ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MRS JUSTICE LAING)
London, WC2A 2LL
B e f o r e :
LADY JUSTICE SHARP
|THE QUEEN ON THE APPLICATION OF|
|MOHSEN POURALI TABRIZAGH|
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT||Respondent|
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Mr S Knafler QC and Mr G Ó Ceallaigh (instructed by Turpin & Miller LLP) appeared on behalf of the Applicant AB (Sudan)
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"Lord Kerr observed, at paragraph 66, when discussing the decision of Kenneth Parker J at first instance, that that Judge's view approximated to his own: that is, NS required it to be shown that there were "omissions on a widespread and substantial scale" or "substantial operational problems", rather than "inherent deficiencies in the system". He went on to say, "Practical realities lie at the heart of the inquiry" (judgment, paragraph 68; see also paragraphs 69-70).
"167. Though it is not decisive, the starting point for the FTT would have to be that the UNHCR has not asked any member state to suspend removals to Italy. Not only that, but in its two most recent reports on Italy, the UNHCR, while making robust and objective criticisms, has not painted a picture which begins to meet the relevant test. It says in its 2013 report that there have been significant improvements. It is true that there has been a steep increase in arrivals in 2014, but against the backdrop of Italy's response to the NAE, and the substantial recent increase in accommodation places I do not consider that the FTT could possibly conclude, on the current material, that the presumption is displaced.
168. Mr Knafler QC may well be right that, as things stand, all the new accommodation is either full, or very nearly so. But that, taken with evidence of gaps in provision, and some failings, would not enable the FTT to displace the presumption of compliance in circumstances where Italy has, to date, made impressively sincere efforts to cope with surges in arrivals.
169. The issue is not, contrary to the submission of Mr Knafler QC, whether the SRC and Braunschweig reports are "capable of belief" such that, if they are, the evidential presumption is displaced. There are two questions. First, what weight could the FTT rationally give those reports, if and to the extent that they differ from the UNHCR's "pre-eminent and possibly decisive" assessment? The answer to that question is "Very little". Second, could the FTT find that (where they do not differ from the UNHCR report) they show "omissions on a widespread and substantial scale" or "substantial operational problems" sufficient to displace the significant evidential presumption of compliance? That is, substantial operational problems with the whole asylum acquis, not just operational problems with some aspects of it. The answer to that question is, "No"."
"... a very important part of the inquiry when the allegation is that there is a generalised risk of article 3 ill treatment in Italy which arises regardless of the returnee's profile."
"whether the FTT could conclude that
a) EM (Eritrea) requires BIPs and asylum claimants to be treated similarly;
b) the approach of the House of Lords to article 3 claims based on destitution is different from that of the ECtHR;
c) a breach or likely breach of Italy's obligations under the revised Reception Directive to provide integration facilities is a breach of article 3."
As so summarised, the issues may seem somewhat opaque but the only one which matters for present purposes is (b). The background to that is as follows. The Strasbourg Court had in no fewer than five decisions in the first half of 2013 dismissed challenges by both asylum-seekers and BIPs that their return to Italy from other Convention countries gave rise to a breach of their article 3 rights because of conditions in Italy. The two cases which particularly concerned BIPs are Hussein v The Netherlands and Italy (Application no 27725/10) and Hassan v The Netherlands and Italy (Application number 40524/10). The judge held that the FTT would and should regard those decisions as highly persuasive, but it had been argued that the test applied by the Court in those cases was inconsistent with that required as a matter of English law on the basis of the decision of the House of Lords in R (Limbuela) v Secretary of State for the Home Department  UKHL 66.  1 AC 396. I will return to this further in due course. On each of the three particular issues relating to BIPs the judge rejected the applicants' submissions (see paragraphs 171 to 177).
"The question is whether appeals based on the article 3 claims which are advanced by the Claimants would be bound to fail before the FTT. The Secretary of State has decided, on up-to-date material, and directing herself correctly in law, that they would be. I must review these decisions anxiously. So I turn now to the case of each of the Claimants. My decision that the evidential presumption is not arguably displaced is not decisive, as I must also consider whether the FTT could find individual risk factors relevant to article 3, and allow an appeal on that basis, by applying the Soering test to the evidence."
The reference is to Soering v United Kingdom (1989) 11 EHRR 439, which, as confirmed by the Supreme Court in EM (Eritrea), continues to state the essential test in cases of this kind. She performed that exercise at paragraphs 179-189 in the case of each applicant separately and concluded that there was no such risk. I need not attempt any summary of her reasoning on those points since no submissions were addressed to us about them.
"In concluding that in order to demonstrate a risk of a breach of Article 3 ECHR the Appellants had to demonstrate that the Italian system for the reception of refugees and asylum seekers had effectively collapsed, the court arguably erred in law."
Mr Knafler's argument in support of the contention that the judge adopted the approach summarised under ground 1 depends primarily on the penultimate sentence of paragraph 169 of the judgment, where she uses the phrase "substantial operational problems with the whole asylum acquis". What is said is that that phrase indicates that she was returning, albeit using different words, to the "systemic deficiency" test disapproved by the Supreme Court in EM (Eritrea). As Mr Knafler points out, there could well be substantial operational failures in parts of the asylum system which were capable of displacing the presumption of compliance even though other parts of the system might continue to be operating entirely satisfactorily.
"I consider that this is not arguable for two reasons. First, the unrebutted presumption of compliance is an answer to this limited challenge because even if the claimants are right and it would be open to the First Tier Tribunal to find, despite the UNHCR reports, that Italy is not complying with its obligations in these particular respects that would not displace the presumption... [I need not trouble with the second reason.]"
However, that is simply too compressed and allusive to found a submission that it betrays the same error, or anything like it, as Mr Knafler complains of in paragraph 169 of the judgment. I do not think it lends any support to his primary submission.
"The court arguably erred in law in its consideration as to the position of asylum seekers who are to be returned to Italy consequent to the Dublin II Regulation."
That does not tell us much, but three more particular points are made under this umbrella. I take them in turn.
"The UNHCR material should form part of the overall examination of the particular circumstances of each of the appellants' cases, no more and no less."
He also makes a number of more particular points about why the judge's criticisms of the SRC and Brunswick reports were unjustified and why they should in fact be preferred.
"a travel document... to work and to benefit from the general schemes for social assistance, healthcare, social housing and education under Italian domestic law in the same manner as the general population of Italy."
"It is clear that the ECtHR has decided, in more than one of the admissibility decisions, that a BIP, who, once he has status, and can work, and is on a par with Italian citizens, cannot rely on article 3 to resist return to Italy. Any attempt, based on Limbuela, to persuade the FTT that the approach of the ECtHR to such cases is wrong (as a matter of domestic law) and should not be followed by the FTT, is bound to fail. The main complaint is that the Italian social security system is limited; but this is the same for Italians as it is for BIPs. The ECtHR has repeatedly said, however, that a difference between a person's economic circumstances in the sending and receiving state, based on differences of resources between the two states, does not raise an issue under article 3..."
... cannot be interpreted as obliging the High Contracting Parties to provide everyone within their jurisdiction with a home... Nor does Article 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living."
It is perhaps also worth noting that the court in Hussain had before it, and quoted at length at paragraphs 43-46, materials, including the 2012 UNHCR report, which were critical in a number of respects of provision for both asylum-seekers and BIPs. At paragraph 78 in Hussein, admittedly in the passage referring to asylum-seekers, the court acknowledged on the basis of those reports that that provision "may disclose some shortcomings"; but it said that the evidence did not disclose a systemic failure to provide support for facilities catering for asylum seekers.