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

Removal of an asylum seeker to another EU or ECHR member state under the Dublin II Regulation is impermissible where substantial grounds establish a real risk of Article 3 treatment. Compliance by the receiving state is presumed, and English courts ordinarily refrain from investigating that state’s compliance. Compelling evidence may rebut those presumptions, especially where torture on arrival is alleged. Article 3 treatment requires a positive state act; mere failure to prevent destitution is insufficient. The EU Reception Directive 2003/9/EC does not alter that meaning. The discretion to determine the asylum claim in the United Kingdom should not be used readily where the receiving state is safe and no particular UK ties exist.

The applicant, an Eritrean national, entered the United Kingdom via Italy and claimed asylum. Italy was deemed responsible under the Dublin II Regulation. The Secretary of State refused the claim on safe third-country grounds and certified it as clearly unfounded. The applicant then argued that removal to Italy would expose him to Article 3 treatment because of possible homelessness and destitution.

Hickinbottom J granted permission to apply for judicial review but rejected the claim. The Court of Appeal considered whether there was a real prospect of showing that the judge had erred on the meaning of treatment, the severity of the alleged conditions, or the United Kingdom’s responsibility, and whether the Secretary of State should exercise the discretion under Article 3(2) to determine the claim in the United Kingdom.

Sir David Keene gave the judgment of the court. Lord Justice Waller agreed and added a qualification concerning compelling evidence.

1. Article 3 and removal. A Dublin II transfer must not proceed where substantial grounds establish a real risk of Article 3 treatment in the receiving state. There is a rebuttable presumption that member states comply with international obligations, including the European Convention on Human Rights. English courts ordinarily refrain from investigating another state’s compliance. The applicant had to show a real prospect of overturning the decision on each of the cumulative Article 3 issues. Where a claim is certified as clearly unfounded, the Secretary of State must be satisfied that it is bound to fail before an adjudicator: R (Nasseri) v SSHD [2009] UKHL 23, R (Yogathas) v SSHD [2002] UKHL 36 and R (Razgar) v SSHD [2003] EWCA Civ 840.
2. Meaning of treatment. The reasoning in R v SSHD ex parte Limbuela & Ors [2005] UKHL 66 was binding. Article 3 treatment requires a positive act by the state; mere passivity or failure to ameliorate destitution is insufficient. The House of Lords had taken the EU Reception Directive 2003/9/EC into account, so the Directive did not provide a basis for distinguishing that decision or changing the Convention meaning of treatment.
3. Receiving-state responsibility. The approach in KRS v United Kingdom (Application no 32733/08) and Nasseri meant that complaints about conditions in Italy should ordinarily be pursued in Italy, or where necessary in Strasbourg. There were limits on the extent to which the United Kingdom could be expected to police another ECHR signatory’s asylum policy. The present evidence, concerning possible destitution rather than torture or a comparable positive act, was nowhere near sufficient to rebut the presumptions.
4. Discretion under Dublin II. The power under Article 3(2) to determine the substantive asylum claim in the United Kingdom should not be exercised readily where the responsible state appeared safe and the applicant had no particular ties to the United Kingdom. Otherwise the orderly European system for dealing with asylum claims would be undermined. The evidence did not establish a significant threat to dignity.

The application for permission to appeal was refused.

• Court of Appeal (Civil Division): Refused the application for permission to appeal, holding that the proposed appeal had no real prospect of success.
• Administrative Court, Queen’s Bench Division: Hickinbottom J granted permission to proceed with judicial review but rejected the claim. The citation is not stated in the judgment.