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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 921
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ON APPEAL FROM THE ADMINISTRATIVE COURT
MR OCKELTON, SITTING AS A DEPUTY HIGH COURT JUDGE
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE ELIAS
LORD JUSTICE DAVIS
| AB (SUDAN)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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A Merrill Communications Company
165 Fleet Street, London EC4A 2DY
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Mr Alan Payne (instructed by Treasury Solicitors) for the Respondent
Crown Copyright ©
Lord Justice Jackson:
Part 1. Introduction,
Part 2. The facts,
Part 3. The present proceedings,
Part 4. The appeal to the Court of Appeal,
Part 5. The rules governing the grant of a stay,
Part 6. The law governing removals under the Dublin II Regulation,
Part 7. Decision.
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment".
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."
"The question of whether the matter should be stayed is to be considered as a preliminary point, however the parties should be ready to proceed with a substantive hearing if the application is refused…"
"27. A stay on proceedings may be associated with the grant of interim relief, but it is essentially different. In determining whether proceedings should be stayed, the concerns of the court itself have to be taken into the balance. Decisions as to listing, and decisions as to which cases are to be heard at any particular time are matters for the court itself and no party to a claim can demand that it be heard before or after any other claim. The court will want to deal with claims before it as expeditiously as is consistent with justice. But, on the other hand, it is unlikely to want to waste time and other valuable resources on an exercise that may well be pointless if conducted too soon. If, therefore, the court is shown that there will be, or there is likely to be, some event in the foreseeable future that may have an impact on the way a claim is decided, it may decide to stay proceedings in the claim until after that event. It may be more inclined to grant a stay if there is agreement between the parties. It may not need to grant a stay if the pattern of work shows that the matter will not come on for trial before the event in question. The starting point must, however, be that a claimant seeks expeditious determination of his claim and that delay will be ordered only if good reason is shown.
28. In cases where a request for a stay on proceedings is coupled, expressly or by necessary implication, with a request for interim relief, the court will need to take into account the factors relevant to both types of decision, and may need to take into account a third: that by securing interim relief and a stay, the applicant may be asking the court to use its powers to give him, for as long as he can secure it, a benefit that he may not obtain at the trial."
"1. Member States shall examine the application of any third-country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.
2. By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility."
"Finally, in the Court's view, the objective information before it on conditions of detention in Greece is of some concern, not least given Greece's obligations under Council Directive 2003/9/EC and Article 3 of the Convention. However, for substantially the same reasons, the Court finds that were any claims under the Convention to arise from these conditions, it should also be pursued first with the Greek domestic authorities and thereafter in an application to this Court."
"By contrast, if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision."
"61. This material gives a great deal of support to the accounts given by three of the claimants of their own experiences of seeking asylum in Italy. If the question were, as Ms Carss-Frisk submits it is, whether each of the four claimant faces a real risk of inhuman or degrading if returned to Italy, their claims would plainly be arguable and unable to be certified. But we are unable to accept that this is now that law. The decision of the CJEU in NS v United Kingdom has set a threshold in Dublin II and cognate return cases which exists nowhere else in refugee law. It requires the claimant to establish that there are in country of first arrival "systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers… [which] amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment… ."
62. In other words, the sole ground on which a second state is required to exercise its power under article 3(2) Regulation 343/2003 to entertain a re-application for asylum or humanitarian protection, and to refrain from returning the applicant to the state of first arrival, is that the source of risk to the applicant is a systemic deficiency, known to the former, in the latter's asylum or reception procedures. Short of this, even powerful evidence of individual risk is of no avail.
63. The totality of the evidence about Italy, although it is extremely troubling and far from uncritical, does not in our judgment come up to this mark. While undoubtedly at a number of points it either overtly alleges or powerfully suggests systemic failure, it is neither unanimously not compellingly directed to such a conclusion. At least equal, if not greater, weight has to be accorded to the far more sanguine – and more recent – UNCHR report, echoed as it is, albeit more faintly, by the Hammarberg report. While what amounts to a systemic deficiency must to a considerable degree be a matter of judgment, perhaps even of vocabulary, the evidence does not demonstrate that Italy's system for the reception of asylum seekers and refugees, despite its many shortcomings and casualties, is itself dysfunctional or deficient. This is so whether one focuses on the body of available reports on Italy or the comparative findings in MSS about Greece.
64. It has to follow that the four claims before the court, despite their supporting testimony of individual risk, are incapable of succeeding under article 3 on the present evidence, and that the Home Secretary is therefore justified in that respect in certifying them. The same necessarily applies to any distinct argument raised by AE and EH under article 8 by reference to the effect of conditions in Italy on their mental health."
"The appellants are refused permission to appeal to the Supreme Court [it should be for the Supreme Court to decide whether to grant permission to appeal, but this Court recognises it as problematic that NS and MSS may pull in different directions and that, whilst NS binds the Court, so does the EU principle of not undercutting ECHR rights such as those articulated in MSS]."
