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

The Claimant is an Eritrean national who claimed asylum/international protection in the United Kingdom on 11 November 2008. The Secretary of State’s inquiries revealed that the Claimant had previously claimed asylum in Italy. The Italian authorities have accepted that, pursuant to Council Regulation No. 343/2003 (commonly referred to as the Dublin II Regulation or “Dublin II”), they are responsible for considering the Claimant’s asylum/international protection claims.

On 22 December 2008 the Secretary of State notified the Claimant that she proposed to return him to Italy and on 7 January 2009 she notified him that she had certified as “clearly unfounded” his claim that his human rights would be breached in Italy. The Claimant seeks to challenge those decisions. However, in substance, this is a challenge to the Secretary of State’s maintenance of the decisions of 22 December 2008 and 7 January 2009 in the light of representations and material submitted after those decisions.

By section 77 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) a person who has made an asylum claim may not be removed from, or required to leave, the United Kingdom pending determination of that claim. However, Paragraph 4 of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (“the 2004 Act”) disapplies section 77 of the 2002 Act where the person is to be removed to one of a number of listed States (which include Italy), if the Secretary of State has certified that, in his opinion, the person is not a national or citizen of the State to which he is to be removed. In the present case, the Secretary of State has issued such a certificate, and the Claimant accepts that he is not a national or citizen of Italy.

Where an applicant claims that he faces a real risk of Article 3 ECHR ill-treatment within the listed State, there is an in-country right of appeal to the Tribunal under section 92(4)(a) of the 2002 Act unless the Secretary of State certifies the claim to be “clearly unfounded”, and the Secretary of State is required to certify claims involving removal to a listed county “unless satisfied the claim is not clearly unfounded” (Paragraph 5(4) of Part 2 of Schedule 3 to the 2004 Act).

There is no statutory provision regulating the withdrawal of a “clearly unfounded” certificate, but the Secretary of State accepts that she has the power to withdraw or revoke such a certificate, and would generally do so if subsequent material or representations satisfied her that the claim was not clearly unfounded.

There appears to be no dispute between the parties as to the legal test the Court should apply on a Judicial Review of a “clearly unfounded” certificate. Such a certificate can be issued if “on any legitimate view” the Claimant’s human rights claim would fail on appeal: R v Secretary of State for the Home Department ex parte Thangarasa and Yogathas [2002] 3 WLR 1276, by Lord Hope at paragraph 34; R(L) v SSHD [2003] EWCA Civ 25 and ZT (Kosovo) [2009] 1 WLR 348. In most cases (and it is agreed that this is no exception) the Court is as well placed as the Secretary of State to decide that issue. Thus, rather than adopting a Wednesbury approach, the Court should simply consider for itself whether, on any legitimate view, the Claimant’s human rights appeal would fail. The Claimant points out that the Court is deciding a threshold issue, in this case whether, on any legitimate view of the material, a putative appeal to the First Tier Tribunal would be bound to fail.

In this context the Secretary of State accepts that if the evidence demonstrated, in accordance with relevant legal principles, a real risk that asylum seekers such as the Claimant faced a protracted period of street homelessness, without recourse to social welfare benefits, and without recourse to an effective remedy after removal to Italy, the clearly unfounded certificate should not stand.

In KRS v UK [2008] ECHR 1871 the European Court of Human Rights (“ECrtHR”) dismissed as “manifestly unfounded” an application contending that the UK would be in breach of Article 3 ECHR if it returned the Applicant to Greece under the provisions of the Dublin II Regulation. The Court said:

“… the Dublin Regulation, under which such a removal would be effected, is one of a number of measures agreed in the field of asylum policy at the European level and must be considered alongside Member States' additional obligations under Council Directive 2005/85/EC and Council Directive 2003/9/EC to adhere to minimum standards in asylum procedures and to provide minimum standards for the reception of asylum seekers. The presumption must be that Greece will abide by its obligations under those Directives.

