- Bookmark
- Share
- CaseIQ
EM (Eritrea), R (on the application of) v Secretary of State for the Home Department
Factual and Procedural Background
Four appellants—each either an asylum seeker or a refugee—challenged decisions by the Respondent (the Secretary of State for the Home Department) to remove them from the United Kingdom to Italy under Council Regulation 343/2003 (“Dublin II”). The Respondent had certified every claim as “clearly unfounded,” thereby preventing an in-country appeal. The Court of Appeal upheld those certificates on the basis that, unless an appellant could demonstrate systemic deficiencies in Italy’s asylum procedures and reception conditions, removal could proceed. The present judgment is the Supreme Court’s review of that ruling.
Legal Issues Presented
- Whether an asylum seeker or refugee resisting transfer under Dublin II must prove systemic deficiencies in the receiving State’s asylum system in order to invoke Article 3 of the European Convention on Human Rights (ECHR).
- Whether the Court of Appeal erred in treating proof of systemic deficiency as a necessary pre-condition to rebutting the presumption that Italy will comply with its international obligations.
- Whether the same legal test applies to individuals already recognised as refugees and to those who are still asylum seekers.
Arguments of the Parties
Appellants’ Arguments
- The correct test remains that in Soering v United Kingdom: a removal is unlawful where substantial grounds show a real risk of Article 3 ill-treatment, regardless of whether the risk stems from a systemic defect.
- Empirical evidence concerning homelessness, destitution and abuse in Italy establishes such a real risk for each appellant.
- The Court of Appeal’s “systemic deficiency” requirement is inconsistent with both Strasbourg and Luxembourg jurisprudence and imposes an unduly high threshold.
Respondent’s Arguments
- The Respondent ultimately accepted that systemic deficiency is not a legal prerequisite but maintained that, on the evidence, no real risk of Article 3 ill-treatment was shown.
- The presumption that an EU Member State complies with its obligations remains “a significant evidential presumption,” which the appellants have not displaced.
Intervener UNHCR’s Submissions
- Stressed UNHCR’s unique expertise and invited the Court to place considerable weight on its country reports.
- Maintained that Article 3 requires an individualized, fact-sensitive assessment; systemic deficiency is only one possible evidential route.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Soering v United Kingdom (1989) 11 EHRR 439 | Removal is prohibited where substantial grounds show a real risk of Article 3 ill-treatment. | Reaffirmed as the governing test; systemic deficiency is not required. |
| R (NS) (Afghanistan) v Secretary of State [2013] QB 102 | Member States must not transfer asylum seekers when aware of systemic deficiencies causing real risk. | Court held the Court of Appeal misread this case; systemic deficiency was evidential, not a legal sine qua non. |
| KRS v United Kingdom (2009) 48 EHRR SE8 | Presumption that EU States comply with obligations unless evidence suggests otherwise. | Discussed as backdrop for the evidential presumption of compliance. |
| MSS v Belgium and Greece (2011) 53 EHRR 2 | Personal experience plus systemic shortcomings can rebut compliance presumption. | Used to illustrate that operational failures may suffice to show risk. |
| R (Yogathas) v Secretary of State [2003] 1 AC 920 | “Clearly unfounded” certification test – must fail on any legitimate view. | Cited to explain statutory certification power. |
| ZT (Kosovo) v Secretary of State [2009] 1 WLR 348 | If reasonable doubt exists, a claim is not “clearly unfounded.” | Supported view that certificates should not have issued if risk arguable. |
| R v Home Secretary ex p Adan [1999] 3 WLR 1274 | Aberrations do not render an otherwise adequate system deficient. | Referenced in first-instance reasoning later rejected. |
| Chahal v United Kingdom (1997) 23 EHRR 413 | Requires “rigorous assessment” of risk on return. | Cited for the standard of review on remittal. |
| Vilvarajah v United Kingdom (1991) 14 EHRR 248 | Assessment must consider both general situation and personal circumstances. | Guides the fact-finding ordered on remittal. |
| Saadi v Italy (2009) 49 EHRR 30 | Foreseeable consequences test for Article 3. | Reiterated in outlining remitted court’s task. |
| Marleasing SA v La Comercial Internacional [1990] ECR I-4135 | EU measures must be interpreted compatibly with fundamental rights. | Supports reading Dublin II alongside Article 3 protections. |
| Joined Cases C-402/05P & C-415/05P Kadi [2009] AC 1225 | Same principle as Marleasing. | Reinforces requirement to construe EU instruments in harmony with rights. |
Court's Reasoning and Analysis
1. The Court acknowledged a practical need for a presumption that EU Member States will honour their obligations, but stressed that the presumption is evidential, not absolute.
2. Analysing NS, the Court concluded that references to “systemic deficiencies” were descriptive, not jurisdictional; the core enquiry remains whether there is a real risk of Article 3 ill-treatment.
3. A requirement to prove systemic deficiency would create an arbitrary barrier, conflict with the Human Rights Act 1998, and be unsupported by the text of NS.
4. The appropriate test is therefore the Soering test, applied against the backdrop of a “significant evidential presumption” of compliance, which may be rebutted by reliable material—including, but not limited to, systemic evidence.
5. Because the lower courts applied the wrong legal standard, their factual conclusions could not stand. A full, evidence-based assessment—taking into account general conditions, personal circumstances, and UNHCR material—is required.
Holding and Implications
HELD: The appeals are allowed; the “clearly unfounded” certificates are quashed and all four cases are remitted to the Administrative Court for a fresh determination of whether removal to Italy would expose each appellant to a real risk of treatment contrary to Article 3 ECHR.
Implications: The Supreme Court clarifies that systemic deficiencies are not a mandatory threshold; individual risk remains the decisive criterion. The decision realigns domestic practice with Strasbourg jurisprudence, affects future Dublin II transfers, and underlines the evidential—but rebuttable—presumption of Member State compliance.
Alert