Yosief Weldegaber, R (on the application of) v The Secretary of State for the Home Department (Dublin Returns - Italy)

In a Dublin return case, the decision maker must conduct a thorough and individualised examination of the person concerned. A removal to Italy will not infringe article 3 merely because accommodation is not immediately available, unless the evidence establishes a real risk of inhuman or degrading treatment.

Tarakhel v Switzerland did not establish a general requirement for the sending state to obtain a specific assurance of accommodation from Italy. Its requirement for information and assurances depended on the particular vulnerabilities of the family and children concerned. A claimant must displace the presumption that Italy will comply with its international obligations by cogent evidence of systemic deficiency, serious operational failure, or an individual real risk.

The applicant, an Eritrean national, challenged decisions to remove him to Italy under the Dublin Regulation for the determination of his asylum claim. The respondent had certified his article 3 claim as clearly unfounded under Schedule 3 to the Asylum and Immigration (Treatment of Claimants) Act 2004.

Following a refusal of permission on the papers by Upper Tribunal Judge Freeman, the applicant renewed his application for permission to apply for judicial review. The respondent had made a further decision after considering extensive country material concerning Italian asylum procedures and reception conditions. The applicant contended that, following Tarakhel v Switzerland, removal required a specific assurance that he would have a place in a CARA reception centre.

The central issue was whether the applicant had an arguable article 3 claim, including whether the absence of a specific accommodation assurance displaced the presumption of Italian compliance with international obligations.

1. The renewed application for permission to apply for judicial review was dismissed. The applicant had not established an arguable claim that removal to Italy would expose him to treatment contrary to article 3 of the European Convention on Human Rights.

2. The certification test required the Secretary of State carefully to examine the individual case and evidence, and conscientiously to conclude that the human-rights claim must clearly fail. At the permission stage, the relevant question was whether there was an arguable reasonable doubt that the substantive claim might succeed. The applicant’s facts had to be taken at their reasonable zenith.

3. Tarakhel v Switzerland required a thorough and individualised examination. However, its conclusion that the sending state should obtain information and assurances was inseparable from the particular vulnerability of a family with six young children. It did not create a general rule requiring a sending state to secure a specific assurance of accommodation in every return-to-Italy case.

4. The applicant was an adult male who did not rely on, and had not evidenced, particular vulnerability. Even a limited period without immediate accommodation would not, on the evidence, cross the article 3 threshold. The country material did not demonstrate systemic deficiencies or serious operational failure in Italy, and did not displace the presumption that Italy would comply with its international obligations.

5. The alleged procedural shortcomings in the decision letters did not assist the applicant. In a human-rights challenge the court determines whether a Convention right would be infringed, with the focus on the outcome rather than defects in the decision-making process.

• Upper Tribunal (Immigration and Asylum Chamber): renewed application for permission to apply for judicial review following Upper Tribunal Judge Freeman’s refusal of permission on the papers on 18 October 2014. Permission was refused and the application dismissed.
• Secretary of State: an earlier removal decision was withdrawn and remade. The decisions of 23 July 2014 and 2 January 2015 were treated as merged and challenged together.