QUEEN'S BENCH DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of MS
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|The Secretary of State for the Home Department
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The Queen on the application of NA
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The Secretary of State for the Home Department
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The Queen on the application of SG
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The Secretary of State for the Home Department
Raza Husain QC and David Chirico and Harriet Short (instructed by Wilson Solicitors LLP) for the Claimant NA
Raza Husain QC and David Chirico (instructed by Duncan Lewis) for the Claimant SG
Lisa Giovannetti QC and Sasha Blackmore and Robert Harland (instructed by The Treasury Solicitor) for the Defendant (in all three cases)
Hearing dates: 24 – 26 March 2015
Crown Copyright ©
Mr Justice Lewis :
The Individual Claimants
"it is customary to take the facts at their highest in the claimant's favour …..Where, therefore, it is stated that a particular event took place or that a certain factual proposition is established, that is for the purposes of considering the appellants' cases at their reasonable height. It does not betoken any final finding or conclusion."
"According to art 16.2, Italy accepts the transfer of the above named person.
You are kindly requested to provide us with the relevant detailed transfer instructions, with at least a seven-day-notice.
Moreover, you are kindly requested to inform the above mentions person/s that he/they are obliged to report immediately to the "Ufficio di Polizia di Frontiera" (Border Police) at the airport of CATANIA as soon as he/she/they arrives/arrive in Italy.
You are requested to inform us in advance (at least 10 days before the transfer) about any particular health situation, both from the physical and from the physical and from the psychical point of view, as well as about any disability or delicate situation which can entail considerable reception problems.
Where your Authorities deem such removals as unavoidable, it is necessary to forward the relevant detailed medical certification with particular reference to the fitness to fly."
"Applying these factors to your client's case, it is considered that the risk in the UK of suicide on learning of removal can be managed by the medical authorities. You will be aware that, if detained, an interview will be conducted at the time of detention at which your client will be asked about her current medication. The IRC will ensure that the medical staff at the centre are made aware that your client is at risk of suicide and will be made aware of your client's current medication. Your client will be carefully monitored at the Immigration Removal Centre (IRC) until she leaves for her flight. In addition your client would not be removed unless Healthcare had confirmed that she is fit to fly. If not detained, there would also be an assessment of your client's needs prior to any flight taking place, including a "fit to fly" assessment. The risk en route to Italy can likewise be managed, by way of provision of appropriately trained and experienced medical escorts to the airport, at the airport and during the flight, who would intervene to prevent suicide attempts if necessary. Upon arrival in Italy the escorts would accompany her to the appropriate immigration or police desk."
"48. … the Italian authorities have previously confirmed (and the ECrtHR has accepted) that when the transferring country reports that a person being returned has a particular vulnerability, appropriate medical measures are taken. Special attention is paid to persons with physical and psychological trauma, who are entrusted to the medical stations of the reception centres or at a local level to receive treatment and support in a professional and appropriate way. Against that background, the ECrtHR has stated that "there is no basis on which it can be assumed that the applicants will not be able to benefit from the available resources in Italy or that, if they encounter difficulties, the Italian authorities will not respond in an appropriate manner to any request for further assistance…" (Daytebegova – see above). The ECrtHR has adopted a similar approach in Abubeker and Halimi.
49. Should your client agree to it, copies of any medical reports, in relation to his medical conditions, can be passed to the Italian authorities prior to any transfer in order that they may make appropriate reception arrangements.
50. In all the circumstances, the claim that removal would breach Article 3 by reference to the risk that your client would commit or attempt suicide is considered to be clearly unfounded. His mental health condition is not a sufficiently compelling or compassionate circumstance to warrant departing from the normal policy and practice, in the context of return to a state in which his mental health needs can be met."
"54. In light of all the circumstances above, UK Visas and Immigration has concluded that the evidence and claims advanced by your client do not come close to rebutting the presumption that Italy will treat him in compliance with the requirements of the EU Charter, the Geneva Convention and the ECHR. Nor, having considered the appropriate case-law, evidence and the specific facts relied upon in your client's case, is it accepted that your client has established that his removal from the United Kingdom to Italy would result in a real risk that your client will suffer treatment there contrary to ECHR Article 3 as required under Soering. Therefore your client's claim under ECHR Article 3 is hereby refused.
55. In addition, your client's human rights claim is one to which paragraph 5(4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimant's etc.) Act 2004 applies. This requires the Secretary of State to certify your client's human rights claim as being clearly unfounded unless she is satisfied that it is not clearly unfounded.
