Third Country Removal Supreme Court Decision in EM (Eritrea)

Danielle Cohen
By Danielle Cohen Immigration Law Solicitor Linkedin
Danielle Cohen has over 20 years of experience as a lawyer and a reputation for offering professional, honest and expert advice.
6 February 2014

This judgement was handed down on 19th February 2014 and the question was whether an asylum seeker or refugee who resists his or her return from the United Kingdom to Italy (the country in which he or she first sought or was granted asylum) required to establish that there is in Italy “systematic deficiencies in the asylum procedure and in the reception conditions of asylum seekers which amounts to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhumane or degrading treatment.

To allow asylum seekers the opportunity to move about various member states applying successively in each of them for refugee status, could not be sustained.  Therefore, the first state in which asylum is claimed should normally be required to deal with the application and where the application is successful to cater for the refugee’s needs. Asylum seeking is now a worldwide phenomenon and therefore it must be tackled on a co-operative international basis.  The recognition of the presumption that an alliance of states such as the European Union would comply with their international obligations reflects not only a principal but also a pragmatic consideration.  A system whereby a state which is asked to confer refugee status on someone who has already applied for that elsewhere should be obliged, in every instance, to conduct an intense examination of the failings of the first state would lead to disarray.

However, the presumption that the first state will comply with its obligations should not distinguish the need to examine whether in fact those obligations will be fulfilled when evidence is presented that it is unlikely that they will be.

Violations of Article 3, the right not to be submitted to inhumane or degrading treatment does not require that the degrading conditions are the product of systematic shortcomings.  It is self-evident that a violation of Article 3 rights is not intrinsically dependent on the failure of the system. It means that those who would suffer breach of their Article 3 rights other than as a result of systematic deficiency in the procedure and reception conditions provided for the asylum seeker would be unable to avail themselves of those rights in order to prevent their enforced return to a country where the violation would occur.

The Court stated that the Court of Appeal conclusion that only systematic deficiencies in the listed countries asylum procedure and reception conditions would constitute a basis for resistant transfer to the listed country cannot be upheld.

The critical test remains the case of Soering –v- United Kingdom [1989] “The removal of a person from a member state of the council of Europe to another country is forbidden if it is shown that there is a real risk that the person transferred will suffer treatment contrary to Article 3 ECHR.”  The Regulations and the Reception Directives must be interpreted and applied in conformity with fundamental rights.  Therefore, if 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 inhumane or degrading treatment, his removal to the state is forbidden.  There is however, a significant evidential presumption that listed states will comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory.  It is against the backdrop of that presumption that any claim that there is a real risk of breach of Article 3 arises or falls to be addressed.