Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION

[2016] CSOH 102

 

P980/14

P253/15

P452/15

OPINION OF LORD BOYD OF DUNCANSBY

In the petition of

IMI, MG and EA

Petitioners;

for

Judicial Review

 

Petitioners: Dewar QC, Caskie, Jones; Drummond Miller LLP

Respondents: McIlvride QC. Pirie; Office of the Advocate General

15 July 2016

Introduction

[1]        These three petitions arise out of the operation of the Dublin II (Council Regulation (EC) No.343/2003) and Dublin III (Council Regulation (EC) 604/2013) Regulations against the backdrop of the increasing strain on EU Member States as a result of the large number of migrants entering the European Union in recent years.  Dublin II and Dublin III lay down the criteria and mechanisms for determining the Member State responsible for an application for asylum lodged in one Member State by a third country national.  In essence they provide that the Member State responsible is the Member State where the asylum seeker first had contact with the authorities.  Dublin II applies to applications lodged before 1 January 2014 and Dublin III to applications lodged after 1 January 2014.    In all three petitions the responsible Member State is Italy. 

[2]        Each petition raises a number of discrete issues.  However the proceedings before me concerned the certification by the Secretary of State that the petitioners’ claim that their removal to Italy would be a breach of their rights under article 3 of the European Convention of Human Rights is clearly unfounded. 

[3]        Both parties submitted notes of argument which have been invaluable in framing this opinion and I thank counsel for their presentation.

 

The petitioners

[4]        Apart from the factual background of when the petitioners came to the United Kingdom and their status the petitions are relatively silent on the individual circumstances of each of the petitioners. Nevertheless the note of argument for the petitioners sets out some background material which appears vouched in the accompanying documents. I record them here so far as relevant for these purposes.

[5]        The first petitioner is IMI.  He is a Sudanese national.  He was detained on 9 September 2013 having entered the UK illegally.  He claimed asylum on the same day.  The Secretary of State established that he had been in Italy and had been granted asylum there.  A take back request was made on 13 September 2013 and accepted by the Italian authorities on 25 September 2013.  Removal directions were made but cancelled as a result of the judicial review in England and Wales.  On 15 May 2014 the Secretary of State considered the petitioner’s claim that returning him to Italy would breach article 3 of ECHR.  That was refused and the claim was certified as clearly unfounded on 9 June 2014. It is accepted that by 9 September 2013 the Italian authorities had granted his application for asylum. Accordingly he would return to Italy as a beneficiary of international protection (BIP). IMI claims to have spent around three and a half months in Italy as a refugee living with a friend for two weeks and then on the streets.

[6]        The second petitioner is MG.  He is an Eritrean.  He was detained on 14 October 2013 having entered the UK illegally.  He claimed asylum on the same day.  It was established that the Member State responsible was Italy and the Secretary of State made a take back request under Dublin II which was accepted on 30 October 2013.  The asylum claim was refused on third country grounds on 22 November 2013 and the direction set for his removal.  A judicial review in England and Wales against the removal was concluded on 11 November 2014.  The Secretary of State issued a refusal direction and certified as clearly unfounded the petitioner’s claim that to remove him to Italy would be a breach of his article 3 rights under ECHR on 17 December 2014.        MG claims to have stayed in Italy for only 5 days. He did not claim asylum there.

[7]        The third petitioner is EA.  He is a Nigerian national.  He was detained in November or December 2014 having claimed asylum on arrival.  The Secretary of State established that he had been in Italy.  He claimed asylum in Italy on 2 July 2014.  The Italian authorities had not determined the application prior to his leaving Italy.  A take back request was made on 2 January 2015 and accepted on 19 January 2015.  The petitioner made representations that his removal to Italy would breach article 3 ECHR.  The Secretary of State rejected these submissions and certified the claim as clearly unfounded on 8 April 2015. EA claims to have suffered assault and rape at the hands of non-state actors in a reception camp in Italy. He also suffers from a depressive order.

[8]        All three petitioners are single men.

Certification

[9]        The Secretary of State has the power to remove from the United Kingdom in accordance with removal directions (a) a person who arrives in the United Kingdom and is refused leave to enter:  Immigration Act 1971 (“1971 Act”), Schedule 2, paragraph 8 and (b) a person who has no leave to remain in the United Kingdom:  Immigration and Asylum Act 1999 (“the 1999 Act”), section 10.  Section 77 of the Nationality, Immigration and Asylum Act (“the 2002 Act”) provides that a person may not be removed from the United Kingdom while his asylum claim is pending.  Paragraph 4 of Part II of Schedule 3 to the Asylum and Immigration (Treatment of Claimants Etc) Act 2004 (“the 2004 Act”) disapplies that provision where removal is to one of a list of safe countries specified in paragraph 2, provided that the Secretary of State certifies that in her opinion the person is not a citizen or national of that state a “Third Country Certificate)”.  Paragraph 3(2) provides that each country on the list:

 “shall be treated 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 a 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”.

 

 

Italy is on the list:  paragraph 2(n).

[10]      A person may appeal to the First-tier Tribunal (“FTT”) against a decision of the Secretary of State (a) before 6 April 2015 to remove him from the United Kingdom on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998;  2002 Act, sections 82 and 84 or (b) after 6 April 2015 to refuse his human rights claim on the ground that his removal from the United Kingdom would be unlawful under section 6 of the Human Rights Act;  2002 Act, sections 82 and 84 (as amended by Part II of the Immigration Act 2014).

[11]      Section 92 of the 2002 Act provides for each of these appeals to be brought from within the United Kingdom.  Paragraph 5(4) of Part II of Schedule 3 to the 2004 Act however disapplies that provision (with the effect that the appeal must be brought from outside the United Kingdom) where the Secretary of State certifies that the appellant’s human rights claim is clearly unfounded a “Clearly Unfounded Certificate”).  It requires the Secretary of State to issue a Clearly Unfounded Certificate unless she is satisfied that a human rights claim is not clearly unfounded.  Accordingly the Secretary of State may issue a Clearly Unfounded Certificate only if the human rights claim could on no legitimate view succeed in the FTT;  R (EM (Eritrea)) v Secretary of State for the Home Department [2014] AC 1321 at paragraph 6.  The test that the FTT would apply in cases such as the petitioners’ is whether substantial grounds have been shown for believing that there is a real risk that the person removed will suffer treatment contrary to article 3;  R (EM) (Eritrea)) at paragraphs 3 and 58.

[12]      Where removal is to a state listed in paragraph 2 of Part II of Schedule 3 to the 2004 Act, the FTT must address that test against the backdrop of a “significant evidential presumption” that the state will comply with its obligations under article 3 and EU law in relation to asylum procedures and reception conditions for asylum seekers and beneficiaries of international protection (“BIPs”).  The presumption however should not operate to stifle the presentation and consideration of evidence that the consequence of forced return would be a violation of article 3 ECHR.  Nor should it be required that in order to rebut the presumption it must be shown as a first and indispensable requirement that there is a systemic deficiency in the procedure and reception conditions provided for the asylum seeker;  R (EM (Eritrea)) paragraph 41.

[13]      The parties are agreed that in a judicial review of a Clearly Unfounded Certificate the following principles of law apply.

(a)        The court is as well placed as the Secretary of State to decide whether on any legitimate view a human rights claim could succeed in the FTT.  Therefore it should do so, rather than reviewing the certificate on Wednesbury grounds;  R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin) at paragraph 15;  R (Medhanye) v Secretary of State for the Home Department [2011] EWHC 3012 (Admin) at paragraph 6;  R (EM (Eritrea)) at paragraphs 69-70;  R (MS) v Secretary of State for the Home Department [2015] EWHC 1095 (Admin) at paragraph 97.

(b)        The court “must examine the foreseeable consequences of sending a (petitioner) to the receiving country bearing in mind both the general situation there and the (petitioner’s) personal circumstances including his or her previous experience”;  R (EM (Eritrea)) paragraph 70.