56. Having considered all the evidence available to her the Secretary of State hereby certifies under the provisions of Schedule 3, Part 2, paragraph 5(4) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 that your client's human rights claim is clearly unfounded.
57. As the Secretary of State has certified your client's human rights claim as clearly unfounded your client may not appeal until after he has left the United Kingdom."
"As to the alleged loss of her accommodation, this does not, of itself, demonstrate any arguable breach of Article 3 on the part of the Italian authorities in circumstances where your client had been granted refugee status, provided with accommodation for a lengthy period and had rights (including the right to work) that put her on a par with the general population."
"Type 2 diabetes, high blood pressure and high cholesterol are all internationally recognised conditions for which treatment would be available in Italy if your client were to return there. Furthermore the medications cited in Dr Obuaya's report dated 14 February 2014 are all available in their generic forms in Italy. In considering Dr Obuaya's report relating to your client's mental illness it is noted that he had diagnosed your client as suffering from moderately severe depression and from PTSD. Again these are both internationally recognised conditions for which both medication and "talking therapies" are available in Italy and which will be available to your client on the same basis as they would be to an Italian citizen. Italy has a community-centred system for the treatment of mental illness although "in patient" care is also available when necessary. Treatment for mental illness can be accessed via a general practitioner or the patient can go directly to a Community Mental Health Centre for advice and/or treatment: a referral by a doctor is not necessary to access mental health services."
"Nevertheless, it is noted that even if your client refuses to give consent to share her medical records, she will be accompanied by a medical escort on her return to Italy. UK Visa & Immigration's Liaison Officer in Italy has confirmed that your client will be offered a medical assessment on arrival (and on arrival it would be noted that your client declines to consent to her medical records being shared). Your client would also be given sufficient medication to take with her to last a short period after arrival in Italy, to the extent appropriate."
"According to art 10.1, Italy accepts the transfer of the above named person. You are kindly requested to provide us with the relevant detailed transfer instructions, with at least a seven-day-notice.
Moreover, you are kindly requested to inform the above mentioned person that she is obliged to report immediately to the "Ufficio di Polizia di Frontiera" (Border Police) at the airport of MILANO MALPENSA (VA) as soon as she arrives in Italy. The person concerned is to be referred to the ERF (European Refugee Fund) Project "STELLA".
You are requested to inform us in advance (at least 10 days before the transfer) about any particular health situation, both from the physical and from the psychical point of view, as well as about any disability or delicate situation which can entail considerable reception problems. Where your Authorities deem such removals as unavoidable, it is necessary to forward the relevant detailed medical certification with particular reference to the fitness to fly."
"39. In regard to what your client can expect upon arrival in Italy, the local authorities will be aware of your client's planned arrival from the United Kingdom and that your client has never previously claimed asylum in Italy. It is noted that your client has stated that she was not given an opportunity to claim asylum when she arrived by sea. Without accepting this, for the purposes of certification your client's case is taken at its highest, and we are satisfied that your client will have the opportunity to claim asylum on her return if she wishes. Therefore, once the authorities have completed their identity procedures and relevant checks, your client will be entered into a project for the reception and asylum claim procedure. Your client will be guided through the asylum process; completing a "C3" form which formalises the asylum claim in the Questura (local police station). From there the C3 will be passed to the relevant local Asylum Commission where your client will await her appointment for the asylum claim to be heard.
40. If your client chooses not the claim asylum upon arrival in Italy, it will be open to your client to present herself to any Questura across the country and ask for asylum. From there the process as set out above will begin. However, should your client choose to not claim asylum immediately upon arrival she may need to demonstrate that they have leave to stay in Italy otherwise they may be liable to be removed.
41. Depending on the particular circumstances of your client's case it is possible your client may be transferred to a Centre for Identification and Expulsion or CARA (Asylum Reception Centre) whilst a decision is reached on the asylum claim, unless your client can demonstrate she has some form of lodgings."
"71. The fact that Dr Hajioff considers that your client is at risk of suicide if removed to Italy is taken very seriously by UK Visas and Immigration, as are her mental health conditions which in Dr Hajioff's opinion she is likely to need on-going treatment for. With regards to your client's HIV there is no letter from a doctor to say what ongoing treatment your client requires, but given the nature of this diagnosis, for the avoidance of doubt that does not mean that UK Visas & Immigration considers that she may not need further treatment. However your client's mental health and medical conditions are not a sufficiently compelling or compassionate circumstance to warrant departing from the normal policy and practice, in the context of return to a state in which her mental health and medical needs can be adequately met (see further below).
