EM (Eritrea) & Ors v Secretary of State for the Home Department

For returns under the Dublin II Regulation, the presumption that the first member state complies with its obligations may be displaced only by evidence of systemic deficiencies in its asylum procedure or reception conditions creating substantial grounds for believing that the claimant faces a real risk of inhuman or degrading treatment. Individual evidence of grave risk is insufficient where the risk arises from operational shortcomings rather than systemic deficiency. UNHCR evidence is highly weighty but not legally indispensable. In an Article 8 assessment, children’s best interests are paramount but not decisive, requiring a case-specific evaluation of integration, residence abroad, care arrangements and family relationships.

Four linked cases concerned the proposed removal to Italy of asylum-seekers or recognised refugees. EH and AE sought judicial review after permission had initially been refused. EM and MA appealed substantive decisions of the Administrative Court, recorded at [2011] EWHC 3012 (Admin), [2012] EWHC 1799 (Admin) and [2012] EWHC 56 (Admin); the first-instance permission decisions in EH and AE were recorded at [2011] EWHC 3826 (Admin) and [2012] EWHC 512 (Admin).

The claimants relied on evidence of homelessness, destitution and serious mental-health consequences, arguing that return would breach Article 3 of the ECHR. The Secretary of State had certified the claims as clearly unfounded under the Nationality, Immigration and Asylum Act 2002 and the Asylum and Immigration (Treatment of Claimants etc) Act 2004. The central issues were whether the evidence disclosed an arguable real risk in Italy and whether MA’s removal with her children would be disproportionate under Article 8.

1. The court dismissed EM’s and MA’s appeals and dismissed EH’s and AE’s applications for judicial review. For certification purposes, the court was ordinarily as well placed as the Secretary of State to assess whether an independent tribunal could lawfully uphold the claim. The Secretary of State’s view therefore did not receive presumptive finality: [2002] UKHL 36; [2003] EWCA Civ 25; [2009] UKHL 6.

2. Under the Dublin II scheme, the presumption that the first state complies with its international obligations is rebuttable. Applying the binding decision in NS, intervention under article 3(2) of Council Regulation 343/2003 requires systemic deficiencies in the first state’s asylum procedure or reception conditions, known to the second state, which give substantial grounds for believing that the claimant faces a real risk of inhuman or degrading treatment. Individual risk, however grave, is insufficient where it arises only from operational problems.

3. The systemic-deficiency question is evaluative and depends on the totality of the evidence. UNHCR evidence merits special weight because of the organisation’s expertise, continuity and institutional authority, but it is not legally indispensable. Other reliable reports and individual testimony may suffice. The evidence concerning Italy was seriously troubling, but the more recent UNHCR material and the Hammarberg report did not establish that Italy’s system was itself dysfunctional or systemically deficient. The Article 3 claims were therefore incapable of succeeding on the evidence. The related Article 8 arguments of EH and AE, based on the effect of Italian conditions on their mental health, necessarily failed on the same basis.

4. For Article 8(2) proportionality, children’s best interests are a paramount consideration but not a trump card. The assessment includes the child’s well-being, whether residence in another country is reasonable, integration and length of absence, care arrangements and family relationships that would be severed: ZH (Tanzania) and HH. Marta was an adult and her interests could not be aggregated with those of MA and Daniel. Although Daniel was settled in school and the children’s fears were accepted, their position in the United Kingdom was fortuitous and precarious. The case against removal was too slight to outweigh the legal and policy reasons for returning MA to Italy.

1. Court of Appeal (Civil Division): The four cases were heard together. EM’s and MA’s appeals were dismissed, and EH’s and AE’s applications for judicial review were dismissed.

2. Administrative Court: EM’s substantive decisions were recorded at [2011] EWHC 3012 (Admin) and [2012] EWHC 1799 (Admin). MA’s decision was recorded at [2012] EWHC 56 (Admin). Permission to apply for judicial review was refused in EH and AE at first instance in decisions recorded at [2011] EWHC 3826 (Admin) and [2012] EWHC 512 (Admin); permission was subsequently granted by the Court of Appeal under CPR 52.15.