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Cite as: [2011] ECHR 1949

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FOURTH SECTION

Application no. 63388/11
A.E.
against the United Kingdom
lodged on 12 October 2010

STATEMENT OF FACTS

THE FACTS

The applicant, Ms A.E, is an Eritrean national who was born in 1983 and lives in Bedfordshire. Her application was lodged on 12 October 2011. She was represented before the Court by Wilson Solicitors LLP, a law firm practising in London.

A. The circumstances of the case

The facts of the case, as submitted by the applicant, may be summarised as follows.

The applicant left Eritrea in 2008 due to the problems that she was experiencing with the Eritrean authorities as a result of her husband’s suspected involvement in arranging the illegal departure of Eritrean nationals from the country.

She travelled to Italy where it appears that, unbeknownst to her, she was eventually granted refugee status on an unknown date. After six months in three different types of accommodation provided by the Italian authorities, the applicant was informed that she was no longer entitled to accommodation or support and was told to leave the hostel where she was staying. She had nowhere else to live and no financial means. She was therefore forced to share a room with a female friend and three men. After one of the men tried to rape her, the applicant left Italy and travelled to Calais where she was told that her life in France would be the same as that in Italy. She therefore decided to travel to the United Kingdom.

She arrived in the United Kingdom on 19 January 2010 but was removed to Italy on 15 October 2010 on third country grounds under the Dublin Regulation (see relevant European Union law and domestic law and practice below) because Italy was the Member State responsible for her asylum claim.

She claims that on arrival in Italy at Milan airport on 15 October 2010, she was fingerprinted and told to leave the airport. Despite her requests to the Italian authorities, she claims that she was not offered any assistance, nor was she re-issued with her refugee status papers. She stayed one night in the airport before a bus driver agreed to let her travel on a bus to Milan city centre without paying for a ticket.

She claims that, from October 2010 until March 2011, she had no choice but to live in a squat in Milan where there were not enough beds for everyone to sleep in so that she often had to sleep on the floor. She claims that, whilst staying there, she was repeatedly raped by different men staying in the same accommodation. She claims that other people in the squat were able to see what was happening to her but did nothing to intervene. She claims that she witnessed the same thing happen to other women in the squat. If she tried to sleep in the train station to avoid the risk of sexual assault in the squat, she would usually be told to move on by the police. The men in the squat warned her not to tell the police what they were doing to her otherwise they, and their friends, would take revenge upon her.

She claims that she was not provided with any food or means of subsistence and the queues at charities for food were so long that she often went without food. Eventually, with the help of an Eritrean woman, she bought a train ticket to Calais.

The applicant returned to the United Kingdom on 21 April 2011. She was arrested and detained on arrival in the United Kingdom. On the same day, she made an application for asylum. On 8 June 2011, the Secretary of State refused and certified her asylum claim on third country grounds under the Dublin Regulation because she had been granted refugee status in Italy.

On 13 June 2011, the applicant’s representatives submitted detailed representations to the Secretary of State as to why the United Kingdom would be in breach of its obligations under Article 3 of the Convention if the applicant were to be removed to Italy. They argued that the applicant was particularly vulnerable as a lone female who had given a clear and consistent account of her living conditions in Italy which was consistent with the available objective evidence. They argued that her return to Italy would expose her to a real risk of ill-treatment contrary to Article 3 and therefore requested that she be granted leave to remain in the United Kingdom.

