Abjectly neglected but strategically vital, war-torn Afghanistan’s festering wounds are unlikely to heal anytime soon. When my friend John and I recently met the Afghan Ambassador in the UK at his modest Ealing residence, seated in the shadow of twin photographs of the Lion of Panjsher and President Karzai (as he then was) but nevertheless pragmatically arguing the case for peace with the Taliban, H.E. Dr Yaar and his staff were emphatic that Afghan asylum seekers are mistreated by the British and European authorities but that no one is bothered by it. Dr Fazal, a veteran battlefield doctor and a mild-mannered leader of the Afghan community in the UK, who accompanied us to the meeting, concurred with H.E. Dr Yaar. Afghanistan’s stability is in everyone’s interest but that country’s future is looking exceedingly uncertain. The plight of Afghans seems just endless.
In this riveting case which paradigmatically demonstrates the difficult issues linked to asylum seeking in Europe, the Grand Chamber of the Strasbourg Court (ECtHR) held at para 122 that, in the absence of first obtaining “individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together”, returning the Afghan applicants concerned from Switzerland to Italy “would be a violation of Article 3 of the Convention.”
But before ever getting to Italy and Switzerland, the first applicant – Golajan Tarakhel – did what most Afghans do. He went to Pakistan (with which both H.E. Dr Yaar and Dr Fazal want improved ties) and married Maryam Habibi. They then went to live in Iran for fifteen years. The applicants’ marriage produced six children. At an unknown time, from Iran they went with their first five children to Turkey and took a boat to Italy where they were dealt with under EURODAC. After their true identity was established, they landed up in an asylum reception centre (Centro di Acoglienza per Richiedenti Asilo (CARA)) where the environment was violent, unsanitary and crowded.
So they went to Austria where they were registered under EURODAC and claimed asylum but their claim was rejected and Italy accepted responsibility. However, they moved on to Switzerland and claimed asylum but were unsuccessful. After their case was appealed and reconsidered through the Swiss system (which considered that the Italians needed to be given a chance to do their job), the ECtHR provided them with interim relief by indicating to Switzerland not to deport them to Italy for the duration of its proceedings.
The Grand Chamber’s Judgment
In its sprawling judgment, the ECtHR took note of Swiss domestic law, the Charter of Fundamental Rights, numerous instruments of secondary EU legislation as discussed in is own judgment in M.S.S. v. Belgium and Greece [GC], no. 30696/09, the decision of the Court of Justice of the European Union in N. S. v Secretary of State for the Home Department and Switzerland’s association with the Dublin system. In particular, the ECtHR observed that to facilitate improvements in the system the Dublin II Regulation was replaced by the Dublin III Regulation. The latter entered into force on 1 January 2014 and aims to ensure that families are kept together and pays particular attention to the needs of unaccompanied minors and other persons requiring special protection; especially as laid down in Articles 6 (Guarantees for minors), 31 (Exchange of relevant information before a transfer is carried out), 32 (Exchange of health data before a transfer is carried out) and 33 (A mechanism for early warning, preparedness and crisis management). The Court noted that notwithstanding the fact that the Swiss were not bound by 2003/9/EC (the Reception Directive), 2004/83/EC (the Qualification Directive) and 2005/85/EC (the Procedures Directive), the Swiss Federal Council had passed the Dublin III Regulation into law on 7 March 2014.
Asylum in Italy
The Court, at para 37 et seq, detailed the asylum procedure in Italy and observed that a claim can be made to the immigration department of the police headquarters (questura); that leave to remain is given while the claim is pending; the formal claim must be in writing; a claimant without valid entry is subjected to an identification procedure (fotosegnalamento) which involves photography/biometrics for comparison against EURODAC and the national database; a document (cedolino) evidences the application and sets out a timetable; the police use (and supply a certified copy to the claimant) a standard form to record the claim and claimants may append their account in their native language; thereafter the territorial commission concerned interviews the claimant, assisted by an interpreter, in the presence of a representative of the United Nations High Commissioner for Refugees (UNHCR).
