NA (Sudan) v The Secretary of State for the Home Department [2016] EWCA Civ 1060

“Nevertheless, it is noted that even if your client refuses to give consent to share her medical records, she will be accompanied by a medical escort on her return to Italy. UK Visa & Immigration's Liaison Officer in Italy This is Mr Dangerfield, to whose evidence I refer at paras. 127-131 below. has confirmed that your client will be offered a medical assessment on arrival (and on arrival it would be noted that your client declines to consent to her medical records being shared). Your client would also be given sufficient medication to take with her to last a short period after arrival in Italy, to the extent appropriate.”

“(1) This paragraph applies where the Secretary of State certifies that– (a) it is proposed to remove a person to a State to which this Part applies, and (b) in the Secretary of State's opinion the person is not a national or citizen of the State. … (3) The person may not bring an immigration appeal from within the United Kingdom in reliance on– (a) … (b) a human rights claim in so far as it asserts that to remove the person to a specified State to which this Part applies would be unlawful under section 6 of the Human Rights Act 1998 because of the possibility of removal from that State to another State. (4) The person may not bring an immigration appeal from within the United Kingdom in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly unfounded.

“Such a certificate can be issued if ‘on any legitimate view’ the claimant's assertion that his enforced return would constitute a violation of his human rights would fail on appeal: R (Yogathas) v Secretary of State for the Home Department [2003] 1 AC 920, by Lord Hope at para 34; R (L) v Secretary of State for the Home Department [2003] EWCA Civ 25; [2003] 1 WLR 1230 and ZT (Kosovo) [2009] 1 WLR 348.”

“1. Member States shall ensure that material reception conditions are available to applicants when they make their application for international protection. 2. Member States shall ensure that material reception conditions provide an adequate standard of living for applicants, which guarantees their subsistence and protects their physical and mental health. Member States shall ensure that that standard of living is met in the specific situation of vulnerable persons, in accordance with Article 21, as well as in relation to the situation of persons who are in detention. 3-5 …”

“Where housing is provided in kind, it should take one or a combination of the following forms: (a) premises used for the purpose of housing applicants during the examination of an application for international protection made at the border or in transit zones; (b) accommodation centres which guarantee an adequate standard of living; (c) private houses, flats, hotels or other premises adapted for housing applicants.”

“Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children, victims of human trafficking, persons with serious illnesses, persons with mental disorders and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, such as victims of female genital mutilation, in the national law implementing this Directive.”

“1. Member States shall ensure that persons who have been subjected to torture, rape or other serious acts of violence receive the necessary treatment for the damage caused by such acts, in particular access to appropriate medical and psychological treatment or care. 2. Those working with victims of torture, rape or other serious acts of violence shall have had and shall continue to receive appropriate training concerning their needs, and shall be bound by the confidentiality rules provided for in national law, in relation to any information they obtain in the course of their work.”

“In order to facilitate the integration of beneficiaries of international protection into society, Member States shall ensure access to integration programmes which they consider to be appropriate so as to take into account the specific needs of beneficiaries of refugee status or of subsidiary protection status, or create pre-conditions which guarantee access to such programmes.”

“No one shall be subjected to torture as to inhuman or degrading treatment or punishment.”

“In sum, the decision by a Contracting State to extradite a fugitive may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned, if extradited, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment in the requesting country. The establishment of such responsibility inevitably involves an assessment of conditions in the requesting country against the standards of Article 3 of the Convention. Nonetheless, there is no question of adjudicating on or establishing the responsibility of the receiving country, whether under general international law, under the Convention or otherwise. In so far as any liability under the Convention is or may be incurred, it is liability incurred by the extraditing Contracting State by reason of its having taken action which has as a direct consequence the exposure of an individual to proscribed ill-treatment.”

“250. The Court is of the opinion, however, that what is at issue in the instant case cannot be considered in those terms. Unlike in the above-cited Müslim case (§§ 83 and 84), the obligation to provide accommodation and decent material conditions to impoverished asylum-seekers has now entered into positive law and the Greek authorities are bound to comply with their own legislation, which transposes Community law, namely Council Directive 2003/9/EC laying down minimum standards for the reception of asylum-seekers in the member States (“the Reception Directive”; see paragraph 84 above). What the applicant holds against the Greek authorities in this case is that, because of their deliberate actions or omissions, it has been impossible in practice for him to avail himself of these rights and provide for his essential needs. 251. The Court attaches considerable importance to the applicant’s status as an asylum-seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection (see, mutatis mutandis, Oršuš and Others v. Croatia [GC], no. 15766/03, § 147, ECHR 2010). It notes the existence of a broad consensus at the international and European level concerning this need for special protection, as evidenced by the Geneva Convention, the remit and the activities of the UNHCR and the standards set out in the Reception Directive. 252. That said, the Court must determine whether a situation of extreme material poverty can raise an issue under Article 3. 253. The Court reiterates that it has not excluded the possibility “that State responsibility [under Article 3] could arise for ‘treatment’ where an applicant, in circumstances wholly dependent on State support, found herself faced with official indifference when in a situation of serious deprivation or want incompatible with human dignity” (see Budina v. Russia (dec.), no. 45603/05, 18 June 2009). 254. It observes that the situation in which the applicant has found himself is particularly serious. He allegedly spent months living in a state of the most extreme poverty, unable to cater for his most basic needs: food, hygiene and a place to live. Added to that was the ever-present fear of being attacked and robbed and the total lack of any likelihood of his situation improving. It was to escape from that situation of insecurity and of material and psychological want that he tried several times to leave Greece.”