(c)        The court should take the facts at their highest in a petitioner’s favour.  Lord Kerr at paragraph 8 in R (EM (Eritrea)) used the phrase “reasonable height”.  Mr Dewar questioned what that meant.  But I think it means that any inferences that are to be drawn from the evidence must be reasonable and not perverse.  It does not relieve the court of its task of considering whether there is any merit in the petitioner’s legal arguments (R (EM (Eritrea)) at paragraph 8;  R (Tabrizagh) v Secretary of State for the Home Department [2014] EWHC 1914 (Admin) at paragraph 4 and 169.  It does not mean that the court is bound uncritically to accept reports on which the petitioner relies “if either, they are seriously flawed or unreliable, or if there is other relevant material to which the FTT would be bound to give greater weight, such that (the court) can be confident that (the petitioner’s) claims would be bound to fail or accept that the petitioner’s account of his experiences in Italy is credible;  R (Tabrizagh) at paragraphs 4, 169 and 188;  R (MS) at paragraphs 118 and 147.

(d)       It is therefore unnecessary for the court to consider whether there are any errors of law in the reasons that the Secretary of State gave for the Clearly Unfounded Certificates in these cases.  If the court finds that, on any legitimate view of the evidence before it, a petitioner could succeed before the FTT it must reduce his Clearly Unfounded Certificate.  It must do so even if there are errors in the reasons because these are immaterial;  see A v The Secretary of State for the Home Department 2015 SLT 306 at paragraph 23 and R (Weldegabler) v The Secretary of State for the Home Department [2015] UKUT 00070 (IAC) at paragraph 16. 

(e)        The consequence of success in a petition for judicial review of a Clearly Unfounded Certificate (in the absence of a lawful replacement) is that the petitioner may exercise his right of appeal to the FTT (on human rights grounds) against a decision to remove him prior to his removal from the United Kingdom.

[14]     As I shall go on to explain the petitioners have produced evidence which supports the proposition that a human rights claim could succeed before the FTT.  If that was right then it would follow that the Clearly Unfounded Certificate would fall to be reduced.  The issue in my opinion is whether there is a sufficiency of evidence which, taken together with the other matters that the FTT would require to consider, would entitle the FTT to hold the human rights claim established.

 

European Union law

[15]     Italy has transposed three directives which are relevant to the position of refugees and beneficiaries of international protection.  These are

(a) Council Directive 2005/85/EC (“the Procedures Directive”).  This sets minimum standards for the Member States procedures for granting and withdrawing refugee status. 

(b) Council Directive 2013/33/EU (“the Reception Directive”).  This sets minimum standards for the reception of asylum seekers.  It applies when a third country national makes an application for asylum in a Member State for as long as he is allowed to remain on its territory as an applicant;  article 3.1.  It requires the Member State among other things:

(i)        to inform applicants of “any established benefits and of the obligations with which they must comply relating to reception conditions”;  article 5.1.

(ii)       to “ensure that applicants are provided with information on organisations or groups of persons that provide specific legal assistance and organisations that might be able to help or inform them concerning the available reception conditions, including healthcare”;  article 5.1.

(iii)      to provide applicants with documents certifying their status as asylum seekers;  article 6.1.

(iv)      to provide “material reception conditions” to applicants for asylum “to provide an adequate standard of living adequate for applicants which guarantees their subsistence and protects their physical and mental health”;  article 17.  Article 20 permits the Member States to withdraw reception conditions to applicants who have absconded, failed to comply with reporting duties or failed to provide information or attend for interview.

(v)       to ensure that applicants “receive the necessary healthcare which shall include, at least, emergency care and essential treatment of illness and of serious mental disorders”, article 19.

(c)        Directive 2011/95/EU of the European Parliament and Council (“the Qualification Directive”).  It requires the Member States, among other things, to provide refugees and beneficiaries of subsidiary protection, known collectively as beneficiaries of international protection (BIP’s) with

(i)        equivalent access to that enjoyed by their nationals in the area such as employment, education, social welfare, medical treatment and accommodation;  articles 20, 26-27, 29-30 and 32.

(ii)       access to information on the rights and obligations relating to their status;  article 22.

 

The Italian asylum system so far as relevant to these petitioners

[16]     In Italy there are three different types of “second level” reception centres to which the petitioners may be sent and one type of detention centre.  These are as follows:

a)         Centri di Accoglienza per I Richiedenti Asilo (CARA).  Reception facilities intended to accommodate ASs (Asylum Seekers) for no longer than strictly necessary to carry out identification procedures or for the Territorial Commission to process their asylum request.  This should not exceed 35 days.

b)         Sistema di Protezione per Richiedenti Asilo e Rifugiati (SPRAR).  A network of accommodation centres based on collaboration between the Ministry of Interior, the municipalities and various NGOs.  SPRAR projects not only provide a place to live, but also an individual integration programme with language courses, vocational education, and job-search assistance.  Its objective is to accommodate and integrate BIPs (Beneficiaries of International Protection) and those seeking asylum.  AS & BIPs are supposed to be sent her for the CARA.

c)         Centri di Accoglienza Straordinaria (CAS):     Temporary and informal reception centres.  They were set up by the Ministry of Interior at the beginning of 2014, in order to attempt to accommodate the massive influx of ASs who entered Italy during 2013 because the existing reception centres were already full and overcrowded.

d)        Centri di Identificazione ed Espulsione (CIE):  Facilities where irregular migrants are detained for the time necessary to execute an expulsion order.  Oversubscription leads many CIEs to function formally as CARAs.  Frequent instances of mistreatment are reported in CIEs where asylum seekers may also be detained in specific circumstances.

 

The case for the petitioners

[17]     The petitioners’ case is that their enforced return to Italy will create for each of them a real and substantial risk of suffering conditions which would infringe their rights under article 3 ECHR.  Both asylum seekers and beneficiaries of international protection are members of a particularly under-privileged and vulnerable population group in need of special protection.  The deliberate acts or omissions by the Italian authorities mean that it will be impossible for each of them to avail themselves of their rights under EU Directives.  The situation in which the petitioners will find themselves is particularly serious.  On the evidence the petitioners submit that they would be likely to spend months living in a state of the most extreme poverty, unable to cater for their most basic needs in terms of food, hygiene and a place to live.  Added to that would be the ever present fear of being attacked and robbed and a total lack of any likelihood of their situation improving.  The petitioners say that it is to escape from the situation of insecurity and of material and psychological want that they fled Italy to the United Kingdom in the first place.  The petitioners acknowledge that it is necessary to distinguish between asylum seekers and beneficiaries of international protection because whilst they are owed the same duties under article 3 ECHR only asylum seekers are owed the obligations under the procedures and reception directives.  The non-ECHR duties arise from the Qualification Directive for refugees and the extent to which that is or is not implemented.  The petitioners submit that on analysis it may be that the court would find that the defects in the support system for asylum seekers is inhuman but that the long term denial of true access to the facilities that should be provided to BIPs in terms of the Qualification Directive is degrading. 

 

The evidence

Introduction

[18]     These petitions are presented against a backdrop of an ever increasing number of migrants crossing the Mediterranean to the southern European states.  As the note of argument for the petitioners notes the Arab spring phenomenon placed considerable strain on the Italian asylum structures.  It had not recovered before the present migrant crisis engulfed the country.  In Tarakhel v Switzerland (2015) 60 EHRR 28 the ECtHR noted at paragraph 110 that the methods used to calculate the number of asylum seekers without accommodation in Italy were disputed.  Without entering into the debate as to accuracy of the available figures it was sufficient for the court to note the glaring discrepancy between the number of asylum applications made in 2013, which according to the Italian government totalled 14,184 by 15 June 2013 and the number of places available in the facilities belonging to the SPRAR network of 9,630 places.

[19]     I was presented with a considerable number of figures regarding the migrant crisis.  The asylum quarterly report from Eurostat for data dated 9 December 2015 showed 28,400 or 7% of the first time asylum applicants in the third quarter of 2015 going to Italy.  According to the note of argument for the petitioners in 2014 the total number of requests for asylum in Italy was approximately 65,000. In the first 10 months of 2015, 69,605 applications were made. 

