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Public Law Solicitors

What is vulnerability? (4 August 2015)

Date: 04/08/2015
Duncan Lewis, Public Law Solicitors, What is vulnerability?

The European Court of Human Rights has recently handed down a potentially far reaching decision in respect of what amounts to vulnerability.

The case of AS v Switzerland no. 39350/13 was handed down on 30 June 2015.

The applicant, a Syrian national had travelled through Italy prior to entering Switzerland, where he had family residing legally. He sought to stop his return to Italy under Dublin III Regulations on the basis that his Article 3 and 8 ECHR’s would be breached in light of the Post Traumatic Stress Disorder (PTSD) he was suffering from. The applicant also sought to rely upon the emotional support he received from his family in Switzerland to help him overcome the trauma he had previously suffered.

The applicant sought to identify himself a part of a particularly vulnerable group of persons who required special protection, thereby setting himself apart from other asylum seekers. He claimed that due to systemic deficiencies in the Italian reception system, he would not receive the accommodation and medical treatment he needed. He asserted that the lack of support, could result in his condition deteriorating and a very severe risk of suicide occurring. He asserted that the support he received from his sisters in Switzerland went beyond normal emotional ties and this would therefore result in a breach of his Article 8 rights should he be returned to Italy.

By seeking to place himself within a group of persons who required special protection, he was differentiating himself from other applicants who have challenged the decision to return them to Italy under the Dublin Regulations, and which has been subject to extensive litigation over the years, most recently Tarakhel v Switzerland no. 29217/12, and the Courts both in Europe and England and Wales, have held that it would not be unlawful to return persons to Italy under the Dublin Regulations.

The ECtHR considered whether the return of AS to Italy from Switzerland would amount to a breach of his Article 3 and 8 ECHR’s. Specifically would he suffer torture, inhuman or degrading treatment or punishment as a result of the conditions faced by asylum seekers in Italy? (Article 3 ECHR) or would his return to Italy result in a breach of his right to a private and family life with his sisters? (Article 8 ECHR).

In the case of AS, the Italian authorities had accepted they would “take back” the applicant via Article 10 § 1 of Regulation no. 343/2003/EC (Dublin): the Dublin Regulations.

The Court looked at the applicant’s mental health when considering whether his Article 3 ECHR rights would be breached. The Court referred to the earlier cases of Bensaid v UK no. 44599/98 and SB v Finland no. 17200/11 when reaching the decision.

In Bensaid v UK, the Court noted that it had been held that there would be no breach of Article 3 as the applicant in that case, who suffered from schizophrenia, would be able to access medical treatment and drugs should he return to Algeria (albeit he may need to pay for the treatment), and the assertion that the stress of returning to Algeria where there was terrorism and violence would endanger his health and potentially cause relapse, could potentially fall within Article 3, however it did not in this instance, as he could suffer a relapse of his condition even if he remained in the UK as his illness was long term. Whilst the circumstances faced by the applicant in Algeria were less favourable, this was not decisive from an Article 3 ECHR point of view and the application was refused.

In the case of SB v Finland, the applicant a failed asylum seeker, was to be returned to Morocco and sought to challenge this on the basis of her mental health (severe depression, PTSD and anxiety disorders). The Court held that upon her return to Morocco she would be able to access medical treatment including anti-depressants as well as inpatient and outpatient clinics. In light of this availability she would not be at risk of a breach of Article 3 ECHR should she be returned to Morocco.

The ECtHR then went on to consider whether the risk of suicide which AS asserted were very high if he was returned to Italy, would amount to a breach of his Article 3 ECHR’s if return was to be enforced or attempted. The Court relied on the previous cases of Dragan & Others v Germany no.33743/03 – threat of suicide) and (Goncharnova & Alekseytsec v Sweeden no.75203/12, which found that a Member State could remove a person who has previously attempted suicide/ is a suicide risk, as long as the Member State took appropriate measure to prevent the threat being realised.

The ECtHR noted that AS at the time of considering the case, was not critically ill, and the speed at which his condition may deteriorate/ ability to access to medical treatment should he be returned to Italy involved a degree of speculation. The Court found that there was nothing to show that AS would not receive appropriate psychological treatment in Italy.

The ECtHR, found that there were no exceptional circumstances so as to distinguish the case from D v UK (2 May 1997) which held that very exceptional circumstances were required, such as the applicant was critically ill and appeared to be close to death in order to succeed on preventing removal on the basis of a medical condition, and this high threshold was simply not met by AS in relation to the PTSD and depression he was suffering from.

AS failed to show that there would be a breach of his Article 3 rights should he be returned to Italy, despite him suffering from PTSD and being at risk of suicide.

It seems therefore that in terms of vulnerability and Article 3 ECHR, the ECtHR have set a high bar.

As a practitioner in this field, it is common to come across people suffering from mental health issues, often as a result of their experiences prior to arriving in the UK. This can affect people in different ways: maybe they are unable to give detailed instructions about their experiences, or only give incomplete instructions. It can take the person much longer to trust, and therefore we often have incomplete instructions (but may not realise this at the time) and can lead to inconsistency issues.

The Court has said that returnees can take their medical notes with them, however given the trust issues those suffering from mental illness often have, they may not be willing or able to seek the help needed immediately upon arrival in Italy as they have left those they trust behind. There is likely to be a language barrier, and distrust of authorities as well as a lack of information (in a language they understand) to enable them to locate and then access the help needed, so medical notes alone, in my opinion, are not a sufficient safety net for these vulnerable people.

What now?

Whilst the bar has clearly been set high as I have said above, I am of the opinion that it doesn’t mean no-one can succeed in challenging return to Italy on this basis. Rather we will need to consider whether there are specific vulnerabilities in individual cases which mean the returnee can be differentiated from AS. For instance, is their mental health condition so severe that they do not have the ability/ presence of mind to be able to seek out and then engage with authorities in respect of their medical condition if they were returned to Italy? Or has it taken months or years for matters to be disclosed (in the UK) which might indicate that returning them to another country would put their recovery back/ cause further harm?

It is a matter of exploring all possibilities and maybe looking at it through the returnees eyes, as it can often be difficult for them to express their fears and concerns when threatened with return to a country they do not wish to return to.

About the Author: Lucy Philps -Tate

Lucy Philips -Tate joined Duncan Lewis 2008. She is a Solicitor in the firm’s Public Law Department and based in the firm’s Harrow branch.

Lucy is qualified as a Level 2 Senior Caseworker under the Immigration and Asylum Accreditation Scheme (IAAS) and undertakes all forms of controlled work, including advocacy in asylum, immigration and deportation appeals.

Lucy has experience of representing a wide variety of clients, including vulnerable clients, minors, women who have been subjected to FGM (Female Genital Mutilation), the mentally ill, and those who have been trafficked. Lucy is Police Station Accredited, and can be instructed to advise and represent clients who have been arrested by police, and if required can continue to represent them at the Magistrates Court.


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