“263. In the light of the above and in view of the obligations incumbent on the Greek authorities under the Reception Directive …, the Court considers that the Greek authorities have not had due regard to the applicant’s vulnerability as an asylum-seeker and must be held responsible, because of their inaction, for the situation in which he has found himself for several months, living on the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs. The Court considers that the applicant has been the victim of humiliating treatment showing a lack of respect for his dignity and that this situation has, without doubt, aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. It considers that such living conditions, combined with the prolonged uncertainty in which he has remained and the total lack of any prospects of his situation improving, have attained the level of severity required to fall within the scope of Article 3 of the Convention. 264. It follows that, through the fault of the authorities, the applicant has found himself in a situation incompatible with Article 3 of the Convention. Accordingly, there has been a violation of that provision.”

“In MSS a critical factor was the existence of legal duties owed by Greece under its own law implementing EU obligations: paragraphs 250 and 263 which I have cited; and it is clear that the court attached particular importance to the fact that the applicant was an asylum-seeker.”

“366. In the instant case, the Court has already found the applicant’s conditions of detention and living conditions in Greece degrading ... . It notes that these facts were well known before the transfer of the applicant and were freely ascertainable from a wide number of sources ... . 367. Based on these conclusions and on the obligations incumbent on the States under Article 3 of the Convention in terms of expulsion, the Court considers that by transferring the applicant to Greece the Belgian authorities knowingly exposed him to conditions of detention and living conditions that amounted to degrading treatment. 368. That being so, there has been a violation of Article 3 of the Convention.”

“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.” (3) At paras. 87-93 it holds, following the reasoning of the ECtHR in MSS, that there were indeed substantial grounds for such a belief in the case of Greece. It concludes, at para. 94: “It follows from the foregoing that in situations such as that at issue in the cases in the main proceedings, to ensure compliance by the European Union and its Member States with their obligations concerning the protection of the fundamental rights of asylum seekers, the Member States, including the national courts, may not transfer an asylum seeker to the 'Member State responsible' within the meaning of [Dublin II] where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter.”

“40. The need for a workable system to implement Dublin II is obvious. To allow asylum seekers the opportunity to move about various member states, applying successively in each of them for refugee status, in the hope of finding a more benevolent approach to their claims, could not be countenanced. This is the essential underpinning of Dublin II. Therefore, that the first state in which asylum is claimed should normally be required to deal with the application and, where the application is successful, to cater for the refugee's needs is not only obvious, it is fundamental to an effective and comprehensive system of refugee protection. Asylum seeking is now a world-wide phenomenon. It must be tackled on a co-operative, international basis. The recognition of a presumption that members of an alliance of states such as those which comprise the European Union will comply with their international obligations reflects not only principle but pragmatic considerations. A system whereby a state which is asked to confer refugee status on someone who has already applied for that elsewhere should be obliged, in every instance, to conduct an intense examination of avowed failings of the first state would lead to disarray. 41. It is entirely right, however, that a presumption that the first state will comply with its obligations should not extinguish the need to examine whether in fact those obligations will be fulfilled when evidence is presented that it is unlikely that they will be. There can be little doubt that the existence of a presumption is necessary to produce a workable system but it is the nature of a presumption that it can, in appropriate circumstances, be displaced. The debate must centre, therefore, on how the presumption should operate. Its essential purpose must be kept clearly in mind. It is to set the context for consideration of whether an individual applicant will be subject to violation of his fundamental rights if he is returned to the listed country. The presumption should not operate to stifle the presentation and consideration of evidence that this will be the consequence of enforced return. Nor should it be required that, in order to rebut it, it must be shown, as a first and indispensable requirement, that there is a systemic deficiency in the procedure and reception conditions provided for the asylum seeker. 42. Violation of article 3 does not require (or, at least, does not necessarily require) that the complained of conditions said to constitute inhuman or degrading conditions are the product of systemic shortcomings. It is self-evident that a violation of article 3 rights is not intrinsically dependent on the failure of a system. If this requirement is grafted on to the presumption it will unquestionably make its rebuttal more difficult. And it means that those who would suffer breach of their article 3 rights other than as a result of a systemic deficiency in the procedure and reception conditions provided for the asylum seeker will be unable to avail of those rights in order to prevent their enforced return to a listed country where such violation would occur. That this should be the result of the decision of CJEU in NS would be, as I have said, remarkable.”

“I consider that the Court of Appeal's conclusion that only systemic deficiencies in the listed country's asylum procedures and reception conditions will constitute a basis for resisting transfer to the listed country cannot be upheld. The critical test remains that articulated in [Soering]. The removal of a person from a member state of the Council of Europe to another country is forbidden if it is shown that there is a real risk that the person transferred will suffer treatment contrary to article 3 of ECHR.”

“63. Where, therefore, it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his removal to that state is forbidden. When one is in the realm of positive obligations (which is what is involved in the claim that the state has not ensured that satisfactory living conditions are available to the asylum seeker) the evidence is more likely to partake of systemic failings but the search for such failings is by way of a route to establish that there is a real risk of article 3 breach, rather than a hurdle to be surmounted. 64. There is, however, what Sales J described in R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin), at para 42 (i) as ‘a significant evidential presumption’ that listed states will comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory. It is against the backdrop of that presumption that any claim that there is a real risk of breach of article 3 rights falls to be addressed.”

“Over the last few years, Italy has undertaken far-reaching and commendable efforts to save lives at sea; a decentralized international protection status determination procedure with adequate safeguards and outcomes has been established; and, finally, the transposition of the EU Qualification Directive has entailed a number of significant positive developments in the normative framework on the definition of international protection status and of the rights attached thereto. These significant improvements notwithstanding, a number of gaps persist, in particular with regard to the reception of asylum-seekers and integration of refugees and other beneficiaries of international protection, resulting in a situation in which a significant number of beneficiaries of international protection lead deprived and marginalized lives.”

