful with the Court (Lords Neuberger, Kerr, Carnwath, Toulson and Hodge)unanimously finding that there was a real possibility, in all four cases that, if returned to Italy, the Claimants would be subject to treatment contrary to Article 3 ECHR. The Court ordered that each of the claims be remitted to the Administrative Court to consider whether in each individual case a return to Italy was likely to result in a breach of Article 3 ECHR.
Most crucially, the Court found that the Court of Appeal’s earlier conclusion that only systemic deficiencies in the third country’s asylum procedure and reception conditions would constitute sufficient basis for an individual to resist return to that country was wrong in law. Rather, the Court found that whilst there is “a significant evidential presumption” that listed states will comply with their obligations, where it can be shown that the conditions in which an asylum seeker will be required to live, if returned, are such that there is a real risk that s/he will be subjected to inhumane or degrading treatment, his or her removal to that state is prohibited. The Court suggested that evidence showing systemic failings is likely to result in an Article 3 breach but that this is not a threshold which has to be overcome in every case and that this can include evidence of an individual’s personal experiences in that country.