The territorial commission has four options: to grant refugee status (renewable five-year residence permit, working rights, travel document, benefits, family reunification); not grant refugee status but subsidiary protection under the Qualification Directive (renewable three-year residence permit, working rights, travel document, benefits, family reunification); not grant subsidiary protection but grant a residence permit on compelling humanitarian grounds (one-year permit convertible into a residence permit, working rights, travel document, benefits); or not grant any form of protection and order the claimant to leave Italy within fifteen days.
Appeals to the District Court, the Court of Appeal and the Court of Cassation can respectively be made where international protection is refused: legal aid and representation are available. It is possible to withdraw an asylum claim by completing a form. On the other hand, where the person concerned moves out of the asylum seekers’ reception centre, departs for an unknown destination or leaves the country, there is no automatic assumption that the asylum application has been withdrawn. Failure to appear before the territorial commission means determination on the papers (generally rejection for “untraceability”) but a fresh interview can be requested and the procedure is reactivated once the claimant has been notified of the date of the interview.
Recalling that a detailed description of the legal framework and organisation of the reception system for asylum seekers in Italy was available at para 45 of Mohammed Hussein and Others v the Netherlands and Italy no. 27725/10, at para 46 of the instant judgment the ECtHR set out the Italian Government’s third-party observations that the country was trying to cope with the increase in the reception system for asylum seekers by investing to expand the Sistema di protezione per richiedenti asilo e rifugiati (SPRAR) – it was said that the reception capacity guaranteed at present is 9,630 third-country nationals but there are ongoing plans to further reinforce the SPRAR network by providing an effective capacity of 16,000 places by 2016.
The Court extracted at length the UNHCR recommendations of the important aspects of refugee protection in Italy (July 2013) which noted the deteriorating conditions in reception centers due to overcrowding in light of the North Africa Immigration Emergency. Increasingly concerned about the Italian Ministry of Interior’s struggle to improve the strained system because of lack of funding and management contracts being awarded to low-cost provision of services because of which “quality considerations” were neglected, the UNHCR inter alia observed that:
Free legal aid, foreseen by law in appeals, is not always guaranteed in practice in some tribunals. In Rome, the Bar Association continues to require that the appellant provides an income certificate, issued by the embassy of the relevant country of origin, despite the risks this could pose to the applicant and his or her family-members in the country of origin, and despite the fact that the law provides for free legal aid based on the applicant’s own declaration regarding his or her financial needs.
The Court also considered the report CommDH(2012)26 of 18 September 2012 by Nils Muižnieks, Commissioner for Human Rights of the Council of Europe, which was examined in Mohammed Hussein. The report underscored issues about the conditions in some of the reception centres which were located in prison-like premises and delays and a lack of transparency in the monitoring of these centres also caused concerns. The Commissioner was apprehensive about the situation in Italy and expressed reservations in relation to legal aid, adequate care and psychosocial assistance in the emergency reception centres, and other difficulties relating to the speedy identification of vulnerable persons and the preservation of family unity during transfers. The Commissioner observed a series of cases in different German administrative courts where Dublin transfers were suspended because of the risk of homelessness and a life below minimum subsistence standards. Similarly, applications alleging possible violations of Article 3 as a result of Dublin transfers to Italy were also being made to the ECtHR.
The Court also recalled the International Organization for Migration’s regret that more than 20,000 people have died in the past twenty years trying to reach the Italian coast and that there are large number of women and unaccompanied asylum seeking children among the more than 40,000 annual arrivals.
Case Law: Germany and UK
The ECtHR made note of the Frankfurt Administrative Court’s judgment of 9 July 2013 No. 7 K 560/11.F.A where it held that the shortage of places in Italian reception centres and the living conditions there would result in a breach of Article 3 ECHR if a 24-year-old Afghan asylum seeker were sent back from Germany to Italy.
The Court also drew motivation from the judgment in R (EM (Eritrea)) v SSHD  UKSC 12 where the UK Supreme Court (Lord Neuberger PSC, Lords Kerr, Carnwath, Toulson and Hodge JJSC, see here) recalled numerous Strasbourg authorities (Chahal v United Kingdom (1997) 23 EHRR 413 and Vilvarajah v United Kingdom (1991) 14 EHRR 248, Saadi v Italy (2009) 49 EHRR 30, Mohammed Hussein and Daytbegova v Austria Application no. 6198/12) and held that, irrespective of whether “systemic deficiencies” existed in the reception system for asylum seekers in Italy, the Court of Appeal should examine on a case-by-case basis the risk that appellants would be subjected to treatment contrary to the Convention if they were returned to Italy.
