Tabrizagh & Ors, R (On the Application Of) v The Secretary of State for the Home Department

On an application for permission to appeal concerning removal to Italy under Dublin II, the court held that the evidential presumption that an EU member state will comply with article 3 of the European Convention of Human Rights may be displaced by omissions or operational problems that are substantial and widespread, assessed against practical realities. UNHCR reports merit special regard but are not decisive. The decision-maker must weigh them alongside other evidence. The presumption is not conclusive: individual risk factors must still be considered under the Soering test. Recent Strasbourg admissibility decisions concerning Italy warranted very significant weight, including for beneficiaries of international protection. No arguable error or individual article 3 risk was shown. Permission to appeal was refused.

Five applicants sought permission to appeal after Mrs Justice Laing dismissed six judicial review claims concerning their proposed return to Italy under Dublin II. Two applicants were asylum seekers and three were beneficiaries of international protection. The Secretary of State had refused their asylum claims and certified them under paragraph 54 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004.

The applicants argued that the High Court had applied an impermissibly high threshold for displacing the presumption of Convention compliance, given excessive weight to UNHCR and Strasbourg material, and failed properly to address destitution and integration issues affecting beneficiaries of international protection. The central questions were whether the High Court had made an arguable error of law and whether the evidence disclosed an individual risk of treatment contrary to article 3.

The Court of Appeal, comprising Lord Justice Underhill and Lady Justice Sharp, dismissed the five applications for permission to appeal.

1. At the permission stage, the court was reviewing the Secretary of State’s conclusion that any appeal to the First-tier Tribunal would be bound to fail. The underlying article 3 question was not being decided afresh, although the High Court’s formulation had been formally over-generous to the applicants.
2. The presumption that an EU member state will comply with its Convention obligations could be displaced by evidence of omissions on a substantial and widespread scale or substantial operational problems, assessed by reference to practical realities. The High Court’s reference to substantial problems with the asylum system did not show a misdirection. Read as a whole, its judgment applied the approach stated by the Supreme Court in EM (Eritrea) v Secretary of State for the Home Department [2014] UKSC 12.
3. UNHCR material was not decisive, but it was entitled to special regard because of the organisation’s expertise and authority. The High Court was entitled to prefer the UNHCR reports over the Brunswick and SRC reports, having regard also to their relative currency, geographical scope, objectivity and accuracy. The court had to assess the position at the date of the Secretary of State’s decision, rather than decide on fears about future deterioration.
4. The recent Strasbourg admissibility decisions in Hussein v The Netherlands and Italy and Hassan v The Netherlands and Italy warranted very significant weight because they were recent and based on materially similar evidence. The Strasbourg approach concerning beneficiaries of international protection did not establish an arguable error in the High Court’s reasoning.
5. The generic issues concerning destitution, Limbuela, and Anufrijeva v Southwark London Borough Council [2004] QB 1124 did not require determination. The High Court had separately applied the Soering test and considered individual risk factors. It found no evidence that any applicant faced a real risk of article 3 ill-treatment.
6. No proposed ground had a reasonable prospect of success. The importance of the case was insufficient to justify permission where a further appeal would provide no useful clarification of the law. The applications were dismissed, with permission granted for the judgment to be cited.

• High Court, Queen’s Bench Division: Mrs Justice Laing dismissed all six judicial review claims on 11 June 2014 and subsequently refused permission to appeal.
• Court of Appeal (Civil Division): On 17 September 2014, the court dismissed the five applications for permission to appeal and granted permission for the judgment to be cited.