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

A clearly unfounded certificate may be issued where, on any legitimate view, the proposed human-rights appeal would fail. In Dublin II cases, the receiving State is initially presumed to comply with its international obligations. The claimant must rebut that presumption with reliable evidence showing systematic and significant failure to protect asylum seekers. Evidence of isolated aberrations is insufficient. The assessment should give substantial weight to reports and positions of reputable international bodies, while private expert reports will ordinarily carry limited weight. The normal course is to pursue complaints in the receiving State, unless its remedies are shown to be illusory. A claim based on Article 1 of the Charter should not be upheld merely because treatment may fall below other standards: absent treatment contrary to Article 3 ECHR, a separate violation of human dignity was not convincingly established on the material before the court.

The claimant, an Eritrean national, claimed asylum in the United Kingdom after previously claiming asylum in Italy. Italy accepted responsibility under Council Regulation No. 343/2003. The Secretary of State proposed removal to Italy and certified the claimant’s human-rights claim as clearly unfounded.

The claimant challenged the continued maintenance of those decisions, relying principally on alleged risks of homelessness, inadequate reception conditions, ineffective remedies and breach of Article 3 ECHR and EU fundamental rights. The central issues were whether the evidential presumption that Italy would comply with its international obligations had been rebutted, and whether the claim based on Article 1 of the Charter should await the Court of Justice’s judgment in R (NS) v Secretary of State for the Home Department.

1. The claim was stayed. The court granted permission and stayed final judgment pending the Court of Justice’s judgment in R (NS) v Secretary of State for the Home Department. Subject to that outstanding issue, the judge would have dismissed the claim.
2. The applicable judicial-review question was whether, on any legitimate view, the claimant’s human-rights appeal would fail. In the ordinary case the court was as well placed as the Secretary of State to decide that threshold issue, without applying a Wednesbury approach. The test derived from R v Secretary of State for the Home Department, ex parte Thangarasa and Yogathas, R (L) v Secretary of State for the Home Department and ZT (Kosovo).
3. Following KRS v United Kingdom, the starting point was a presumption that Italy would comply with its international obligations. The claimant had to rebut it by reliable evidence demonstrating systematic and significant failure to comply. Evidence of individual aberrations did not establish that the receiving country was unsafe.
4. MSS v Belgium and Greece did not displace that approach. It illustrated circumstances in which the presumption could be rebutted by numerous consistent reports, reliable evidence of systemic deficiencies, and an unequivocal position from UNHCR. The evidence concerning Italy did not reach that level.
5. The normal remedy was to pursue complaints in Italy and, if necessary, before the ECtHR. That course would not apply if Italian remedies were illusory; on the evidence, asylum seekers had enforceable accommodation rights and access to legal aid, so the remedies appeared effective.
6. The EU-law issue remained sufficiently uncertain because the Court of Justice had not determined whether Article 1 of the Charter afforded materially wider protection than Article 3 ECHR. The judge considered that proposition unpersuasive but stayed the claim to await authoritative guidance.