"78. Taking into account the reports drawn up by both governmental and non-governmental institutions and organisations on the reception schemes for asylum seekers in Italy, the Court considers that, while the general situation and living conditions in Italy of asylum seekers, accepted refugees and aliens who have been granted a residence permit for international protection or humanitarian purposes may disclose some shortcomings, it has not been shown to disclose a systemic failure to provide support or facilities catering for asylum seekers as members of a particularly vulnerable group of people, as was the case in M.S.S. v. Belgium and Greece (cited above). The reports drawn up by the UNCHR and the Commission for Human Rights refer to recent improvements intended to remedy some of the failings and all reports are unanimous in depicting a detailed structure of facilities and care to provide for the needs of asylum seekers 9 see paragraphs 43-49 above). The Court would also note the manner in which the applicant was treated upon her arrival in Italy in August 2007, in particular that her request for protection was processed within a matter of months and accommodation was made available to the applicant along with access to health care and other facilities. Against this background, the Court considers that the applicant has not shown that her future prospects if returned to Italy, whether taken from a material, physical or psychological perspective, disclose a sufficiently real and imminent risk of hardship severe enough to fall within the scope of Article 3 (see, inter alia, Ireland v United Kingdom, 18 January 1978 § 162, Series A no. 25; Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006 – IX; Haidn v Germany, no. 6587/04, § 105, 13 January 2011; and M.S.S, cited about, § 219). There is no basis on which it can be assumed that the applicant will not be able to benefit from the available resources in Italy or that, if she encountered difficulties, the Italian authorities would not respond in an appropriate manner to any request for further assistance."
"66. The Court firstly notes that the applicants never applied for asylum in Italy. They therefore do not have any first-hand experience of being hindered in lodging an asylum request or of finding any other obstacles to access thorough asylum proceedings on the merits of their claims. The Court therefore turns to the general information available to it on the legal and practical situation of the asylum procedure in Italy, and refers first and foremost to the Italian Government's observation that the applicants will be able to lodge formal asylum applications with the competent authorities in Italy on their return there (see paragraph 51 and additional information on the Italian asylum procedure in paragraphs 33 and 34 above). While not disregarding the criticism raised in various reports concerning factual obstacles to the lodging of asylum applications in Italy (see paragraph 35 above), the Court finds that the information available does not point to the conclusion that those singular incidents amount to such a systemic failure as was the case in M.S.S. v Belgium and Greece (cited above, § 300). The same applies as regards the reports concerning the shortcomings of the general situation and living conditions for asylum seekers in Italy (see for the reports Mohammed Hussein, cited above, §§ 43-44, 46 and 49). Therefore, the Court establishes that there is no indication in the applicants' submissions or deriving from the general information available that the applicants would not be able to access sufficiently thorough asylum proceedings upon their arrival in Italy or that the reception schemes failed in such a way to provide support or facilities for asylum seekers as members of a particularly vulnerable group of people (see also ibid., § 78).
67. Turning to the undoubtedly severe psychological health issues of the second applicant, the Court notes that a particularly well planned reception might be necessary upon the second applicant's return to Italy, including access to adequate housing and medical and psychological care.
68. The Court observes that in general the Italian reception system provides access to health care, including psychological care, for all aliens, whether they have leave to remain or not (see paragraphs 37 and 38 above). The Italian Government's observations also indicate that the Italian authorities are aware of the second applicant's considerable mental health problems. The Court therefore concludes that the Italian authorities consider that the applicants, as a group of vulnerable persons within the meaning of Article 8 of Legislative Decree no. 140/2005 (see paragraph 37 above), will be eligible for special consideration as regards access to housing and psychological and medical care. Furthermore, the Italian authorities emphasised in their comments on the report of the Council of Europe Commissioner for Human Rights that, when the transferring country reported a particular vulnerability of a Dublin-returner, appropriate medical measures were taken. Special attention was paid to aliens with physical and psychological trauma, who were entrusted to the medical stations of the reception centres or at local level to receive treatment and support in a professional and appropriate way (ibid.).
69. The Court thus considers that the Italian authorities are already aware of the applicants' particular vulnerability and need for special assistance. It further trusts that the Austrian authorities will, in the event the applicants are removed to Italy, provide the Italian authorities with all the most recent medical and psychological documentation available to them, to ensure that the applicants are adequately and appropriately received there. Under these circumstances, the Court finds that there is no basis on which it can be assumed that the applicants will not be able to benefit from the available resources in Italy or that, if they encounter difficulties, the Italian authorities will not respond in an appropriate manner to any request for further assistance (see for comparison Mohammed Hussein, cited above, § 78)."
Lord Justice Davis:
"Whether the issue of systemic breakdown is treated as a condition precedent or not the evidence is not there."
His approach in this regard also has, in the result, further endorsement in the two subsequent cases in the European Court of Human Rights referred to by Jackson LJ. As to the exercise of the judge's discretion to decline to stay the proceedings, whether or not permission to appeal in EM was granted, overall I can see no error justifying intervention by this court.
Lord Justice Elias: