Presidential Guidance on Dublin Cases

R (Weldegaber) v Secretary of State for the Home Department (Dublin Returns – Italy) IJR [2015] UKUT 70 (IAC) (12 Feb 2015)

Yosief Weldegaber, the applicant for judicial review was a 31-year old Eritrean national. His removal was stayed by the tribunal in December 2014. McCloskey J described this Dublin Regulation case as having “something of a history”. Weldegaber asserted that he was forced to flee his country. He said that he was studying to be a priest but was reprimanded by the Eritrean state and was subsequently detained by the Ethiopian authorities. He fled to Sudan, landed up in Italy, then proceeded to Holland, was returned to Italy but ultimately managed to enter the UK in March 2009 and of course claimed asylum. His presence in the UK dated back to March 2009. He said that he stayed a week on each occasion that he was in Italy where the authorities gave him no support, assistance, accommodation or food. In his judgment, among other things, McCloskey J comprehensively rejected the submission that the decision in Tabrizagh [2014] EWHC 1914 (Admin) required reassessment in light of the ECtHR’s recent decision in Tarakhel v Switzerland [2014] ECHR 1185 (see here).

The president thought that there is nothing in the Strasbourg judgment which calls into question the decision of the Administrative Court in Tabrizagh. Tarakhel was tipped to be the coming of the end of the Common European Asylum System. Different people called it different things. But along with AI [2015] EWHC 244 (Admin), Weldegaber’s case confirms that it is proving hard for asylum-seekers to benefit from Tarakhel. In her detailed judgment in AI, involving a non-Arab Darfuri (of Tunjur ethnic origin) national of Sudan whose asylum claim in France was refused but who travelled to the UK and claimed asylum again, sitting as deputy judge Ms D Gill held at para 85 that Mr Husain QC had “misconstrued” Tarakhel. She also interestingly remarked at para 77 that some of his submissions were “misconceived.”

Context

In Weldegaber’s case, the Home Office had voluntarily withdrawn and remade its decision of July 2014 which rejected the argument that his removal to Italy would infringe his rights under article 3 ECHR. The decision had a threefold effect. First of all, it declared Weldegaber’s evidence did not match his claim that there would be serious operational difficulties in the asylum procedure in Italy amounting to substantial grounds for believing that he would face a real risk of being subjected to inhuman or degrading treatment. Secondly, it said that the evidence and claims advanced by him did not come close to rebutting the presumption that Italy will treat him in compliance with the requirements of the EU Charter, the Geneva Convention and the ECHR.

Furthermore, the decision certified Weldegaber’s human rights claim as clearly unfounded within the meaning of paragraph 5(4) of Schedule 3 (removal of asylum seeker to safe country) to the Asylum and Immigration (Treatment of Claimants) Act 2004. The July 2014 decision was supplemented by a decision taken in January 2015. The latter decision was instigated by Weldegaber’s representations which complained about asylum procedures and reception conditions in Italy. Both decisions were under attack.

However, the Home Office thought that the evidence tendered failed to establish any systemic failings in the asylum system in Italy. Accordingly, there was no serious risk that Weldegaber would be exposed to treatment contrary to article 3 if he was forced to return to Italy.

Decision

McCloskey J reminded us that cases such as Yogathas [2002] 3 WLR 1276 and L [2003] EWCA Civ 25 clarify that only the weakest human rights claims should be certified and as held in EM (Eritrea) [2014] UKSC 12 the case must be evaluated at its reasonable zenith. He also drew parallels with his own recent decision in NMA where, formulating the correct approach for an application for permission, he held that:

4. … the test is whether it is arguable that there is a reasonable doubt as to whether the Claimant’s substantive human rights claim may succeed.

In NMA, permission for judicial review was granted because of the individuality – turning on evidential factors such as the applicant’s gender, background, past experiences, psychological condition and personal vulnerabilities – of that particular challenge. That claim was constructed upon pieces of evidence about conditions in Italy not examined in Tabrizagh and McCloskey J remained conscious of the Supreme Court’s para 70 guidance in EM (Eritrea) that “the claimant’s personal circumstances, including his or her previous experience” needed to be considered in addition to the general situation in the country of proposed destination.