[20]     This demand exceeds capacity.  By 10 October 2015 the total number of reception places was approximately 100,000.  There were 70,918 places available in the CASs (72% of the total), 21,814 places available in the SPRAR (21% of the total) and 7,290 places available in the CARAs, CDAs and CPSAs (7% of the total).  The Italian systems ability to process asylum claims has been declining according to the petitioners.  In January 2015 45,120 people had an asylum application pending.  By October 2015 that figure had risen to 60,400. 

[21]     The petitioners submitted that they would suffer a real risk of homelessness and destitution upon return in breach of their article 3 rights.  The state simply has insufficient places to accommodate all Dublin returnees.  Priority would be given to those asylum seekers and BIPs who are considered vulnerable.  Secondly it would mean that the petitioners suffer a real risk of exposure to inhuman and degrading conditions if housed in a  CARA, CAS or CIE.  These were generally regarded as squalid and cramped with little government or other monitoring or supervision.  Thirdly it meant that the petitioners would suffer a real risk of homelessness and destitution upon receipt of a BIP status.  This was because the overstraining of the Italian system denies returnees like the petitioners access to measures that encourage social integration prior to resolution of their claim.  Once they have been granted BIP status they are virtually abandoned by the state.  With meagre employment prospects or access to social housing they become homeless and destitute.

           

Evidence of Dr Elena Consiglio

[22]     In oral submissions Mr Dewar placed considerable weight on the evidence of Dr Elena Consiglio who produced a report which was supplemented by other written material.  The report is undated but refers to material published in October 2015.  It is long and detailed.  The following appear to be the salient points.

[23]     Dr Consiglio is a post-doctoral research fellow in law at the University of Palermo.  She holds the PhD in human rights law.  Her doctoral dissertation was on the evolution of human rights in contemporary China 1978-2011.  From 2007 to 2011 she was a volunteer for a NGO, Centro Astalli providing assistance for third country nationals in Italy.  She qualified as a lawyer in 2009.  She has been practising in the field of Italian immigration law since 2009 and more intently since 2011.  In 2013 she wrote a report on immigration, detention and the rule of law which was published by the Bingham Centre for the Rule of Law, London.  For six months she worked as a case worker at the AIRE Centre in London and advised on more than 60 cases including asylum.  She professes a knowledge of the literature and case law of European, British and Italian asylum systems. In January 2014 together with other colleagues she founded the legal clinic for human rights (CLEDU) at the University of Palermo specialising in immigration and asylum law.

[24]     Her reports were based on her knowledge of Italian legislation and first hand experience of Italian society, culture, legal/administrative practices and interviewing of Italian citizens, professionals, volunteers, legal scholars, judges and other experts in immigration and asylum law.  She said that she also sought the advice of other experts. 

[25]     Dr Consiglio pointed to the plurality of legal bodies regulating reception of asylum seekers.  This she said led to violations of the Reception Conditions Directive and the Qualifications Directive.  The most serious failures in the Italian reception system related to an insufficiency in the number of places.  There was no monitoring of numbers except in the SPRARs.  There was a long waiting list for admission to SPRARs but cases of vulnerability were overlooked.  There was insufficient psychological support for those who may have suffered on the journey from the country of origin.  They were unable to get legal assistance.  The German administrative courts had suspended transfers of asylum seekers.  The Frankfurt administrative court had said that reception centres did not guarantee respect for minimum European standards although recently German judges had occasionally allowed returnees “due to the worsening refugee crisis in Germany”.  The situation had worsened in 2014 and 2015 due to the massive influx of migrants.  There had recently been a reported systemic failure in the system called “Mafia capital” involving the management of funds.  The UNHCR had highlighted that this was to the detriment of asylum seekers and had called for a transparent management of reception centres, up to date adequate quality standards and guarantees and called for a variety of measures to prevent fraud.

[26]     Turning to CARAs there were currently eight in Italy with 3,747 places.  It was however difficult to reconcile that figure with a later passage where she discussed the shortage of CARAs.  As examples she cited Bari with 1,216 places and Cantanya with 3,000 places, both of which were overcrowded apparently in December 2014.  Trapani, Ancona, Bari, Brindisi, Crotone and Foggia were constantly overcrowded with increasing numbers of people, again cited as at December 2014. 

[27]     Common standards were set down at national level.  However in practice there was a consistent failure of service providers to meet minimum standards regarding the provision of legal and psycho-social assistance.  There was a constant problem with under-staffing leading to people not being given advice about access to healthcare, legal assistance and other services.

[28]     Similar problems existed in the SPRARs.  In 2014 there were 6,844 people in the SPRARs but funded places for only 3,000.  That resulted in refugees remaining in the CARA system for prolonged periods of time.  If they were not in either and did not have sufficient means then they would be destitute in a state of social marginalisation. 

[29]     Temporary accommodation centres were set up at the beginning of 2014 and currently host 70% of asylum seekers and refugees.  There was no national planning behind these centres.  Conditions varied widely.  There was no guarantee of respect for minimum standards.  There were reports of appalling standards of hygiene and sanitation.  In some cases rundown buildings were used.  Staff were often unqualified and unprofessional.  Most only provided accommodation and food and did not provide health, psychological or legal assistance.  Many refugees had difficulty finding employment.  There was insufficient public housing. Although refugees were entitled to welfare many ended up destitute, living in the street or in slums in a situation of severe social marginalisation. 

[30]     Some of the figures she quotes appear to have come from the ASGI, the Association of Italian Immigration Lawyers and their basis may be questioned.  Others however come from the Ministry of the Interior and may be more robust.  On any view they support Dr Consiglio’s opinion that the system is under strain with overcrowding a particular problem. 

[31]     Applications for asylum can be a lengthy process.  Dr Consiglio gave figures and examples to support that opinion.  In the meantime they face difficulties in getting accommodation and employment. 

[32]     The facilities for returnees under Dublin III were poor.  Asylum seekers were better provided for and could be housed in a reception centre.  Refugees on the other hand were less likely to get a place.  They would not be able to do so if they had already been given a place and then left.  Many refugees had no choice but to live on the street and beg for money and food.  Dr Consiglio had apparently been asked the question “What risk is there that Dublin returnees who are asylum seekers will be exposed to inhuman and degrading treatment sufficient to violate article 3 ECHR”.  In reply she said that the returnees would firstly be returned to a border crossing point at a national airport.  That was usually Roma Fiumicino or Milano Malpensa.  Black letter law provided that services for information and reception should be set up at border crossing points.  However there were reports of the absence of such services or of any NGO working for the protection of asylum seekers and refugees.  Only the police were present at the border crossing points.  Several instances of refoulement and attempts of refoulement had been reported.  In some cases attempts at refoulement were stopped by a phone call by UNHCR officers who contacted the police at the airport.  This practice engaged article 3.

[33]     In the context of a Europe-wide project of research on the Dublin system centro esteli interviewed 30 asylum seekers and beneficiaries of international protection involved in the procedures.  Some of them had reported sleeping on a road or in a park. 

[34]     Dr Consiglio continued:

“all the Dublin returnees I interviewed were (a) in a situation of severe social marginalisation, without any prospect of integration due to the lack or inadequacy of integration measures.  Legal assistance and guidance for asylum seekers is not generally provided.  They are not informed about their rights, including the right to healthcare and medical treatment.  It is extremely difficult for asylum seekers to find a suitable employment and criminal organisation often try to recruit them.  There is a high rate of prostitution and criminalisation among asylum seekers and refugees as a result of their marginalised situation.  The risk of being left in a situation of abandonment and marginalisation the Dublin returnees face if returned to Italy, especially after February 2015, meets the threshold of risk to be subject to inhuman and degrading treatment according to article 3 ECHR and to article 4 of the European Charter of Fundamental Rights.  The risk to be subject to inhuman and degrading treatment is an actual risk which is common to the three petitioners, including [IMI] who was granted refugee status”.