On 14 June 2011, the Secretary of State refused those representations and maintained her position that it was safe for asylum seekers to be returned to Italy. She considered that criticisms of the asylum procedures and the treatment of asylum seekers in Italy had been fully and carefully considered in the High Court judgment of EW v. Secretary of State for the Home Department [2009] EWHC 2957 (see relevant domestic law and practice below), which had later been upheld by the Court of Appeal. That judgment had found¸ inter alia, that there was no evidence of a consistent pattern of mistreatment of asylum seekers in Italy such that anyone returning there would face a real risk; and that any such treatment would not meet the high threshold of “inhuman and degrading”. The Secretary of State therefore considered that, should the applicant wish to raise any concerns regarding her treatment in Italy, she should first do so with the Italian authorities and, if necessary, with the European Court of Human Rights. With regard to the applicant’s claims that she had been raped in Italy, it was noted that Italy was an advanced western European democracy and it was considered to be open to her to approach the Italian authorities to report her attackers upon return. In conclusion, the Secretary of State was of the view that, although there may be concerns about certain aspects of the situation in Italy, there was absolutely nothing that came close to indicating that there would be a real risk that the applicant would be exposed to inhuman or degrading treatment within the meaning of Article 3 of the Convention were she to be removed there. Finally, her human rights claim was certified as clearly unfounded meaning that she had no in-country right of appeal.

Removal directions to Italy set to take place on 24 June 2011 were cancelled when the applicant issued an application for permission to apply for judicial review at the High Court. In that application, she argued, inter alia, that her removal to Italy would breach her rights under Article 3 of the Convention.

On 19 July 2011, the High Court (Holman J) refused to grant permission to apply for judicial review stating that:

“No-one could fail to be moved by the [applicant’s] account in her statement dated 10 June 2011 of her terrible ordeal and her sufferings after she was last removed to Italy in October 2010. But for all the reasons given in the [Acknowledgement of Service] I cannot accept that removal again to Italy is unlawful or that Italy is not a safe state to which to remove the [applicant]. ...”

The applicant’s representatives renewed the application for judicial review before the High Court and the hearing for the same is listed to take place before the High Court on 10 November 2011.

On 9 August 2011, the applicant’s representatives submitted further representations to the Secretary of State arguing, inter alia, that compelling compassionate circumstances clearly existed in the applicant’s case and that her return to Italy would breach the United Kingdom’s obligations under Article 3 of the Convention. They relied upon, inter alia, a report dated 1 August 2011 from Dr K. Robjant, a specialised clinical psychologist, which stated that the applicant was experiencing “severe, chronic PTSD [‘Post Traumatic Stress Disorder’] and a major depressive episode”. The report concluded that the applicant’s PTSD was, in all likelihood, caused by her experience of multiple traumatic events, including her experience of being raped in Italy, and that the applicant would be at high risk of suicide if she were to be returned to Italy.

On 15 September 2011, the Secretary of State refused those representations stating that none of the information submitted by the applicant’s representatives provided persuasive evidence that the United Kingdom would be the most appropriate place for the applicant’s long term refuge given that the applicant could report her attackers to the Italian authorities and she had only lived in the United Kingdom for a comparatively short period of time. With regard to her claim under Article 3 of the Convention, the Secretary of State maintained her position as set out in her earlier decision of 14 June 2011. It was considered that any risk of suicide could be managed by escorts on the journey and would be managed in Italy by the medical authorities there.

On 5 October 2011, the Secretary of State set removal directions for the applicant to be returned to Italy on 14 October 2011. On 10 October 2011, the applicant’s representatives requested that the removal directions to Italy be cancelled and submitted a number of reports setting out serious concerns about the living condition for refugees and those granted other forms of immigration status in Italy.

On 11 October 2011, the Secretary of State refused to cancel the applicant’s removal directions and continued to rely in substance upon her position as set out in the earlier decision of 14 June 2011. The Secretary of State further stated that the applicant’s psychological report would be forwarded to the Italian authorities so that they could make medical care and treatment available to the applicant upon her arrival in Italy.

On 13 October 2011, the Secretary of State deferred the applicant’s removal directions “to allow the Italian authorities adequate time to consider the arrangements which need to be made in view of the medical report”.

On 18 October 2011, the Secretary of State re-set removal directions for the applicant to be returned to Italy on 28 October 2011.

In letters dated 14 and 19 October 2011, the applicant’s representatives sought information regarding any proposed arrangements for the applicant upon her arrival in Italy given her particular vulnerability.

