Adam, R (on the application of) v Secretary of State for the Home Department

A human-rights claim concerning removal under the Dublin system is clearly unfounded only where, on the material before the Secretary of State, there are no substantial grounds for believing that removal creates a real risk of treatment contrary to Articles 3 or 8. The assessment must consider both conditions in the receiving state and the claimant’s individual circumstances, viewed holistically. Systemic deficiencies may establish a real risk without further individual evidence, but the evidential presumption of compliance by a listed state must first be rebutted. Immigration detention must comply with the Hardial Singh principles and the Secretary of State’s published detention policy. A medical report must be considered within a reasonable time, assessed in its factual context, and need not automatically amount to independent evidence of torture.

The claimant, an Eritrean national, challenged the Secretary of State’s certification of his human-rights claim as clearly unfounded and the lawfulness of his detention pending removal to Italy under the Dublin II system. He relied on alleged risks arising from reception conditions, his personal experiences in Italy, mental-health difficulties and claimed torture. The Secretary of State maintained the certification after considering extensive country and medical evidence. The claimant also alleged breaches of the Hardial Singh principles and the policy governing detention of persons suffering from serious mental illness or supported by independent evidence of torture. The central issues were whether certification was lawful and whether detention between 20 January and 19 February 2015 was lawful.

1. Certification. The court applied the real-risk test in Soering v United Kingdom (1989) 11 EHRR 439, as confirmed in EM (Eritrea) v Secretary of State for the Home Department [2014] UKSC 12. The question was whether substantial grounds existed for believing that removal to Italy would expose the claimant to treatment contrary to Article 3.
2. The assessment required an holistic consideration of general conditions in Italy and the claimant’s personal circumstances. Systemic deficiencies could themselves establish a real risk, but the significant evidential presumption that a listed state would comply with its obligations had not been rebutted. The claimant’s short previous stay, alleged experiences, mental-health evidence and country material did not establish the necessary risk.
3. Tarakhel v Switzerland (29217/12) did not require individual guarantees for every vulnerable asylum seeker. Its conclusion concerned the particular vulnerability of a family with children and the specific reception risks identified. The later Strasbourg decisions in AME v The Netherlands (Application No. 51428/10) and AS v Switzerland (Application No. 39350/13) supported the conclusion that the claimant had not shown an Article 3 risk.
4. The Article 8 claim also failed. Where the circumstances did not reach the Article 3 threshold, it would ordinarily be rare for the same mental-health circumstances to establish an Article 8 violation. The Secretary of State was entitled to certify the claim as clearly unfounded under paragraph 5(4) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004.
5. Detention. Detention had to be justified throughout, comply with the four Hardial Singh principles and take account of the published policy in paragraph 55.10 of the Enforcement, Instructions and Guidance. Removal remained a realistic prospect while the judicial-review proceedings were pending, and the period allowed for acknowledgment of service made continued detention reasonable.
6. The evidence did not establish that the claimant fell within the policy categories concerning serious mental illness or independent evidence of torture. A Rule 35 report expressing concern that a detainee might have been tortured was not automatically independent evidence of torture; its significance depended on the facts. The later medical report required consideration, but the time taken to assess it was reasonable. Detention was therefore lawful. The time for seeking permission to appeal was extended until 21 days after judgment in R (MS) and others v Secretary of State for the Home Department [2015] EWHC 1095 (Admin).