“76. Noting that the validity of the applicant’s residence permit has expired in the meantime, the Court will now consider the question whether the situation in which the applicant – if transferred to Italy – is likely to find herself, can be regarded as incompatible with Article 3 taking into account her situation as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection (see M.S.S. v. Belgium and Greece …). 77. The Court notes that the Netherlands authorities will give prior notice to their Italian counterparts of the transfer of the applicant and her children, thus allowing the Italian authorities to prepare for their arrival. The Court further notes that, after her arrival and after having reported to the border police, the applicant will be required to start the procedure to renew her residence permit, which in all likelihood will require her and her children to travel to the Agrigento police headquarters, the expenses of which will be covered by the Italian Ministry of Interior. The Court lastly notes that the applicant, as a single mother of two small children, remains eligible for special consideration – where it concerns admission to reception facilities for asylum seekers – as a vulnerable person within the meaning of article 8 of Legislative Decree no. 140/2005 …. 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 (see paragraphs 43, 44, 46 and 49 above [being the paragraphs setting out the criticisms made by the UNHCR and others]), 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 …. The reports drawn up by the UNHCR and the Commissioner 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 …. The Court would also note the manner in which the applicant was treated upon her arrival in Italy in August 2008, 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 [various authorities, including MSS at para. 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.”

“65. The Court will now consider the question whether the situation in which the applicants, if removed to Italy, are likely to find themselves, can be regarded as incompatible with Article 3, taking into account their situation as asylum seekers and, as such, members of a particularly underprivileged and vulnerable population group in need of special protection (see Mohammed Hussein, cited above, § 76, with a reference to M.S.S. v. Belgium and Greece, … § 251). 66. The Court firstly notes that the applicants never applied for asylum in Italy. … 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 … . While not disregarding the criticism raised in various reports concerning factual obstacles to the lodging of asylum applications in Italy …, 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 … . 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 …. 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 …, 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 … . 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).”

“All applicants complained under Article 3 of the Convention that their removal from the Netherlands to Italy would subject them to treatment contrary to that provision, given the general situation and living conditions in Italy for asylum seekers, in particular those who are particularly vulnerable such as, for instance, single parents with young children or persons requiring medical care.”

“Reiterating its findings in the case of Mohammed Hussein v. the Netherlands and Italy (cited above, § 78) and having found no reasons in the submissions made in the applications at hand warranting another conclusion, the Court finds that, although the general situation and living conditions in Italy of asylum seekers is certainly far from ideal and may disclose some shortcomings, there is no systemic failure where it concerns providing support or facilities catering for asylum seekers, as was the case in M.S.S. v. Belgium and Greece (cited above). The Court further finds, also in view of the manner in which the applicants who stayed in Italy were treated by the Italian authorities after their initial arrival in Italy, that none of the applicants – whom the Court regards as asylum seekers – have established that their 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. The Court has found no basis on which it can be assumed that the applicants will not be able to benefit from the available resources in Italy for asylum seekers or that, in case of difficulties, the Italian authorities would not respond in an appropriate manner.”

“It seems to us that there was a reason for according the UNHCR a special status in this context. The finding of facts by a court of law on the scale involved here is necessarily a problematical exercise, prone to influence by accidental factors such as the date of a report, or its sources, or the quality of its authorship, and conducted in a single intensive session. The High Commissioner for Refugees, by contrast, is today the holder of an internationally respected office with an expert staff (numbering 7,190 in 120 different states, according to its website), able to assemble and monitor information from year to year and to apply to it standards of knowledge and judgment which are ordinarily beyond the reach of a court. In doing this, and in reaching his conclusions, he has the authority of the General Assembly of the United Nations, by whom he is appointed and to whom he reports. It is intelligible in this situation that a supranational court should pay special regard both to the facts which the High Commissioner reports and to the value judgments he arrives at within his remit.”

“93. The Court reiterates that according to its well-established case-law the expulsion of an asylum seeker by a Contracting State may give rise to an issue under Article 3, and hence engage the responsibility of that State under the Convention, where substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to torture or inhuman or degrading treatment or punishment in the receiving country. In such circumstances, Article 3 implies an obligation not to expel the individual to that country [it refers to various authorities including Soering, MSS and Vilvarajah]. 94. The Court has held on numerous occasions that to fall within the scope of Article 3 the ill-treatment must attain a minimum level of severity. The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim [reference is made to, inter alia, MSS at para. 219]. 95. The Court has also ruled that Article 3 cannot be interpreted as obliging the High Contracting Parties to provide everyone within their jurisdiction with a home (see Chapman v. the United Kingdom [GC], no. 27238/95, § 99, ECHR 2001-I). Nor does Article 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living [reference is made to, inter alia, MSS at para. 249)].”

“97. In the same judgment (§ 251), the Court attached considerable importance to the applicant’s status as an asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection. It noted the existence of a broad consensus at the international and European level concerning this need for special protection, as evidenced by the Geneva Convention, the remit and the activities of the UNHCR and the standards set out in the European Union Reception Directive. 98. Still in M.S.S. (§§ 252 and 253), having to determine whether a situation of extreme material poverty could raise an issue under Article 3, the Court reiterated that it had not excluded “the possibility that the responsibility of the State [might] be engaged [under Article 3] in respect of treatment where an applicant, who was wholly dependent on State support, found herself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity” (see Budina v. Russia (dec.), no. 45603/05, 18 June 2009). 99. With more specific reference to minors, the Court has established that it is important to bear in mind that the child’s extreme vulnerability is the decisive factor and takes precedence over considerations relating to the status of illegal immigrant (see Mubilanzila Mayeka and Kaniki Mitunga v. Belgium, no. 13178/03, § 55, ECHR 2006-XI, and Popov v. France, nos. 39472/07 and 39474/07, § 91, 19 January 2012). Children have specific needs that are related in particular to their age and lack of independence, but also to their asylum-seeker status. The Court has also observed that the Convention on the Rights of the Child encourages States to take the appropriate measures to ensure that a child who is seeking to obtain refugee status enjoys protection and humanitarian assistance, whether the child is alone or accompanied by his or her parents (see to this effect Popov, cited above, § 91).”