 

 

[35]     In the case of EA Dr Consiglio was of the opinion that there was a high possibility of refoulement because of an agreement which existed between Italy and Nigeria for the return of failed asylum seekers.  EA could request a place in a SPRAR, CARA, or temporary reception centre but would not be eligible if he left the reception centre without justification on his previous stay in Italy.

[36]     MG had been subject to a form of torture in Pozzallo after his arrival in order to get fingerprinted by the police.  This practice had been documented in a report by Doctors Without Borders.  The risk to asylum seekers was higher if they had been subject of violence and traumatic experience during their previous stay or during their travel from the home country to Italy.  There were two possible scenarios for MG’s arrival in Italy.  First, MG could be sent to a CIE in order to be expelled or he could be sent to a CARA, CDA or CAS if he claims asylum on arrival (in a later report she clarified that it would be most likely be a CARA but there were no guarantees as they were constantly overcrowded).  The maximum time by law that he could stay in a CARA would be 35 days.  If he did not claim asylum he would not get a place in a reception centre.  In the first scenario there was a real risk of inhuman and degrading treatment in detention centres.  In the second the lack of sufficient psychological assistance in the reception centre run by the government and in temporary reception centres gave rise to a risk of retraumatisation for MG.

[37]      IMI was granted international protection and only available option for IMI was to request a place in a SPRAR. He would most likely not be admitted to a centre because the SPRARs were full and preference would be given to vulnerable people. Moreover if he had abandoned without justification the reception measures he was enjoying in Italy before he left these could not be reactivated.

[38]      In conclusion Dr Consiglio was of the opinion that each of the three petitioners faced risk of being subject to inhuman and degrading treatment according to article 3 ECHR and to article 4 of the European Charter of Fundamental Rights. 

[39]     Dr Consiglio provided a supplementary report in answer to questions from the petitioners’ solicitors. In answer to questions to whether she agreed that the conditions in the centres were unacceptable she detailed the difficulties.  In general the conditions in the CARAs were low – she described them as appalling.  In SPRAR the conditions were on average good but places were difficult to get due to overcrowding.  The reception centres varied widely.  It was unclear whether they would accommodate Dublin returnees. 

[40]     Dr Consiglio agreed to the proposition that the high risk of homelessness and destitution was the main threat to the petitioners.  In answer to a question about the likelihood of being expelled from the centre without having somewhere to stay she said that the time that a BIP could stay in a centre was time limited, mostly 6 months but that could be extended to 12 months if they were deemed vulnerable.  At the end of that time they had to leave even if they did not have anywhere else to stay.  They would also have to leave if they found employment. 

[41]     A BIP was entitled to the same treatment as an Italian citizen with regard to social assistance.  That extended to public housing.  However, local authorities put obstacles in the way of BIPs.  In any event the overall situation with regard to public housing in Italy was not good.  She concluded that a BIP would find it difficult to obtain public housing through the state. 

[42]     Regarding the provision of financial assistance by the state, BIPs were entitled to the same provision as Italian citizens.  In practice however it was unlikely that would happen because of the irregular practices of local authorities.  In any event unemployment benefit was not sufficient on its own to cover basic needs.  She said that the UNHCR had strongly censored the lack of adequate integration measures as a systemic failure of the Italian system reporting that thousands of BIPs live in a situation of strong social marginalisation and severe deprivation in Italy, quoting UNHCR press releases of 18 February and 25 February 2014. 

[43]     Dr Consiglio was also asked to comment on the judicial analysis found in paragraphs 106 to 115 in the case of MS v The Secretary of State for the Home Department.  These paragraphs contained an analysis of the number of places in the Italian accommodation system.  It was put to Dr Consiglio on the basis of Eurostat data that the number of outstanding applications had increased disproportionately in the first 10 months of 2015.  In reply Dr Consiglio said that the data published by the Italian Ministry of Interior on 10 October 2015 showed that the total number of places available in reception centres was 99,096 comprising 70,918 in CASs (72% of the total), 21,814 places in SPRARs (21% of the total) and 7,290 places in CARAs, CDAs and CPSAs (7% of the total).  On 10 October 2015 there were 100,000 people accommodated in the reception facilities, 70% of which were in temporary accommodation centres.  The number of applications for international protection was 69,605 in the first 10 months of 2015 already exceeding the total number of 65,000 in the whole of 2014.  In October 2015 the number of new asylum applicants was 10,440.

[44]     In Dr Consiglio’s view this showed that the system is never “in pair” because the new applications for international protection exceeded the capacity of the reception system which is fully used.  The enlargement of places in reception centres decided in 2014 was only able to cope with an emergency and the new arrivals throughout 2014 and 2015 worsened the situation.  In Dr Consiglio’s view the reasons in MS v Secretary of State for the Home Department cannot be entirely applied in the present case.  The main reason is that in application of European and Italian law Dublin returnees who are asylum seekers should be sent either to a SPRAR or to a CARA.  Also under Italian law there was no obligation to provide accommodation for Dublin returnees who are refugees even if they are entitled to take part in a project in the SPRAR.  It was not accurate to say that it was not possible to determine the number of people who left the reception centres.  In fact the local authorities kept records of the number of persons who leave the centres and CARA and SPRARs also had a register in which they recorded the number of persons who left.  Specific information on the total number of persons who live in the centres is available from the Ministry of The Interior. 

 

UNHCR

[45]     Reliance is also placed on the UNHCR reports.  In 2012 the UNHCR published recommendations on important aspects of refugee protection in Italy.  It reported that tens of thousands of refugees and immigrants arrive in Italy every year.  That number had massively increased and there was evidence that the number of claims for asylum had also increased but that the rate of decision-making had failed to keep pace so that large numbers of people now had undetermined claims pending. 

[46]     The report found shortcomings in the Italian system for dealing with refugees and asylum seekers including access to the asylum procedure with instances of registration taking several months during which time the applicant was unable to obtain the benefits available after registration.  They expressed concerns about the quality of the asylum determination procedure with inconsistent practices including on the availability of interpreters and waiting times.  There were also lengthy delays in cases to which the predecessor to Dublin II applied.  There were concerns about reception conditions for asylum seekers when “significant numbers of arrivals take place”.  Facilities sometimes fail to meet adequate standards especially regarding the provision of legal and psycho-social assistance.  The reception system needed to be more flexible.  There were concerns about the integration of BIPs who “may no longer benefit from the assistance provided to asylum seekers and therefore struggle to have access to housing”.  As a result destitute refugees may become homeless.  There were concerns about local authorities applying restrictions when registering BIPs as local residents.  Once individuals left the CARAs access to additional support measures was limited and integration prospects may therefore be slowed down. 

[47]     In July 2013 UNHCR            published “UNHCR recommendations on important aspects of refugee protection in Italy”.  Its aim was to provide an update on the situation in Italy since its 2012 report.  Once again this highlighted problems with access to the asylum procedure.  It noted that the authorities had made efforts to speed up and improve the procedure for registration of asylum applications but these had been reversed by the upsurge in numbers.  So far as the quality of the asylum determination procedure was concerned although waiting times for first instance decisions had grown and there can be lengthy delays on appeal, the UNHCR “remains satisfied with the overall protection standards in the context of the asylum procedure”.  The deterioration in reception conditions and beginning when 63,000 people arrived by sea in 2011 continued throughout 2012 and 2013.  The Italian government responded to the increase in arrivals within an emergency plan.  Many asylum seekers did not have access to services provided for by law and conditions and accommodation centres had deteriorated, mainly due to overcrowding and funding restraints.  The Italian government had pledged to increase places in SPRAR projects by 2,000 with a further increase of 3,000 possible if there were significant influxes.  The practice of limiting stays in CARAs to 6 months even when an application for asylum has not been determined has been discontinued and Italy transposed the Reception Directive more favourably than the directive required.  However each of these developments had been reversed by the increase in numbers.  So far as the integration of BIPs was concerned the UNHCR commented that these remained vastly insufficient.  “A significant number…. lead deprived and marginalised lives” although the transposition of the Qualification Directive had entailed a number of significant positive developments in the normative framework on the definition of international protection status and the rights attached thereto.  Shortcomings in Italian legislation and practice may hinder BIPs to become self-reliant.  There had been an increase in the number of BIPs who are homeless or living in homeless or emergency accommodation or spontaneous settlements.  There were integration project for BIPs and asylum seekers but the majority did not receive support tailored for their needs which leave many with no realistic job opportunities. 

