Tabrizagh & Ors, R (On the Application Of) v The Secretary of State for the Home Department [2014] EWCA Civ 1398

[2014] EWCA Civ 1398Case No. C4/2014/2124+2162+2171+2170+2169
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MRS JUSTICE LAING)
Venue Royal Courts of JusticeDate Wednesday, 17 September 2014
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE UNDERHILL
LADY JUSTICE SHARP
THE QUEEN ON THE APPLICATION OF
MOHSEN POURALI TABRIZAGH
SAEED ALI
ALI MOHAMMED
EDMOND KARAJ
AB (Sudan)
Applicants
-v-
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr S Knafler QC and Mr D Callaghan (instructed by Duncan Lewis) appeared on behalf of the Applicants Tabrizagh, Ali, Mohammed, and Karaj
Mr S Knafler QC and Mr G Ó Ceallaigh (instructed by Turpin & Miller LLP) appeared on behalf of the Applicant AB (Sudan)
J U D G M E N T
Between
Tabrizagh & Ors, R (On the Application Of)AppellantThe Secretary of State for the Home DepartmentRespondent

LORD JUSTICE UNDERHILL:

This

[1]is an application for permission to appeal against a decision of Mrs Justice Elisabeth Laing concerning the return of asylum seekers and beneficiaries of international protection ("BIPs") to Italy under the Dublin II Convention. There were six claimants before her but only five have sought to appeal. I need only give the barest outline of the background. Full details can be found in the judgment below, which, I should say at this stage, is admirably well structured and comprehensive.[2]Two of the applicants are Sudanese nationals, two are from Iran, and one from Albania. All have made asylum claims in this country. All were in Italy for varying periods before coming here. Three were afforded the status of BIP in Italy and would continue to enjoy or would resume that status on return. The other two would be simply asylum-seekers. Their claims for asylum in this country were on 12 May 2014 refused by the Secretary of State and certified pursuant to paragraph 54 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 on the basis that they could be returned to Italy under Dublin II and that Italy was a safe third country. Their claims are for judicial review of that certification on the basis that if returned to Italy they face a real risk of breach of their rights under article 3 of the European Convention of Human Rights as a result of failures of support which are liable to be caused by the well-recognised difficulties which Italy faces as a country on the front line of immigration by asylum seekers and others across the Mediterranean. The primary focus of the case was on the absence of accommodation for asylum seekers and BIPs.[3]The claims were heard together over two days in May 2014. In her judgment handed down on 11 June 2014 the Judge dismissed all six claims. She subsequently refused permission to appeal.[4]When the first of the cases came before me on the papers I directed an oral inter partes hearing, and the same direction has now been made in the other cases.[5]The applicants have been represented by Mr Stephen Knafler QC leading, in most of the cases, Mr Declan O'Callaghan but in one of them Mr Greg Ó Ceallaigh.[6]I can summarise the Judge's reasoning as follows. She directed herself that the essential question was whether, if the applicants were able to appeal to the First Tier Tribunal, their claims based on article 3 would be bound to fail. (That way of putting it may in fact have been formally over-generous to the applicants, since, as the Judge recognised at paragraphs 160-161 of her judgment, the court is not strictly speaking deciding that question for itself but rather reviewing the Secretary of State's conclusion about it. However, that refinement can be ignored for present purposes.) She found that any such appeals would indeed be bound to fail. She considered first two "generic issues" which I will take in turn.[7]The first generic issue concerns the well-established presumption that member states of the European Union will comply with their obligations under the European Convention of Human Rights. The Judge formulated the issue as being "whether the argument, by those claimants who are, or might be, asylum seekers on their return, that the evidential presumption is displaced, is bound to fail before the FTT". She directed herself that the presumption could be displaced by evidence of the kind identified by Lord Kerr in his judgment in EM (Eritrea) v Secretary of State for the Home Department [2014] UKSC 12, [2014] 2 WLR 409, which encapsulated the position following the decision of the Court of Justice of the European Union in NS (Afghanistan) v Secretary of State for the Home Department [2013] QB 102. She said, at paragraph 148 of her judgment:
"Lord Kerr observed, at paragraph 66, when discussing the decision of Kenneth Parker J at first instance, that that Judge's view approximated to his own: that is, NS required it to be shown that there were "omissions on a widespread and substantial scale" or "substantial operational problems", rather than "inherent deficiencies in the system"
. He went on to say, "Practical realities lie at the heart of the inquiry" (judgment, paragraph 68; see also paragraphs 69-70).[8]The judge concluded that the evidence placed before the Secretary of State was not, applying that approach, capable of displacing that presumption (see paragraph 166). She had reviewed the relevant evidence in detail, including in particular two reports from the United Nations High Commissioner for Refugees ("UNHCR") dated July 2012 and July 2013; a report dated December 2012 prepared for the Brunswick Administrative Court, pursuant to an order of 28 September 2012 to take evidence, which was based on work done in October and November 2012; and a report dated October 2013 based on a fact finding mission carried out between May and June 2013 by the Swiss Refugee Council ("the SRC") - see paragraphs 76 to 99 of her judgment. The latter two reports, putting it very broadly, painted a blacker picture of conditions for asylum-seekers and BIPs in Italy, particularly as regards the availability of accommodation, than the UNHCR reports, but she had some criticisms of them.

