QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of EW
|- and -
|Secretary of State for the Home Department
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Immigration Advisory Service) for the Claimant
Mark O'Connor (instructed by Duncan Lewis & Co for BM
Declan O'Callaghan (instructed by Duncan Lewis & Co) for YM
Lisa Giovannetti (instructed by the Treasury Solicitor) for the Defendant
Hearing dates: 28-29 September 2009
Crown Copyright ©
Mr Justice Hickinbottom:
(i) His return to Italy would place the United Kingdom in breach of its obligations under article 3 because, as an asylum seeker, he would face "a real risk of destitution and humiliation" there (Amended Grounds and Skeleton Argument 8 September 2009, paragraph 71). The claimant does not pursue the article 3 ground on the basis of his possible refoulement from Italy to Eritrea.
(ii) In any event, the Secretary of State ought to have considered exercising his discretion to accept responsibility for dealing with EW's asylum claim, because of "patent failures of the Italian authorities" to respect their obligations under article 3 and various European Union Directives as they relate to asylum seekers.
"Human dignity is inviolable. It must be respected and protected."
"(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 citizen.
(2) A state to which this Part applies shall be treated, insofar as relevant to the question mentioned in subparagraph (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
(c) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention."
"The onus rests on the person alleging that his removal from the United Kingdom would constitute a breach of article 3 by the United Kingdom to show substantial grounds for believing that he would face a real risk of being subjected to treatment contrary to article 3…".
"No matter what the volume of material submitted or the sophistication of the argument deployed to support the allegation, the Home Secretary is entitled to certify if, after reviewing the material, he is reasonably and conscientiously satisfied that the allegation must clearly fail."
However, the threshold for a clearly unfounded claim is a high one: the Secretary of State cannot issue a certificate unless the claim is bound to fail before an adjudicator (see, e.g., Yogathas at  per Lord Hope, and Secretary of State for the Home Department v R (Razgar)  EWCA Civ 840 at ).
"The question whether, and if so in what circumstances, support should be given at the expense of the state to asylum seekers is, of course, an intensely political issue…
It is important to stress at the outset, however, that engagement in this political issue forms no part of the judicial function. The function which your Lordships are being asked to perform is confined to that which has been given to the judges by Parliament. It is to construe the [relevant statutory provisions] and apply [them] to the facts of each case…."
The Basis of the Claim
"11. In summary, the claimant's case is that on or shortly after a return to Italy there is a real chance he will be destitute and homeless of the street, given the fact that the available places in reception facilities fall considerably short of the numbers of asylum seekers; unable to work; unable to exercise any meaningful legal challenge to his plight; and that this cumulatively amounts to inhuman or degrading treatment, contrary to article 3 ECHR, which it is the responsibility of the UK authorities to prevent.
12. In short, this is because on a return to Italy the claimant faces probable return to the Questura where he claimed asylum (Caltanisetta), possibly after a stay in… Rome…."
Those failures also effectively found the second ground because, leaving aside any breach of article 3, it is submitted that such destitution would put Italy in breach of their obligations under (e.g.) article 13(2) of the Reception Directive under which a member state has to ensure a standard of living adequate for the health and subsistence of applicants (see paragraph 12 above). That, it is submitted, should have triggered the exercise of discretion in the Secretary of State to consider the claimant's substantive application for asylum here.
(i) a failure to facilitate presentation and prosecution of claims for asylum, incorporating a failure to provide adequate information to allow an asylum seeker properly to present and pursue his application:
(ii) a failure to provide accommodation and financial support for asylum seekers, to the extent to which they risk being homeless and destitute whilst their application is pending:
(iii) a failure to provide adequate remedies for these defaults, for example through an effective court system.
The Italian Immigration System
Centro di Accoglienza per Richiedenti Asilo (Reception Centres for Asylum Seekers, "CARA"): Temporary initial accommodation: this accommodation hosts asylum seekers for a period of 20-35 days, to enable the processing of their application. Following relocation, this is the main source of accommodation places - but it is strictly time-limited. If this accommodation is not provided, then the state is obliged to provide money for accommodation, but that is limited to the equivalent sum for a maximum of 35 days, i.e. about €1,000 (article 6.7 of Decreto Legislativo 140/2005, as explained in paragraph 1 of Maria Romano's email to Sheona York dated 29 July 2009).