[48]     The petitioners submitted that the court would search in vain for UNHCR reporting significant improvements.  The 2013 report did indicate that there were positive developments in the normative framework but that would be of little comfort to asylum seekers and BIPs sleeping on the streets of Italian cities and begging for food or living on charity. 

[49]     The UNHCR has considered the Italian asylum system since July 2013 but not reported in a similar report to the 2012 and 2013 reports.  However, Mr Dewar relied on a statement by the head of UNHCR, Antonio Guterres dated 4 September 2015.  In that statement Mr Guterres emphasised that the European Union faced a defining moment as a result of the current refugee and migration crisis facing Europe.  This required a massive common effort and break with the current fragmented approach which has led Europe overall to fail to find an effective common response.  He is quoted as saying “Europe cannot go on responding to this crisis with a piecemeal or incremental approach.  No country can do it alone and no country can refuse to do its part”.  He went on that this was a defining moment for the European Union and it had no other choice but to mobilise full forces around this crisis.  The only way to solve this problem was for the Union and all Member States to implement a common strategy based on responsibility, solidarity and trust.  He added,

“Concretely, this means taking urgent and courageous measures to stabilise the situation and then finding a way to truly share responsibility in the mid to longer term.  The EU must be ready, with the consent and in support of the concerned governments – mainly Greece and Hungary, but also Italy – to put in place immediate and adequate emergency reception assistance and registration capacity.  The European Commission should mobilise the EU Asylum Migration and Civil Protection Agencies and mechanism for this purpose including the resources of Member States and with the support of UNHCR, IOM and civil society.  From our side, UNHCR is fully committed to step up its efforts.  It is essential that refugee families that disembark in Europe after having lost everything are welcomed into a safe and caring environment”.

 

 

[50]     Mr Dewar submitted that this statement by Mr Guterres indicated that UNHCR did not consider that Italy had immediate and adequate emergency reception, assistance and registration capacity.  That criticism in 2015, which was not made in 2012, 2013 or 2014 was particularly significant. 

 

United Nations Economic and Social Council

[51]     Mr Dewar also placed reliance on the report of the United Nations Economic and Social Council concluding observations on the fifth periodic report of Italy.  This concerned the implementation of the International Covenant on Economic, Social and Cultural rights.  In relation to migrants, asylum seekers and refugees the Committee noted as follows:

“The Committee appreciates the efforts made by the state party, including through the launch of 2013 of Operation Mare Nostrum, to receive and host exceptional numbers of migrants, asylum seekers and refugees.  The Committee however remains concerned about the reported practice of pushbacks and about limited enjoyment of the covenant rights by immigrants, asylum seekers and refugees upon arrival in the state party.  The Committee is particularly concerned about the insufficient number of reception centres in the state party and the substandard conditions therein.

 

The Committee urges the state party to stop the practice of pushbacks.  The Committee recommends that the state party intensify its efforts to ensure the full enjoyment of economic, social and cultural rights by migrants, asylum seekers and refugees.  In implementing its covenant obligations towards these persons, it is recommended that the state party seek and strengthen international co-operation and assistance, in particular with state members of the European Union.  The Committee also recommends that the state party take measures to increase the number of reception centres to improve the living conditions therein and to ensure that everyone in the centre has access to medical care, interpreters, adequate food, clothing and social support”.

 

 

[52]     A large number of other documents were submitted in support of the petitioners’ submissions.  These are detailed at paragraphs 52 of the EA and MG petitions. I have had regard to them.

 

Carl Dangerfield and supporting documents      

[53]     The respondent relied on evidence and materials from Carl Dangerfield, who is the UK Visas abs Immigration’s Italy Liaison Officer in Italy since 2008. He gave evidence in R(Tabrizagh) v SSHD and in R(MS) v SSHD. The affidavits in these cases were lodged as productions along with a witness statement. This evidence is summarised at pages 20 to 22 of the Note of Argument for the respondent.  I do not consider it necessary to rehearse all of it not least because I require to take the petitioners’ cases at their highest.  Nevertheless it is helpful to put some evidence in perspective.

[54]      Mr Dangerfield points out that there are an unquantifiable number of asylum seekers in Italy who do not require state reception facilities either because they stay with friends or relatives or they have a place in a non-state centre or leave Italy before their claim is determined.  He notes that there was a substantial increase in the number of places in state accommodation between late 2011 and late 2013.  In March 2015 the European Asylum Support Office and Italy agreed a 12 month support plan directed at amongst other things, determining asylum applications and providing reception facilities.

 

Review of the case law

[55]      The removal of a person from one state of the Council of Europe is contrary to the ECHR,

“where substantial grounds have been shown for believing that the person concerned… faces a real risk [in the country to which he or she is being removed] of being subjected to [treatment contrary to art 3 of the convention]”

Soering v UK (1989) 11 EHRR 439 at paragraph 90; affirmed in R((EM) Eritrea) v Secretary of State for the Home Department per Lord Kerr of Tonaghmore, paragraph 3.

[56]      The European Court of Human Rights considered the nature of the rights under Article 3 applying to persons being removed from one member state of the Council of Europe to another in MSS v Belgium and Greece (2011) 53 EHRR 2. The Court stated (at paragraphs 218 -220),

218 The states must have particular regard to art.3 of the Convention, which enshrines one of the most fundamental values of democratic societies and prohibits in absolute terms torture and inhuman or degrading treatment or punishment irrespective of the circumstances and of the victim’s conduct.

219 The Court has held on numerous occasions that to fall within the scope of art.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.

220 The Court considers treatment to be “inhuman” when it was, “premeditated, was applied for hours at a stretch and caused either actual bodily injury or intense physical or mental suffering”.

Treatment is considered to be “degrading” when it humiliates or debases an individual, showing a lack of respect for, or diminishing, his or her human dignity, or arouses feelings of fear, anguish or inferiority capable of breaking an individual’s moral and physical resistance. It may suffice that the victim is humiliated in his or her own eyes, even if not in the eyes of others. Lastly, although the question whether the purpose of the treatment was to humiliate or debase the victim is a factor to be taken into account, the absence of any such purpose cannot conclusively rule out a finding of violation of art.3 .

At paragraph 249 the court said this,

It also considers it necessary to point out that art.3 cannot be interpreted as obliging the high contracting parties to provide everyone within their jurisdiction with a home. Nor does art.3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living.

 

[57]      The Court recognises that asylum seekers are a particularly vulnerable and underprivileged group in need of special protection: MSS at paragraph 251; Tarakhel v Switzerland (2015) 60 EHRR 28, paragraph 118.

[58]      There is a significant evidential presumption that contracting states will comply with their obligations under ECHR; R((EM) Eritrea) v Secretary of State for the Home Department, paragraph 64; R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin) per Sales J at paragraph 42(i).  This also extends to obligations under European directives.  The logic for this was set out by the European Court of Justice in NS v Secretary of State or the Home Department (2013) QB 102 (quoted with approval by the ECtHR in Tarakhel v Switzerland (Paragraph 33)).  The Court said,

“78. Consideration of the texts which constitute the Common European Asylum System shows that it was conceived in a context making it possible to assume that all the participating States, whether Member States or third States, observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol, and on the ECHR, and that the Member States can have confidence in each other in that regard.

…

80. In those circumstances, it must be assumed that the treatment of asylum seekers in all Member States complies with the requirements of the Charter [of Fundamental Rights of the European Union], the Geneva Convention and the ECHR .

