UK - The Queen on the application of MS, NA, SG - and - The Secretary of State for the Home Department, [2015] EWHC 1095, 22 April 2015

Facts:

The three Claimants have applied for asylum in the United Kingdom. Before arriving there they all spent some time in Italy, where two of them first applied for international protection. NA was granted refugee status, and MS was granted leave to remain for humanitarian reasons. SG did not claim asylum in Italy.

MS, an Afghani national born in 1970, left Afghanistan in 2010 after being subjected to threats and beating by the Taliban. He arrived in Italy in late 2010. Upon arriving in Rome, MS went to a Police Station where he was granted permit to stay, valid for one month. During that time he was sleeping in overcrowded tents near a train station, and became ill. He, then, moved to a camp near Rome, used to accommodate asylum seekers, where he claimed asylum and was fingerprinted, but was told he could not be accommodated there for a week. He spent that week living on the streets and eating from bins. After that he returned to the camp, where he was provided with clothing, food and accommodation, which consisted of 5 beds in a container. He later moved to another camp where he was allocated a room, shared with two others, and had his own bed and blanket.

On 19 July 2011 MS was granted humanitarian protection. He was provided with a residence permit, valid for a year, and an Identity Card. After leaving the camp, however, he began to feel ill and suffer panic attacks. The GP he approached would not provide him with the letter necessary for him to receive medical treatment at the hospital. As a result, he was unable to find work and became ill. He ended up sleeping on the streets and underneath a bridge, eating food from bins. At one stage, he attempted to commit suicide by stepping in front of a car. He then decided to leave Italy with the assistance of a man who was entitled to live and work in the UK. They travelled by train to Calais in France, and from there MS travelled to the UK.

Upon arrival to the UK MS was arrested and claimed asylum in the UK. On 18 April 2013 he was placed in immigration detention. Following confirmation that he had been fingerprinted in Italy, he withdrew his asylum claim. On 21 May 2013, the Italian authorities formally accepted responsibility for MS, requesting, in particular, to receive any relevant information about his health – both physical and psychical – as well as about any disability or delicate situation which can entail considerable reception problems. They also requested a detailed medical certification with reference to his fitness to travel. On the same date, the UK authorities decided to return MS to Italy and directions for his removal were issued on 6 June 2013.

On 5 June 2013, after obtaining a medical-psychological report, certifying that he is suffering from a severe depressive disorder and panic attacks, MS issued a claim for judicial review. On 5 June 2013, the removal directions set for the 6 June 2013 were cancelled. Permission to apply for judicial review was granted and MS was not returned to Italy. A fresh decision, however, was served on him on 6 March 2015. According to it, the UK Visas and Immigration concluded that the evidence and claims advanced did not rebut the presumption that Italy is in compliance with the requirements of the EU Charter, the Geneva Convention and the ECHR, and certified MS's claims as clearly unfounded. That is the decision under challenge at this stage. Amended grounds of judicial review were filed on 13 March 2015, challenging the decision to certify the claim as clearly unfounded, on account of the reception facilities available on return in Italy, or of the suffering that return would cause in the form of exacerbation of MS’s mental health condition and the risk of self-harm or suicide.

NA was born in Darfur in Sudan on 13 March 1979. She is a member of an ethnic minority group, the Zaghawa. In 2003, she was beaten, burnt, and raped by militia from another ethnic group. Following further violence against members of her ethnic group in 2008, she went to a refugee camp and, in 2010, ultimately managed to reach Libya. She left Libya in April 2011 and arrived at Lampedusa, Italy, by the end of the same month. Upon her arrival, she was taken by Police, accommodated for a few days, and fingerprinted, before being taken to Manduria and Campobasso, where she stayed in tents. On occasions there was little to no food provided. On 11 May 2011, NA's claim for asylum was registered. After a few months, she was taken to Cassa Calenga. The rooms there were small and there were two persons to a room sharing a double bed.

The Italian authorities recognised NA as a refugee on 6 October 2011, and on 24 January 2012 she was issued with a residence permit valid for five years. In late February 2013, NA had to leave Cassa Calenga. For fifteen days, she slept in a train station or outside a church and was raped twice during that time. She was also subjected to sexual assaults. However, when she sought Police assistance she was refused help. On 22 March 2013 she arrived in the UK and claimed asylum on the same day.

