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

In assessing whether a human-rights claim is clearly unfounded, the court must ask whether an appeal would be bound to fail, taking the claimant’s factual case at its highest while examining the legal merits and reliability of supporting evidence. A return under the Dublin Regulation is prohibited where substantial grounds establish a real risk of treatment contrary to article 3 of the ECHR. The presumption that a member state will comply with its obligations is rebuttable, but systemic deficiencies are not a necessary condition. Evidence of widespread omissions or substantial operational problems may displace the presumption, but isolated failings or shortcomings do not necessarily do so. The general position of asylum seekers must be distinguished from that of beneficiaries of international protection who may work and enjoy rights equivalent to nationals. On the evidence, the claims concerning return to Italy were bound to fail and the judicial review applications were dismissed.

Six asylum seekers challenged decisions by the Secretary of State for the Home Department certifying their article 3 claims as clearly unfounded. Each claimant had previously been in Italy, and some had claimed asylum or obtained international protection there. They argued that return to Italy would expose them to inhuman or degrading treatment because of deficiencies in reception conditions, homelessness, lack of support, medical vulnerability or individual circumstances.

The claims arose in the context of the Dublin Regulation and were considered against evidence from the UNHCR, the SRC and a report prepared for the Braunschweig Administrative Court. The central questions were the applicable test for an arguable article 3 claim on return to Italy, whether the evidential presumption of compliance was displaced, and whether any claimant had an individual risk sufficient to prevent certification.

1. Certification test. The question was whether, if the article 3 issues were before the First-tier Tribunal, the claimants’ appeals would be bound to fail. The court had to take the factual cases at their highest, but could assess the legal arguments and reject seriously flawed or unreliable evidence. The Secretary of State’s decisions required anxious scrutiny.
2. Article 3 and return to Italy. Applying the Soering test, a claimant had to show substantial grounds for believing that removal would expose him to a real risk of torture or inhuman or degrading treatment. The assessment required consideration of the foreseeable consequences of removal, the general situation in the receiving state and the claimant’s personal circumstances.
3. Presumption of compliance. The presumption that Italy would comply with its EU and international obligations was rebuttable, but systemic deficiencies were not a necessary threshold. The evidence had to be assessed as a whole. The UNHCR reports were entitled to very substantial weight. The FTT would be bound to give them greater weight than the less authoritative or materially speculative reports where the reports differed. The evidence disclosed operational shortcomings, but not omissions on a widespread and substantial scale or substantial operational problems sufficient to displace the presumption.
4. Beneficiaries of international protection. The reasoning in EM (Eritrea) did not require asylum seekers and beneficiaries of international protection to be treated alike. Beneficiaries who were entitled to work and stood on a par with Italian citizens were not in the same position as asylum seekers. Differences in economic circumstances between the sending and receiving states did not, without more, engage article 3.
5. Integration facilities. A possible failure to provide integration programmes under the recast Qualification Directive would not itself create a real risk of article 3 ill treatment. The obligation facilitated integration rather than supplying material support.
6. Individual cases and order. None of the claimants’ medical conditions, past experiences, personal circumstances or likely status on return disclosed an arguable real risk of article 3 ill treatment. The claims would be bound to fail before the FTT. The Secretary of State had lawfully certified them, and the applications for judicial review were dismissed.

First-instance judicial review applications. The court reviewed the Secretary of State’s clearly unfounded certificates and dismissed all six applications.