81. It is not however inconceivable that that system may, in practice, experience major operational problems in a given Member State, meaning that there is a substantial risk that asylum seekers may, when transferred to that Member State, be treated in a manner incompatible with their fundamental rights.

82. Nevertheless, it cannot be concluded from the above that any infringement of a fundamental right by the Member State responsible will affect the obligations of the other Member States to comply with the provisions of Regulation No 343/2003 .

83. At issue here is the raison d’être of the European Union and the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights.”

 

[59]      As the ECJ recognised it is not inconceivable that there may be occasions when, as a result of major operational problems, there is a substantial risk that asylum seekers may be treated in a manner inconsistent with their fundamental human rights.

[60]      In assessing the evidence it is clear that a special importance is given to the UNHCR. In R((EM) Eritrea) Lord Kerr quoted with approval the judgement of Sir Stephen Sedley in MSS at paragraph 41 (at paragraph 71),

 “It seems to us that there was a reason for according the UNHCR a special status in this context. The finding of facts by a court of law on the scale involved here is necessarily a problematical exercise, prone to influence by accidental factors such as the date of a report, or its sources, or the quality of its authorship, and conducted in a single intensive session. The High Commissioner for Refugees, by contrast, is today the holder of an internationally respected office with an expert staff (numbering 7,190 in 120 different states, according to its website), able to assemble and monitor information from year to year and to apply to it standards of knowledge and judgment which are ordinarily beyond the reach of a court. In doing this, and in reaching his conclusions, he has the authority of the General Assembly of the United Nations, by whom he is appointed and to whom he reports. It is intelligible in this situation that a supranational court should pay special regard both to the facts which the High Commissioner reports and to the value judgments he arrives at within his remit.”

Lord Kerr continued (at paragraph 72),

 “I fully agree with this assessment. In a recent decision of this court, the unique and unrivalled expertise of UNHCR in the field of asylum and refugee law was acknowledged. In IA (Iran) v Secretary of State for the Home Department [2014] 1 WLR 384, this court said, at para 44:

“Although little may be known about the actual process of decision-making by UNHCR in granting refugee status in an individual case, the accumulated and unrivalled expertise of this organisation, its experience in working with governments throughout the world, the development, promotion and enforcement of procedures of high standard and consistent decision-making in the field of refugee status determinations must invest its decisions with considerable authority.””

[61]      Lord Kerr noted that the UNHCR’s report of July 2012 did not call for a halt to all Dublin transfers to Italy. However Mr Fordham QC, who appeared for the UNHCR in R((EM) Eritrea) had made it plain that this did not mean that there were no legal obstacles to particular transfers taking place or that the UNHCR had given Italy “a clean bill of health”. Lord Kerr observed that assumptions should not be made about the lack of any recommendations concerning general suspensions of returns under Dublin II to Italy but it was of obvious significance that UNHCR did not make any such proposal.

[62]      In the ECtHR the views of the UNHCR have been accorded great, but not always decisive weight.  In KRS v UK (2009) 48 EHRR SE8 the court referred to the independence, reliability and objectivity of the UNHCR as being beyond doubt. That case involved the proposed return of an asylum seeker to Greece under Dublin 1 regulations. The UNHCR had asked that EU member states refrain from returning asylum seekers to Greece until further notice.  These concerns were shared by Amnesty International and the Norwegian Organisation for Asylum Seekers.  Despite this the court found the application inadmissible. The court said that the presumption must be that that Greece would abide by its obligations under the EU directives.  In terms of article 3 Greece had undertaken to abide by its convention obligations to secure to everyone within their jurisdiction the rights and freedoms defined therein, including those under article 3.  In the absence of proof to the contrary it must be presumed that Greece would comply with its obligations. Finally the court observed that were there any claim under the convention it should be pursued first with the Greek domestic authorities and thereafter with the court.

[63]      On the other hand in MSS v Belgium and Greece (2011) 53 EHRR 2 the court attached critical importance to a letter sent by the UNHCR in April 2009 to the Belgian Minister in charge of immigration containing an unequivocal plea for the suspension of transfers to Greece. The court found that there was a violation of article 3 by Belgium in returning persons to Greece under the Dublin system in the face of numerous reports of the practical difficulties in the application of the Dublin system in Greece.

[64]      So far as Italy is concerned in a string of admissibility decisions the ECtHR determined that there was no violation of article 3 by states in transferring asylum seekers and refugees to Italy under the Dublin system.  In Hussein v the Netherlands and Italy (App 27725/10) (2 April 2013) the applicant said that although her fingerprints had been taken she had not been able to apply for asylum.  She had been taken to Florence where she had been dumped at the railway station where she had been raped by drunken men.  She had not been provided with accommodation or food.  Only the church had given her food. She had not been provided with medical care even when she found out that she was pregnant.  The first medical examination of her condition was in the Netherlands.  At the timer of the application she was a single mother with 2 small children.  She was thus a member of an underprivileged and vulnerable population in need of special protection (para 76).  The court noted that the Netherlands would give Italy prior notice of the transfer of the applicant thus allowing the authorities to prepare for her arrival. The court took into account the report by the UNHCR of July 2012 on refugee protection in Italy, the Council of Europe Commissioner for Human Rights dated September 2012 as well a report by a joint Norwegian – Swiss NGO based on a visit to Italy in September 2010 on asylum procedures and reception conditions.  It considered that while the general situation and living conditions of accepted refugees and aliens who have been granted a residential permit may disclose some shortcomings it has not been shown to disclose a systemic failure as was the case in MSS.  There was no basis from which it could be assumed that the applicant would not be able to benefit from the available resources in Italy or that if she encountered difficulties they would not respond to requests for assistance.

[65]      In Daytbegova v Austria (App 6198/12)(4 June 2013) the court noted the undoubtedly severe psychological health of the second applicant and that a particularly well planned reception might be necessary on his return (para 67). The court observed that in general the Italian reception system provides access to health care including psychological care for all aliens whether they had to remain or not.  The Italian authorities were aware of his considerable mental health problems.  Special attention was paid to aliens with physical and psychological problems. There was no breach of article 3.  Similar observations were made in respect of the availability of medical assistance in Halimi v Austria and Italy (App 53852/11) (16 June 2013) and in Abubeker v Austria and Italy (App 73874/11)(18 June 2013).

[66]      In Hassan v Netherlands and Italy (App 73874/11)(8 June 2013), another case involving the return to Italy the court reiterated that the mere fact of return to a country where one’s position would be worse than in the expelling contracting state is not sufficient to meet the threshold of ill treatment prescribed by article 3.  In the absence of exceptionally compelling humanitarian grounds against removal the fact that the applicant’s material and social living conditions would be significantly reduced is not sufficient in itself to give rise to a breach of article 3. (para 180).

[67]      The Grand Chamber of the ECtHR considered the reception conditions for asylum seekers in Italy in Tarakhel v Switzerland. The applicants were a husband and wife and 6 children.  The court considered the UNHCR Recommendations on important aspects of refugee protection in Italy (July 2013), the Report by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe, published on 18 September 2012, following his visit to Italy from 3 to 6 July 2012 and Information provided by the International Organization for Migration in a press briefing note of 28 January 2014.  The court noted that the methods to calculate the number of asylum seekers in Italy without accommodation are disputed. Without entering into debate about the accuracy of these figures it was sufficient for the court to note the glaring discrepancy between the number of asylum applications made in 2013 and the SPRAR network where the applicants would be housed.  The court noted that neither the Swiss nor the Italian governments claimed that the combined capacity of the SPRAR system and the CARA’s would be capable of absorbing the greater part, still less the entire demand for accommodation. 

