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

Removal of an asylum seeker to another Dublin II member state engages article 3 only where there is a real risk of treatment reaching the high threshold of inhuman or degrading treatment. Mere homelessness or failure by the receiving state to provide accommodation is insufficient without positive state action. The Limbuela two-stage approach applies: positive action must first amount to treatment, and the resulting conditions must then satisfy the article 3 threshold. A claim based on conditions affecting a group requires compelling evidence of a consistent pattern creating a real risk for the individual. The Secretary of State may certify a claim as clearly unfounded where it is bound to fail before an adjudicator. Challenges to the receiving state’s compliance should ordinarily be pursued there and, if necessary, before the European Court of Human Rights.

The claimant, an Eritrean national, arrived in the United Kingdom after previously being fingerprinted and making an asylum claim in Italy. Under the Dublin II Regulation, Italy was deemed responsible for determining his claim. The Secretary of State certified his human rights claim as clearly unfounded and set removal directions.

The claimant sought judicial review, alleging that return to Italy would expose him to destitution, homelessness and inadequate access to asylum procedures, contrary to article 3 of the ECHR. He also argued that the Secretary of State should exercise the discretion under article 3(2) of the Dublin II Regulation to examine the claim in the United Kingdom. The central issues were whether return created a real risk of article 3 treatment and whether the certification and refusal to exercise discretion were unlawful.

1. Claim dismissed. Permission was granted at the rolled-up hearing, but the claimant failed on both grounds.
2. The United Kingdom was required to avoid removing the claimant where return would expose him to a real risk of treatment contrary to article 3. There was, however, a rebuttable presumption that Italy would comply with its international obligations. The claimant had to show substantial grounds for believing that he faced a real risk of article 3 treatment.
3. The court applied the approach in R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66. Where living conditions are relied upon, the inquiry has two stages: first, whether positive action by the state amounts to treatment; and secondly, whether the resulting conditions are sufficiently severe to be inhuman or degrading. Mere passivity, including failure to provide accommodation or a minimum standard of living, does not ordinarily amount to treatment.
4. The Italian asylum system had been conceded to be compliant in its structure. The evidence did not establish a consistent pattern of frustration of asylum claims, unreasonable delay, failure to provide information, or systematic denial of accommodation and support. The claimant was likely to receive transitional accommodation, information and subsistence, although accommodation for the entire period could not be guaranteed.
5. Even if the prohibition on work or the failure to place asylum seekers on a housing list amounted to positive action, the claimant was a healthy adult who was likely to receive accommodation for several weeks and have his application determined within a few months. The evidence did not satisfy the high article 3 threshold.
6. The reasoning in KRS v United Kingdom (Application No 32733/08) (unreported, 2 December 2008) was persuasive. Any complaint about conditions in Italy should ordinarily be pursued against Italy before the Italian courts and, if necessary, the European Court of Human Rights. The evidence did not show that effective remedies were unavailable.
7. The Secretary of State was entitled to certify the claim as clearly unfounded. The claim was bound to fail before an adjudicator, applying the approach in R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36. The discretionary ground also failed because the premise that Italy was avoiding its obligations was unsupported.

First-instance judicial review in the Administrative Court. Permission was granted at a rolled-up hearing, and the claim was dismissed. The related cases of BM and YM were adjourned and remained to be disposed of separately.