According to her medical information, NA suffers from diabetes and high blood pressure. Psychiatric reports indicate that she is also suffering from post traumatic stress disorder and severe depressive disorder without psychotic features. She appears to be convinced that she would be at great risk of further harm if returned to either Sudan or Italy, and her previous experience of sexual trauma is a strong predictor of future victimisation. Risk of suicide or serious self-inflicted harm is, also, likely to increase to a high level during the removal process or when back in Italy. There is also a report indicating that NA may have been the victim of torture. In her witness statement dated 11 February 2015 NA stated that she will not agree to her medical information being passed to the Italian authorities, since she does not believe that they wish to assist her.

On 30 April 2013, the UK authorities asked the Italian authorities to accept responsibility for NA. On 17 May 2013, the latter confirmed that NA had, in fact, already been granted asylum in Italy. NA’s asylum claim in the UK was, subsequently, certified on 20 May 2013 as clearly unfounded. On 6 June 2013, the Defendant issued directions for NA's removal. She claimed that return to Italy would breach her human rights – a claim certified as clearly unfounded on 10 June 2013. Judicial review proceedings were commenced. A decision, contained in a letter dated 4 February 2015 and again by letter dated 6 March 2015, concluded that treatment would be available for NA in Italy as it is for Italian citizens, and thus she had not rebutted the presumption that Italy would treat her in accordance with the requirements of the EU Charter, the Geneva Convention on Refugees and the ECHR. In addition, even if she continued to refuse consent to share her medical records, she would, nevertheless, be accompanied by a medical escort during removal and offered a medical assessment on arrival. Amended grounds of judicial review were filed on 13 March 2015, challenging that decision on account of the reception facilities available in Italy and what is described as NA’s extreme vulnerability and personal history. The Claimant's solicitors also maintained that the risk of self-harm or suicide before, during, and after removal could not be managed.

SG is an Eritrean national, born in 1991. She married in 2010. Her husband was performing compulsory military service. In May 2013 army officials came to her home seeking to know the whereabouts of her husband who, they alleged, had deserted from the army. Shortly afterwards, SG left Eritrea fearing that she would be arrested by army personnel. She travelled to Libya where she was arrested and detained in a prison. During her imprisonment she was raped on numerous occasions by guards (approximately 10 times) and subjected to sexual assaults. She was released in August 2013 and in September 2013 she left Libya by boat.

Her boat was intercepted by the Italian authorities and taken to Italy (probably Sicily). SG was fingerprinted but did not claim asylum, and is not recorded as an asylum seeker in Italy. After spending one night at a Police Station, she travelled by bus to Catania where she spent two weeks sleeping under a bridge and receiving one meal a day from a local church. She was raped on three different occasions by three different men. From Catania, SG moved to Rome and lived with others in an abandoned building. She received food from charity organisations or non-governmental bodies. She stayed in Rome for two weeks before travelling to France, where she spent two months but did not claim asylum there either. She then travelled inside a lorry to the United Kingdom.

According to the Home Office, SG was met by Police on 23 December 2013 in Kent, and was detained. She claimed asylum in the UK, but the UK authorities considered Italy to be responsible for assessing her claim. On around 9 January 2014, the Italian authorities were formally requested to accept that responsibility, and did so on 11 February 2014. In doing so, they asked to be informed in advance about any particular health situation – both physical and psychological – and any disability or delicate situation which can entail considerable reception problems, as well as a specific reference to her fitness to travel. In February 2014, the Defendant certified SG’s asylum claim as clearly unfounded as she could be returned to a safe third country. Subsequently, SG brought a claim for judicial review on 27 February 2014. She has not been removed to Italy.

According to several medical and psychiatric reports SG is suffering from chronic post traumatic stress disorder and depression. If returned to Libya or Italy there could be a significant risk of exacerbation of her symptoms or suicide. Having been raped, SG has now also been diagnosed as HIV positive.

The UK authorities rejected the claim that removal to Italy would result in a breach of Article 3 ECHR, and certified it as clearly unfounded in a letter dated 27 October 2014. The matter was considered again and a further decision letter, dated 6 March 2015, was sent. The letter considered that her mental health and medical needs can be adequately met in Italy and thus she has failed to rebut the presumption that Italy would treat her in accordance with the requirements of the EU Charter, the Geneva Convention on Refugees and the ECHR. Amended grounds of judicial review were filed on 13 March 2015 challenging the decision to certify the claim as clearly unfounded, having regard to the reception facilities available on return in Italy and what is described as her extreme vulnerability and personal history. The Claimant's solicitors also maintained that the risk of self-harm or suicide before, during, and after removal could not be managed.