The judge gave the reasons for her conclusion at paragraphs 167-169 of her judgment:

"167. Though it is not decisive, the starting point for the FTT would have to be that the UNHCR has not asked any member state to suspend removals to Italy. Not only that, but in its two most recent reports on Italy, the UNHCR, while making robust and objective criticisms, has not painted a picture which begins to meet the relevant test. It says in its 2013 report that there have been significant improvements. It is true that there has been a steep increase in arrivals in 2014, but against the backdrop of Italy's response to the NAE, and the substantial recent increase in accommodation places I do not consider that the FTT could possibly conclude, on the current material, that the presumption is displaced. 168. Mr Knafler QC may well be right that, as things stand, all the new accommodation is either full, or very nearly so. But that, taken with evidence of gaps in provision, and some failings, would not enable the FTT to displace the presumption of compliance in circumstances where Italy has, to date, made impressively sincere efforts to cope with surges in arrivals. 169. The issue is not, contrary to the submission of Mr Knafler QC, whether the SRC and Braunschweig reports are "capable of belief" such that, if they are, the evidential presumption is displaced. There are two questions. First, what weight could the FTT rationally give those reports, if and to the extent that they differ from the UNHCR's "pre-eminent and possibly decisive" assessment? The answer to that question is "
Very little". Second, could the FTT find that (where they do not differ from the UNHCR report) they show "omissions on a widespread and substantial scale" or "substantial operational problems" sufficient to displace the significant evidential presumption of compliance? That is, substantial operational problems with the whole asylum acquis, not just operational problems with some aspects of it. The answer to that question is, "No"."[10]The judge made it clear that she did not regard her conclusion that the evidential presumption was not displaced as decisive of the issue whether all or any of the applicants were at risk of breach of their rights under article 3. Rather, its role was, as she put it at paragraph 166, as:
"... a very important part of the inquiry when the allegation is that there is a generalised risk of article 3 ill treatment in Italy which arises regardless of the returnee's profile."
[11]The second generic issue concerned those applicants who were, or would on any event be shortly after their return, BIPs.