“103. It is also clear from the M.S.S. judgment that the presumption that a State participating in the “Dublin” system will respect the fundamental rights laid down by the Convention is not irrebuttable. For its part, the Court of Justice of the European Union has ruled that the presumption that a Dublin State complies with its obligations under Article 4 of the Charter of Fundamental Rights of the European Union is rebutted in the event of ‘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’ … . 104. In the case of ‘Dublin’ returns, the presumption that a Contracting State which is also the ‘receiving’ country will comply with Article 3 of the Convention can therefore validly be rebutted where ‘substantial grounds have been shown for believing’ that the person whose return is being ordered faces a ‘real risk’ of being subjected to treatment contrary to that provision in the receiving country. The source of the risk does nothing to alter the level of protection guaranteed by the Convention or the Convention obligations of the State ordering the person’s removal. It does not exempt that State from carrying out a thorough and individualised examination of the situation of the person concerned and from suspending enforcement of the removal order should the risk of inhuman or degrading treatment be established. The Court also notes that this approach was followed by the United Kingdom Supreme Court in [EM (Eritrea)]. 105. In the present case the Court must therefore ascertain whether, in view of the overall situation with regard to the reception arrangements for asylum seekers in Italy and the applicants’ specific situation, substantial grounds have been shown for believing that the applicants would be at risk of treatment contrary to Article 3 if they were returned to Italy.”

“The Court notes that the methods used to calculate the number of asylum seekers without accommodation in Italy are disputed. Without entering into the debate as to the accuracy of the available figures, it is sufficient for the Court to note the glaring discrepancy between the number of asylum applications made in 2013, which according to the Italian Government totalled 14,184 by 15 June 2013 …, and the number of places available in the facilities belonging to the SPRAR network (9,630 places), where - again according to the Italian Government - the applicants would be accommodated … . Moreover, given that the figure for the number of applications relates only to the first six months of 2013, the figure for the year as a whole is likely to be considerably higher, further weakening the reception capacity of the SPRAR system. The Court further notes that neither the Swiss nor the Italian Government claimed that the combined capacity of the SPRAR system and the CARAs would be capable of absorbing the greater part, still less the entire demand for accommodation.”

“114. In view of the foregoing, the current situation in Italy can in no way be compared to the situation in Greece at the time of the M.S.S. judgment, cited above, where the Court noted in particular that there were fewer than 1,000 places in reception centres to accommodate tens of thousands of asylum seekers and that the conditions of the most extreme poverty described by the applicant existed on a large scale. Hence, the approach in the present case cannot be the same as in M.S.S. 115. While the structure and overall situation of the reception arrangements in Italy cannot therefore in themselves act as a bar to all removals of asylum seekers to that country, the data and information set out above nevertheless raise serious doubts as to the current capacities of the system. Accordingly, in the Court’s view, the possibility that a significant number of asylum seekers may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, cannot be dismissed as unfounded.”

“This requirement of ‘special protection’ of asylum seekers is particularly important when the persons concerned are children, in view of their specific needs and their extreme vulnerability. This applies even when, as in the present case, the children seeking asylum are accompanied by their parents (see Popov, cited above, § 91). Accordingly, the reception conditions for children seeking asylum must be adapted to their age, to ensure that those conditions do not ‘create ... for them a situation of stress and anxiety, with particularly traumatic consequences’ (see, mutatis mutandis, Popov, cited above, § 102). Otherwise, the conditions in question would attain the threshold of severity required to come within the scope of the prohibition under Article 3 of the Convention.”

“120. In the present case, as the Court has already observed (see paragraph 115 above), in view of the current situation as regards the reception system in Italy, and although that situation is not comparable to the situation in Greece which the Court examined in M.S.S., the possibility that a significant number of asylum seekers removed to that country may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, is not unfounded. It is therefore incumbent on the Swiss authorities to obtain assurances from their Italian counterparts that on their arrival in Italy the applicants will be received in facilities and in conditions adapted to the age of the children, and that the family will be kept together. 121. The Court notes that, according to the Italian Government, families with children are regarded as a particularly vulnerable category and are normally taken charge of within the SPRAR network. This system apparently guarantees them accommodation, food, health care, Italian classes, referral to social services, legal advice, vocational training, apprenticeships and help in finding their own accommodation (see paragraph 86 above). However, in their written and oral observations the Italian Government did not provide any further details on the specific conditions in which the authorities would take charge of the applicants. It is true that at the hearing of 12 February 2014 the Swiss Government stated that the FMO had been informed by the Italian authorities that, if the applicants were returned to Italy, they would be accommodated in Bologna in one of the facilities funded by the ERF (see paragraph 75 above). Nevertheless, in the absence of detailed and reliable information concerning the specific facility, the physical reception conditions and the preservation of the family unit, the Court considers that the Swiss authorities do not possess sufficient assurances that, if returned to Italy, the applicants would be taken charge of in a manner adapted to the age of the children. 122. It follows that, were the applicants to be returned to Italy without the Swiss authorities having first obtained individual guarantees from the Italian authorities that the applicants would be taken charge of in a manner adapted to the age of the children and that the family would be kept together, there would be a violation of Article 3 of the Convention.”

“... Must we nonetheless impose additional requirements in future on Switzerland – and by extension on any other country in the same situation – despite the fact that neither systemic deficiencies nor a real and substantiated risk of ill-treatment have been shown to exist? OI-25. Will such assurances be required for all asylum seekers liable to be sent back to Italy – who, according to the M.S.S. judgment, are members of a particularly underprivileged and vulnerable population group in need of special protection – or only for families with children?”

“The assessment of this minimum is relative; it depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim.”

“… the applicant has not established that his 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. The Court has found no basis on which it can be assumed that the applicant will not be able to benefit from the available resources in Italy for asylum seekers or that, in case of difficulties, the Italian authorities would not respond in an appropriate manner.”

“Finally, as far as the risk of suicide is concerned, the Court reiterates that the fact that a person whose expulsion has been ordered has threatened to commit suicide does not require the State to refrain from enforcing the envisaged measure, provided that concrete measures are taken to prevent those threats from being realised (see, for example, Dragan and Others v. Germany (dec.), no. 33743/03, 7 October 2004; Karim v. Sweden (dec.), no. 24171/05, 4 July 2006; and Kochieva and Others v. Sweden (dec.), no. 75203/12, 30 April 2013). The Court has reached the same conclusion also regarding applicants who had a record of previous suicide attempts (see Goncharova and Alekseytsev v. Sweden (dec.), no 31246/06, 3 May 2007; and A.A. v. Sweden (dec.), no. 8594/04, § 71, 2 September 2008).”

“35. The Court notes that according to the medical information provided the applicant shows severe symptoms of post-traumatic stress disorder for which he is being treated by a doctor and receives medication (paragraph 9 above). The Court must therefore determine whether his return to Italy would put him in a situation of harm which would reach the high threshold set by Article 3 of the Convention. 36. In Tarakhel (§ 115), the Court found that while the structure and overall situation of the reception arrangements in Italy could not in themselves act as a bar to all removals of asylum seekers to that country, the data and information available to the Court nevertheless raised serious doubts as to the capacities of the system. Accordingly, in the Court’s view, the possibility that a significant number of asylum seekers might be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, could not be dismissed as unfounded. The applicant is not, however, at the present time critically ill. The rapidity of any deterioration which he would suffer because of his removal from Switzerland and the extent to which he would be able to obtain access to medical treatment in Italy must involve a certain degree of speculation (see, mutatis mutandis, N. v. the United Kingdom, cited above, § 50). At present, there is no indication that the applicant, if returned to Italy, would not receive appropriate psychological treatment (see, mutatis mutandis, Halimi v. Austria and Italy, (dec.) no. 53852/11, 18 June 2013) and would not have access to anti-depressants of the kind that he is currently receiving in Switzerland. In this respect, the Court notes that it is common knowledge that Sertraline or equivalent treatment is available in Italy. 37. In the Court’s view, the applicant’s case cannot be distinguished from those cited in paragraphs 32 and 33 above. It does not disclose very exceptional circumstances, such as in D. v. the United Kingdom (cited above), where the applicant was in the final stages of a terminal illness, AIDS, and had no prospect of medical care or family support (Bensaid, cited above, § 40).”

“Dublin cases require the Respondent to undertake a thorough and individuated examination of the situation and circumstances of the person concerned. 2. The European Court of Human Rights in Tarakhel … was not purporting to promulgate a general rule or principle that a sending state is required to secure specific assurances from the destination state as to accommodation or the like. 3. In the light of the considerable body of relevant background country information considered by the Respondent, it was open to her to find that there was neither systemic deficiency nor serious operational failure in the conditions prevailing in Italy for the reception, processing and treatment of asylum seekers.”

“The Claimants presented their cases on the following basis. All the Claimants have significant vulnerabilities. All three have severe mental health problems. Two, NA and SG, are victims of repeated rapes (some of the rapes in each case occurring whilst they were in Italy). In the light of the Tarakhel judgment, the Claimants submit that, on one legitimate view, a First-tier Tribunal hearing an appeal against the Defendant's rejection of their human rights claim could conclude that (1) there was a glaring discrepancy between the number of asylum applications and the places available at relevant facilities in Italy (2) the three Claimants would be among a significant number of asylum seekers who may be left without accommodation or accommodated in overcrowded facilities or in unsalubrious conditions and (3) the three Claimants all have mental health problems and suicidal ideation which could not be properly managed.”

“… [I]n my judgment, the approach set out by Lord Kerr in EM (Eritrea) does not differ in substance from that adopted by the European Court of Human Rights in its case law, including the decision in Tarakhel v Switzerland. In both cases, the legal test is that identified in Soering v United Kingdom (1989) 11 EHRR 439. As is to be expected, different courts express themselves in different language, reflecting their differing judicial traditions. But in substance, the approach adopted by the Supreme Court involved recognising that Member States can be presumed to be complying with their obligations under EU law and international law. That can be rebutted in one of two ways. First, it may be rebutted in the case of all asylum seekers if there were sufficient evidence of substantial operational difficulties in the receiving state. Secondly, while the presumption would be the backcloth for considering individual cases, there may be situations where, on the individual facts of the case viewed against the overall situation (even if that situation did not rebut the presumption in all cases), there were still substantial grounds for believing that there would be a real risk on return. The European Court of Human Rights has taken a similar approach. In MSS v Greece, for example, it effectively considered that the circumstances were such that the assumption that an EU Member State was complying with its obligation was rebutted. In Tarakhel the overall situation did not lead to the conclusion that all removals to Italy needed to be stopped. Nevertheless, the situation of the individual applicants needed to be assessed against the overall situation to determine if, on the facts, there was such a breach.”