On 25 October 2011, the United Kingdom Border Agency responded and informed the applicant’s representatives that the Italian authorities had confirmed that the applicant would be accepted into a programme reserved for asylum seekers and refugees like the applicant and that she would be accommodated in Prato, Italy. It further stated that the Italian authorities had a copy of the applicant’s mental health assessment and would no doubt use this to support the reception arrangements for the applicant. Finally, they informed the applicant’s representatives that the applicant would be accompanied on the flight to Italy by two escorts, one of whom would be female.

On 27 October 2011, the High Court (Blake J) refused the applicant’s application for judicial review commenting that:

"1. But for the information communicated on 25 October 2011 that the Italian authorities have secured accommodation appropriate for a refugee with mental health problems in Prato on the claimant’s return to Italy, her challenge to the defendant’s certificate of un-foundedness may turn out to be arguable at the full hearing in the light of:

a. her particular vulnerabilities as a woman refugee who has been sexually assaulted and in a poor state of mental health;

b. the narrative of her experiences in Italy when removed in similar circumstances;

c. the developments in the case law since 2010 as to the scope of application of the prohibition on inhuman and degrading treatment in the context of refugee transfers exemplified by the principles set out in MSS v. Greece and some evidence that those principles could in certain circumstances result in human rights breaches in Italy.

2. However, in the light of the specific assurances of suitable accommodation and the fact that there is a right of appeal from abroad if events do not turn out as presently anticipated, I do not think that despite the very generic nature of the defendant’s observations on 14 October 2011, there remains a sufficient case for the grant of a stay pending reconsideration of permission.

3. There is a very strong public interest in not permitting individuals generally to frustrate the workings of the Dublin system (and taking back recognised refugees is as much part of that system as transferring responsibility for asylum seekers).

4. Although it is somewhat odd that the Claimant is to be returned to Milan (rather than Pisa or Florence) if she is to be accommodated in Prato, it is not appropriate for this court to micromanage the arrangements that would see the claimant reach Prato, but the court assumes that the defendant will either ensure through escorts or otherwise that the Italian authorities will arrange for such a journey or provide her with sufficient funds to undertake it herself."

On 27 October 2011, the Acting President of the Fourth Section decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should not be removed to Italy until further notice.

B. Relevant European Union law

1. The Dublin Regulation

Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State of the European Union responsible for examining an asylum application lodged in one of the Member States by a third-country national (“Dublin II”, hereinafter “the Dublin Regulation”) applies to all European Union Member States, Norway, Iceland and Switzerland.

The Dublin Regulation replaces the provisions of the Dublin Convention for determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities, signed on 15 June 1990.

Under the Dublin Regulation, the Member States must determine, based on a hierarchy of objective criteria (set out in Articles 5 to 14), which Member State bears responsibility for examining an asylum application lodged on their territory. The aim is to avoid multiple applications and to guarantee that each asylum seeker’s case is dealt with by a single Member State.

Article (3)2 of the Dublin Regulation allows a Member State to examine an asylum application even if such examination is not its responsibility. It provides:

“By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility. Where appropriate, it shall inform the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of or take back the applicant.”

2. Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers

The above Directive requires that Member States ensure a dignified standard of living to all asylum-seekers, paying specific attention to the situation of applicants with special needs or who are detained. It regulates matters such as the provision of information, documentation, freedom of movement, healthcare, accommodation, schooling of minors, access to the labour market and to vocational training. It also covers standards for persons with special needs, minors, unaccompanied children and victims of torture.

C. Relevant domestic law and practice

1. Primary and secondary legislation

(a) First list of safe countries

Pursuant to the Dublin Regulation, Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 establishes a “first list of safe countries” which covers the other twenty-four European Union Member States at the time (prior to the accession of Romania and Bulgaria), Norway and Iceland.