…The Court recalls in this connection that Greece, as a Contracting State, has undertaken to abide by its Convention obligations and to secure to everyone within their jurisdiction the rights and freedoms defined therein, including those guaranteed by Article 3. In concrete terms, Greece is required to make the right of any returnee to lodge an application with this Court under Article 34 of the Convention (and request interim measures under Rule 39 of the Rules of Court) both practical and effective. In the absence of any proof to the contrary, it must be presumed that Greece will comply with that obligation in respect of returnees including the applicant. On that account, the applicant's complaints under Articles 3 and 13 of the Convention arising out of his possible expulsion to Iran should be the subject of a Rule 39 application lodged with the Court against Greece following his return there, and not against the United Kingdom.

… the objective information before [the Court] on conditions of detention in Greece is of some concern, not least given Greece's obligations under Council Directive 2003/9/EC and Article 3 of the Convention. However, for substantially the same reasons, the Court finds that were any claim under the Convention to arise from those conditions, it should also be pursued first with the Greek domestic authorities and thereafter in an application to this Court.” (emphasis added)

The Grand Chamber of the ECrtHR has relatively recently given further consideration to the correct approach to Article 3 ECHR in cases concerning the Dublin II Regulation in MSS v Belgium & Greece [2011] ECHR 108 (GC) (“MSS”). Both parties to this judicial review agreed that MSS was the crucial authority for present purposes. Of particular relevance are paragraphs 344-359 which I set out in full.

“344.

The Court has already stated its opinion that the applicant could arguably claim that his removal to Afghanistan would violate Article 2 or Article 3 of the Convention (see paragraphs 296-297 above).

345.

The Court must therefore now consider whether the Belgian authorities should have regarded as rebutted the presumption that the Greek authorities would respect their international obligations in asylum matters, in spite of the K.R.S. case-law, which the Government claimed the administrative and judicial authorities had wanted to follow in the instant case.

346.

The Court disagrees with the Belgian Government’s argument that, because he failed to voice them at his interview, the Aliens Office had not been aware of the applicant’s fears in the event of his transfer back to Greece at the time when it issued the order for him to leave the country.

347.

The Court observes first of all that numerous reports and materials have been added to the information available to it when it adopted its K.R.S. decision in 2008. These reports and materials, based on field surveys, all agree as to the practical difficulties involved in the application of the Dublin system in Greece, the deficiencies of the asylum procedure and the practice of direct or indirect refoulement on an individual or a collective basis.

348.

The authors of these documents are the UNHCR and the Council of Europe Commissioner for Human Rights, international non-governmental organisations like Amnesty International, Human Rights Watch, Pro-Asyl and the European Council on Refugees and Exiles, and non-governmental organisations present in Greece such as Greek Helsinki Monitor and the Greek National Commission for Human Rights (see paragraph 160 above). The Court observes that such documents have been published at regular intervals since 2006 and with greater frequency in 2008 and 2009, and that most of them had already been published when the expulsion order against the applicant was issued.

349.

The Court also attaches critical importance to the letter sent by the UNHCR in April 2009 to the Belgian Minister in charge of immigration. The letter, which states that a copy was also being sent to the Aliens Office, contained an unequivocal plea for the suspension of transfers to Greece (see paragraphs 194 and 195 above).

350.

Added to this is the fact that since December 2008 the European asylum system itself has entered a reform phase and that, in the light of the lessons learnt from the application of the texts adopted during the first phase, the European Commission has made proposals aimed at substantially strengthening the protection of the fundamental rights of asylum seekers and implementing a temporary suspension of transfers under the Dublin Regulation to avoid asylum seekers being sent back to Member States unable to offer them a sufficient level of protection of their fundamental rights.

351.

Furthermore, the Court notes that the procedure followed by the Aliens Office in application of the Dublin Regulation left no possibility for the applicant to state the reasons militating against his transfer to Greece. The form the Aliens Office filled in contains no section for such comments (see paragraph 130 above).

