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EM (Eritrea) in the Supreme Court and Italy Third Country Returns (28 February 2014)

Date: 28/02/2014
Duncan Lewis, Immigration Solicitors, EM (Eritrea) in the Supreme Court and Italy Third Country Returns

The Supreme Court in EM (Eritrea) and Others [2014] UKSC 12 was seized of the issue of the relationship between EU law and the ECHR in the context of the Common European Asylum System (CEAS).

This was an unusual appeal in that there was no major dispute between the parties, and the interveners (UNHCR), on the principal issue that was the subject matter of the appeal: whether a violation of Article 3 requires that the complained of conditions are the product of systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers before any of the claimants can be returned to Italy (and by extension other third countries), either as an asylum-seeker pursuant to Council Regulation (EC) 343/2003 (the “Dublin II” Regulation) or as a person already granted asylum there. Lord Kerr of Tonaghmore JSC, with whom the other Judges unanimously agreed, reaffirmed the well-established test set out in Soering v UK [1989] 11 EHRR 439.

The correct test is whether there is a real risk that the person removed would suffer inhuman or degrading treatment in violation of Article 3. Proof of a systemic deficiency in the system of refugee protection is not a sine quo non of intervention and a violation of Article 3 is not intrinsically dependent on the failure of a system.

This was an appeal from the decision of the Court of Appeal (Sir Stephen Sedley, Richards and Sullivan LJJ) [2013] 1 WLR 576 concerning the claimants EM, MA, AE and EH, which held that access Article 3 and the assertion of a right of appeal under Section 82 of the Nationality, Immigration and Asylum Act 2002 could only be countenanced if it was shown that Italy was in systemic rather than sporadic breach of its international obligations and without it, proof of individual risk, however grave, and whether or not arising from operational problems in the state’s system, cannot prevent return under Dublin II.

The Court of Appeal sat in its appellate jurisdiction in two of the appeals from the substantive decisions in the Administrative Court [ Kenneth Parker J in EM [2012] 1 CMLR 1190 and Langstaff J in MA [2012] EWHC 56 (Admin)] and sat as first instance court in two of the appeals from the refusals of permission to apply for Judicial Review [ Mr. Stephen Males QC, sitting as a Deputy Judge of the Queen’s Bench Division in EH [2012] EWHC 512 (Admin) and Mr. J. M. Ockleton, sitting as a Deputy Judge of the Queen’s Bench Division in AE [2011] EWHC 3826 (Admin)].

The Court of Appeal came to its conclusion based on his analysis of recent ECrtHR and CJEU jurisprudence [ KRS v United Kingdom [2008] 48 EHRR SE 129, MSS v Belgium and Greece [2011] 53 EHRR 28 and, in particular, NS (Afghanistan) v SSHD cases C-411/10 and C-493/10, [2013] QB 102 ]. The Court of Appeal was faced with conflicting decisions of ECtHR and CJEU, but felt driven to its conclusion by the binding nature of the CJEU decision in NS on courts of this country. The Court of Appeal did indicate that, but for the decision in NS, they would be bound to conclude that there was a triable issue in all four cases as to whether return to Italy entailed a real risk to exposing the Claimants to inhuman or degrading treatment contrary to Article 3 of ECHR.

The Supreme Court did not examine the issue of the adequacy of the reception conditions for asylum seekers in Italy. A group of Duncan Lewis 5 cases, to which AB (Sudan) has now been linked, have been identified to test the issue and are listed to be heard before a High Court Judge on the 14 May 2014.


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