The judge defined three particular issues under that head at para 170 as follows:

"whether the FTT could conclude that a) EM (Eritrea) requires BIPs and asylum claimants to be treated similarly; b) the approach of the House of Lords to article 3 claims based on destitution is different from that of the ECtHR; c) a breach or likely breach of Italy's obligations under the revised Reception Directive to provide integration facilities is a breach of article 3."
As so summarised, the issues may seem somewhat opaque but the only one which matters for present purposes is (b). The background to that is as follows. The Strasbourg Court had in no fewer than five decisions in the first half of 2013 dismissed challenges by both asylum-seekers and BIPs that their return to Italy from other Convention countries gave rise to a breach of their article 3 rights because of conditions in Italy. The two cases which particularly concerned BIPs are Hussein v The Netherlands and Italy (Application no 27725/10) and Hassan v The Netherlands and Italy (Application number 40524/10). The judge held that the FTT would and should regard those decisions as highly persuasive, but it had been argued that the test applied by the Court in those cases was inconsistent with that required as a matter of English law on the basis of the decision of the House of Lords in R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66. [2006] 1 AC 396. I will return to this further in due course. On each of the three particular issues relating to BIPs the judge rejected the applicants' submissions (see paragraphs 171 to 177).[12]The judge's decisions on those generic issues were not treated by her as decisive. She said at para 178:
"The question is whether appeals based on the article 3 claims which are advanced by the Claimants would be bound to fail before the FTT. The Secretary of State has decided, on up-to-date material, and directing herself correctly in law, that they would be. I must review these decisions anxiously. So I turn now to the case of each of the Claimants. My decision that the evidential presumption is not arguably displaced is not decisive, as I must also consider whether the FTT could find individual risk factors relevant to article 3, and allow an appeal on that basis, by applying the Soering test to the evidence."
The reference is to Soering v United Kingdom (1989) 11 EHRR 439, which, as confirmed by the Supreme Court in EM (Eritrea), continues to state the essential test in cases of this kind. She performed that exercise at paragraphs 179-189 in the case of each applicant separately and concluded that there was no such risk. I need not attempt any summary of her reasoning on those points since no submissions were addressed to us about them.[13]There are four pleaded grounds of appeal but in the skeleton argument they are recast as three. I will take them in turn.[14]Ground 1 reads:
"In concluding that in order to demonstrate a risk of a breach of Article 3 ECHR the Appellants had to demonstrate that the Italian system for the reception of refugees and asylum seekers had effectively collapsed, the court arguably erred in law."
Mr Knafler's argument in support of the contention that the judge adopted the approach summarised under ground 1 depends primarily on the penultimate sentence of paragraph 169 of the judgment, where she uses the phrase "substantial operational problems with the whole asylum acquis". What is said is that that phrase indicates that she was returning, albeit using different words, to the "systemic deficiency" test disapproved by the Supreme Court in EM (Eritrea). As Mr Knafler points out, there could well be substantial operational failures in parts of the asylum system which were capable of displacing the presumption of compliance even though other parts of the system might continue to be operating entirely satisfactorily.[15]I do not think that that is, even arguably, a fair reading of what the judge meant. I should observe by way of preliminary that I am not quite sure what the word "acquis" means in this particular context. I will assume for the sake of argument that it means something like "system". In that case the phrase may indeed be unfortunate inasmuch as it is capable of being misunderstood in the way suggested by Mr Knafler. But I do not believe that it betrays a self-misdirection on the part of the judge. She had earlier, at paragraphs 139-152, set out an exhaustive analysis, whose accuracy is not challenged by Mr Knafler, of the reasoning in Lord Kerr's judgment in EM (Eritrea). It is inconceivable that she should inadvertently have adopted a test different from that which she had set out in paragraph 148 which I have already quoted. Her essential reasoning was evidently that the evidence relied on by the applicants did not establish operational problems or failings which were so "substantial and widespread", in Lord Kerr's language, that it was right to go behind the presumption that Italy would comply with its obligations under article 3. I suspect that the explanation for the appearance of this phrase reflects the particular point which the judge was addressing at paragraph 169, but in the end the explanation does not matter. What I am sure of is that it does not have the meaning which Mr Knafler attaches to it.[16]Mr Knafler sought to reinforce his submission that the judge had erred in this way by referring to the reasons which she gave for refusing permission. She referred to the challenge to her decision that the presumption was not rebutted, describing it as "limited", and continued:
"I consider that this is not arguable for two reasons. First, the unrebutted presumption of compliance is an answer to this limited challenge because even if the claimants are right and it would be open to the First Tier Tribunal to find, despite the UNHCR reports, that Italy is not complying with its obligations in these particular respects that would not displace the presumption... [I need not trouble with the second reason.]"
However, that is simply too compressed and allusive to found a submission that it betrays the same error, or anything like it, as Mr Knafler complains of in paragraph 169 of the judgment. I do not think it lends any support to his primary submission.[17]I turn to ground 2. This reads:
"The court arguably erred in law in its consideration as to the position of asylum seekers who are to be returned to Italy consequent to the Dublin II Regulation."
That does not tell us much, but three more particular points are made under this umbrella. I take them in turn.[18]First - and this is the only point really developed by Mr Knafler in his oral submissions - it is said that the judge attached too much weight to the UNHCR reports, and in particular to their failure to recommend against returns to Italy, and too little to the Brunswick and SRC reports, specifically on the crucial issue of whether the applicants would be provided with accommodation if returned. The UNHCR reports suggested, broadly, that sufficient accommodation for asylum seekers was or would be made available, whereas the SRC and Brunswick reports were much more pessimistic.[19]In support of that submission Mr Knafler refers to an observation by Lord Kerr in his judgment in EM (Eritrea) that:
"The UNHCR material should form part of the overall examination of the particular circumstances of each of the appellants' cases, no more and no less."
He also makes a number of more particular points about why the judge's criticisms of the SRC and Brunswick reports were unjustified and why they should in fact be preferred.[20]I do not believe that this part of this ground is arguable. To take first the sentence in Lord Kerr's speech relied on by Mr Knafler, this forms part of a much fuller discussion of the weight to be given to the views of the UNHCR. Lord Kerr quotes with approval at paragraphs 71 and 72 of his judgment passages from the judgment of Sir Stephen Sedley in the Court of Appeal in EM (Eritrea) itself and from the judgment of the Supreme Court in IA (Iran) v Secretary of State for the Home Department [2014] UKSC 6, [2014] 1 WLR 384, acknowledging, indeed asserting, the legitimacy of paying (to quote from Sir Stephen):
"special regard both to the facts which the High Commissioner reports and to the value judgments he arrives at within his remit"
. The sentence relied on by Mr Knafler was clearly not intended to undercut that point. Of course, it is important not to go to the opposite extreme and treat the reports or the views of the UNHCR as decisive. In EM (Eritrea) the High Commissioner himself, who was an intervener, disclaimed any role as an arbiter; and that is reflected in paragraph 73 of Lord Kerr's judgment. But the judge did not fall into that trap. Her finding that the FTT would be bound to prefer the UNHCR reports to the SRC and Brunswick reports was not based only on their specially authoritative status but on other considerations also - specifically, in the case of the Brunswick report, that it was less up to date (see paragraph 89) and in the case of SRC that its report was limited to Rome and Milan and there were serious reasons to doubt its objectivity and accuracy (see paragraphs 91 and 92).[21]As for Mr Knafler's particular points about why the Brunswick and SRC reports were to be preferred, these are factual matters for the assessment of the judge. He made such points as that the UNHCR reports do not explicitly state their methodology or sources, whereas the other reports do. Given the expertise and authority of the UNHCR, I cannot regard that as a compelling point. I can see no prospect that this court would on any appeal conclude that the judge's assessment that in this case the reports of the UNHCR were to be preferred was wrong.