England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		15/12/2015

Mrs Justice Whipple :

Introduction

1. The Claimant is a national of Iran born on 11 April 1986. The Defendant has decided to remove the Claimant to Italy, where his asylum claim will be processed. When proceedings were first issued, the challenge extended to the issue of removal directions and the decision to detain the Claimant pending removal, but those aspects of the case have now fallen away and the single issue before me is whether the Defendant was entitled to certify the Claimant's asylum claim as "clearly unfounded" pursuant to Schedule 3, Part 2, paragraph 5(4) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. If that certification stands, the Claimant can be sent to Italy, as the Defendant seeks to do, and the Claimant will have no in-country right of appeal against that decision. This is another "Italy" case, to add to the growing number.

Facts

2. The Claimant was encountered at Mildenhall Industrial Park on 16 February 2013. He was hiding in the back of a lorry. He claimed asylum, was served with illegal entry papers, and was detained.
3. A screening interview took place. The Claimant said that he had travelled from Iran, to Turkey, and then by boat to Italy. He had then travelled by lorry to the UK, and was unable to give details of any countries he had passed through on the way. He said his life was in danger in Iran because he had burned the Koran and his friend had filmed him doing this and had passed the film to the authorities. He feared for his life. He said he had been finger-printed in Italy.
4. A travel history interview followed. He was asked about his time in Italy. He said that he was finger-printed around 12 hours after he arrived. He then spent a day detained in an Italian police station. He said nothing else about his time in Italy.
5. The Defendant established that the Claimant had first entered Italy illegally on 16 December 2012. He had been finger-printed as an illegal entrant, but had not apparently claimed asylum in Italy. On 21 February 2013, the Defendant made a formal request to Italy under Article 10.1 of the Dublin II Regulation. Italy accepted that request by default. The Defendant refused the Claimant's asylum claim and certified it on safe third country grounds.

History of Litigation

6. The Claimant issued proceedings against the Defendant on 8 April 2013, challenging the Defendant's decisions dated 16 February 2013 (to detain), and 22, 26 and 27 March 2013 (to certify and remove). The matter was stayed by consent on 11 June 2013 pending the Court of Appeal's conclusion in AB (Sudan) v SSHD, which was decided by the Court of Appeal on 26 July 2013 ([2013] EWCA Civ 921). Once that stay was lifted (as in due course it was), the matter came before Charles George QC sitting as a deputy judge of the High Court, who granted permission on the papers on 10 March 2014, directing that the matter was not to be listed until after judgment had been handed down in R (Tabrizagh and others) v SSHD, then proceeding under Court reference CO/585/2013. His observations included this:

"The outcome of Tabrizagh and Ors, to be heard in May 2014, may make any hearing in the present application unnecessary (in which case the court should be informed promptly). On the other hand there is some additional material about conditions in Italy contained in the Supplementary Bundle…."

7. Tabrizagh has now been heard by Laing J, who dismissed the applications on 11 June 2014, [2014] EWHC 1914 (Admin). The Court of Appeal confirmed Laing J's decision on 17 September 2014, [2014] EWCA Civ 1398. Notwithstanding the failure of the challenge in that case, the Claimant has persisted in this judicial review.
8. Since Tabrizagh was decided, Lewis J has refused a number of challenges by asylum-seekers whose claims, like this Claimant's, had been certified and who were to be returned to Italy, in R (MS) v SSHD [2015] EWHC 1095 (Admin), a decision handed down on 22 April 2015. Beatson LJ refused permission to appeal in that case on the papers on 28 October 2015, noting that Lewis J had not erred in his analysis of the evidence about treatment of asylum seekers in Italy. I am told that the Appellants intend to renew the application for permission to appeal orally and I have been provided with a copy of the skeleton argument in support of the application to renew.
9. Returning to the history of this case, permission having been granted on 10 March 2014, the parties agreed a further stay on 11 July 2014, so that the Defendant could take a new decision on the Claimant's human rights claim in light of EM in the Supreme Court (R (EM (Eritrea)) v SSHD [2014] UKSC 12, [2014] AC 1321). The Defendant's further decision was dated 25 September 2014 and is the decision now under challenge. In that "replacement decision" the Defendant refused the Claimant's Article 3 claim and maintained that the Claimant could safely be returned to Italy; the claim was certified as clearly unfounded.
10. The Claimant filed amended grounds of claim on 21 November 2014. The matter was again stayed (by consent) to enable the Defendant to consider the amended grounds. After MS was handed down on 22 April 2015, the Defendant invited the Claimant to discontinue, but the Claimant confirmed an intention to carry on. Detailed Grounds of Defence were lodged on 29 April 2015. The Claimant lodged amended grounds (in fact, by now, these were re-amended grounds) on 9 September 2015 together with additional evidence, said to indicate systematic deficiencies in the support and treatment of asylum seekers in Italy. The Claimant maintained (at that stage) two challenges: (i) against the Defendant's decision to certify the Article 3 human rights claim as 'clearly unfounded', and (ii) to the decision to remove and to detain pending removal. Since that date, challenge (ii) has been abandoned and only challenge (i), the certification challenge, remains. On 15 October 2015, the Defendant replied to the amended grounds, maintaining the safety of returning the Claimant to Italy. On 16 October 2015, the Defendant responded by letter to further evidence filed by the Claimant, concluding that the evidence provided by the Claimant did not indicate any systemic deficiency, nor did it disclose any grounds to suggest an Article 3 breach in his particular case, with specific attention given to the Claimant's medical evidence suggesting that he had PTSD and other psychological symptoms, but noting that the Claimant would be able to access healthcare services in Italy; the Defendant concluded that the Claimant's human rights claim was clearly unfounded.
11. In summary, the decisions now under challenge are those dated 25 September 2014 and 16 October 2014 (both post-dating the grant of permission in this case).

