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

An asylum seeker or refugee resisting transfer to another European state need not prove systemic deficiencies in that state’s asylum procedures or reception conditions. The controlling inquiry is whether substantial grounds show a real risk that the individual will suffer treatment contrary to article 3 of the European Convention on Human Rights.

There is a significant evidential presumption that participating states will comply with their international obligations, but it is rebuttable. Evidence of systemic failings may establish the relevant risk, but it is a means of proof rather than an indispensable threshold. The assessment must consider conditions in the receiving state together with the individual’s circumstances and previous experiences. A human-rights claim cannot be certified as clearly unfounded where reasonable doubt remains about whether it may succeed.

Four conjoined proceedings concerned proposed removals to Italy. EH and EM were asylum seekers whose claims Italy was responsible for considering. AE and MA had already received refugee status in Italy. The appellants alleged that return would expose them to homelessness, destitution, sexual violence or deterioration in serious psychiatric conditions.

The Secretary of State certified their human-rights claims as clearly unfounded under the Nationality, Immigration and Asylum Act 2002 and the Asylum and Immigration (Treatment of Claimants etc) Act 2004. The Court of Appeal, sitting at first instance in two cases and in its appellate jurisdiction in the other two, held that the appellants could resist transfer only by showing systemic deficiencies in Italy’s asylum procedures or reception arrangements: [2012] EWCA Civ 1336; [2013] 1 WLR 576.

The principal issue was whether systemic deficiency was an indispensable condition, or whether the established article 3 inquiry remained whether each proposed transfer created a real risk of inhuman or degrading treatment.

1. The appeals were allowed unanimously and all four cases were remitted to the Administrative Court. Lord Kerr delivered the judgment, with which Lord Neuberger, Lord Carnwath, Lord Toulson and Lord Hodge agreed.

2. The Court of Appeal had imposed the wrong threshold. Under Soering v United Kingdom (1989) 11 EHRR 439, removal is forbidden where substantial grounds show a real risk that the person will suffer treatment contrary to article 3 of the European Convention on Human Rights. Systemic deficiencies in asylum procedures or reception conditions may prove that risk, but they are not an indispensable precondition. Gross violations may arise from operational failures or individual circumstances without any inherent defect in the system.

3. Participating states are entitled to operate on a significant evidential presumption that other participating states will comply with their international obligations. That presumption supports the effective operation of Council Regulation 343/2003, but it must remain rebuttable. It cannot stifle evidence demonstrating that an individual transfer will probably result in prohibited treatment. The court explained that R (NS) (Afghanistan) v Secretary of State for the Home Department, Cases C-411/10 and C-493/10, [2013] QB 102, identified systemic deficiencies as the means by which the transferring states acquired knowledge of risk in the cases before it, rather than as an exclusive legal threshold.

4. The reception and qualification directives, article 4 of the Charter of Fundamental Rights of the European Union and article 3 of the Convention protect asylum seekers against state-responsible living conditions amounting to inhuman or degrading treatment. The Human Rights Act 1998 also prohibits the Secretary of State from acting incompatibly with Convention rights. Accordingly, where return conditions create the necessary real risk, removal is forbidden. Evidence of systemic failings will often be relevant to a positive-obligation claim, but it remains evidence directed to the real-risk inquiry.

5. A certificate of clear unfoundedness is permissible only where the human-rights claim would fail on any legitimate view. If reasonable doubt exists about whether it may succeed, it cannot be certified. On remittal, the court must assess the foreseeable consequences of return, considering both the general situation in Italy and each claimant’s personal circumstances and previous experiences. Where appropriate, that assessment must be rigorous.

6. Council Regulation 343/2003 applied to all four appellants because each had made an asylum application in the United Kingdom on which no final decision had been taken. The fact that AE and MA had already received refugee status in Italy did not remove them from its procedural scope. Their respective statuses might nevertheless affect the factual assessment of risk.

7. Particular importance should be attached to UNHCR material because of the organisation’s unrivalled expertise. Its reports concerning Italy were relevant to the overall assessment but were less decisive than its reports concerning Greece. The absence of a recommendation suspending all transfers to Italy was significant, but did not establish that every individual transfer was lawful.

1. United Kingdom Supreme Court: In R (on the application of EM (Eritrea)) v Secretary of State for the Home Department [2014] UKSC 12, the court unanimously allowed the appeals, rejected systemic deficiency as an indispensable threshold and remitted all four cases to the Administrative Court.

2. Court of Appeal: The court sat at first instance in AE’s and EH’s proceedings and in its appellate jurisdiction in EM’s and MA’s proceedings. It held that systemic deficiency was a necessary condition for resisting transfer and consequently treated the claims as capable of certification: [2012] EWCA Civ 1336; [2013] 1 WLR 576.

3. Administrative Court: Permission to seek judicial review had been refused at first instance in AE’s and EH’s cases. Kenneth Parker J decided EM’s substantive challenge in [2011] EWHC 3012 Admin, and Langstaff J decided MA’s challenge in [2012] EWHC 56 Admin. Those proceedings led to the conjoined hearing in the Court of Appeal.