As regards the provision of reception facilities for asylum seekers and integration projects for BIPs in Italy, no centralised system is in operation. Instead, the system in place includes Reception Centres for Asylum-seekers – ‘CARAs’ – intended to provide accommodation for a period of up to 35 days (many asylum-seekers remain for much longer periods whilst their application for asylum is considered), and Facilities that are part of the System for Protection for Asylum-seekers and Refugees – ‘SPRARs’ –  providing integration facilities. Accommodation within SPRARs is provided for up to six months and may be extended for a further six months, if a person is identified as vulnerable. MS and NA would be eligible for accommodation in a SPRAR facility, while SG could be sent to a CARA or a Centre for Identification and Expulsion. Furthermore, Italian legislation provides that asylum-seekers are entitled to health care – including mental health care – while special care is exhibited for migrants with physical or psychological traumas, and the victims of torture. BIPs have access to health care, welfare benefits, and long term housing on the same terms as Italian nationals.

Decision & reasoning:

The Court observed, first, that its role in this case is to perform the judicial review of the Defendant’s decision to certify the human rights claims presented before it as clearly unfounded. In order to do so, however, it would have to go into the substance of the case and examine the claims, performing the same exercise as that carried out by the decision-maker. As observed by the Supreme Court in ZT (Kosovo) v Secretary of State for the Home Department, this is a rationality challenge: if the Court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the Court will necessarily conclude that the Secretary of State’s view was irrational.

To proceed with its assessment, after considering the relevant CJEU and ECtHR case  law, the Court adopted the position advanced by the UK Supreme Court in EM (Eritrea), which essentially applies the legal test identified in Soering v United Kingdom. That is, Member States are generally presumed to be complying with their obligations under EU and International law, but that presumption can be rebutted when there is sufficient evidence of substantial operational difficulties in the receiving state or when the individual facts of the case, viewed against the overall situation (even if that situation did not rebut the presumption in all cases), still allow substantial grounds for believing that there would be a real risk of inhumane treatment on return.

As regards the overall reception and integration system in place for asylum seekers and BIPs, the Court first considered domestic and ECtHR case law examining the relevant conditions in Italy. According to the Tabrizagh judgement of 2014 the evidential presumption that Italy would comply with its obligations if asylum seekers and BIPs were returned there is not rebutted, while in Tarakhel Strasbourg concluded that the situation in Italy generally was not comparable to that in Greece, where returns have been halted following the M.S.S. decision. Against that backdrop, it found that the evidence produced by the Claimants concerning the shortage of places available for their accommodation upon return to Italy were not sufficient or particularly convincing, taking into account, among others, Country Reports by the UNHCR and Amnesty International. Moreover, the Court decided that, given the “well planned approach” adopted by the Italian authorities, requesting prior notification for any medical issues affecting the Claimant's reception needs, no need for the provision of further assurances arose in this particular case.

As regards the individual situation of each Claimant, the Court concluded that upon arrival they would all receive adequate medical treatment for both their physical and psychological conditions, especially considering that they are in fact eligible to be accommodated in a SPRAR or CARA centre – a fact which also reduces the risk of re-victimisation. In the case of NA and her refusal to consent to the provision of her medical information to the Italian authorities, the Court found her capable of making such decisions, and observed that any consequences flowing from them will be her responsibility and will not involve any breach on the part of the United Kingdom authorities of their international obligations. In summary, the Court found no substantial grounds for believing that there is a real risk that the conditions in Italy would be such as to amount to a breach of Article 3 ECHR for any of the Claimants, attention being paid to their individual circumstances.

Last but not least, the Court considered the risk of suicide prior to and upon removal. In that regard, it observed that the United Kingdom authorities have a positive obligation to take reasonable measures to protect all three Claimants against the risk of suicide upon being informed of their removal, and during said removal. The decision letters already address these issues. Furthermore, the Claimants will each be carefully monitored until they leave for the flight, and provided with appropriately trained and experienced medical escorts to the airport, at the airport, and during the flight. These escorts will accompany them to the Italian authorities upon arrival in Italy. No real risk of a breach of Article 3 ECHR would, thus, arise out of a risk of suicide prior to or during removal.

In summary, the Court found that there is no legitimate basis upon which a tribunal properly directing itself could conclude that the evidential presumption that the Italian authorities would comply with their obligations under EU and International law has been rebutted, and no legitimate basis upon which a tribunal could conclude that, considering the individual situation of each Claimant against the overall situation in Italy, there are substantial grounds for believing that there is a real risk of a breach of Article 3 ECHR in respect of any one of them. In those circumstances, the Defendant acted lawfully in certifying each of the Claimants’ human rights claims as clearly unfounded.

Outcome:

The claims for judicial review were dismissed.

Subsequent proceedings:

Case is currently pending before the Court of Appeal.

Observations/comments: