SM & Ors, R (on the application of) v The Secretary of State for the Home Department

An asylum seeker or beneficiary of international protection returned to Italy will not ordinarily establish a real risk of treatment contrary to Article 3 merely because of the reception conditions likely to be encountered on a Dublin return. The significant evidential presumption that Italy will comply with its international obligations is not displaced in ordinary cases.

A different conclusion may be open where the person has a sufficiently serious, particular vulnerability. The categories in the Reception Directive provide a starting point, but the assessment is fact-sensitive and the vulnerability must be capable of bringing temporary homelessness or basic reception conditions across the Article 3 threshold. For such a person, the Secretary of State must consider discretion under article 17(2) and, if transfer proceeds, obtain an assurance that suitable support and accommodation will be in place.

The applicants sought judicial review of decisions certifying their human rights claims as clearly unfounded under Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Two applicants were asylum seekers proposed to be returned to Italy under the Dublin Regulation. SM had already been recognised as a refugee in Italy and was to be readmitted under a bilateral arrangement.

They contended that return would expose them to a real risk of Article 3 ill-treatment because of homelessness, destitution, deficient reception arrangements and their individual vulnerabilities. The Tribunal considered extensive current evidence concerning Italian asylum procedures, accommodation, healthcare, Dublin-return arrangements and support for beneficiaries of international protection.

The central issue was whether their claims were necessarily bound to fail before the First-tier Tribunal.

1. The judicial review applications of SM and RK succeeded; SOM’s application was dismissed. The certifications concerning SM and RK were quashed.

2. The Tribunal applied the significant evidential presumption, identified in EM (Eritrea) v SSHD, [2014] UKSC 12, that an EU Member State will comply with its international obligations. Although the Italian system was under severe pressure, its legal and administrative framework continued to develop. The evidence did not permit a properly directed First-tier Tribunal to find a general Article 3 risk for an ordinary Dublin returnee. Delays in registration, temporary homelessness, basic CAS accommodation and variable airport assistance did not, without more, meet the high Article 3 threshold.

3. The position differs for a person with a particular and sufficiently serious vulnerability. The vulnerable categories in the Reception Directive are a starting point, not a conclusive test. General assertions of mental ill-health, mild depression or PTSD, or a minor disability will not ordinarily suffice. Significant mental or physical illness or disability, unaccompanied childhood, old age, or another characteristic producing comparable vulnerability may mean that even a temporary period without suitable accommodation crosses the Article 3 threshold.

4. The evidence showed no general procedure, equivalent to that for families with children, ensuring that particularly vulnerable individual returnees would promptly receive suitable accommodation and support. The Secretary of State must therefore consider article 17(2) of the Dublin Regulation in such a case. If discretion is declined, transfer must be planned and preceded by an assurance from Italy that appropriate support and accommodation are in place. Otherwise, the Article 3 claim is not necessarily clearly unfounded.

5. SM’s severe PTSD and depression, and RK’s serious mental and physical conditions, placed them within that category. SOM’s lesser combined vulnerabilities did not. A beneficiary of international protection is not generally at Article 3 risk on return to Italy, but a demonstrably vulnerable beneficiary may require the same safeguards as a vulnerable asylum seeker.

Upper Tribunal (Immigration and Asylum Chamber): Original judicial review jurisdiction. The Tribunal reviewed the Secretary of State’s certifications of the applicants’ human rights claims as clearly unfounded under Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. It quashed the certifications concerning SM and RK and dismissed SOM’s claim.