[22]The principal point which Mr Knafler developed in his oral submissions was that, in observing that the Brunswick report was less up to date than the UNHCR reports, the judge had failed to refer to evidence which had been lodged at the hearing from the author of the Brunswick report, Ms Gleitze, in response to a witness statement lodged on behalf of the Secretary of State. This did indeed contain some more recent information to the effect that the increases in accommodation provided by the Italian government had been fully taken up by a surge in new arrivals. But the judge expressly acknowledged that point at paragraph 168 of her judgment, which I have read, albeit without explicitly referring to Ms Gleitze's evidence. But she nevertheless that that fact did not even arguably justify a finding that Italy would fail to comply with its obligations under the Convention. That was a conclusion to which she was plainly entitled to come. The situation in Italy is no doubt a developing one. But in circumstances where it had tried sincerely and effectively, as the judge found, to meet problems as they arose in the past, it could not be right to assume that it would fail to continue to do so in the future.[23]That picks up the next criticism made under ground 2, namely that the judge was wrong to find that if, as she accepted seemed likely, the flow of migrants increased the Italian government would increase accommodation to meet demand. It will of course have to be seen what happens in the future. But the judge was entitled, indeed obliged, to consider the position as at the date of the Secretary of State's decision which, for all practical purposes, was the same as her own judgment, and on the available evidence, and not on fears for the future.[24]The third specific point made under ground 2 in the skeleton relates to an observation made by the judge at paragraph 65 of her judgment that the FTT would be bound to give very significant weight to the admissibility decisions of the European Court of Human Rights to which I have already referred. The judge said that the court was much better placed to evaluate the effect of "this kind of evidence" than the FTT. That is said to be wrong, given the specialist expertise in the FTT. Mr Knafler did not develop this point in his oral submissions. In my view he was right not to do so, because it seems to me self-evident that the FTT would and should attach very significant weight to the decisions of the European Court of Human Rights, being both recent and based on material very similar to that which would have been available to the tribunal.[25]I turn finally to ground 3. This ground concerns the position of BIPs. BIPs in Italy are entitled to work and to enjoy the same rights as Italian citizens. As the European Court of Human Rights summarised it in Hussein, at paragraph 73, they are entitled to:
"a travel document... to work and to benefit from the general schemes for social assistance, healthcare, social housing and education under Italian domestic law in the same manner as the general population of Italy."
[26]However, the applicant's case before the judge was that in many cases those rights were not sufficient to prevent destitution - partly because high rates of unemployment in Italy made it difficult to obtain work; partly because social security rights generally in Italy are inadequate, most Italians relying on family support of a kind to which BIPs will have no access; and partly because the evidence was that there was poor access to "integration programmes" of the kind required by article 34 of the Qualification Directive, which should help BIPs to learn Italian and adapt in other ways to Italian society. UNHCR described many BIPs as leading "deprived and marginalised lives".[27]I have already set out the judge's encapsulation of the issue which arose about the effect of the decisions in the European Court of Human Rights on this point, especially Hussein and Hassan. The judge discussed the effect of the decision in Limbuela at paragraphs 173-174 of the judgment, but her essential reasoning is at paragraph 175 where she said:
"It is clear that the ECtHR has decided, in more than one of the admissibility decisions, that a BIP, who, once he has status, and can work, and is on a par with Italian citizens, cannot rely on article 3 to resist return to Italy. Any attempt, based on Limbuela, to persuade the FTT that the approach of the ECtHR to such cases is wrong (as a matter of domestic law) and should not be followed by the FTT, is bound to fail. The main complaint is that the Italian social security system is limited; but this is the same for Italians as it is for BIPs. The ECtHR has repeatedly said, however, that a difference between a person's economic circumstances in the sending and receiving state, based on differences of resources between the two states, does not raise an issue under article 3..."