The Applicants’ Case
The applicants alleged that:
- If they were returned to Italy “in the absence of individual guarantees concerning their care”, they would be subjected to inhuman and degrading treatment linked to the existence of “systemic deficiencies” in the reception arrangements for asylum seekers in Italy.
- Their return to Italy, where they had no ties and did not speak the language, would be in breach of their right to respect for their family life.
- Relying on Article 13 ECHR read with Article 3, the applicants complained that the Swiss authorities had not given sufficient consideration to their personal circumstances and had not taken into account their situation as a family in the procedure for their return to Italy, which they considered to be unduly formalistic and automatic, not to say arbitrary.
In line with Aksu v Turkey [GC], nos. 4149/04 and 41029/04, Guerra and Others v Italy, Reports of Judgments and Decisions 1998-I; Halil Yüksel Akıncı v. Turkey, no. 39125/04), “as master of the characterisation to be given in law to the facts of the case”, at para 55 the Court thought it more suitable to examine the applicants’ complaint as regards reception conditions in Italy purely through the lens of Article 3 ECHR.
The applicants argued that the identification procedure was slow and caused homelessness. They complained about the capacity of the reception facilities and argued that large numbers of asylum seekers, including families with small children, were forced to live in insalubrious squats and other makeshift accommodation, or simply on the streets. As for living conditions in the available facilities, the applicants argued that no request for minimum guarantees appeared to have been made to Italy, whose authorities had not provided any assurances that them would be housed in decent conditions and not separated.
In relation to reception facilities’ capacity, referring to the Commissioner’s report and Mohammed Hussein (and copious allied case law), the Swiss submitted that 235 places were reserved in European Refugee Fund (ERF) financed facilities for persons facing return under the Dublin Regulation. Switzerland also asserted that over the period 2014–2016 the capacity of the SPRAR network (Sistema di protezione per richiedenti asilo e rifugiati) would be increased to 16,000 places. It was also said that no grounds existed for finding that the Reception Directive was being systematically violated in Italy.
Moreover, the Swiss were unaware of any “Dublin” States refusing returns to Italy as a general rule and that (unlike M.S.S.) neither UNHCR nor the Commissioner had sought leave to intervene in the present proceedings. Whilst it was submitted that the Italian authorities confirmed that the applicants would be accommodated in an ERF-financed centre in Bologna, Switzerland was unable to furnish any further particulars regarding the arrangements for transfer and the physical reception conditions envisaged by the Italian authorities.
Interesting points came to light in the observations made by the Italian, Dutch, Swedish, Norwegian and UK Governments and the organisations Defence for Children, the AIRE Centre, the European Council on Refugees and Exiles (ECRE) and Amnesty International.
As regards the slowness of the identification procedure, the Italians said that the average time taken to examine asylum applications had been 72 days in 2012 and 92 days in 2013. The reason for this was that since each asylum seeker’s interview with the territorial commission had to last at least one hour, each of the ten commissions could not, in practice, process more than ten applications a day. Like the Swiss, the remaining third-party interveners did not comment on the practicalities associated with this.
Italy described its asylum situation as “catastrophic”. Yet the Dutch, Swedish, Norwegian and UK Governments saw eye-to-eye with the Swiss Government and observed that unlike Greece, UNHCR had not called for transfers of certain vulnerable groups to Italy to be halted.
In particular, the UK was concerned that reports often failed to make a distinction between “asylum seekers”, “recognised refugees” and “failed asylum seekers” which was key because the Reception Directive applied only to asylum seekers, whose status was inherently temporary, while the Qualification Directive, which applied to refugees (and placed them on an equal footing with nationals in terms of access to employment, education and social welfare). Defence for Children agreed with the applicants that inadequate capacity generated particularly serious consequences for children, some of whom were forced to live in squats and other insalubrious accommodation.
