Reassessing Asylum Returns: The Impact of EM v. Secretary of State for the Home Department on Systemic Deficiencies in Asylum Procedures

Introduction

The case of EM (Eritrea) v. Secretary of State for the Home Department ([2014] 2 WLR 409) represents a pivotal moment in UK immigration law, particularly concerning the Dublin II Regulation's application to asylum seekers and refugees. This case examined whether the removal of asylum seekers or refugees from the United Kingdom (UK) to Italy—the country where they first sought or were granted asylum—required demonstrating systemic deficiencies in Italy's asylum procedures and reception conditions that could lead to inhuman or degrading treatment under Article 3 of the European Convention on Human Rights (ECHR).

The appellants, including UNHCR as an intervener, challenged the Home Secretary's certification of their claims as "clearly unfounded," arguing that their potential return to Italy posed significant risks to their fundamental rights.

Summary of the Judgment

The United Kingdom Supreme Court reviewed the Court of Appeal's decision, which had held that only systemic deficiencies in Italy's asylum procedures and reception conditions could prevent the enforced return of asylum seekers or refugees under Dublin II. The Supreme Court disagreed, emphasizing that the critical test remains the presence of a real risk of inhuman or degrading treatment, irrespective of whether this risk arises from systemic deficiencies.

The Supreme Court concluded that the requirement for systemic deficiencies as the basis to challenge enforced returns under Dublin II was overly restrictive. Instead, the Court reaffirmed the need to focus on whether the individual applicant would face a genuine risk of violating their Article 3 rights if returned, regardless of whether this risk stems from systemic issues.

Consequently, the Supreme Court remitted all four cases back to the Administrative Court for a re-examination of the evidence to determine if a real risk of Article 3 violation existed for each appellant.

Analysis

Precedents Cited

The judgment extensively referenced key precedents that shaped the court's reasoning:

Soering v United Kingdom (1989): Established that extradition or removal could contravene Article 3 of the ECHR if there is a real risk of inhuman or degrading treatment.
KRS v United Kingdom (2009): Highlighted the importance of assessing systemic compliance with international obligations in asylum procedures.
MSS v Belgium and Greece (2011) and NS (Afghanistan) v Secretary of State (2013): Emphasized systemic deficiencies in asylum procedures as a basis for violating Article 3 rights upon return.
Chahal v United Kingdom (1997) and Vilvarajah v United Kingdom (1991): Reinforced the need for rigorous assessments of receiving countries' conditions in asylum cases.

These cases collectively underscore the judiciary's stance on protecting individuals from potential human rights violations resulting from international transfers under the Dublin Regulation.

Legal Reasoning

The Supreme Court's legal reasoning centered on interpreting the Dublin II Regulation in light of the European Convention on Human Rights and the Court of Justice of the European Union (CJEU) decisions, particularly the NS (Afghanistan) case. The key points include:

Systemic vs. Operational Deficiencies: The Court distinguished between inherent systemic deficiencies and operational problems. While the Court of Appeal had emphasized systemic deficiencies as a prerequisite for challenging removals, the Supreme Court argued that operational issues could also lead to Article 3 violations without necessarily pointing to systemic failures.
Presumption of Compliance: A fundamental presumption exists that member states comply with their international obligations. However, this presumption is rebuttable based on concrete evidence of risks to fundamental rights.
Role of UNHCR: The Court acknowledged the authoritative role of the United Nations High Commissioner for Refugees (UNHCR) in assessing and reporting on asylum conditions, which should be given significant weight in judicial considerations.
Impact of CJEU's NS Decision: The CJEU's interpretation introduced a stringent threshold for demonstrating risks, which the Supreme Court found overly restrictive and not fully aligned with the broader protective objectives of asylum law.

The Supreme Court emphasized that the focus should remain on the individual's risk of Article 3 violations, rather than strictly on systemic deficiencies, thereby broadening the scope for protecting asylum seekers and refugees.

Impact

The judgment has profound implications for future asylum cases and the application of the Dublin II Regulation:

Broadened Scope for Protection: By removing the strict requirement of systemic deficiencies, the decision allows for a more flexible and case-by-case assessment of risks to asylum seekers and refugees.
Enhanced Judicial Oversight: Courts are empowered to consider a wider array of evidence regarding the treatment of individuals in receiving countries, ensuring better protection of fundamental rights.
Increased Responsibility on Member States: Countries within the EU are reminded of their obligations under the ECHR and the need to uphold fundamental rights in their asylum procedures and reception conditions.
Strengthened Role of UNHCR: The authoritative assessments by UNHCR will continue to play a crucial role in judicial decisions, providing reliable data and expert opinions on asylum conditions.

Overall, the decision reinforces the judicial system's role in safeguarding human rights within the framework of international and EU law.

Complex Concepts Simplified

Dublin II Regulation

The Dublin II Regulation determines which EU member state is responsible for processing an asylum seeker’s application. Typically, it's the country where the asylum seeker first entered the EU. This prevents individuals from applying for asylum in multiple countries to find the most favorable conditions.

Article 3 of the ECHR

Article 3 prohibits torture and inhuman or degrading treatment or punishment. In the context of asylum, it ensures that individuals are not returned to countries where they would face severe human rights violations.

Systemic Deficiencies vs. Operational Problems

Systemic Deficiencies: These are inherent weaknesses or failures within a country's asylum system that consistently lead to human rights violations.

Operational Problems: These are practical issues or isolated incidents that may result in human rights violations but do not necessarily indicate a widespread systemic failure.

Presumption of Compliance

This principle assumes that member states adhere to their international obligations concerning asylum procedures and reception conditions. However, this presumption can be challenged with substantial evidence indicating potential human rights violations.

Conclusion

The Supreme Court's decision in EM v. Secretary of State for the Home Department marks a significant shift in the interpretation and application of the Dublin II Regulation concerning the return of asylum seekers and refugees. By decoupling the necessity of demonstrating systemic deficiencies from the requirement to prove a real risk of Article 3 violations, the judgment enhances the protection afforded to vulnerable individuals facing enforced returns.

Moreover, the emphasis on the individual's risk rather than solely on systemic issues aligns UK law more closely with the protective ethos of the ECHR and strengthens the role of judicial oversight in immigration matters. This decision ensures that lawful and fair processes are maintained, safeguarding the fundamental rights of asylum seekers and refugees within the UK's legal framework.

Ultimately, this judgment underscores the judiciary's commitment to upholding international human rights standards, ensuring that the Dublin II Regulation is applied in a manner that balances effective immigration control with the imperative to protect individuals from potential human rights abuses.