352.

In these conditions the Court considers that the general situation was known to the Belgian authorities and that the applicant should not be expected to bear the entire burden of proof. On the contrary, it considers it established that in spite of the few examples of application of the sovereignty clause produced by the Government, which, incidentally, do not concern Greece, the Aliens Office systematically applied the Dublin Regulation to transfer people to Greece without so much as considering the possibility of making an exception.

353.

The Belgian Government argued that in any event they had sought sufficient assurances from the Greek authorities that the applicant faced no risk of treatment contrary to the Convention in Greece. In that connection, the Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where, as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention (see, mutatis mutandis, Saadi v Italy [GC], no. 37201/06, paragraph 147, ECHR 2008-…).

354.

The Court is also of the opinion that the diplomatic assurances given by Greece to the Belgian authorities did not amount to a sufficient guarantee. It notes first of all that the agreement to take responsibility in application of the Dublin Regulation was sent by the Greek authorities after the order to leave the country had been issued, and that the expulsion order had therefore been issued solely on the basis of a tacit agreement by the Greek authorities. Secondly, it notes that the agreement document is worded in stereotyped terms (see paragraph 24 above) and contains no guarantee concerning the applicant in person. No more did the information document the Belgian Government mentioned, provided by the Greek authorities, contain any individual guarantee; it merely referred to the applicable legislation, with no relevant information about the situation in practice.

355.

The Court next rejects the Government’s argument that the Court itself had not considered it necessary to indicate an interim measure under Rule 39 to suspend the applicant’s transfer. It reiterates that in cases such as this, where the applicant’s expulsion is imminent at the time when the matter is brought to the Court’s attention, it must take an urgent decision. The measure indicated will be a protective measure which on no account prejudges the examination of the application under Article 34 of the Convention. At this stage, when an interim measure is indicated, it is not for the Court to analyse the case in depth – and indeed it will often not have all the information it needs to do so (see, mutatis mutandis, Paladi v Moldova [GC], no. 39806/05, paragraph 89, ECHR 2009-…). In the instant case, moreover, the letters sent by the Court clearly show that, fully aware of the situation in Greece, it asked the Greek Government to follow the applicant’s case closely and to keep it informed (see paragraphs 32 and 39, above).

356.

The respondent Government, supported by the third-party intervening Governments, lastly submitted that asylum seekers should lodge applications with the Court only against Greece, after having exhausted the domestic remedies in that country, if necessary requesting interim measures.

357.

While considering that this is in principle the most normal course of action under the Convention system, the Court deems that its analysis of the obstacles facing asylum seekers in Greece clearly shows that applications lodged there at this point in time are illusory. The Court notes that the applicant is represented before it by the lawyer who defended him in Belgium. Considering the number of asylum applications pending in Greece, no conclusions can be drawn from the fact that some asylum seekers have brought cases before the Court against Greece. In this connection it also takes into account the very small number of Rule 39 requests for interim measures against Greece lodged by asylum seekers in that country, compared with the number lodged by asylum seekers in the other States.

358.

In the light of the foregoing, the Court considers that at the time of the applicant’s expulsion the Belgian authorities knew or ought to have known that he had no guarantee that his asylum application would be seriously examined by the Greek authorities. They also had the means of refusing to transfer him.

359.

The Government argued that the applicant had not sufficiently individualised, before the Belgian authorities, the risk of having no access to the asylum procedure and being sent back by the Greek authorities. The Court considers, however, that it was in fact up to the Belgian authorities, faced with the situation described above, not merely to assume that the applicant would be treated in conformity with the Convention standards but, on the contrary, to first verify how the Greek authorities applied their legislation on asylum in practice. Had they done this, they would have seen that the risks the applicant faced were real and individual enough to fall within the scope of Article 3. the fact that a large number of asylum seekers in Greece find themselves in the same situation as the applicant does not make the risk concerned any less individual where it is sufficiently real and probable (see, mutatis mutandis, Saadi, cited above, paragraph 132).”

A number of important points emerge from MSS:

The Courts have consistently held that evidence of aberrations does not demonstrate that a country is unsafe, so long as it has –

“a system which will, if it operates as it usually does, provide the required standard of protection for the asylum seeker. No country can provide a system which is 100 per cent effective. There are going to be aberrations.” (see R v Home Secretary ex p. Adan (CA) [2009] 3 WLR 1274 at pages 1293-1294).

Following KRS, the existence of such a system is to be presumed. It is for the Claimant to rebut that presumption, by pointing to a reliable body of evidence demonstrating that Italy systematically and on a significant scale fails to comply with its international obligations to asylum seekers on its territory.

In MSS, the ECtHR considered that the KRS presumption had been rebutted by the “numerous” reports and materials available in relation to Greece. The list of reports extended to more than a page (see paragraph 160) and the contents of the reports required a summary of more than 10 paragraphs (see paragraphs 161-172).

It is notable that some material along similar lines was already available at the time of the KRS decision (see under heading “Objective Material” in that decision). However, that material was insufficient to satisfy the criteria of admissibility. Notwithstanding the numerous other reports and materials, the Court went on to say that it attached “critical importance” to a letter from the UNHCR which contained an “unequivocal plea for the suspension of transfers to Greece” (paragraph 349). From that I conclude that the ECtHR applies a high threshold in determining whether the KRS initial presumption has been rebutted.

It is clear from both KRS and MSS that great weight must in the present context be accorded to the position of recognised and reputable international agencies with special responsibilities in respect of the treatment of asylum seekers.

UNHCR’s position is particularly significant. That is apparent from the fact that, even given the abundant evidence from other sources, the ECtHR regarded UNHCR’s position in respect of Greece as being “of critical importance” (paragraph 349).

There is nothing to suggest that UNHCR believes that there are reasonable grounds for suspending Dublin returns to Italy on account of concerns about living conditions. UNHCR regional office is in Italy, and it is plain that UNHCR officials will speak out when they have concerns about such matters. On 22 March 2011 the UNHCR called on the Italian authorities to take urgent action to tackle overcrowding on the remote island of Lampedeusa, where the humanitarian situation for the 5000 mostly Tunisian migrants there was deteriorating. The position contrasts with that in MSS where UNHCR had issued “an unequivocal plea” for the suspension of returns to Greece (paragraph 349).

As regards the EU Human Rights Commissioner, Thomas Hammerberg, it is clear that he considers the treatment of asylum seekers to be an important part of his remit. In his report on Greece, following his visit to Greece on 8 December 2008, he stated that he –

“wished to underline … the persistence of grave, systematic deficiencies in the Greek asylum practice.” (Paragraph 41)

And

“Noted with concern the existing insufficient reception capacity for asylum seekers, a fact which harshens even further their lives.” (Executive Summary at 11)

By contrast, as Hickinbottom J noted in R (EW) v SSHD [2009] EWHC 2957 (Admin) (“EW”) at paragraph 67, Mr Hammerberg’s 2009 report on Italy:

“commended “the determination that was shown to him by the competent authorities to uphold a high level of provision of international protection to all foreign nationals in need thereof” (paragraph 81).”

Following a further visit in 2011, when Italy was facing particular problems due to the unexpected surge of migrants from North Africa in the wake of the uprisings in Tunisia and Libya, and when there were plainly difficulties with conditions on Lampedusa, Mr Hammerberg’s report –

“Encourage[d] the Italian authorities to ensure that their reception capacity for migrants, including asylum seekers, is able to respond to the fluctuating trends in arrivals.”

And

“Encourage[d] the Italian authorities to ensure that in all centres where they are accommodated, asylum seekers enjoy conditions that meet national and international standards … in order to ensure that the currently good levels of protection … are maintained.”

In EW, the Claimant obtained an expert report from Dr Christopher Heim, the Director of the Italian Refugee Council. His report recognised the possibility that a Dublin returnee might find himself without accommodation. However, such an eventuality was not routine or systematic (see EW at paragraph 79).

In July 2011 Dr Heim has responded to concerns regarding the treatment of the asylum seekers in Italy by stating publicly that –

“It is important to make distinctions.”

And that –

“The big gaps [in the system in Italy] are because of a lack of a national aid programme for integration [i.e. for recognised refugees] and not because of a lack of respect for basic rights as in Greece …”

As Dr Heim publicly stated, it is necessary in the present context to draw a clear distinction between asylum seekers, failed asylum seekers and persons granted refugee or other protection status. There may be numerous failed asylum seekers who have remained in Italy unlawfully and lack accommodation. That is not sufficient to show that Italy systematically breaches its international obligations (e.g. under the Reception Directive or Article 3 ECHR) to asylum seekers.

Therefore, in short, and in distinction from the position in MSS, there are not numerous reports from reputable organisations which “all agree” that there are serious deficiencies in Italian asylum practice (cf MSS paragraphs 347-348).

A considerable part of the Claimant’s evidence is directed towards seeking to establish the number of places available in reception facilities in Italy so as to compare that number with the number of asylum seekers present in Italy at any one time.

Italy does not provide reception facilities to asylum seekers through one central body (comparable to NASS in the UK). An asylum seeker may, depending on his or her circumstances and the stage in the procedure, be accommodated in:

In 2009 there were 17,603 asylum applications made in Italy. In the same year there were 23,994 asylum applications examined, reflecting the surge of applications in 2008. There is usually a period of 4-6 months between an application for international protection to a decision by the Asylum Commission.

In these proceedings Mr Carl Dangerfield, UK Border Agency Asylum and Immigration Liaison Officer in Italy, made a witness statement in which he sought to estimate the housing capacity in the Italian system as against the demand for places from asylum seekers. The Claimants attack Mr Dangerfield’s statistics on a number of grounds and contend that his conclusions are, therefore, unreliable. However, any statistical exercise would be vulnerable to the kind of criticism made by the Claimant; and, given the range of facilities referred to above, the diverse population of occupants and the fluctuating numbers of these in the relevant category of asylum seeker, any such statistical exercise aimed at establishing capacity is futile. The futility is compounded by the fact that it is not possible reliably to specify the number of asylum seekers in Italy who require State accommodation at any one time, given that it is not known how long each asylum seeker waited for a decision on his or her application.

Furthermore, as the Defendant points out, the statistics include an unquantifiable number of asylum seekers who did not require State-run reception facilities, because, for example, they secured a place in one of the projects run by charitable organisations, were accommodated by friends or family already in Italy, had found a place in a self-managed centre run by their own community or had left Italy without awaiting the outcome of their asylum claim. The statistics also do not show the number of asylum seekers who are ineligible for State-provided accommodation, because, for example, they have been required to leave the placement provided on account of misconduct, or have left voluntarily because they did not want to live in the area where accommodation was offered.

The Claimants rely on a Pro Asyl Report (by Maria Bethke and Dominik Bender) into “The Living Conditions of Refugees in Italy”, compiled following a research trip to Rome and Turin in October 2010. However, I did not find this report helpful on the material issue in these proceedings. The report draws no clear distinction between asylum seekers, failed asylum seekers and recognised refugees. The rights and entitlements of these groups are different. In particular, where the Pro-Asyl report addresses Dublin returnees, it does not seek to distinguish between those Dublin returnees who are asylum seekers and those who are not. That part of the report simply refers to “refugees”, and it could be inferred that many, if not all, interviewed were no longer in the relevant category of asylum seeker.

Furthermore, the authors of the Pro-Asyl report state that in 2008-9 12 per cent of Dublin returnees were given a place in a SPRAR project and “88 per cent were left homeless”. There is no explanation of the figure of 88 percent, and it is a reasonable inference that it is simply derived from the difference between 100 per cent and 12 per cent. If that indeed is the case, it is wholly unreliable because it fails to take into account the availability of accommodation in CARAs, CDAs, or at one of the multifunctional centres, or in an NGO or charitably run facility, or in the Rome ENEA Centre, which has 80 dedicated spaces for Dublin returnees. Such an error would also cast considerable doubt on the level of expertise and understanding of the authors of the report, and substantially weaken any confidence that could be generally placed on the report. It is interesting that the German Federal Office for Migration and Refugees subjected the Pro Asyl report to fairly detailed analysis and, after making a number of criticisms, corrections and qualifications, concluded that–

“Altogether there are thus no grounds for asserting that Italy had given up its obligations towards protection [asylum] seeking persons.”

The Claimants also rely on a combined report dated May 2011 by the Law Students’ Legal Aid Office, Juss-Buss, Norway and the Swiss Refugee Council, SFH/OSAR, Switzerland “On the situation of asylum seekers, refugees, and persons under subsidiary or humanitarian protection, with focus on Dublin returnees” (“The Juss-Buss Report”). The Juss-Buss Report suggested that many asylum seekers in Italy are left homeless, and that Dublin returnees were in that category. It is, however, unclear how Juss-Buss came to that view. The Norwegian Organisation for asylum seekers (“NOAS”) (which had participated in the Juss-Buss project) returned to Italy to conduct further research. During the trip a number of representatives from various NGOs, the Italian authorities and the refugee community were interviewed.

NOAS noted that “many leaving Italy to seek asylum in other European countries already have an Italian residence permit. This strongly indicates the increasing number of departures to other European countries to reception conditions and lack of integration opportunities in Italy”. On returnees with Dublin cases, NOAS stated:

“Dublin returnees with pending cases are supposed to be offered accommodation like other asylum seekers. As this group has been relatively small, it has usually been possible to find spaces for them in the CARA centres when they arrive in Rome. Dublin returnees arriving at Melpenza have usually been offered a place to stay if they have a pending case. The current situation with large numbers of refugees coming from northern Africa, however, presents challenges in terms of the overall capacity of reception centres, which probably also will affect the capacity to accommodate returnees from other European countries.”

In my view, the findings of NOAS do not in any way undermine the KRS presumption.

The Claimant also relies on the evidence of an Italian lawyer, Gian-Luca Vitale. I am not able to give significant weight to his evidence. I endorse entirely the observations of Sales J in Elayathamby about such evidence (see paragraph 59). In particular, I am not satisfied that Mr Vitale presented his evidence in a neutral and non-partisan way, seeking to respond or deal with material that did not support his case, or to elicit comment or response from the Italian authorities on his criticisms. Most importantly, Sales J said this:

“(vii)

Still more fundamentally, there is nothing in the Grand Chamber's judgment in M.S.S. to lend support to the idea that claims regarding potential violation of Convention rights on the basis of a refoulement argument should be determined by reference to expert opinions obtained for the purposes of court proceedings regarding the claims in question. The materials relied on by the Grand Chamber were not of that character. They were published reports from highly regarded bodies, of which the Greek government would obviously have been aware and in respect of which it would have had a full opportunity over several years to answer (if it could) any of the criticisms levelled against it. A private expert report of the kind commissioned from KISA by the Claimant is, in my view, in a completely different category. Other than in exceptional cases, I do not think it is appropriate for a refoulement argument of the kind made in M.S.S. and in this case to be mounted by reference to private expert reports. They will not usually carry significant weight, when compared with the sort of materials to which the Grand Chamber had regard in M.S.S., and are more likely to add disproportionately to the time, effort and expense involved in determining the proper outcome on such an argument. I do not think that M.S.S. type claims should be converted into trials by way of consideration of opposing expert reports.”

Those observations apply, mutatis mutandis, to private expert reports designed to show that return to Italy would create a real risk of a breach of Article 3 ECHR.

Finally, the domestic Courts have held that in general (save in extreme circumstances, where, for example, there is a risk of torture on return) a complaint that an asylum seeker’s rights will not be respected on return to a state that is a ECHR signatory should be brought before the Courts in that State, following return, and if necessary pursued before the ECrtHR (see R (EW) v SSHD [2010] EWCA Civ 508 37 at paragraphs 19-20, by Waller LJ).

The ECtHR in MSS also held that this would be the “more normal course”, but would not apply where the evidence clearly showed that the remedies available in the receiving State are “illusory” (paragraphs 356-357).

Asylum seekers in Italy have a legal right to accommodation, which can be enforced in Court. It also appears that they have a right to legal aid for Court proceedings (the main criticisms of the legal aid system for asylum seekers is that they are not entitled to free representation at the interview stage). The remedies in Italy would, therefore, appear to be far from “illusory”.

In summary, the material relied upon by the Claimant is not sufficient to overcome the presumption created by KRS, especially given that those organisations, such as UNHCR and the European Commissioner for Human Rights, whose opinions carried decisive weight in MSS, have not adopted a similar position as regards Italy’s compliance with its international obligations in the relevant respect.

The Claimant also contends that return to Italy would violate EU law. A similar argument was advanced in R (NS) v SSHD [2010] EWCA Civ 990, on the footing that a decision to return (which implied the exercise of a discretion not to retain responsibility for the asylum seeker) engaged EU law, and was subject, in particular, to the Charter of Fundamental Rights (“the Charter”). I have considered the Court of Appeal judgment in NS and the order of reference that the Court made to the Court of Justice in Luxembourg. One of the questions raised was whether, if the Charter did apply to such decisions, Article 1 of the Charter might confer greater protection than, say, Article 3 ECHR. Article 1 under the heading “Human dignity” provides:

“Human dignity is inviolable. It must be protected and respected.”

The Advocate General gave her opinion in Case C-411/10 NS (and in the linked Case C – 493/10 ME and others v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform (Reference for a preliminary ruling from the High Court (Ireland)). I have also considered that opinion.

In short, the Advocate General concluded that the relevant decisions fell within the scope of EU law, and that they were governed by the provisions of the Charter (see, in particular, paragraphs 76-83, 110-127). Accordingly, a person may not be returned under Dublin II if there is a real risk that, on return, that person’s rights under the Charter would be violated. As to the evidential position, the Advocate General said this:

“133.

This does not mean, however, that, the Member States are barred, in principle, from proceeding from the rebuttable presumption, in applying Regulation No 343/2003, that the asylum seeker’s human rights and fundamental rights will be observed in the Member State primarily responsible for his application. It should be borne in mind in this connection that the treatment of asylum seekers and the examination of their applications under Directives 2003/9, 2004/83 and 2005/85 must satisfy substantive minimum standards in each Member State and that all the Member States must observe the Charter of Fundamental Rights (57) and – as Contracting States – the ECHR and the Geneva Convention. In view of the high level of protection which is thus (legally) ensured, it seems reasonable, in connection with the transfer of asylum seekers, to proceed from the rebuttable presumption that those asylum seekers will be treated in a manner consistent with human rights and fundamental rights in the Member State which is primarily responsible. (58) Accordingly, recital 2 in the preamble to Regulation No 343/2003 expressly states that Member States, all respecting the principle of non-refoulement, are considered as safe countries for third-country nationals. (59)

134.

If the Member States were to decide to operate such a rebuttable presumption, however, they must observe the principle of effectiveness, according to which the realisation of the rights conferred by EU law may not be rendered practically impossible or excessively difficult. (60)

135.

