Asylum applicants can be returned to Italy under Dublin regime, says Court of Appeal

In NA (Sudan) v The Secretary of State for the Home Department [2016] EWCA Civ 1060 (01 November 2016), the Court of Appeal had two appeals before it. The First Appellant was from Sudan and the Second Appellant from Iran. Both had come to the UK via Italy and claimed asylum in the UK. The First Appellant had already claimed and been granted refugee status in Italy. The Second Appellant did not claim asylum in Italy.

The issue raised was whether the Secretary of State could return them to Italy under the Dublin regime without considering their asylum claims, on the basis that the First Appellant already had protection there and that the Second Appellant was entitled to claim it.

Under the Dublin regime, very broadly, the principle is that asylum-seekers must claim asylum in the member state of the European Union in which they first arrive: if they move on to another member state without claiming asylum then they can be returned to the responsible member state.

The Appellants argued that the conditions encountered in Italy by asylum-seekers are so inadequate that there was a serious risk that they would suffer inhuman and degrading treatment and that their enforced return to Italy would accordingly constitute a breach of their rights under article 3 of the European Convention of Human Rights (“the Convention”) and be unlawful under section 6 of the Human Rights Act 1998.

These appeals form part of a long line of cases in which asylum-seekers, both in the UK and in other European countries, have resisted removal under the Dublin regime on the basis that conditions in the destination country are such that there is a risk of violation of their rights under article 3.

Dismissing both appeals, the Court found:

1. The ultimate question in any case is whether there is a real risk, having regard to the practical realities, that if the asylum-seeker is returned, his or her article 3 rights will be breached: the role of the presumption of compliance is to condition the assessment of that issue (para 140);
2. The starting-point remains that the expectation is that Italy would meet its obligations under the Convention unless the evidence demonstrates that there is a real risk that it will not (para 156);
3. The situation in Italy is not comparable to that in Greece and a general ban on returns to Italy cannot be justified (para 111);
4. The propositions adopted in Tarakhel are confined to cases of families with children and do not extend to cases of vulnerable persons generally; in Tarakhel it was held that the removal from Switzerland to Italy of a family of asylum-seekers, including six children, would be a breach of article 3 unless specific guarantees were obtained from the Italian authorities that they would be accommodated together and “in a manner adapted to the age of the children (para 114-115;168);
5. In determining whether there is a real risk on return the starting-point is that the First Appellant is peculiarly vulnerable. Accordingly, in accordance with established procedures, her return would be pre-notified to the Italian authorities, who would also (unless she maintains her refusal to consent) be provided in advance with her medical records (para 213)
6. It is most implausible that a peculiarly vulnerable person, returned in accordance with the procedures described above, and in all probability accompanied by a medical escort, would be offered no assistance by the airport NGOs;
7. There was no risk of a breach of her article 3 rights, having regard to the fact that the First Appellant’s return would have been pre-notified and that she was entitled to special consideration as a vulnerable person (para 215);
8. There would certainly normally be no arguable breach of article 3 in returning a person who is at risk of suicide as a result of mental illness to a country such as Italy where appropriate treatment is readily available (para 225).

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