Adjournment application

12. The Claimant applied on 5 November 2015 to adjourn today's application, relying on the fact that there was to be an oral renewal for permission in MS, on a date as yet unknown, and it was argued that it was in the interests of justice for this case to await the outcome on the permission application in MS. The Claimant also relied on the stay granted by the Court of Appeal in what was said to be an analogous case, but details of that other case were sparse.
13. I declined the Claimant's application for adjournment, for the following reasons: (1) this case has been listed, and to adjourn it at this late stage would waste valuable Court time. (2) This is an old case, the Claim Form having been issued in April 2013. The litigation has been subject to a number of stays and changes of case along the way. This litigation should now be concluded, one way or another, in the interests of finality and legal certainty, unless there is a strong reason not to do so. (3) There is no good reason to postpone the determination of this claim further. The Court of Appeal has decided Tabrizagh, and has refused permission to appeal in MS on paper. I do not consider the fact that the permission application in MS is to be renewed orally (so I am informed) creates sufficient uncertainty about the law to justify a further adjournment in this case. (4) The issues of law which gave rise to this claim (and permission being granted to pursue it) have been clarified. I am mindful of the Court of Appeal's guidance in AB (Sudan) where Jackson LJ said, in the context of granting stays, that:

"[31] …what the Court of Appeal says is the law, is the law, unless and until overruled by a superior court or by Parliament."

The Court of Appeal has given its judgment on Italy claims, very recently.

14.  Overall, the interests of justice would not be served by an adjournment.

Grounds of Challenge

15. The claimant's grounds are set out in the amended Grounds amplified by the skeleton argument. There is only a single ground now advanced, namely that "the Defendant's decision to certify his asylum claim as 'clearly unfounded' is unlawful because his return to Italy would give rise to a real risk of serious harm (in breach of his article 3 rights)" – quoting from the Claimant's amended grounds, paragraph 9. That single ground is explained at paragraph 5 of the Claimant's skeleton:

"The Claimant's case in summary is that:

a) The threshold for certification as "clearly unfounded" is a low one.

b) The judgement of the European Court of Human Rights ("ECtHR") in Tarakhel is the starting point for the Court's assessment of whether there is a "more than merely fanciful" possibility that, in the absence of specific assurances, return to Italy would breach human rights;

c) MS has arguable errors of law and is not binding on this Court;

d) Moreover / in any event, the evidence post-MS is capable of demonstrating that the Dublin system is arguably broken and Italy's resources are even more strained."

16. Thus, the central issue in this case is whether the Defendant erred in certifying the Claimant's human rights claim as clearly unfounded. That was the issue which Lewis J dealt with in MS on the evidence and facts before him.

Discussion

17. There was no real dispute about a. or b. set out above. I accept that the threshold for certification as "clearly unfounded" is a low one, in the sense that the Secretary of State can only certify if she concludes that the Claimant's claim that he would be subject to Article 3 ill-treatment if returned to Italy would be bound to fail before the Tribunal. I also accept that the ECtHR's decision in Tarakhel is of great significance.
18. Miss Short, for the Claimant, did not press her submissions on ground c. in any detail, correctly envisaging that I was unlikely to depart in my analysis from that offered by Lewis J in MS. In MS, Lewis J conducted a comprehensive and detailed review of the evidence before him in order to determine whether a tribunal could conclude that the evidential presumption that Italy would comply with its obligations under EU law and Article 3 ECHR had been rebutted. Lewis J decided that the evidential presumption had not been rebutted, on the basis of the vast body of evidence he reviewed (see, in particular, paragraphs 115, 130, 133, 135 and 144). I accept that I am not bound by Lewis J's decision. But I am persuaded by it. I do not consider it to disclose any error of law and I will follow it.
19. Ms Short concentrated her efforts on submissions under d. She invited me to consider other evidence, which was not before Lewis J, in support of her argument that even if I accepted that MS was correctly decided as matters stood before Lewis J, things had now changed and the evidential presumption could now be rebutted.
20. The first report she showed me was the Aida Country Report on Italy dated January 2015. Aida is a non-governmental organisation (the Asylum Information Database), jointly coordinated by the European Council on Refugees and Exiles, Forum Refugies-Cosi, Irish Refugee Council and the Hungarian Helsinki Committee. Within this long report, I was shown a paragraph reporting that some asylum seekers have neither access to refugee centres nor to the financial allowance, and are forced to live in self-organised settlements in metropolitan areas which are overcrowded and have poor living conditions (such as the Salaam Palace in Rome). I was also shown a passage indicating that conditions for asylum seekers had worsened since 2012 and 2013, that there was a need for more places, and there was a lack of integration; however, in that same passage it was also reported that the Italian government had taken steps to address these issues. I was also shown a passage which suggested that detention conditions were poor, and had been criticised by the UN special rapporteur. However, taken as a whole, this report did not demonstrate any materially worse picture than that considered by Lewis J in MS. Indeed, Mr Waite for the Defendant told me that the Aida report was before Lewis J, and formed one of the 55 documents he considered, beyond those which are specifically highlighted in his judgment (see para 133). This report does not, in my judgment, take matters further or come anywhere close to displacing the evidential presumption of compliance by Italy.
21. I was, secondly, invited to take account of two decisions of the Belgian Council of Aliens Law Litigation to suspend the transfer of an Iraqi and a Congolese national to Italy. Those decisions were dated 27 and 28 April 2015, and were reported in the European Database of Asylum Law on 4 May 2015. No details were given in that publication about the individual circumstances of the claimants, or about the status of those decisions and whether they were subject to review or appeal. Further, the Belgian Council reportedly reached its view on the basis of the Aida report, which I have considered myself (as did Lewis J in MS), and I do not share what I understand to be the view of the Belgian Council as to the conclusions to be drawn from it. The Belgian Council is also reported to have concluded that there had been a sharp increase in migrants to Italy which had put strains on the ability of Italy to provide facilities for the applicants, but there was no evidential basis cited for that conclusion, which was very general in nature. These Belgian decisions do not, for these reasons, carry much weight before me.
22. I was, thirdly, taken to a statement dated 4 September 2015 by the UN High Commissioners for Refugees, Antonio Guterres, where he stated that "Europe cannot go on responding to this crisis with a piecemeal or incremental approach" and called for EU members to put in place different and more extensive facilities for asylum seekers coming to Europe. Miss Short relied on this recommendation to support her wider argument (which was the focus of her case) that the EU asylum system is dysfunctional and in need of overhaul, and that to send the Claimant back to Italy, when Italy and other EU countries are struggling to cope with the influx of migrants from outside the EU, was arguably irrational. I recognise that migration into the EU is an important political issue at present. The news is full of reports of large numbers of immigrants seeking entry to the EU, many of them through Italy. But the issue of law for me remains, as identified at above, whether the Secretary of State was entitled in law to certify the Claimant's asylum claim; and that depends on whether a tribunal could conclude that the evidential presumption that Italy would comply with its obligations under EU law and Article 3 ECHR had been rebutted. Regardless of any political discussions within the EU and national legislatures, Italy retains its obligations under EU law and the Dublin Regulation remains in place. Ms Short's wider argument does not touch the legal position. I reject the Claimant's arguments under this head.
23. I agree with Mr Waite, who appeared for the Defendant, that the UNHCR has not recommended that removals to Italy should be suspended, and that remains an important factor for me, as it was for Lewis J (see paragraph 135 of MS).
24. In summary, none of the material I was shown demonstrates a material change in circumstances since Lewis J decided MS in April of this year, or renders it arguable that a tribunal could conclude that the evidential presumption of compliance by Italy is rebutted.

Conclusion

25. It follows that the Defendant was entitled to certify this claim as clearly unfounded. I refuse the application for judicial review.