“(1) On one legitimate view, could a tribunal conclude that the evidential presumption that Italy will comply with its obligations under EU law and Article 3 ECHR had been rebutted in relation to: (a) all asylum-seekers and/ or all BIPs; or at least (b) in relation to vulnerable asylum-seekers and/or BIPs? (2) Considering the individual facts of each Claimant against the overall situation in Italy, could a tribunal, on one legitimate view, conclude that any of the three Claimants had shown that there were substantial grounds for believing that that individual faced a real risk of being exposed to treatment contrary to Article 3 ECHR if returned to Italy?”

“102. First, any tribunal would need to have in mind the domestic case law and the case law of the European Court of Human Rights. Elisabeth Laing J. considered the statistical picture, and the evidence available, as at May 2014 in Tabrizagh. The judge concluded that, on a detailed consideration of the evidence available the evidential presumption that Italy would comply with its obligations if asylum seekers and BIPs were returned to Italy had not been rebutted. 103. Secondly, two decisions of the European Court of Human Rights have expressly considered the position in relation to the return to Italy of vulnerable adults with severe mental health conditions, those judgments being delivered in 2013. The Court found that the claims in those cases were manifestly inadmissible. That must implicitly include a finding both that the situation in Italy was not such that, generally, the return of asylum-seekers to Italy would be incompatible with Article 3 ECHR and also that the return of the particular individuals in those cases, given their situations, would not be a breach: see Hussein v Netherlands and Italy application no. 27725/10, BAILII: [2013] ECHR 1341 and Daytbegova v Austria (2013) 57 EHRR SE12. 104. Thirdly, the European Court of Human Rights in Tarakhel did not consider that the situation in Italy generally was comparable to Greece. At paragraph 115 of its judgment, the Court stated expressly that "the structure and overall situation of the reception arrangements in Italy cannot therefore in themselves act as a bar to all removals of asylum seekers". That is consistent with a finding that the evidential presumption has not, generally, been rebutted. 105. Against that background, there would need to be some proper evidential basis before a tribunal could legitimately conclude that the situation in Italy had changed so that the evidential presumption had been rebutted. The Claimants rely upon the most recent statistical evidence and reports and evidential material.”

“140. … [T]he important consideration in Hussein and Daytbegova was that Italy provided access to health care, including psychological care. What was important was that Italy should provide a ‘well-planned reception’ … . The Court was aware that the Italian authorities would know in advance of the applicants' vulnerability and hoped that the Austrian authorities would provide the medical and psychological documentation available to them. 141. That is the position here. All the reliable evidence is that the United Kingdom authorities will provide the medical information available to them to the Italian authorities for MS, SG and, if she consents, NA: see the decision letters. The evidence of how the Italians last proposed to effect the transfer of MS and SG confirms that the Italian authorities wanted 10 days advance notification of any health issue, including both physical or psychological issues. For completeness, that conclusion is reinforced by, but not dependent upon, the evidence of Mr Dangerfield, who has 7 years experience of working as the asylum and immigration liaison officer in Rome, and says that medical assessments are carried out on individuals where there are particular issues.”

“144. The presumption that Italy will comply with its obligations under EU and international law is a significant evidential presumption. It is the backcloth against, or context in, which the question of a real risk of a breach of Article 3 ECHR falls to be addressed. In my judgment, on the material produced, there is no legitimate basis upon which a tribunal, properly directing itself, could reasonably conclude that that presumption was rebutted in relation either to asylum seekers or BIPs, or in relation to vulnerable asylum seekers or BIPs, that is, those such as MS who has mental health difficulties or NA and SG who have been the victim of rape and sexual violence, and have mental health difficulties. 145. That has two consequences. First, this is not a situation such as that which prevailed in MSS v Greece where all removals of asylum seekers or BIPs, or all vulnerable asylum seekers or BIPs, should cease. Secondly, the presumption is that Italy will comply with its obligations, particularly in relation to those vulnerable asylum seekers such as SG, and vulnerable BIPs such as MS and NA. It is against the backdrop of that evidential presumption that consideration will need to be given to whether a tribunal could legitimately conclude that, given the particular circumstances of each of the Claimants viewed in the overall context, there are substantial grounds for believing that they would face a real risk of treatment which breached Article 3 if returned to Italy.”

“The second issue involves consideration of the position in relation to each individual Claimant, viewed against the overall situation. As indicated, the backdrop against which that is assessed is that there is a significant evidential presumption that Italy will comply with its obligations. That presumption can, as explained by the Supreme Court in EM (Eritrea) be displaced in a particular case. That will involve an assessment of the situation in the receiving country and the foreseeable consequences of returning each Claimant there.”

“NA … is a BIP. She will have access to health care on the same terms as Italian nationals. In terms of integration facilities, NA is eligible to be accommodated in a SPRAR for six months, and, if she is assessed as vulnerable, for a further six months. Given the overall situation in Italy, and the increase in the number of places at SPRARs, and the statistics considered above, there is no basis on which a tribunal could conclude that there is a glaring discrepancy such as would make it unlikely that NA would not be provided with a place in a SPRAR or left homeless or without support. The evidence of difficulties associated with this by reason of the need to replace her residence permit is not capable of constituting reliable evidence and, even if such difficulties did exist, they could not, on any legitimate view, be regarded as establishing substantial grounds for believing that there was a real risk of treatment contrary to Article 3 ECHR if NA were returned for the reasons given above.”

