EW, R (on the application of) v Secretary of State for the Home Department

The applicant in this matter seeks permission to appeal from the decision of Hickinbottom J in the Administrative Court by which the applicant’s claim for judicial review was rejected. He is an Eritrean national, who arrived in the United Kingdom illegally on 23 February 2009 having come via Italy. He claimed asylum in this country. Italy is deemed to have accepted responsibility for his asylum application under the terms of the Dublin II Regulation. The Secretary of State refused his asylum claim here and certified it on safe third country grounds. That took place on 5 May 2009.

However, on 12 May 2009 the applicant made representations to the Secretary of State that his removal to Italy would breach his Article 3 rights under the European Convention on Human Rights. That was on the basis that conditions in Italy for asylum seekers amounted to inhuman or degrading treatment. The Secretary of State rejected that claim under Article 3, certifying it as clearly unfounded. It was then that the applicant sought permission to apply for judicial review of that decision. Hickinbottom J formally granted permission to proceed and dealt with the substantive claim for judicial review. As I have indicated, he rejected it.

There is no issue that, despite the Dublin II Regulation, European member states must not remove an applicant if to do so would expose him for a real risk of Article 3 treatment: See R (Nasseri) v SSHD [2009] UKHL 23. But there is also a presumption, a rebuttable presumption, that member states will adhere to their obligations under international treaties including the ECHR: see R (Yogathas) v SSHD [2002] UKHL 36. So the onus rests upon an applicant to show that his removal from the United Kingdom would breach Article 3 by showing substantial grounds for believing that he would face a real risk of Article 3 treatment. However, where the Secretary of State certifies a claim is clearly unfounded, as he did here, he is required to be satisfied that the claim is bound to fail before an adjudicator: see R(Razgar) v SSHD [2003] EWCA Civ 840.

Hickinbottom J carried out a careful and detailed analysis of the evidence relating to conditions for asylum seekers in Italy, because the applicant’s case was that he would be at risk of homelessness and destitution if returned there by this country. I do not propose, on this application, to cover that ground in any detail. I note that the judge did not accept that there was any evidence of a consistent pattern of applications for asylum taking an unreasonable length of time to determine in Italy: paragraph 72. He recorded the facts as he found them about the availability of accommodation for returned asylum seekers. He did find that the applicant might not have accommodation provided for the entire period of time before his application was determined. During that time he was entitled to 17 euros per day until the point came when he was entitled to work or, of course, the application had been determined. The judge also noted that there was no legal right in Italy to accommodation, even for Italian nationals.

He rejected the Article 3 claim on a number of grounds. First he held, relying on the decision in R v SSHD ex parte Limbuela & Ors [2005] UKHL 66, that there had to be some positive action by the state if it were to be held in breach of Article 3 and not just mere passivity. There was, he said, no such positive act of the Italian state that could amount to “treatment” within the terms of Article 3. Secondly, even if there were, the deprivations and restrictions which the applicant might suffer on return would not reach the high threshold required for inhuman or degrading treatment: see paragraph 99 of the judgment. The judge also went on, in reliance on the Strasbourg decision in KRS v United Kingdom (Application no 32733/08), a decision of 2 December 2008, and the House of Lords decision in this country in Nasseri, to rule that an Article 3 complaint about conditions for returned asylum seekers in Italy should normally be taken up in Italy, given the presumptions to which I have referred, since that country was a signatory to the European Convention of Human Rights and, if necessary, could be taken up at Strasbourg and not normally by action against the United Kingdom.

Finally he rejected an argument that the Secretary of State should have exercised his discretion to deal with the substantive asylum application in the United Kingdom under Article 3(2) of Dublin II. The applicant’s argument here was that Italy did not observe its obligations under Article 3 of the European Convention of Human Rights and this would be an affront to his dignity.

This morning Mr Symes argues that the judge was wrong in all these respects. So far as a breach of Article 3 is concerned, he has of course to show that he has a real chance of successfully demonstrating that the judge was wrong on all three of the conclusions which he reached on that issue. I say that because the applicant could only succeed on appeal if he could show that what might well happen in Italy amounted to “treatment “ and that it was inhuman or degrading treatment and that the United Kingdom should be regarded as responsible for any such treatment by the Italian state.

On the first of those it is submitted that a failure to ameliorate the consequences of destitution can amount to treatment within the meaning of Article 3. Mr Symes seeks to distinguish the House of Lords decision in Limbuela, principally on the basis that the EU Reception Directive 2003/9/EC was not fully considered in that case, contrary to Hickinbottom J’s decision, because the deadline for transposing it into domestic law was 6 February 2005 and the acts of which the asylum seekers were complaining in that case had taken place in 2003. Yet, it is submitted, the Reception Directive requires member states to make provision to ensure a standard of living adequate for the health and subsistence of asylum seekers: see Article 13(2) of that Directive. Consequently it is argued that the position has changed since that considered by the House of Lords in Limbuela. It is also said, under this heading of “treatment”, that a number of other European directives support the existence of an obligation to provide adequate support for asylum seekers.

For my part I do not find these arguments on the meaning of treatment at all persuasive, for these reasons. First of all, it is clear that in reaching in their decision in Limbuela the Law Lords were well aware of the Reception Directive. As Mr Symes recognises, Lord Hope refers to it at paragraph 34 and Lord Brown of Eaton-under-Heywood also refers to it at paragraph 96. Lord Hope refers to it, accurately, as one would expect, as laying down minimum standards for the reception of asylum seekers. Their Lordships did not go on to say that it should be disregarded, because the acts with which they were dealing pre-dated the deadline for transposition into United Kingdom law. They clearly took it into account. So the conclusion reached in that case, binding on us, cannot on my view be put on one side as having been reached per curiam or as distinguishable on the basis which is now advanced.