SPRAR (System of Protection for Asylum Seekers and Refugees) Projects: SPRAR is a network of local institutional bodies funded to enable them to provide accommodation for refugees and those seeking asylum. These centres are primarily for those who have been granted refugee status, and they are accommodation places at which refugees can stay for 6 months or for up to a year in cases of the particularly vulnerable. However, some places can be and are used for those who are seeking asylum. Evidence from the Italian Ministry of the Interior (Department for Civil Rights and Immigration) suggests that the number of places available in 2009 is 3,000 in total, of which 450 are assigned for the particularly vulnerable.
Centro di Identificazione ed Espulsione (Identification and Expulsion Centre, "CIE"): These are used for the detention of immigrants who are subject to expulsion, but also may house some asylum seekers during the course of their applications.
The Claimant's Experience in Italy
"I also do not want to return to Italy because I would have nowhere to stay and it is uncertain whether the Italian authorities would process my asylum application. I did not have a good experience during my last stay in Italy: for many days I had nowhere to sleep and I had to sleep rough. I have a brother in the UK and I would like to claim asylum here.
"…no procedures whatever were undertaken in respect of his asylum application, despite his being handed to the Italian authorities by an NGO from a boat. He was fingerprinted and detained (in poor conditions) then moved to another detention centre and issued with what is presumed to be a 3 months temporary admission paper, but not interviewed about his claim, nor provided with any information about the procedures his claim would follow, nor any assistance whatever….
[He] claims that he was effectively not admitted to the asylum process in Italy, and in fact was effectively deterred from entering the process, despite having been assisted by an NGO to land in Italy and handed to the authorities, and being provided with a temporary paper lasting 3 months. Beyond the few weeks in detention (in poor conditions) he was offered nothing. He was denied accommodation and support, and, after spending a short time at his sister's home in Milan, was forced to support himself by begging. He was given no advice or medical assistance... at all."
The Alleged Substantive Failures of the Italian System for Applications for Asylum
"…[I]t is clear to me that it is more probable that if my client is returned to Italy, he may spend 15 days in the ENEA Centre and then be sent back to Caltanisetta, or be put straight back to Caltanisetta…. Then, after possibly a further 20 days or 35 days in one or other of the reception centres there, will almost certainly be forced to return to the streets, to begging and worse, and with little prospect of his asylum application being dealt with within a reasonable time, or of obtaining necessary social assistance while waiting: and no practicable domestic legal remedy…." (Sheona York Statement 23 July 2009, paragraph 88).
(i) He will be transferred from the United Kingdom to Rome or Milan, where there are special facilities available for such returnees. Those facilities should ensure that either (a) the claimant's application for asylum in Italy will be identified, and he will be given information about it: or (b) if that application has lapsed (for example, because it has been determined in his absence) then he will be given information as to renewing that application.
(ii) If in Rome, he will be housed in the Centro ENEA for up to 15 days. There is no evidence before me as to the accommodation arrangements in Milan, although I understand there are special arrangements there. There is no evidence that arrangements in Milan are significantly different from those in Rome.
(iii) After Rome or Milan (or, in the unlikely event that he is not accepted into the Dublin-transit facilities in Rome or Milan, immediately upon his return to Italy), the claimant will be transferred to Caltanisetta CDA where he will be able to stay for up to 20 days. By that time, he may have been interviewed by the Commissione. If not, he may be housed in one of the accommodation places available, e.g. a CARA for a further 20-35 days. It is likely that he will be so housed somewhere, but a real risk that no place will be available.
(iv) It is likely that his application will be determined by the Commissione within a few months of his return or re-application. If it is not determined within 6 months, then the claimant will be entitled to work until the application is determined. Until the application is determined or he is able to seek work, the applicant is entitled to €17 per day.
"No one shall be subject to torture or to inhuman or degrading treatment or punishment."
