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The smooth road to Italy buckles (20 December 2013)

Date: 20/12/2013
Duncan Lewis, Main Solicitors, The smooth road to Italy buckles

This case concerned an application for permission to judicially review the decision of the Secretary of State for the Home Department to certify the Claimant’s asylum application on Dublin II Regulation (Third Country Grounds) and to remove him to Italy where he previously approached the Italian authorities as an asylum seeker and the authorities refused to assist him, arguably falling short of Italy’s international obligations under Refugee Convention and the European Convention on Human Rights and Fundamental Freedoms.

There have been a number of ongoing challenges in the UK in relation to the certification of asylum claims and removals to Italy, mostly notably EM(Eritrea) & Others v Secretary of State for the Home Department [2012] EWCA Civ 1336 where the Court of Appeal held that there is no evidence of systemic deficiency in the Italian asylum procedures and reception facilities. The view of the Court of Appeal was consistent with the decisions of the European Court of Human Rights in the cases of Hussein v Netherlands and Dartegova v Austrai ( App. No 6198/12). The Courts, both in the UK and the ECHR took a very prescriptive approach to the evidence required to rebut the presumption that Italy will comply with her international obligations. Individual experiences are not enough to rebut the presumption.

With developments in light of the decisions of the Grand Chamber of the European Court of Human Rights on 28 September 2013 relinquishing its jurisdiction in Tarakhel v Switzerland ( Application No. 29217/12) in favour of the Grand Chamber consequent to Article 30 of the Convention. In addition, the Administrative Court in Giessen, German held in Ref: 1 AZ L 1550/13 GI.A on 28 August 2013:

“There are serious doubts whether the EU refugee law relevant to the core requirements of processing asylum application is ensured in Italy."

"The reception conditions for asylum seekers in Italy have systemic deficiencies that could cause serious risk that the applicant would be exposed to inhuman and degrading treatment within the meaning of Article 4 of the EU Charter of Fundamental Rights in the event of his return t Italy”.

It is noteworthy that the UK Courts are not bound by the decisions of the ECHR nor of the German Administrative Court. However, the High Court was persuaded by Counsel in the case above, Declan O’Callaghan and Counsel in a linked case Andrew Gilbert on the disturbing new evidence below about Italy. The evidence goes to the core of the arguability of a system far from efficient:

- CIR Italian Counsel for Refugees Statement on collapse of Italian Asylum System Summer 2013

- JRS, Jesuit Refugee Service Europe Protection Interrupted Report June 2013

- BBC news online Hamburg blames Italy over 300 homeless African refugees 28 May 2013

- Frankfurt Am Main German Administrative Court decision dated 9 July 2013

- Switzerland v Tarakhel 29217/12 referral to ECtHR Grand Chamber

Mr Justice King granted the application for permission to judicially review the decision of the SSHD to certify and remove the Claimant to Italy on the ground that it is arguable that the material relied upon now advances the position from that considered by the Court of Appeal in EM (Eritrea) and the decisions of the ECtHR above.

King J held that it is arguable that the Claimant can now establish that there is a breach of Article 3 if removed to Italy. It is also arguable in my view that the smooth road to Italy buckles. The Judgement of Supreme Court in EM (Eritrea) is awaited and will clarify the law insofar as the UK is concern.

Duncan Lewis Immigration Solicitor Ahmed Sesay added on the case;

"In my view, the granting of permission is a distinctive and exemplenary characteristic of the judicial system in the United Kingdom which is always the epi-centre of the Rule of Law and custody of fundamental human rights.!

The decision also cements the astuteness of the English Legal System to safeguarding the rights and liberties of the most vulnerable in our society."

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