Paragraph 3 of Part 2 of Schedule 3 provides:

“(1) This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made an asylum claim or a human rights claim may be removed—

(a) from the United Kingdom, and

(b) to a State of which he is not a national or citizen.

(2) A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place—

(a) where a person’s life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion,

(b) from which a person will not be sent to another State in contravention of his Convention rights, and

Paragraph 5 of Part 2 of Schedule 3 provides:

“(1)This paragraph applies where the Secretary of State certifies that—E+W+S+N.I.

(a)it is proposed to remove a person to a State to which this Part applies, and

(b)in the Secretary of State’s opinion the person is not a national or citizen of the State.

(2)The person may not bring an immigration appeal by virtue of section 92(2) or (3) of that Act (appeal from within United Kingdom: general).

(3)The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act (appeal from within United Kingdom: asylum or human rights) in reliance on—

(a)an asylum claim which asserts that to remove the person to a specified State to which this Part applies would breach the United Kingdom’s obligations under the Refugee Convention, or

(b)a human rights claim in so far as it asserts that to remove the person to a specified State to which this Part applies would be unlawful under section 6 of the Human Rights Act 1998 because of the possibility of removal from that State to another State.

(4)The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly unfounded.

(5)Sub-paragraph (4) applies to a human rights claim if, or in so far as, it asserts a matter other than that specified in sub-paragraph (3)(b).”

(b) The Immigration Rules

Sections 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State.

Paragraph 345 of the Immigration Rules states:

“(1) In a case where the Secretary of State is satisfied that the conditions set out in Paragraphs 4 and 5(1), 9 and 10(1), 14 and 15(1) or 17 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 are fulfilled, he will normally decline to examine the asylum application substantively and issue a certificate under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 as appropriate.

(2) The Secretary of State shall not issue a certificate under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 unless:

(i) the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity at the border or within the third country or territory to make contact with the authorities of that third country or territory in order to seek their protection; or

(ii) there is other clear evidence of his admissibility to a third country or territory.

Provided that he is satisfied that a case meets these criteria, the Secretary of State is under no obligation to consult the authorities of the third country or territory before the removal of an asylum applicant to that country or territory.”

2. EW v. Secretary of State for the Home Department [2009] EWHC 2957

In a judgment dated 18 November 2009, the High Court examined, inter alia, the conditions for asylum seekers in Italy and rejected the claimant EW’s argument that, if he were returned to Italy under the Dublin II Regulation, he would be exposed to a risk of suffering treatment contrary to Article 3 due to the risk of destitution and homelessness there. The High Court found¸ inter alia, that there was no evidence of a consistent pattern of mistreatment of asylum seekers in Italy such that anyone returning there would face a real risk; and that any such treatment would, in any event, not meet the high threshold of “inhuman and degrading”

The judgment was upheld by the Court of Appeal on 10 February 2010.

COMPLAINT

The applicant, a lone female with mental health problems, complains that, if returned to Italy, there is a real risk that she will face ill-treatment in breach of Article 3 of the Convention both as a result of the dire living conditions facing refugees and asylum seekers there and the risk of sexual abuse.

QUESTION TO THE PARTIES

In light of the applicant’s claims regarding her previous experiences in Italy and her current state of mental health, would the applicant’s removal to Italy pursuant to the provisions of Council Regulation (EC) No. 343/2003 of 18 February 2003 (“the Dublin II Regulation”) amount to treatment in breach of Article 3 of the Convention?

The parties are requested to provide full details of the accommodation and medical arrangements to be put in place by the Italian authorities upon the applicant’s arrival in Italy and to comment upon the sufficiency of those arrangements.

The parties are also requested to provide information regarding the applicant’s immigration status in Italy and to comment on the significance, if any, of the same in relation to her complaint under Article 3 of the Convention.

Finally, the parties are requested to provide the Court with a copy of the High Court’s decision in the applicant’s renewed application for judicial review currently listed for 10 November 2011.