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

A human-rights claim is clearly unfounded only where it is so clearly without substance that an appeal would be bound to fail. In assessing a proposed return to another EU Member State, the court begins with a significant evidential presumption that the receiving state will comply with EU and international obligations. That presumption may be rebutted by widespread and substantial operational failures, or by evidence showing a real risk to the particular claimant. The assessment must rigorously examine the foreseeable consequences of return against the general situation and the claimant’s personal circumstances. Reliable evidence is essential. General shortcomings, statistical uncertainty and difficulties of integration do not necessarily establish an Article 3 risk. Specific assurances are not generally required for vulnerable adults merely because they have mental-health problems or have suffered rape or torture. The claims were not clearly unfounded on any legitimate view and the certifications were lawful.

MS, NA and SG sought judicial review of decisions by the Secretary of State certifying their human-rights claims as clearly unfounded under paragraph 5(4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Each claimed that removal to Italy would expose them to a real risk of treatment contrary to Article 3 of the European Convention on Human Rights.

MS and NA had previously received protection in Italy. SG had travelled through Italy without claiming asylum there. All three relied on difficult reception experiences, serious mental-health conditions and risks of self-harm or suicide. The central issues were whether the presumption of Italian compliance had been rebutted, whether the individual circumstances created a real risk on return, and whether risks before or during removal could be managed.

1. The claims for judicial review were dismissed. The Secretary of State had acted lawfully in certifying each claim as clearly unfounded.

2. Under [2014] AC 1321, certification is impermissible if, on one legitimate view, a properly directed tribunal could find substantial grounds for believing that return would expose the claimant to a real risk of Article 3 treatment. The court must substantially perform the same evaluative exercise as the decision-maker.

3. There was a significant evidential presumption that Italy would comply with its EU and international obligations. The presumption could be rebutted by substantial operational problems on a widespread scale, or by the particular facts of an individual case. The evidence did not establish either. The statistical comparisons advanced by the claimants relied on unjustified assumptions and omitted relevant accommodation and turnover figures. The reports relied on were insufficiently reliable, current or objective to support the proposed conclusions.

4. The Italian system provided access to accommodation, health care and integration facilities. The evidence did not show that MS or NA would probably be homeless, or that SG could not claim asylum and obtain appropriate reception. Their mental-health conditions and histories of rape did not alter the conclusion. The reasoning in Tarakhel v Switzerland concerned a large family with young children, a significant capacity discrepancy and the need to preserve the family unit. It did not establish a general requirement for individual assurances in cases involving vulnerable adults.

5. Article 4 of the Charter of Fundamental Rights produced no different result. The United Kingdom authorities remained under a positive obligation to take reasonable measures to manage suicide risks before and during removal. The proposed monitoring, medical assessment and trained medical escorts were sufficient for certification purposes.