Weldegaber’s evidence relating to conditions in Italy included an Italian lawyer’s (Ms Leo) report from March 2012. According to her, he was at real risk of homelessness and would be without care or assistance of any kind and his life would therefore be reduced to “a grave situation of social marginality”. Other evidence from UNCHR, MSF and Human Rights Watch was used to try to corroborate Ms Leo’s report. Weldegaber complained that the decision letter was formulaic and failed to take the evidence on board and was superficial and perfunctory.

Weldegaber submitted that the decision in Tabrizagh required reassessment, in light of the decision in Tarakhel and argued that the challenged decisions conceivably breached article 3 because no assurance was provided that appropriate accommodation – i.e. “a named bed” – will be available to him upon his return to Italy. The argument was resisted on the basis that Tarakhel is extremely fact specific and is not a free-for-all. It did not aid an adult male like Weldegaber because he had failed to demonstrate any personal or particular vulnerability by way of evidence.

Tarakhel turned on the extreme vulnerability of the six children concerned, aged from two to fifteen years (and in that judgment the Strasbourg court remained alive to the special vulnerability theme in its decision in MSS v Belgium and Greece [2011] ECHR 108). Lack of independence, vulnerability and asylum-seeker status lay at the heart of the court’s rationale and it reasoned that it would be impermissible to remove some asylum applicants to Italy where the article 3 threshold was met and substantial grounds existed for believing that the removed person would be exposed to a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the host country. Thus, the sending state had a duty to obtain appropriate information and assurances from the receiving state because a thorough and individualised examination of the situation of the asylum-seeker concerned was appropriate.

The report of the Swiss Refugee Council (SRC) featured in both the Tarakhel and Tabrizagh judgments. In the latter case, Laing J observed that the SRC report accepted that “many key numbers are missing” and she endorsed Kenneth Parker J’s first instance analysis in EM (Eritrea) [2012] EWHC 1799 (Admin) that because of the rapid fluctuations on the ground statistical exercises aimed at establishing capacity versus demand are futile. Laing J ultimately preferred the UNCHR’s reports and her Ladyship said this:

99. The SRC report concedes that in terms of access to asylum procedures, Italy cannot be compared with Greece. However, it concludes that there are “systemic deficiencies” in relation to reception conditions for asylum seekers and BIPs. This implies that, in this respect, Italy can be compared with Greece. That is wrong. The SRC report says that Italy is in breach of its obligations arising out of the EU asylum acquis, particularly the Reception Conditions Directive and the Qualification Directive. The FTT would be bound to consider this conclusion problematic. The reference to “systemic deficiencies” is an apparently deliberate echo of the words used by the ECtHR and the CJEU (as is the implicit comparison with Greece in respect of reception conditions). But it is a conclusion which cannot, on any view, be justified by the material in the report, which discloses some failings, but nothing on the sort of scale which would entitle an objective observer to declare that Italy was breaching its obligations on a widespread scale.

The Tarakhel family relied on the SRC report and McCloskey J held at para 13 that, unlike Laing J, the ECtHR failed to “undertake a detailed critique of the SRC report.” Similarly, despite its observation that the methods used to calculate the number of asylum-seekers without accommodation in Italy were controversial, the ECtHR did not undertake a meticulous comparative evaluative exercise such as the one conducted by Laing J in Tabrizagh. The ECtHR did not address the point that the SRC report itself accepted that many key numbers were missing. However, it did not endorse the report and mentioned it in neutral terms. Although the court did not debate the accuracy of the available figures, it ultimately concluded that the situation in Italy was in no way comparable to the situation in Greece at the time of the MSS judgment and categorically said that its approach in Tarakhel was different.

