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

Under the Dublin system, mutual trust between Member States creates a strong assumption that asylum seekers will receive treatment compatible with fundamental rights. That assumption is rebutted only where substantial grounds establish systemic deficiencies in the asylum procedure and reception conditions which create a real risk of inhuman or degrading treatment within Article 4 of the Charter of Fundamental Rights. Article 1 of the Charter has no independent role in this transfer context.

The claimant, an Eritrean national who had previously claimed asylum in Italy, sought judicial review of decisions certifying his human-rights claim as clearly unfounded and directing his removal to Italy under the Dublin II Regulation.

The court had already dismissed the challenge to the certification decision, applying MSS v Belgium and Greece [2011] ECHR 108 (GC) and R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin). The remaining issue was whether removal would breach the Charter of Fundamental Rights in light of NS v Secretary of State for the Home Department (Case C-411/10).

1. The EU-law challenge was dismissed. Permission to appeal was granted.
2. NS v Secretary of State for the Home Department (Case C-411/10) established that mutual confidence between Member States gives rise to an assumption that asylum treatment complies with the Refugee Convention, the ECHR and the Charter. The assumption is rebutted where substantial grounds establish systemic flaws in the asylum procedure and reception conditions creating a real risk of inhuman or degrading treatment under Article 4 of the Charter.
3. Not every infringement of a fundamental right or of the relevant EU directives prevents transfer. The Charter test was consistent with the ECHR approach in MSS v Belgium and Greece [2011] ECHR 108 (GC).
4. The argument that Article 1 of the Charter could independently require the transferring state to investigate dignity concerns was rejected. The transferring state’s duty was confined to the Article 4 systemic-deficiencies threshold. Concerns falling short of inhuman or degrading treatment remained for the receiving state’s authorities.
5. The evidence did not establish that removal to Italy would violate EU law. The court declined to reopen its earlier evidential conclusions, which were matters for the pending appeal. The claim was dismissed in its entirety.

The court recorded that its earlier ruling on the ECHR certification issue was under appeal. The claimant was granted permission to appeal both the EU-law ruling and, so far as necessary, the earlier ruling.