Public Law Solicitors

Dublin II regulations

The ‘Italy cases’ centre on the application of Article 3(2) of the Dublin II Regulations and whether the conditions on return to Italy are in contravention of Article 3 ECHR.
The Dublin II regulations specify that asylum seekers should claim asylum in the first member state country they enter. Should that individual leave that country and seek asylum elsewhere, in accordance with the regulations, the first member state will be asked to ‘take back’ the individual. The new asylum application of the individual will automatically be refused and certified on third country grounds as clearly unfounded; removal directions will then be issued for their return to the first member state. This process is based upon an assumption that all member states will comply with their convention duties to secure the rights of asylum seekers.

Concerns raised by claimants

Claimants who have been issued with removal directions have sought to prevent removal to Italy because of concerns about the conditions in Italy. Concerns typically centre on a lack of social support, homelessness or insanitary living conditions, limited financial assistance and poor treatment by locals.

Recent Judgment and other relevant case law
The Court of Appeal gave judgment in EM (Eritrea) & Others v Secretary of State for the Home Department [2012] EWCA Civ 1336 on 17 October 2012. These four linked cases concerned applicants (EM, EH, AE & WA) who claimed that being returned to Italy would be in contravention of their Article 3 rights. They all claimed to have suffered or witnessed inhuman/degrading/humiliating treatment and as such did not wish to be returned to Italy.

In reaching their decision, the Court of Appeal relied upon the findings of MSS v Belgium [2011] ECHR 108 and NS v SSHD [2011] EUECJ c-411/10. In MSS it was held that Greece was in systemic breach of its international obligations and Belgium was therefore acting in breach of Article 3 by returning asylum seekers there. In NS, the issue of systemic breach first raised in MSS was given greater significance and it was held that there is a rebuttable presumption that a member state will be in compliance with convention requirements. In order to rebut the presumption there must be proof that the receiving states were aware of systemic deficiencies in the reception conditions that would lead to substantial grounds for believing that the asylum seeker would face a real risk of inhuman or degrading treatment. It was further noted that operational problems were not the same as systemic deficiencies and were not sufficient to prevent a return to the country in question.

In reliance upon the decision in NS, the present cases were all dismissed and the applicants were refused leave to appeal to the Supreme Court. In reaching their decision, the Court directed that when considering removal to Italy, it is not sufficient to demonstrate an individual risk; what must be demonstrated is that the risk to the individual comes about because of a ‘systemic deficiency’ in the reception and asylum procedures in Italy that the UK are aware of. This means that an applicant must show that the system in Italy is dysfunctional rather than showing that the applicant has personally suffered. It was found that the applicants in the linked cases were unable to demonstrate that the system was deficient and had only provided details of individual difficulties; accordingly their appeals were dismissed.

Implications & Next steps

The claimant’s are now seeking funding to apply for permission to appeal to the Supreme Court. A bar was imposed on removal of the claimants from the UK whilst these appeals are pending. Practical implications for us involve seeking stays on decision on permission for JR on the basis that a final decision in the lead case will provide clear guidance on how these types of cases will finally be decided.

Gurpreet Virdi