McCloskey J rejected the submission that the decision in Tabrizagh required reassessment in light of the decision in Tarakhel and, mindful of his duty under section 2(1) of the Human Rights Act 1998, he held that:

14. In my view, the national Court in Tabrizagh and the ECtHR in Tarakhel carried out different exercises. That performed by the former was more intense, more penetrating. That performed by the latter belonged to a higher, more general level. I can find nothing in the Strasbourg judgment which calls into question the evaluation of the SRC report by the Administrative Court in Tabrizagh.

McCloskey J similarly rejected the second argument that the two decisions in relation to Weldegaber were flawed because no specific guarantee about the provision of a “named bed” had been secured from the Italian authorities. He reiterated that Tarakhel was “inextricably bound up with its highly fact sensitive context” and he held that “it cannot be plausibly argued that the ECtHR was purporting to promulgate a general rule or principle that this kind of assurance must be secured in every case.” Even if Weldegaber did not immediately get a named bed, this did not automatically mean that the article 3 threshold of a serious risk of inhuman or degrading treatment had been met.

For McCloskey J, there were strong reasons to presume that Italy would comply with its international obligations and the challenge to the second decision was unsustainable because it was clear that the Italian authorities would be informed of his arrival beforehand and they would guide him through the asylum process. Weldegaber would be able to access health care in Italy and that country would adhere to the requirements laid down in the Reception Directive, i.e. Council Directive 2003/9/EC, and he had failed to rebut by way of evidence the presumption that Italy would comply with its international obligations.

Therefore, the UK’s failure to secure the assurance of accommodation from Italy’s authorities was neither here nor there in the instant case. Weldegaber’s criticisms of the two decisions were far flung and his legal case failed to appreciate decisions such as Begum [2006] UKHL 15 and Miss Behavin’ Ltd Ltd [2007] UKHL 19 that clarify that judicial focus in human rights cases, is aimed to the outcome of the decision making process in question, rather than the process itself. The renewed application for judicial review was therefore dismissed because no arguable case had been shown.

Guidance

In light of his conclusions, McCloskey J provided the following guidance:

(1) Dublin cases require the Home Office to undertake a thorough and individuated examination of the situation and circumstances of the person concerned.

(2) In Tarakhel, the ECtHR was not purporting to promulgate a general rule or principle that a sending state is required to secure specific assurances from the destination state as to accommodation or the like.

(3) In light of the considerable body of relevant background country information considered by the Home Office, it was open to it to find that there was neither systemic deficiency nor serious operational failure in the conditions prevailing in Italy for the reception, processing and treatment of asylum-seekers.

Comment

th-88Clearly, the bad news for asylum claimants who seek to have their asylum applications examined in the UK is that Weldegaber and AI demonstrate that the UK judiciary is clear that Tarakhel is not of general application and remains particular to its own facts.

This will certainly disappoint Costello and Mouzourakis who, in the wake of the Tarakhel ruling, strongly argued for “a fundamental rethink of the Dublin Regulation” and called for an end to the “coercive web of Dublin” so that the actual assessment of asylum claims and recognition of refugees could take precedence over the wasted energy that goes into resisting Dublin removals.

It is apt to recall the analogy that the Tarakhel judgment acts like a traffic light creating “an intermediate category of cases in which national administrations must proceed with caution”, but one that would inevitably impose further costs on an already expensive and inefficient system. Following Weldegaber and AI, it seems that the light will mostly be green. Indeed, in the latter case, Ms D Gill held at para 86 that she could not accept arguments which “would drive a coach and horses through the Dublin Regulation” because its “whole purpose … is to set the criteria which determine the Member State that is responsible for considering the substantive asylum claim of an individual and to permit removal to that Member State by another Member State without substantive consideration.”

It therefore appears that, in most respects, judges are quite reluctant to accept the game-changing terms in which the Tarakhel judgment has been presented to them by refugee lawyers.

About mkp

Advocate High Courts of Pakistan
This entry was posted in Article 3, Asylum, CFR, Human Rights Act and tagged , , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s