EM (Eritrea), Regina (on The Application of) v Secretary of State for The Home Department: SC 19 Feb 2014

SSHD must examine safety of country for return

The Court was asked: ‘Is an asylum seeker or refugee who resists his or her return from the United Kingdom to Italy (the country in which she or he first sought or was granted asylum) required to establish that there are in Italy ‘systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers . . [which] amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment . .’
Held: The appeals were allowed. A presumption that members of an alliance of states such as those which comprised the European Union would comply with their international obligations in regard to refugee protection did not extinguish the need to examine whether in fact those obligations would be fulfilled when evidence was presented that it was unlikely that they would be. The removal of a person from a member state of the European Union was forbidden if it were shown that there was a real risk that the person removed would suffer inhuman or degrading treatment in violation of article 3 of the Convention. It did not need to be shown that the source of that risk was a systemic deficiency in the asylum and reception procedures of the state to which the person was being removed.
‘Where, therefore, it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his removal to that state is forbidden. When one is in the realm of positive obligations (which is what is involved in the claim that the state has not ensured that satisfactory living conditions are available to the asylum seeker) the evidence is more likely to partake of systemic failings but the search for such failings is by way of a route to establish that there is a real risk of article 3 breach, rather than a hurdle to be surmounted. ‘

Lord Neuberger, President, Lord Kerr, Lord Carnwath, Lord Toulson, Lord Hodge
[2014] UKSC 12, [2014] HRLR 8, [2014] 2 WLR 409, [2014] WLR(D) 89, [2014] Imm AR 640, [2014] 2 All ER 192
Bailii, WLRD, Bailii Summary
European Convention on Human Rights 3, Council Regulation 343/2003, Asylum and Immigration (Treatment of Claimants etc) Act 2004
England and Wales
CitedSoering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
CitedNS v Secretary of State for the Home Department etc ECJ 21-Dec-2011
Prohibition of inhuman or degrading treatment
ECJ (Grand Chamber) European Union law – Principles – Fundamental rights – Implementation of European Union law – Prohibition of inhuman or degrading treatment – Common European Asylum System – Regulation (EC) No . .
Appeal fromEM (Eritrea) and Others v Secretary of State for The Home Department CA 17-Oct-2012
In each case asylum applicants, after losing their applications, resisted return to Italy, the country of first entry to the EU, saying that they faced inhuman or degrading treatment if returned. Each asserted that they would face destitution owing . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Thangarasa; Same Ex parte Yogathas HL 17-Oct-2002
The applicants were asylum seekers who had been ordered to be returned to Germany, the country to which they had first escaped, for their asylum claims to be dealt with. They objected, asserting that Germany would not deal with their applications in . .
CitedRegina (ZL and VL) v Secretary of State for the Home Department and Lord Chancellor’s Department CA 24-Jan-2003
The applicants’ claims for asylum had been rejected as bound to fail, and under the new Act, they were to be removed from the UK. If they wanted to appeal, they they would have to do so from outside the jurisdiction. The section had been brought . .
CitedZT (Kosovo) v Secretary of State for the Home Department CA 24-Jan-2008
ZT applied for asylum. It was refused. On her appeal, the respondent certified that the claim was manifestly unfounded. She sought judicial review.
Held: The procedure laid down by rule 353 should have been applied to the further submissions . .
CitedZT (Kosovo) v Secretary of State for the Home Department HL 4-Feb-2009
The claimant sought asylum. The respondent on her appeal certified that the claim was clearly unfounded. The House was asked how further submissions might be made and what approach should be taken on a request for judicial review of such a decision. . .
CitedMarleasing SA v La Comercial Internacional de Alimentacion SA ECJ 13-Nov-1990
Sympathetic construction of national legislation
LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC . .
CitedRegina v Secretary of State for Department (ex parte Adan) and Regina v Secretary of State for Home Department (ex parte Subaskaran) etc CA 23-Jul-1999
Where a country was a signatory to the Convention, but chose to interpret it so as not to give the same protection against oppression by non-state agents which would be given here, the Home Secretary was wrong to certify such countries, in this case . .
CitedKadi v Council and Commission (Common Foreign and Security Policy) ECJ 16-Jan-2008
ECJ Common foreign and security policy (CFSP) – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – United Nations Security Council . .
CitedKRS v The United Kingdom ECHR 2-Dec-2008
Admissibility – The applicant’s claim for asylum had failed, and he challeged the decision to return him to Greece, the point of entry to the EU, saying that he would be at risk if so returned.
Held: The United Kingdom would not breach its . .
CitedSecretary of State for the Home Department v JN CA 14-May-2008
The Secretary of State appealed against a declaration that paragraph 3(2)(b) of Part 2 of Schedule 3 to the 2004 Act was incompatible with Article 3. The clause was said to restrict the Home Secretary from considering anything beyond the country . .
CitedMSS v Belgium And Greece ECHR 21-Jan-2011
Grand Chamber – The applicant alleged that his expulsion by the Belgian authorities had violated Articles 2 and 3 of the Convention and that he had been subjected in Greece to treatment prohibited by Article 3; he also complained of the lack of a . .
CitedElayathamby, Regina (on The Application of) v Secretary of State for The Home Department Admn 11-Aug-2011
The claimant applied for judicial review of the decision to certify his asylum claim pursuant to the 2004 Act, on grounds that he might safely be removed to a third country, Cyprus, and to quash removal directions given to remove the Claimant to . .
CitedEM, Regina (on The Application of) v Secretary of State for The Home Department Admn 18-Nov-2011
The court considered whether it was safe to return the applicant to Italy, and said: ‘a system which will, if it operates as it usually does, provide the required standard protection for the asylum seeker will not be found to be deficient because of . .
CitedVilvarajah and Others v The United Kingdom ECHR 30-Oct-1991
Five Tamils were refused asylum in the UK and returned to Sri Lanka but then continued to suffer ill-treatment. Their complaints to Strasbourg were rejected under both Articles 3 and 13, but with regard to Article 3, it held: ‘108. The court’s . .
CitedChahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
CitedSaadi v Italy (United Kingdom intervening) ECHR 28-Feb-2008
(Grand Chamber) When considering the appropriateness of a deportation order to a country with which the deporting country had a memorandum of understanding that the destination country would not torture the deportee, a court must look beyond the . .
CitedIA (Iran) v The Secretary of State for The Home Department (Scotland) SC 29-Jan-2014
The appellant Iranian challenged refusal of his claim for asylum. He had been granted refugee status in Iraq and in Turkey by the United Nations commission, but on arrival in the UK, his asylum claim had been rejected on the basis of the credibility . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, European

Leading Case

Updated: 10 November 2021; Ref: scu.521990