[68]      The requirement for special protection of asylum seekers as a particularly underprivileged and vulnerable group was particularly important when the persons concerned were children in view of their specific needs and extreme vulnerability. The court concluded,

“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 MSS , 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.” (paragraph 120)

 

 

[69]      Mr Dewar argued that Tarakhel represented a break through against the backdrop of failed admissibility proceedings. The consequence was that the strength of the presumption was significantly weakened. Mr McIlvride on the other hand argued that it was the position of the children and their extreme vulnerability that required Switzerland to obtain individual guarantees before returning the family to Switzerland.  He points out that the court did not say that it would be a breach of article 3 to return a childless adult to Italy without seeking guarantees. The court emphasised that the situation in Italy could not be compared with that in Greece at the time of the MSS judgement and that the structure and overall situation of the reception arrangements in Italy could not in themselves act as a bar to all removals of asylum seekers to that country (paragraph 115).

[70]      While it is undoubtedly true that Tarakhel is the first, and so far as I am aware the only, case in the ECtHR where conditions in Italy for asylum seekers have been deemed to be such that guarantees are required before the applicants can be returned there I do not think it is right to say that the presumption is thereby weakened.  The presumption is based on the fact that Italy is a high contracting state of the Council of Europe and a member of the European Union.  As such it is bound by international obligations enforceable in international courts. Neither of these things has changed. Rather Tarakhel is an example of a case in which the presumption was found to be rebutted.  It is therefore necessary to have regard to the findings of the court and to the reasons why in that particular case the presumption was rebutted.

[71]      Drawing the strands of European case law together it seems clear that the primary obligation to provide for asylum seekers and BIP’s under the Dublin arrangements rests on the state to which they are being returned.  All member states are bound to implement the directives narrated above.  It seems clear that if fully and properly implemented the standards of provision would go beyond what is required of these states under article 3 ECHR (see MSS at paragraphs 249 -253). The threshold for a violation of article 3 is a high one.  It does not impose an obligation on the state to provide everyone in their jurisdiction with a home or financial assistance to maintain a standard of living.  There will be no violation of article 3 if what is entailed by a return is a significant diminution in the standard of living.  However the court recognises that asylum seekers and BIP’s are a particularly vulnerable and underprivileged group.  It recognises that conditions of extreme poverty and destitution can give rise to a violation of article 3 rights.  And where the person is particularly vulnerable, such as a child, more protective measures will be required.  On their own health issues do not necessarily place the individual in a more vulnerable position provided there is health care available and the receiving state is sufficiently aware of the issue. 

[72]      There are two further English cases of significance.  In R(Tabrizagh) v Secretary of State for the Home Department [2014] EWHC 1914 (Admin) Laing J noted that,

“the ECtHR is an international court, with an appreciation of the international context, and, in particular, it is in a uniquely strong position to compare the situation in Greece at the time of MSS (where it did find systemic deficiencies) with that in Italy, which it has considered several times during April to August 2013. The ECtHR is much better placed to evaluate the effect of this type of evidence than is the FTT, as the FTT would be bound to acknowledge.” (paragraph 66)

 

[73]      She further found that 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 was true that there had been a steep increase in the number of arrivals but she did not consider than on the current material the FTT could possibly conclude that the presumption was displaced (paragraph 167).  She also observed that it was clear that there were differences between asylum seekers and BIP’s.  BIP’s are not vulnerable to the same degree as asylum seekers as they are entitled to work and have the same benefits as Italian citizens.  Leave to appeal was refused by the Court of Appeal.

[74]      In R(MS) v Secretary of State for the Home Department Lewis J noted that all 3 claimants had severe mental health difficulties. The petitioners founded on the Tarakhel judgement to say (1) that there was a glaring discrepancy between the number of asylum applications and the places available and (2) the claimants would be among a significant number of asylum seekers who may be left without accommodation or accommodated in overcrowded facilities or insalubrious conditions while noting the futility of seeking precision in the statistics he said that some conclusions could be made.  First the Italian authorities had increased the provision of facilities up to February 2015.  When faced with a crisis in 2011 the Italian authorities responded to the extraordinary strains put upon them by creating extra accommodation places. The figures presented by the claimants were unrealistic and could not be accepted by a tribunal.  No tribunal could accept that the official figures demonstrate a shortfall due to the absence of key figures.  Consequently no tribunal could conclude that the Italian system left asylum seekers or BIP’s in a state of homelessness. It could not conclude that there were omissions to provide facilities on a widespread or substantial scale, amounting to substantial operational problems, sufficient to displace the presumption of compliance.

[75]      The petitioners produced a document from the European Council on Refugees and Exiles dated October 2015 documenting the differing approach to transfers to Italy under the Dublin directives in European states following the case of Tarakhel v Switzerland in the ECtHR.  This shows that courts in Belgium, France and Germany have stopped individual transfers to Italy.  Other countries such as the Netherlands require individual guarantees in respect of particularly vulnerable persons, e.g where there are young children or single mothers.  On the other hand Sweden now considered that Italy currently fulfils the requirements of the European Court and guarantees now provided were sufficient so that transfers of families with children to Italy could be carried out without additional measures.

 

Discussion

[76]      I have been given a large number of statistics designed to show a reception system in Italy that is under severe strain.  Some of these appear to be official figures but others do not. In EM (Eritrea) at first instance [2012] EWHC 1799 (Admin), at paragraph 28, Kenneth Parker J observed that statistical exercises aimed at establishing capacity against demand are "futile" because the picture is so fluid. The same point was made by Lewis J in R(MS).  In Tarakhel the ECtHR were content to note the discrepancy between the number of applicants for asylum and the number of places and that neither government suggested that there was an adequate number of places in the reception centres.  In general I think it can be concluded that the system is indeed under strain and that there is insufficient capacity in the system leading to overcrowding and in some instances homelessness.  I am not convinced however that it can be said that the statistics as presented to me are robust enough on their own to demonstrate that to return the petitioners to Italy would substantially risk violation of their article 3 rights.

[77]      The case for the petitioners founds heavily on the evidence of Dr Consiglio.  I have to take that evidence at its highest but I also have to consider how a FTT would be bound to view that evidence.  My concerns about her evidence falls into 3 broad categories; her credentials as an expert witness, the way in which her evidence is presented and the weight that the FTT would attach to it.

[78]      Dr Consiglio has impressive academic qualifications although her PhD is unrelated to issues of immigration and asylum.  That has been married with some practical experience and knowledge in the relevant areas.  She has published a paper through the Bingham centre which is relevant to her area of expertise.  Nevertheless, so far as I can see, she has never given expert evidence in any court and consequently has no track record of acceptance as an expert.  Her expertise is founded to some extent on working with refugees and asylum seekers and the FTT would be entitled to question her independence and objectivity.

[79]      Having read her reports I have to say that I have some concerns about their objectivity.  That is particularly true of the supplementary report where Dr Consiglio was asked a number of questions, quoted above.  Some of them were clearly leading questions and she trespasses on the function of the court by concluding that there is a substantial risk of violations of article 3 in respect of all the petitioners.  Some of the evidence that she draws upon for her conclusions are in my opinion suspect.  At one point she notes mafia corruption in the management of reception centres.  While no doubt that is to be deplored it is not immediately obvious that it would lead to violations of article 3 rights.  At another point she links a medical operation on the child of a BIP that apparently went wrong to the fact that the child was a BIP.  On other hand Dr Consiglio does highlight substantial difficulties in the Italian system leading to homelessness and social marginalisation with all the attendant problems for those involved.

[80]      The main problem is what weight is to be given to Dr Consiglio’s opinion evidence against the strong evidential presumption of compliance by Italy with their international obligations.  In R(Elayathamby) v Secretary of State for the Home Department a case dealing with Cyprus, Sales J said,  

“In my judgment, the Claimant gets little or no support for his refoulement argument from the reports from international organisations. Indeed, the overall impression from those reports is that Cyprus is not regarded by those organisations as having problems in relation to its asylum procedures which are in any way comparable with the position in Greece reviewed in M.S.S.. Accordingly, Ms Physsas was obliged to submit that the court should treat certain reports from local Cypriot refugee support organisations (KISA - an acronym for its Greek name, which in translation is Action for Equality, Support, Antiracism; Symfiliosi; and Future Worlds Center, which has been funded by the UNHCR to implement a project entitled "Strengthening Asylum for Refugees and Asylum-seekers in Cyprus") as having greater weight.