"It was submitted by… counsel for the Secretary of State, that a failure by the state to provide an individual within its jurisdiction with accommodation and the wherewithal to acquire food and other necessities of life could not by itself constitute "treatment" for article 3 purposes. I agree with that submission, whether the individual is an asylum seeker or anyone else. It is not the function of article 3 to prescribe a minimum standard of social support for those in need (cf Chapman v United Kingdom (2001) 33 EHRR 399). That is a matter for the social legislation of each signatory state. If the individuals find themselves destitute to a degree apt to be described as degrading the state's failure to give them the minimum support necessary to avoid that degradation may well be a shameful reproach to the humanity of the state and its institutions but, in my opinion, does not without more engage article 3. Just as there is no Convention right to be provided by the state with a home, so too there is no Convention right to be provided by the state with a minimum standard of living: 'treatment' requires something more than mere failure."
"56. In our judgment the regime that is imposed on asylum seekers who are denied support by reason of section 55(1) constitutes treatment within the meaning of article 3. Our reasoning is as follows. Treatment, as the Attorney General has pointed out, implies something more than passivity. Asylum seekers who are here without a right or leave to enter cannot lawfully be removed until their claims are determined because, in accordance with the UK's obligations under article 33 of the Refugee Convention, Parliament has expressly forbidden their removal by what is now section 15 of the 1999 Act. But while they remain here, as they must do if they are to press their claims, asylum seekers cannot work…
57. The imposition by the legislature of a regime which prohibits asylum seekers from working and further prohibits the grant to them, when they are destitute, of support amounts to positive action directed against asylum seekers and not to mere inaction."
"… [T]he imposition by the legislature of a regime which prohibits asylum seekers from working and further prohibits the grant to them, when they are destitute, of support amounts to positive action directed against asylum seekers and not to mere inaction. This constitutes 'treatment' within the meaning of the article."
In that case, it was the positive step by the legislature of withdrawing support that amounted to "treatment" which, subject to the threshold requirement, might be inhuman or degrading.
"… whether the treatment to which the asylum seeker is being subjected by the entire package of restrictions and deprivations that surround him is so severe that it can properly be described as inhuman or degrading treatment within the meaning of the article".
"Inhuman and degrading treatment" for the purposes of article 3 has "a high threshold" (Bensaid v United Kingdom (2001) 33 EHRR 10 at paragraph 40.
"… whether the asylum seeker is male or female, for example, or is elderly or in poor health, the extent to which he or she has explored all avenues of assistance that might be expected to be available and the length of time that has been spent and is likely to be spent without the required means of support. The exposure to the elements that results from rough-sleeping, the risks to health and safety that it gives rise to, the effects of lack of access to toilet and washing facilities and the humiliation and sense of despair that attaches to those who suffer from deprivations of that kind are all relevant…."
Failure to provide adequate remedies for these defaults
"The Court recalls in this connection that Greece, as a Contracting State, has undertaken to abide by its Convention obligations and to secure to everyone within their jurisdiction the rights and freedoms defined therein, including those guaranteed by article 3. In concrete terms, Greece is required to make the right of any returnee to lodge an application with this Court under article 34 of the Convention (and request interim measures under Rule 39 of the Rules of Court) both practical and effective. In the absence of any proof to the contrary, it must be presumed that Greece will comply with that obligation in respect of returnees including the applicant. On that account, the applicant's complaints under articles 3 and 13 of the Convention arising out of his possible expulsion to Iran should be the subject of a Rule 39 application lodged against Greece following his return there, and not against the United Kingdom."
"… [I]n the Court's view, the objective information before it on conditions of detention in Greece is of some concern, not least given Greece's obligations under [the Reception Directive] and article 3 of [the EHCR]. However, for substantially the same reasons, the Court finds that were any claim under the Convention to arise from those conditions, it should also be pursued first with the Greek domestic authorities and thereafter in an application to this Court."
"… [I]f the complaint was not about refoulement but about the conditions under which a returned asylum seeker would be held in Greece, that should be taken up with the Greek authorities and, if unsuccessful, before the European Court by way of a complaint against Greece. It was not a basis for proceedings against the United Kingdom."
Conclusion: Human Rights Claim
The Discretion Ground