“In terms of the risk of re-victimisation, and exposure to rape or further sexual violence, Mr Husain accepted in argument that if accommodated on return, rather than being homeless, that risk would be removed. For the reasons given, no tribunal could legitimately consider that NA would be left homeless on return.” (It is convenient to note at this stage that Mr Husain did not seek to resile from that acceptance before us.) The Judge concludes, at para. 153: “For all those reasons, in my judgment, there is no legitimate basis upon which a tribunal, properly directing itself, could conclude that, if NA were returned to Italy, there are 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.”

“Ultimately, … in my judgment, the court is not able to resolve precisely the amount of demand against provision for the reasons given. An attempt at absolute precision is likely to be futile. The following conclusions are, however, clear and any tribunal would be bound to accept them. First, the amount of provision made by the Italian authorities has increased over the period up to February 2015. Secondly, when the Italian authorities faced a crisis in 2011 with a large influx of migrants, they ‘responded to the extraordinary strains placed upon the system by creating extra accommodation places’ (per Elisabeth Laing J. in Tabrizagh at paragraph 72). Thirdly, the figures of possible shortfalls presented by the Claimants, and which are said to show a glaring discrepancy between demand and the provision of places are unrealistic and could not reasonably be taken by any tribunal as representing the likely position. Fourthly, on any reasonable analysis, no tribunal could consider that the current official figures demonstrate a shortfall due to the absence of key figures (the number of persons coming to Italy who claim asylum and accommodation and the number of BIPs who ceased to occupy a place at a SPRAR during 2014 or by the end of February 2015). Consequently, having regard to all those matters, no tribunal could reasonably conclude on the statistical evidence that the Italian authorities were leaving persons who claimed asylum, or who were BIPs entitled to some form of integration programme, in a situation of homelessness. A tribunal could not, in my judgment, reasonably conclude on the evidence available that there was a glaring discrepancy between demand for facilities and provision and it could not conclude, on the figures, that there were omissions to provide facilities on a widespread or substantial scale, amounting to substantial operational problems, sufficient to displace the presumption of compliance.”

“I deal first with the two UNCHR reports. The Supreme Court in EM (Eritrea) has recognised that these reports need careful consideration and will provide useful factual information and that respect should be accorded to the views of the UNHCR. The 2012 and 2013 report considers the position in Italy in detail. They should be read in their entirety. Taking the 2013 report, that notes a series of problems in relation to matters such as limited capacity, overcrowding, and lack of opportunities for integration. It made a number of specific recommendations for the improvement of facilities within Italy for both asylum-seekers and BIPs. In my respectful judgment, Elisabeth Laing J. correctly summarised the contents of these two reports at paragraph 167 of the judgment in Tabrizagh as follows: ‘in its two most recent reports on Italy, the UNCHR, while making robust and objective criticisms, has not painted a picture which begins to meet the relevant test’, that is, the test for determining whether, generally, the presumption of compliance has been rebutted. As noted at paragraph 87 of the judgment in Tabrizagh, ‘the reports reveal a picture of general compliance by Italy with its EU and international obligations, while disclosing some operational difficulties’. It would not be open to a tribunal to conclude on the basis of the UNHCR reports that there were ‘omissions on a widespread or substantial scale, or operational problems’. I agree.”

“The SPRAR system offers good support to those who get in. However, it does not provide enough places by far. The waiting list is long and obtaining a place is a matter of luck. Plans exist to significantly increase the number of places from 3,000 to 16,000 starting in 2014. It remains to be seen whether implementation will be successful and the extent to which this will defuse the accommodation problem in Italy. SPRAR places are always temporary, and the length of stay in the project is not long enough to ensure lasting independence afterwards. Dublin returnees make up only a small percentage of SPRAR participants. It is striking how few of those returned from Switzerland are accommodated in SPRAR. For this reason, the chances of finding a place in a SPRAR programme appears to be very small for returnees with protection status.”

“In general terms, in my judgment, the report does not begin to establish that the conditions [which the authors] found in Italy in May to June 2013 demonstrate the existence of substantial operational problems such as would rebut the evidential presumption. Furthermore, that was the conclusion of Elisabeth Laing J. in Tabrizagh at paragraphs 91 to 99 who had subjected the report to what McCloskey J. has described as a ‘more intense, more penetrating’ analysis than the European Court of Human Rights, in the Upper Tribunal decision of Weldegaber v Secretary of State for the Home Department. I agree that the material in the report discloses some failings in May and June 2013 but not on the sort of scale which would entitle a tribunal, or other objective observer, to conclude that Italy was breaching its obligations on a widespread scale. Furthermore, the reports were based on visits which took place 2 years ago. There is now further information, discussed above, which indicates the current position in relation to the supply and demand for accommodation. Nor, in my judgment, are the Claimants correct to say that the … report was approved by the European Court of Human Rights in Tarakhel v Switzerland so that it is no longer appropriate to rely upon Elisabeth Laing J.'s assessment. The applicants in Tarakhel relied upon the report and the Court referred to it. However, the Court's conclusions are based on the statistical and other information provided by the Italian authorities (see, in particular, paragraph 110 of its judgment). For all those reasons, no tribunal, properly directing itself could, at this time, regard the … report as establishing that there are substantial operational problems in Italy.”

“The Claimants rely upon a report by a group, Doctors for Human Rights ("MEDU"). The members of MEDU, which is a not-for-profit organisation, frequently come into contact with beneficiaries of international protection who have ceased to be eligible for places in SPRARs. The MEDU report confirms that it is not in a position to provide information on the reception and living conditions for asylum seekers. The report could not, therefore, assist in relation to that group of persons (who include SG). In relation to the report, it is relevant to note its inherent limitations. It is based on BIPs living in Florence and the report expressly states that its expertise is limited to Florence. It refers to serious shortcomings on the part of the authorities in identifying BIPs and vulnerable people. It refers to 13 cases in a squat in Florence, occupied by asylum seekers and BIPs, during the period from September 2013 to May 2014 when such persons had no contact with health care services. The report does not indicate whether these were asylum seekers or BIPs. It does not indicate whether they were returned under the Dublin Regulation. No tribunal could properly rely upon this report to determine whether the arrangements and conditions in Italy were such that Italy would not comply with its obligations in relation to persons returned to Italy.”