Secondly, the argument which is advanced does not, in any event, it seems to me, undermine the reasoning in Limbuela about a positive act being required for “treatment” within Article 3 of the ECHR as opposed as a mere failure to act. There may be an obligation of the kind referred to, but that does not undermine the necessity for a positive act under Article 3. The reasoning advanced by their Lordships remains sound.

Thirdly, as the Treasury Solicitor has pointed out in correspondence, the European Convention on Human Rights applies to many more states than are covered by EU law, 47 signatories to the Convention as opposed to 27 EU member states. The meaning to be given to an Article in the ECHR is to be consistent throughout the States party to that Convention, and one would be very slow to see that meaning altered by a decision of the European Union alone. For all these reasons, I myself would conclude that the applicant has no real chance of showing that the judge was wrong on the meaning of “treatment”.

Mr Symes also seeks to challenge the judge’s findings on whether conditions in Italy may amount to “inhuman or degrading” treatment and on the United Kingdom’s responsibility for Italy’s treatment of asylum seekers. On the latter of those two issues, he argues that the responsibility of the United Kingdom was engaged once the evidence showed a real risk of Article 3 treatment in Italy. He contends that the Strasbourg decision in KRS to which I have referred should not be read as absolving the United Kingdom from such a responsibility. He submits that KRS might be seen as a one-off decision. Moreover it would require someone to run the risk of suffering Article 3 treatment, were it to be followed. As for the House of Lords decision in R (Nasseri), that was, it is said, in the context of finding that there was no prospective breach of human rights.

That is true, but there is no doubt that Lord Hoffmann’s views, as set out in paragraph 39 and 41 of Nasseri, have to be given great weight. The other members of the judicial committee agreed with him. That applies particularly, it seems to me, in a case where the alleged potential for breach of Article 3 rights would occur not in some third state to which the applicant might be refouled, but in the state which is a signatory of the ECHR because of conditions there, such as is the case of course with Italy. That state is not a party to the proceedings in the English courts and, while sometimes it may be necessary for our courts to reach a decision on conditions in a fellow European Union or ECHR signatory state, there must be limits, as was said in KRS, as to how far this country can be expected to police the asylum policy of such a state.

I can see no reason for departing from the approach indicated in KRS and Nasseri. Of course it is only a presumption that this country will not deal with the substantive matter when such an allegation is made. It may be possible in some circumstances to produce convincing evidence to rebut the presumption to which I have referred. It is particularly difficult, it seems to me, to achieve that end where what is complained of is not a positive act by the fellow member of state of the European Union and signatory of the ECHR but an alleged negative act in the shape of a failure to achieve certain obligations. That sets a high threshold, and it is one which, in my judgment, there is no chance of successfully achieving in the present case, were permission to appeal to be granted.

Since in my view there is no realistic prospect of overturning the judge on the two issues which I have dealt with so far, no appeal could succeed on the alleged breach of Article 3 in itself. I do not propose, therefore, to go into some of the points made in the applicant’s skeleton about alleged errors of fact on the part of the trial judge.

I turn finally to an argument raised about the Secretary of State’s discretion. It is contended that to return the applicant to Italy, when he might for a time be without accommodation, would endanger his dignity, the right to which is enshrined in the Charter of Fundamental Rights. This is advanced by Mr Symes on the basis, of course, that the Article 3 arguments were themselves to fail. I cannot accept these arguments about the discretion. It seems to me that it would undermine the basic purpose of the original Dublin Convention and Dublin II if a member state were too readily to decide to deal with the substantive asylum application itself without there being established a likely breach of Article 3, rather than to follow the normal practice laid down by those agreements.

True, there is the power to do so, contained in Article 3 of Dublin II. But when the state that would normally deal with the application appears to be “safe” and there are no particular ties to the United Kingdom on the part of the applicant, such as family considerations, it would be contrary to the objective and spirit of obtaining “an orderly system for dealing with asylum cases in the European Union” for the Secretary of State to intervene as a matter of discretion. It seems to me that there is no real prospect of that discretion ever being exercised in the applicant’s favour in this case. Nor do I accept that the evidence established any significant threat to the applicant’s right to dignity.

In short, for my part I see no real prospect of a successful appeal in this case. For the reasons I have given I would dismiss this application.

I would agree but would just add a little on the point about presumption. There are important presumptions, for example, that fellow parties to international treaties will comply with their obligations. Secondly, it is not in ordinary circumstances for an English court to enquire into the conduct of other countries as to whether they are complying with their international obligations. Those are presumptions, and I would make clear that I would accept that if there was compelling evidence, for example, that on arrival in Italy an asylum seeker was to be tortured by the Italian officials, then with such compelling evidence I would accept that the presumption would be rebutted and it would be wrong simply to say, it is for the applicant to return to Italy, suffer the torture and take up the matter with the Italian courts or Strasbourg.

This is simply nowhere near such a case. This is case where, even on the applicant’s case, the “treatment” by which reliance is placed is by reference to a failure to see that the applicant has not become destitute when returned to Italy. I agree with all my Lord has said about the point in relation to whether that could be analysed as treatment but, even if it could, returning the applicant to Italy would not prevent the applicant challenging the question of whether that treatment was within Article 3 or not, in the Italian courts and/or before Strasbourg. Thus, this is a clear case, as it seems to me, where the presumption should operate, that is, the presumption that Italy does and will comply with its obligations and a presumption that the English court should refrain from enquiring into the alleged breach of an international treaty.

For those reasons and for those given by my Lord, it seems to me that this appeal has absolutely no prospect of success.