Vis-à-vis living conditions in the available facilities, in line with Article 6 of the Dublin III Regulation (which came into force on 1 January 2014), Defence for Children stressed that “best interests of the child” (as defined by the Convention on the Rights of the Child of 20 November 1989) in cases like the present meant the social and emotional development of children should be a decisive factor in assessing their “best interests”. In that regard, Defence for Children requested the Court to prohibit the return of children to Italy because of the poor conditions for asylum seekers there. Moreover, the AIRE Centre, ECRE and Amnesty International also submitted that children should only be transferred to other Member States of the European Union if this was in their best interests.
Recapitulating its voluminous Article 3 case law on merits at para 93 et seq, in relation to the claim that there were “systemic” failures in Italy the ECtHR found that the authorities there now have all the information they needed and, despite the fact that the applicants had supplied a false identity to the police, it took the Italian authorities only ten days to identify the applicants on their arrival in Stignano.
Mindful that the methods used to calculate the number of asylum seekers without accommodation in Italy are disputed, the Court was nevertheless alarmed by the “glaring discrepancy” between the number of asylum applications made in 2013 (14,184) and the number of places available in the facilities belonging to the SPRAR network (9,630) where the applicants would be accommodated.
Equally, the Court observed that neither Switzerland nor Italy contended that the combined capacity of the SPRAR system and the CARAs would be capable of absorbing the greater part, still less the entire demand for accommodation.
In respect of living conditions in the available facilities, taking into account Italy’s denials regarding families of asylum seekers being systematically separated and its clarification that this occurred only in a few cases and for very short periods notably during the identification procedures, the ECtHR held that:
114. In view of the foregoing, the current situation in Italy can in no way be compared to the situation in Greece at the time of the M.S.S. judgment, cited above, where the Court noted in particular that there were fewer than 1,000 places in reception centres to accommodate tens of thousands of asylum seekers and that the conditions of the most extreme poverty described by the applicant existed on a large scale. Hence, the approach in the present case cannot be the same as in M.S.S.
115. While the structure and overall situation of the reception arrangements in Italy cannot therefore in themselves act as a bar to all removals of asylum seekers to that country, the data and information set out above nevertheless raise serious doubts as to the current capacities of the system. Accordingly, in the Court’s view, the possibility that a significant number of asylum seekers may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, cannot be dismissed as unfounded.
Reiterating that, as a “particularly underprivileged and vulnerable” population group, asylum seekers require “special protection and that requirement of “special protection” of asylum seekers is particularly important when the persons concerned are children, in view of their specific needs and their extreme vulnerability (even when, as in the instant case, the children seeking asylum are accompanied by their parents), the Court went on to hold that notwithstanding the distinction between Italy and Greece:
120. … the possibility that a significant number of asylum seekers removed to that country [Italy] 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.
The Court was also alive to Italy’s claims that its asylum system would guarantee the applicants accommodation, food, health care, Italian classes, referral to social services, legal advice, vocational training, apprenticeships and help in finding their own accommodation. But in the absence of any evidence (“detailed and reliable information concerning the specific facility, the physical reception conditions and the preservation of the family unit”, para 121) to back this claim up with further details on the specific conditions in which the authorities would take charge of the applicants, the Court reasoned that:
122. It follows that, were the applicants to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together, there would be a violation of Article 3 of the Convention.
Article 13 read with Article 3
In relation to the third argument, one which Switzerland contested, the Court analysed the scenario at para 120 et seq and – in light of the fact that the Swiss Federal Administrative Court has opposed the return of asylum seekers to “Dublin” States in some cases and normally undertakes a thorough examination of each individual situation and, as stressed by the Swiss Government, does not hesitate to invoke the “sovereignty clause” contained in Article 3(2) of the Dublin Regulation – held that:
132. It follows that the applicants had available to them an effective remedy in respect of their Article 3 complaint. Accordingly, their complaint under Article 13 of the Convention taken in conjunction with Article 3 must be rejected as manifestly ill-founded, in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
The Court held that Switzerland was to pay the applicants €7,000 in respect of costs and expenses.
In a separate opinion three out of seventeen judges expressed partial dissent with the majority of the judges of the Grand Chamber in their conclusion that Switzerland would be in breach of Article 3 ECHR if the applicants were to be returned to Italy in the absence of the Swiss authorities obtaining beforehand individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together.