R (on the application of EM (Eritrea)) v Secretary of State for the Home Department

The Supreme Court rejected the Court of Appeal's conclusion that an asylum seeker or recognised refugee resisting return to the state of first arrival under the Dublin II Regulation must as a matter of law show that the receiving state is in "systemic" breach of its asylum or reception arrangements. The court reaffirmed that the governing test remains that of Soering: removal is forbidden where there are substantial grounds for believing the person faces a real risk of treatment contrary to Article 3 ECHR. The Dublin II presumption that member states comply with their obligations is an evidential presumption which may be rebutted by reliable evidence, including evidence of serious operational problems or systemic deficiencies; such evidence must be assessed in the light of the claimant's individual circumstances and the general situation in the receiving state.

This is an appeal concerning four appellants (two asylum seekers and two recognised refugees) who sought to resist return from the United Kingdom to Italy under the Dublin II Regulation (Council Regulation 343/2003). Each appellant challenged the Home Secretary's certification of their human rights claims as "clearly unfounded" and sought to prevent removal to Italy on the ground that return would expose them to a real risk of treatment in breach of Article 3 ECHR.

The issues for the court included:

• whether a claimant resisting transfer to the state of first arrival must establish "systemic deficiencies" in that state's asylum procedure and reception conditions before Article 3 protection could be invoked;
• the correct operation of the Dublin II presumption of compliance by member states and how that presumption may be rebutted; and
• whether refugees and asylum seekers should be treated differently for the purposes of these challenges.

The Supreme Court concluded that the Court of Appeal had erred in construing the CJEU's decision in NS as creating a categorical requirement of "systemic" failure. The court reaffirmed that the Soering test — whether there are substantial grounds for believing there is a real risk of treatment contrary to Article 3 — remains decisive. The Dublin II presumption that listed member states will comply with their obligations is an evidential presumption which can be displaced by reliable evidence, which may include evidence of systemic deficiencies but is not limited to them. The court emphasised the need for a fact-specific assessment, drawing on both the general situation in the receiving country (including UNHCR materials) and the claimant's personal circumstances. The Supreme Court remitted all four cases to the Administrative Court for fresh consideration of whether each claimant faces a real risk of Article 3 ill-treatment if returned to Italy.

The court also noted the practical importance of the presumption of compliance for the functioning of Dublin II, and the distinctive persuasive value of UNHCR material in assessing conditions on the ground.

Appeal allowed in part. The Supreme Court held that the Court of Appeal was wrong to treat proof of "systemic deficiencies" as an indispensable precondition to resisting transfer under Dublin II. The correct test is whether there are substantial grounds for believing the claimant faces a real risk of treatment contrary to Article 3 ECHR (Soering). The cases were remitted to the Administrative Court for reconsideration of the evidence in each case.

Appeal from the Court of Appeal [2012] EWCA Civ 1336; earlier contested at first instance in the Administrative Court and High Court (examples in the judgment: EM [2011] EWHC 3012 (Admin); MA [2012] EWHC 56 (Admin)). The Court of Appeal had heard the consolidated matters and given judgment reported at [2013] 1 WLR 576 (paras cited in the Supreme Court judgment).