If the Member States thus decide to introduce the rebuttable presumption that the asylum seeker’s human rights and fundamental rights will be observed in the Member State which is primarily responsible, the asylum seekers must be given the possibility, procedurally, actually to rebut that presumption. Having regard to the principle of effectiveness, the specific form of the available evidence and the definition of the rules and principles governing the assessment of evidence are, in turn, a matter for the national legal orders of the individual Member States.”

The Advocate General also concluded, for reasons that I would respectfully say are obviously cogent and compelling, that serious risks of individual provisions of applicable directives, which do not also constitute a violation of the fundamental rights of the asylum seeker to be transferred (as contained in the Charter) are not sufficient to impede return under Dublin II (see paragraphs 123-127).

Unfortunately, for reasons that are understandable in the context of NS, the Advocate General does not directly answer the question whether Article 1 of the Charter (right to dignity) confers, in the present context, any wider right than that conferred by, say, Article 3 ECHR. Mr Chirico, on behalf of the present Claimant, therefore, submits that I should stay this claim for judicial review until the Court of Justice has finally pronounced on all the questions referred by the Court of Appeal. I am extremely reluctant to follow that course. The Court of Appeal was itself reluctant to make the reference, and it seems to me questionable whether the Court would have made the reference if the only issue referred had related to the relationship between Article 1 of the Charter and Article 3 ECHR. Furthermore, I was referred to no authority that would suggest in the present context that the ambit of Article 1 of the Charter conferred significantly greater protection than Article 3 ECHR. If the treatment of the putative returnee under Dublin II did not fall short of that required under Article 3 ECHR, I do not see the basis upon which it could realistically be held that the returnee’s right to “dignity” had nonetheless been infringed. Ex hypothesi, the returnee would have been treated in a manner that was humane, that did not degrade him or her, and that accordingly respected and protected his or her “dignity”. To postulate some form of humane and non-degrading treatment that nonetheless violated a right to “dignity” would both create intolerable uncertainty as to precisely where the line should be drawn, and would also tend to trivialise what the framers of the Charter no doubt intended to enumerate as undisputed and generally recognised “fundamental” rights. No doubt quite a lot of day to day conduct on the part of public authorities affronts, or could be perceived as affronting, an individual’s “dignity” in a broad sense. But to classify such conduct, when it could not properly be regarded as inhumane or degrading within the meaning of Article 3 ECHR, as a violation of a “fundamental” human right would seem to do no more than fortify that school of critics who continue to see force in Bentham’s celebrated aphorism regarding such rights.

It also remains unclear when the Court of Justice will give final judgment in NS. If I were to grant a stay, it is probable that no returns to Italy would in the meantime be made under Dublin II, at least until the final judgment of the Court of Justice was available. There is a significant number of persons awaiting such return. If the Court of Justice were to follow the same path as the Advocate General, which seems to me a real possibility, the relationship between Article 1 of the Charter and Article 3 ECHR would still remain undefined by the Court of Justice. However, not without considerable hesitation, I have decided that I should stay this claim until the Court of Justice has finally pronounced. The Court of Appeal clearly decided that the point in issue was sufficiently uncertain as to merit a reference, and that there were also good pragmatic reasons for making a reference. It may well be that the Court of Justice will, contrary to my apprehension, shed light on the relationship between Article 1 of the Charter and Article 3 ECHR, in a way that is dispositive of this claim. Given the decision of the Court of Appeal and the pending judgment of the Court of Justice, I believe that it would be inappropriate for me to purport to decide this issue in the present claim without the benefit of the Court’s guidance, assuming that it will give guidance on this particular issue.

I, therefore, grant permission, for the claim is arguable on other grounds, and stay final judgment pending the judgment of the Court of Justice in NS. For the avoidance of doubt, subject to this single outstanding matter, the merits of which I do not find impressive in any event, I would have dismissed the claim for the reasons already set out in this judgment.