72. Should your client agree to it, copies of any medical reports, in relation to her mental health/medical conditions, can be passed to the Italian authorities prior to any transfer in order that they may make appropriate reception arrangements. Your client is due to be transferred to Italy in order that her asylum application may be fully considered by the Italian authorities. You will be aware from the letter of acceptance from Italy dated 11 February 2014 that the authorities there have specifically requested that they be informed of any particular health issues as well as disability or delicate issues which can entail specific reception conditions. The Italian authorities have also requested confirmation that your client is deemed to be fit to fly, by a medical practitioner."
The Arrangements for Asylum Seekers and BIPs in Italy.
The System Generally
(1) Reception Centres for Asylum-seekers ("CARAs"); these are facilities for those seeking asylum, operated by organisations following a tender procedure, in different locations in Italy. They are intended to provide accommodation for a period of up to 35 days, with persons moving to other types of accommodation, but many asylum-seekers remain for much longer periods whilst their application for asylum is considered;
(2) Reception Centres for Migrant ("CDAs); these are centres intended to provide emergency assistance to illegal immigrants;
(3) Centres known as "CPSAs";
(4) Facilities as part of the System for Protection for Asylum-seekers and Refugees ("SPRARs"); these comprise a network of projects run by local municipalities within Italy. They provide integration facilities for BIPs. In addition, a number of asylum seekers, particularly those identified as vulnerable or destitute, have also been accommodated within SPRARs (and, at various times, up to 30% of places have also been occupied by asylum-seekers). Accommodation is provided at a SPRAR for up to six months but, if a person is identified as vulnerable, accommodation may be provided for a further six months;
(5) Emergency accommodation, usually identified by regional or local municipalities within Italy;
(6) Other accommodation provided by non-governmental organisations or funded by the European Regional Fund ("ERF").
THE LEGAL FRAMEWORK
(1) the provisions of EU law governing asylum seekers and those who are BIPs;
(2) the approach of the European Court of Human Rights to Article 3 ECHR;
(3) domestic law, including in particular the approach of the Supreme Court to Article 3 ECHR; and the domestic law governing the review of decisions certifying human rights claims as clearly unfounded.
"3(1). Member States shall examine the application of any third-country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.
"3(2). 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 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."
The Reception Directive and Asylum Seekers
"the reception conditions that include housing, food and clothing provided in kind, or as financial allowances or in vouchers, and a daily expenses allowance"
"Modalities for material reception conditions
1. Where housing is provided in kind, it should take one or a combination of the following forms:
(a) premises used for the purpose of housing applicants during the examination of an application for asylum lodged at the border;
(b) accommodation centres which guarantee an adequate standard of living;
(c) private houses, flats, hotels or other premises adapted for housing applicants.
3. Member States shall ensure, if appropriate, that minor children of applicants or applicants who are minors are lodged with their parents or with the adult family member responsible for them whether by law or by custom.
8. Member States may exceptionally set modalities for material reception conditions different from those provided for in this Article, for a reasonable period which shall be as short as possible, when;
- an initial assessment of the specific needs of the applicant is required.
- material reception conditions, as provided for in this Article, are not available in a certain geopgraphical area,
- housing capacities normally available are temporarily exhausted,
- the asylum seeker is in detention or confined to border posts.
These different conditions shall cover in any case basic needs."
"PROVISIONS FOR PERSONS WITH SPECIAL NEEDS
1. Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, in the national legislation implementing the provisions of Chapter II relating to material reception conditions and health care.
2. Paragraph 1 shall apply only to persons found to have special needs after an individual evaluation of their situation.
Victims of torture and violence
Member states shall ensure that, if necessary, persons who have been subjected to torture, rape or other serious acts of violence receive the necessary treatment of damages caused by the aforementioned acts."
The Qualification Directive
"1. Member States shall ensure that beneficiaries of refugee or subsidiary protection status receive, in the Member State that has granted such statuses, the necessary social assistance, as provided to nationals of that Member State.
"2. By exception to the general rule laid down in paragraph 1, Member States may limit social assistance granted to beneficiaries of subsidiary protection status to core benefits which will then be provided at the same levels and under the same eligibility conditions as nationals."