[28]I need not, because the judge does not, quote in full from the decisions in Hussein and Hassan, but the references in Hassan are at paragraphs 179-180, which cross-refer to the decision in Hussein at paragraph 70 in particular: in that paragraph the court referred to the earlier seminal decision in MSS v Belgium and Greece [2011] 53 EHRR 2, where it was said at paragraph 249 that article 3: ... cannot be interpreted as obliging the High Contracting Parties to provide everyone within their jurisdiction with a home... Nor does Article 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living." It is perhaps also worth noting that the court in Hussain had before it, and quoted at length at paragraphs 43-46, materials, including the 2012 UNHCR report, which were critical in a number of respects of provision for both asylum-seekers and BIPs. At paragraph 78 in Hussein, admittedly in the passage referring to asylum-seekers, the court acknowledged on the basis of those reports that that provision "may disclose some shortcomings"; but it said that the evidence did not disclose a systemic failure to provide support for facilities catering for asylum seekers.[29]Mr Knafler does not attempt to dispute that the judge accurately summarised the effect of the Strasbourg decisions, but he says that they should not be followed by an English court. He relies not so much on the decision in Limbuela but on the decision of the Court of Appeal in Anufrijeva v Southwark London Borough Council [2004] QB 1124, which was not in fact cited to the judge. He says that that establishes that in sufficiently serious circumstances a state may be obliged by article 3 to provide a person with basic accommodation and food, even in circumstances where it cannot itself be said to have "treated" that person in any way.[30]I am bound to say that I find the submission that the correct approach in these cases is to be found in the decision of the Court of Appeal in Anufrijeva, rather than in the decisions of the European Court of Human Rights itself, questionable. But even if Mr Knafler's point were arguably right, I do not believe that it arises in the circumstances of this case. The crucial point is that the judge did not regard her observations about this issue as decisive. It was merely directed at one of the generic issues argued before her. She proceeded, as I have said, to consider in each case whether there were individual risk factors disclosing a risk of a breach of article 3 in the case of those applicants, applying, as she said, the Soering test. She found that there were none. In those circumstances, I do not believe that the point relied on by Mr Knafler arises.[31]That disposes of the three pleaded grounds of appeal. I should perhaps deal briefly with one introductory point made by Mr Knafler. He pointed out that in the decision of the Court of Appeal in EM (Eritrea) the court said that, had it not been for the interpretation which it placed on the jurisprudence of the European Court of Human Rights, it would have found that there was a triable issue as to whether the claimants in that case were at risk of a breach of their rights under article 3 if returned to Italy, and accordingly that the certificate would have had to be quashed. Mr Knafler submitted that that was a highly significant observation, since it turned out that they had in fact set the bar too high as regards to the test in law. However, it seems to me that that point is neutralised by the way in which the Supreme Court dealt with the matter. If it had taken the same view as the Court of Appeal it should simply have proceeded also to quash the certificates. Instead, it believed that the right course was to remit the cases to the Administrative Court for a decision on the evidence and the facts, applying the test as it had declared it to be. The court plainly did not regard the matter as a foregone conclusion. That is precisely the exercise which the judge in this case performed and, as I have said, I can see no error of law or other error in her approach.[32]For all those reasons I do not believe, despite Mr Knafler's cogent submissions, that the applicants have shown any arguable ground of challenge to the judge's reasoning or, therefore, that any of the proposed appeals have any reasonable prospect of success.[33]I have considered whether we should nevertheless grant permission on the basis of the importance of this case, not only to the applicants but to the many others whose cases are likely to be determined in practice by the outcome of this application. But I do not believe that that is a sufficient reason. The applicable law has now, and recently, been authoritatively clarified by the Supreme Court in EM (Eritrea). All that would be raised by a further appeal would be a question whether this particular judge applied the law correctly on the particular evidence before her. That would not provide any useful further clarification of the law. I would also add that, as Mr Payne ruefully acknowledged, the evidence in future cases may not be the same if the situation in Italy substantially deteriorates. I would accordingly dismiss this application. Although this is a permission application, it is bound to be of interest in other cases, and I would give permission for it to be cited.

LADY JUSTICE SHARP: I agree.

Cited in 15 later judgments

and 6 more of the most senior