In my assessment, although the reports of these local organisations which are produced for publication in the public domain are entitled to weight (as equivalent reports from local organisations in Greece were taken into account in M.S.S. alongside reports from international organisations), they carry considerably less weight than the considered reports of bodies such as the UNHCR, the ECRI, LIBE and the US State Department. Local organisations such as KISA do not have the resources nor the general perspective on acceptable standards of protection for asylum seekers which those other bodies have. Nor is it apparent that the local organisations are engaged in a process of dialogue with the Cypriot authorities in the way that the UNHCR, the ECRI and LIBE appear to be, in the course of which the authorities are given an opportunity to comment on possible criticisms. Therefore, the reports of the local organisations risk being rather one-sided in the picture they present.” (paragraphs 55 and 56)

“Still more fundamentally, there is nothing in the Grand Chamber's judgment in M.S.S. to lend support to the idea that claims regarding potential violation of Convention rights on the basis of a refoulement argument should be determined by reference to expert opinions obtained for the purposes of court proceedings regarding the claims in question. The materials relied on by the Grand Chamber were not of that character. They were published reports from highly regarded bodies, of which the Greek government would obviously have been aware and in respect of which it would have had a full opportunity over several years to answer (if it could) any of the criticisms levelled against it. A private expert report of the kind commissioned from KISA by the Claimant is, in my view, in a completely different category. Other than in exceptional cases, I do not think it is appropriate for a refoulement argument of the kind made in M.S.S. and in this case to be mounted by reference to private expert reports. They will not usually carry significant weight, when compared with the sort of materials to which the Grand Chamber had regard in M.S.S., and are more likely to add disproportionately to the time, effort and expense involved in determining the proper outcome on such an argument. I do not think that M.S.S. type claims should be converted into trials by way of consideration of opposing expert reports.” (paragraph 59(vii))

 

[81]      These comments by Sales J, as he then was, are in my opinion, highly pertinent. The reason that international bodies such as the UNHCR are accepted as authoritative is because of the breadth of their knowledge and experience, their ability to see the overall picture and their interaction on a daily basis with a range of state and other authorities.  At a high level they have access to governments.  They are able to criticise both publically and privately arrangements for the reception, processing and care of asylum seekers and BIP’s.  Such criticism will be taken seriously by governments, other international agencies, courts and tribunals as well as in the court of public opinion.  Their views and opinions enjoy confidence and respect.

[82]      It is noteworthy that Sales J did not attach the same weight to the opinions of local organisations.  In his opinion they carried considerably less weight than the international organisations because they do not have the resources nor the general perspective of acceptable standards of protection for asylum seekers that these other bodies have.  They are not engaged in a process of dialogue with the authorities and consequently risk being rather one sided.

[83]      Even taking Dr Consiglio’s report at its highest she is one expert with little obvious standing.  Sales J observed that in general MSS type claims should not be converted into trials by way of consideration of opposing expert reports.  I agree.  In my opinion a FTT would not be entitled on the basis of one privately commissioned expert report to conclude that there was a substantial risk of a violation of article 3 on the return of an asylum seeker or BIP under the Dublin system to a receiving state. 

[84]      The petitioners also rely on the evidence of the UNHCR. I have detailed these above and outlined some of the findings.  It has to be said however that the reports by the UNHCR of 2012 and 2013 have been considered in detail in numerous court cases.  In Tarakhel the ECtHR drew very heavily on both these reports together with material from international organisations.  Both the 2012 and 2013 reports were considered in R(MS) and R(Trabizagh). In neither case were they persuasive. What is new and has not been considered before is the statement by the head of the UNHCR, Mr Guterres dated 4 September 2015.  In my opinion however that statement does not take the petitioners much further. The context in which it is made is the migrant crisis in Europe as a whole. The criticisms that are made appear to be far more general in nature aimed particularly at the European Union.  Insofar as Italy is mentioned it is second order to Greece and Hungary. The lack of request to other states not to return asylum seekers and BIP’s to Italy is not decisive.  Nor does its absence mean that the UNHCR has given Italy a clean bill of health; far from it on the evidence. Nevertheless the fact that there has been no such request against a background of such requests being made in the past in respect of other countries and the ongoing stress of migrants on Italy is I believe a significant factor to be taken into account.

[85]      So far as the United Nations Economic and Social Council is concerned it is not reporting facts that it has found as a result of investigation but responding to other reports. No doubt these include the UNHCR reports. However without access to such reports it is difficult to know the extent of the problem that the Committee are commenting upon.  In my opinion it does not seem to say much more than the UNHCR said in its 2013 report, or the other reports cited in Tarakhel.

[86]      I have also regard to the other material in the agreed bundle.  Much of it has been before the courts before but again none of it really has the authority of the UNHCR or other international agencies or bodies working in this field.

 

Application to the individual petitioners 

IMI

[87]      IMI will return to Italy as a BIP. He is therefore in a different situation to that of the other two petitioners.  As a BIP he is entitled to work and to benefits in Italy under the Qualification Directive.  He claims to have spent three months living on the streets in Italy before coming to the UK.  Mr Dewar submits that this experience is relevant to whether he would be substantially at risk of suffering ill treatment of such a degree to violate his article 3 rights.  I note the threshold for such a finding in the decisions of the ECtHR, especially the admissibility decisions quoted above.  I note too that IMI would be entitled to accommodation in a SPRAR for at least the first 6 months. He is a young healthy male with no vulnerability beyond that which stems from his status as a BIP.  In my opinion there is insufficient evidence from which a FTT would be entitled to conclude that if IMI was to return to Italy there were substantial grounds for believing that there was a real risk that that the conditions in Italy would amount to a violation of his rights under article 3 ECHR.

 

MG

[88]      MG will return to Italy as someone who has not claimed asylum. There is no reason to doubt that he will do so.  It seems likely that he will be accorded BIP status.  Before that however he will be an asylum seeker. MG claims that he was tortured in Italy while being fingerprinted but there is nothing in the petition or the note of argument as to what the amounted to.  On its own I do not consider that it is sufficient to displace the evidential presumption.  Again I conclude that there is insufficient evidence from which an FTT could consider that were MG to be returned to Italy there was a substantial risk that the conditions in Italy would amount to a violation of his rights under article 3 ECHR.

EA

[89]      EA is a failed asylum seeker. Dr Consiglio suggested that he might be at risk of refoulement on his return to Italy.  It will of course be a matter for him as to whether he renews his claim for asylum but if he does I am not convinced that there is sufficient evidence to suggest that such a claim will not be considered.  If he does not renew an asylum claim, or if he does and it is rejected then of course he will be liable to return to Nigeria but that will be a matter for the Italian authorities.

[90]      He claims to have suffered rape at the hands of non-state actors in a reception camp. However there is no suggestion that the Italian authorities have failed to discharge a duty to protect him from such criminal conduct.  Of more concern are his mental health problems. However with his consent the Secretary of State can inform the Italian authorities of his mental illness so that they can be prepared to meet him.  Mr Dewar complained that so far no attempt had been made to ask for such permission.  However Mr McIlvride gave the court an undertaking that in the event of EA’s return and subject to his permission the UK would give the necessary information to the Italian authorities. There is no reason to question that undertaking.  EA is entitled to health care under the Reception Directive.  Accordingly in my view there are no special vulnerabilities that cannot be accommodated by the Italian authorities.  No guarantees are required.  I conclude that there is insufficient evidence from which the FTT could consider that were EA to be returned to Italy there was a substantial risk that the conditions in Italy would amount to a violation of his rights under article 3 ECHR.

 

 

 

Decision

[91]      In each case I shall refuse to pronounce an order reducing the Clearly Unfounded Certificate.  Before pronouncing an interlocutor I shall put the case out By Order to discuss the extent to which this opinion disposes of outstanding matters, to agree further procedure and to deal with expenses.