"1. Member States shall ensure that beneficiaries of refugee or subsidiary protection status have access to health care under the same eligibility conditions as nationals of the Member State that has granted such statuses."
"The Member States shall ensure that beneficiaries of refugee or subsidiary protection status have access to accommodation under equivalent conditions as other third country nationals legally resident in their territories."
"1. In order to facilitate the integration of refugees into society, Member States shall make provision for integration programmes which they consider to be appropriate or create pre-conditions which guarantee access to such programmes.
2. Where it is considered appropriate by Member States, beneficiaries of subsidiary protection status shall be granted access to integration programmes."
THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
(1) removal by one State to another may give rise to issues under Article 3 ECHR, and involve the responsibility of that State, where substantial grounds have been shown for believing that the individual concerned, if returned, faces a real risk of being subjected to treatment contrary to Article 3;
(2) the assessment of whether there are substantial grounds for believing that there is such a risk must be a rigorous one and involves the assessment of the conditions in the receiving country against the standards of the ECHR;
(3) the treatment in the receiving state must attain a minimum level of severity to fall within the scope of Article 3 ECHR, and is relative, having regard to all the circumstances including the duration, nature and context of the treatment, its physical or mental effects and, in appropriate cases, the sex, age and state of health of the victim;
(4) the assessment involves a court considering the material placed before it and the assessment should focus on the foreseeable consequences of return in the light of the general situation in the receiving state as well as the claimant's personal circumstances;
(5) the mere fact that return means that a person's economic, material or social condition would be significantly reduced would not, absent exceptional humanitarian circumstances, amount to a breach of Article 3;
(6) while Article 3 does not oblige States to provide everyone within their jurisdiction with a home and does not entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living, the position in relation to EU Member States does not, however, fall to be analysed in that general way as an obligation to provide asylum-seekers with accommodation pursuant to the Reception Directive will have been implemented into the domestic law of the Member State and that Directive does lay down minimum standards (and, one could add, the obligations imposed by the Qualification Directive in relation to BIPs which will also have been implemented into the domestic law of Member States).
"in the absence of proof to the contrary it must assume that Greece complied with the obligations imposed on it by the Community Directives laying down minimum standards for asylum procedures and the reception of asylum seekers, which had been transposed into Greek law, and that it would comply with art. 3 of the Convention."
"72. Now turning to the facts of the case at hand, the Court observes that, unlike the situation of the applicant in the case of M.S.S. v. Belgium and Greece …. the applicant in the present case – three days after having arrived in Italy and one day before filing an application for international protection – was provided with reception facilities for asylum seekers in the CARA Massa Carrara reception centre, as put into place by the Italian authorities for asylum seekers pursuant to their international and domestic legal obligations and that, as from 23 October 2008, the applicant was allowed to work in Italy….
"73. The Court further notes that on 28 January 2009, about five months after her arrival in Italy, the applicant's request for international protection was accepted. She was granted a residence permit for subsidiary protection under the terms of Article 15c of the Qualification Directive with a validity of three years, i.e. until 31 January 2012, which entitled her to a travel document for aliens, to work and to benefit from the general schemes for social assistance, health care, social housing and education under Italian domestic law in the same manner as the general population of Italy. The Court lastly notes that the applicant remained in the CARA Massa Carrara reception centre until 11 April 2009 when she left this centre and apparently made her way to the Netherlands where she applied for asylum on 18 May 2009 …..
"74. Even assuming that, on 11 April 2009, the applicant had been compelled to vacate the CARA Massa Carrara reception centre where she had been staying since 25 August 2008 in order to make place for newly arrived asylum seekers needing accommodation, the Court notes that the applicant was pregnant at the material time whereas, pursuant to Article 8 of the Legislative Decree no. 140/2005, pregnant women are entitled to a priority placement in a facility for accepted refugees run under the SPRAR scheme …... However, there is no indication in the case file that the applicant, who was provided with medical care and assistance in the CARA reception centre when she was pregnant with her son ….. ever sought assistance in finding work and/or alternative accommodation either within or outside the scope of special public or private social assistance schemes established in Italy for vulnerable persons in order to avoid the risk of destitution and/or homelessness.
"75. In these circumstances ….. the Court does not find it established that the applicant's treatment in Italy, either as an asylum seeker or as an alien having been accepted as a person in need of international protection, can be regarded as having attained the minimum level of severity required for treatment to fall within the scope of Article 3.
"76. Noting that the validity of the applicant's residence permit has expired in the meantime, the Court will now consider the question whether the situation in which the applicant – if transferred to Italy – is likely to find herself, can be regarded as incompatible with Article 3 taking into account her situation as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection (see M.S.S. v. Belgium and Greece …..).
"77. The Court notes that the Netherlands authorities will give prior notice to their Italian counterparts of the transfer of the applicant and her children, thus allowing the Italian authorities to prepare for their arrival. The Court further notes that, after her arrival and after having reported to the border police, the applicant will be required to start the procedure to renew her residence permit, which in all likelihood will require her and her children to travel to the Agrigento police headquarters, the expenses of which will be covered by the Italian Ministry of Interior. The Court lastly notes that the applicant, as a single mother of two small children, remains eligible for special consideration – where it concerns admission to reception facilities for asylum seekers – as a vulnerable person within the meaning of article 8 of Legislative Decree no. 140/2005 …..
"78. Taking into account the reports drawn up by both governmental and non-governmental institutions and organisations on the reception schemes for asylum seekers in Italy, the Court considers that, while the general situation and living conditions in Italy of asylum seekers, accepted refugees and aliens who have been granted a residence permit for international protection or humanitarian purposes may disclose some shortcomings it has not been shown to disclose a systemic failure to provide support or facilities catering for asylum seekers as members of a particularly vulnerable group of people, as was the case in M.S.S. v. Belgium and Greece ….. The reports drawn up by the UNHCR and the Commissioner for Human Rights refer to recent improvements intended to remedy some of the failings and all reports are unanimous in depicting a detailed structure of facilities and care to provide for the needs of asylum seekers …... The Court would also note the manner in which the applicant was treated upon her arrival in Italy in August 2008, in particular that her request for protection was processed within a matter of months and accommodation was made available to the applicant along with access to health care and other facilities. Against this background, the Court considers that the applicant has not shown that her future prospects if returned to Italy, whether taken from a material, physical or psychological perspective, disclose a sufficiently real and imminent risk of hardship severe enough to fall within the scope of Article 3 …..There is no basis on which it can be assumed that the applicant will not be able to benefit from the available resources in Italy or that, if she encountered difficulties, the Italian authorities would not respond in an appropriate manner to any request for further assistance.
"79. It follows that the applicant's complaints under Article 3 brought against the Netherlands and Italy are manifestly ill-founded within the meaning of Article 35 § 3 (a) of the Convention and therefore inadmissible pursuant to Article 35 § 4."
"Therefore, the Court establishes that there is no indication in the applicants' submissions or deriving from the general information available that the applicants would not be able to access sufficiently thorough asylum proceedings upon their arrival in Italy or that the reception schemes failed in such a way to provide support or facilities for asylum seekers as members of a particularly vulnerable group of people ….."
"67. Turning to the undoubtedly severe psychological health issues of the second applicant, the Court notes that a particularly well planned reception might be necessary upon the second applicant's return to Italy, including access to adequate housing and medical and psychological care.
"68. The Court observes that in general the Italian reception system provides access to health care, including psychological care, for all aliens, whether they have leave to remain or not (see paragraphs 37 and 38 above). The Italian Government's observations also indicate that the Italian authorities are aware of the second applicant's considerable mental health problems. The Court therefore concludes that the Italian authorities consider that the applicants, as a group of vulnerable persons within the meaning of Article 8 of Legislative Decree no. 140/2005 (see paragraph 37 above), will be eligible for special consideration as regards access to housing and psychological and medical care. Furthermore, the Italian authorities emphasised in their comments on the report of the Council of Europe Commissioner for Human Rights that, when the transferring country reported a particular vulnerability of a Dublin-returner, appropriate medical measures were taken. Special attention was paid to aliens with physical and psychological trauma, who were entrusted to the medical stations of the reception centres or at local level to receive treatment and support in a professional and appropriate way (ibid.).
"69. The Court thus considers that the Italian authorities are already aware of the applicants' particular vulnerability and need for special assistance. It further trusts that the Austrian authorities will, in the event the applicants are removed to Italy, provide the Italian authorities with all the most recent medical and psychological documentation available to them, to ensure that the applicants are adequately and appropriately received there. Under these circumstances, the Court finds that there is no basis on which it can be assumed that the applicants will not be able to benefit from the available resources in Italy or that, if they encounter difficulties, the Italian authorities will not respond in an appropriate manner to any request for further assistance (see for comparison Mohammed Hussein ….."
"99. With more specific reference to minors, the Court has established that it is important to bear in mind that the child's extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant ….. Children have specific needs that are related in particular to their age and lack of independence, but also to their asylum-seeker status. The Court has also observed that the Convention on the Rights of the Child encourages States to take the appropriate measures to ensure that a child who is seeking to obtain refugee status enjoys protection and humanitarian assistance, whether the child is alone or accompanied by his or her parents ….."
"114. In view of the foregoing, the current situation in Italy can in no way be compared to the situation in Greece at the time of the M.S.S. judgment, cited above, where the Court noted in particular that there were fewer than 1,000 places in reception centres to accommodate tens of thousands of asylum seekers and that the conditions of the most extreme poverty described by the applicant existed on a large scale. Hence, the approach in the present case cannot be the same as in M.S.S.
"115. While the structure and overall situation of the reception arrangements in Italy cannot therefore in themselves act as a bar to all removals of asylum seekers to that country, the data and information set out above nevertheless raise serious doubts as to the current capacities of the system. Accordingly, in the Court's view, the possibility that a significant number of asylum seekers may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, cannot be dismissed as unfounded."
"118. The Court reiterates that to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim …It further reiterates that, as a "particularly underprivileged and vulnerable" population group, asylum seekers require "special protection" under that provision (see M.S.S …..).
"119. This requirement of "special protection" of asylum seekers is particularly important when the persons concerned are children, in view of their specific needs and their extreme vulnerability. This applies even when, as in the present case, the children seeking asylum are accompanied by their parents …. Accordingly, the reception conditions for children seeking asylum must be adapted to their age, to ensure that those conditions do not "create ... for them a situation of stress and anxiety, with particularly traumatic consequences" … Otherwise, the conditions in question would attain the threshold of severity required to come within the scope of the prohibition under Article 3 of the Convention.
"120. In the present case, as the Court has already observed … in view of the current situation as regards the reception system in Italy, and although that situation is not comparable to the situation in Greece which the Court examined in M.S.S., the possibility that a significant number of asylum seekers removed to that country may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, is not unfounded. It is therefore incumbent on the Swiss authorities to obtain assurances from their Italian counterparts that on their arrival in Italy the applicants will be received in facilities and in conditions adapted to the age of the children, and that the family will be kept together.
"121. The Court notes that, according to the Italian Government, families with children are regarded as a particularly vulnerable category and are normally taken charge of within the SPRAR network. This system apparently guarantees them accommodation, food, health care, Italian classes, referral to social services, legal advice, vocational training, apprenticeships and help in finding their own accommodation … However, in their written and oral observations the Italian Government did not provide any further details on the specific conditions in which the authorities would take charge of the applicants.
It is true that at the hearing of 12 February 2014 the Swiss Government stated that the FMO had been informed by the Italian authorities that, if the applicants were returned to Italy, they would be accommodated in Bologna in one of the facilities funded by the ERF ….. Nevertheless, in the absence of detailed and reliable information concerning the specific facility, the physical reception conditions and the preservation of the family unit, the Court considers that the Swiss authorities do not possess sufficient assurances that, if returned to Italy, the applicants would be taken charge of in a manner adapted to the age of the children.
"122. It follows that, were the applicants to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together."
THE APPROACH IN THE DOMESTIC COURTS
(1) there is a significant evidential presumption that a Member State of the EU will comply with its obligations under EU law and international law. It is against the backdrop of that presumption that any claim that there are substantial grounds for believing that return would involve a real risk of a breach of Article 3 falls to be addressed: paragraph 64 of the judgment;
(2) that presumption will be rebutted where it was shown that there were failures to comply on a widespread and substantial scale, that is, the presumption would generally be rebutted if the applicant produced sufficient evidence to show that there were substantial operational problems in the receiving state: see paragraphs 66 and 67 of the judgment;
(3) furthermore, and separately, the presumption would be rebutted if it could be shown on the facts of a particular case, that there were substantial grounds for believing that there was a real risk that the individual applicant would face treatment contrary to Article 3 if returned. Although one starts with a significant evidential presumption, the court must examine the evidence to determine in each individual case whether there are substantial grounds for believing that the individual faces a real risk of treatment contrary to Article 3 if returned. That involves a rigorous assessment of the situation in the receiving country, examining the foreseeable consequences of sending a claimant to the receiving country and the claimant's personal circumstances, including his or her previous experience there; an assessment of the practical realities lie at the heart of that inquiry: see paragraphs 68 to 70 of the judgment;
(4) particular regard should be paid to the facts reported by the UNCHR and the value judgments to which the UNCHR has arrived; however, they form part of the overall examination and, by implication, other reports and material may also need to be considered: see paragraphs 71 and 72 and 74.
The Domestic Law Governing the Certification of Human Rights Claims
"92 Place from which an appeal may be brought or continued
(1) This section applies to determine the place from which an appeal under section 82(1) may be brought or continued.
(3) In the case of an appeal under section 82(1)(b) (human rights claim appeal) where the claim to which the appeal relates was made while the appellant was in the United Kingdom, the appeal must be brought from outside the United Kingdom if—
(a) the claim to which the appeal relates has been certified under section 94(1) or (7) (claim clearly unfounded or removal to safe third country) or setion 94B (certification of human rights claims made by persons liable to deportation), or
(b) paragraph 5(3)(b) or (4), 10(4), 15(4) or 19(c) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004
(removal of asylum seeker to safe third country) applies.
Otherwise, the appeal must be brought from within the United Kingdom."
"5(1) This paragraph applies where the Secretary of State certifies that–
(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.
(4) The person may not bring an immigration appeal from within the United Kingdom 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".
"58….. It requires the Home Secretary to certify all claims from the listed states "unless satisfied that the claim is not clearly unfounded". It is useful to start with the ordinary process, such as section 115(1) calls for. Here the decision—maker will (i) consider the factual substance and detail of the claim, (ii) consider how it stands with the known background data, (iii) consider whether in the round it is capable of belief, (iv) if not, consider whether some part of it is capable of belief, (v) consider whether, if eventually believed in whole or in part, it is capable of coming within the Convention. If the answers are such that the claim cannot on any legitimate view succeed, then the claim is clearly unfounded; if not, not.
"58 Assuming that decision—makers—who are ordinarily at the level of executive officers—are sensible individuals but not trained logicians, there is no intelligible way of applying section 115(6) except by a similar process of inquiry and reasoning to that described above. In order to decide whether they are satisfied that the claim is not clearly unfounded, they will need to consider the same questions. If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded. If that point is reached, the decision—maker cannot conclude otherwise. He or she will by definition be satisfied that the claim is not clearly unfounded."
"21……Must the court substitute its own view of whether the claim is clearly unfounded, or has no prospect of success, for that of the Secretary of State or is the approach the now familiar one of judicial review that involves the anxious scrutiny that is required where human rights are in issue? ZT is seeking judicial review and thus I would accept that, as a matter of principle, the latter approach is correct. I consider, however, that in a case such as this, either approach involves the same mental process.
"23. Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed or not then it is not clearly unfounded. If follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that the a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational".
(1) on one legitimate view, could a tribunal conclude that the evidential presumption that Italy will comply with its obligations under EU law and Article 3 ECHR had been rebutted in relation to:
(a) all asylum-seekers and/ or all BIPs; or at least
(b) in relation to vulnerable asylum-seekers and/or BIPs?
(2) considering the individual facts of each Claimant against the overall situation in Italy, could a tribunal, on one legitimate view, conclude that any of the three Claimants had shown that there were substantial grounds for believing that that individual faced a real risk of being exposed to treatment contrary to Article 3 ECHR if returned to Italy?
(3) further, and in particular, could a tribunal conclude that, on one legitimate view there are substantial grounds for believing that there is a real risk of a breach of Article 3 arising out of the fact that the Claimants' mental health problems and suicidal ideation could not be properly managed (a) prior to removal (b) during removal to Italy or (c) thereafter in Italy?
THE FIRST ISSUE: THE EVIDENTIAL PRESUMPTION
The Case Law
The Statistics - The Numbers Seeking, and being provided with, Facilities
(1) SPRARs – 20,596;
(2) CARAs/CDAs and CPSAs – 9,504; and
(3) Temporary structures – 37,028.
The Other Material
Assurances and Tarakhel v Switzerland
Summary of Conclusions on the First Issue
THE SECOND ISSUE – THE SITUATION OF THE CLAIMANTS
THE THIRD ISSUE – THE SITUATION PRIOR TO AND ON REMOVAL