“In relation to accommodation provision, to Amnesty’s knowledge, absent some special provision for an individual return a Dublin returnee will face the same risks as any other asylum arrival in relation to the overcrowding and related chronic under supply of appropriate accommodation. As a result, in Amnesty’s view, they would face a risk of homelessness on return to Italy.”

“Next, the Claimants rely upon a report by Amnesty International Limited. That body is, of course, a well-known organisation. The report, read as a whole and fairly, could not on any justifiable view be capable of supporting a conclusion that the evidential presumption that Italy would comply with its obligations is rebutted. Nor could any tribunal legitimately regard the report as capable of supporting the conclusion that those returned to Italy would be exposed to treatment in breach of Article 3. Part of the report is a commentary on the judgment in Tarakhel. Part is an acceptance that the two UNCHR reports are broadly in line with Amnesty International's understanding of the position in Italy. The report does not, itself, include, and is not based upon, any further analysis or work done by Amnesty International. It relies upon earlier data, such as Eurostat data, discussed above, or information about the numbers accommodated within SPRARs which are now out of date. It states that, in its view, ‘absent some specific special provision for an individual returnee’ such a person will face the same risk on return as any other asylum arrival in relation to overcrowding and undersupply. However, it does not seek to address the question of the arrangements in place for those being returned to Italy and could not reasonably be relied upon as demonstrating any difficulties in this regard.”

“With regard to the possible access to SPRAR facilities, it should be noted that although there has been a recent increase in the number of places available, the centres are now largely filled, as reported by the Ministry of the Interior in the above-cited circular dated 19.03.2014 where is written: “all the centres of government and those backed by some local authorities within the SPRAR system were saturated” [a footnote gives a link is given to the report]. For this reason, the waiting list for a SPRAR place is very long: according to reports by some operators, it is now around 2-3 months.”

“As has already been stated, [ASGI] is, during three months, doing a thorough research on the situation of asylum seekers and the beneficiaries of protection when they arrive at Fiumicino airport. Although, as has been said, the results of the research have not yet been made public, it is possible to predict what will be revealed by the research from the data gathered to date. The beneficiaries of protection on whom data was collected as part of the research and who had been returned to Italy did not receive any kind of reception on their arrival in the country. Indeed, after the initial formalities at the relevant border police station, the beneficiaries of protection were invited to leave Fiumicino airport and were not offered any form of reception or social support. It is important to note here that Fiumicino airport is the arrival point of most of the people sent back to Italy under the Dublin Regulations. Many of the people sent back to Italy are, in fact, beneficiaries of protection. It is reasonable to assume that the same thing occurs when beneficiaries of protection arrive at other airports because, as has been shown, in Italy, a beneficiary of protection does not have an enforceable right to reception and social support.”

“There are, in my judgment, many features of these two reports which mean that this court, and indeed any tribunal, would have to regard the reports as so lacking in objectivity as to be incapable of constituting reliable evidence. Viewed objectively, the reports do not provide a fair, balanced objective picture capable of assisting in the resolution of the disputes in this case. Rather they are partisan and advocate a particular view.”

“Other parts of her reports give rise to similar criticisms of lack of objectivity and analysis. In my judgment, no tribunal could possibly treat the two reports as constituting reliable evidence of the position in Italy generally or the position in relation to what any individual, including these Claimants, would face if returned to Italy.”

“… [A]lthough some psychiatric care is available in Sri Lanka, these two appellants are so traumatised by their experiences, and so subjectively terrified at the prospect of return to the scene of their torment, that they will not be capable of seeking the treatment they need. Assuming (what cannot be certain) that they come unscathed through interrogation at the airport, with no known family left in Sri Lanka and no home to travel to, the chances of their finding a secure base from which to seek the palliative and therapeutic care that will keep them from taking their own lives are on any admissible view of the evidence remote.”

“I note that [NA] has refused to give consent for her medical records to be shared with the Italian authorities. Irrespective of whether or not this is a wise decision, from a clinical perspective, this is an understandable reaction to her previous experience of being left unsupported and vulnerable in Italy; she has clearly developed a strong sense of distrust of the Italian authorities due to the trauma she has described there.”

“The first applicant having refused to give consent to communicate her medical data to the Italian authorities, it cannot be said that the latter have not been duly notified of her mental health condition, or that she runs a real risk of not receiving the required medical care in Italy.”

“Another challenge faced by those who reach Europe is the risk of ‘Dublin returns’ to countries whose asylum systems are dysfunctional. At the end of my thematic visit concerning Syrian refugees last December I urged EU member states to refrain from using the “Dublin Regulation” for returning Syrian refugees to other European countries whose asylum systems are already overstretched or highly dysfunctional, in particular Bulgaria, Greece, Italy and Malta. Bulgaria was caught unprepared for the influx, and its staffing levels and reception conditions are woefully inadequate. Shortly after my visit, UNHCR came to a similar conclusion about ‘Dublin returns’ to Bulgaria. I was glad to learn that on 5 February the Danish authorities announced their decision to suspend the return of asylum seekers to Bulgaria.” (2). In section III (a) of her first report Ms Leo summarised that passage by saying that in his lecture Mr Muižnieks had “urged European Union member states to not return refugees to EU countries whose asylum systems are not functioning, particularly, Bulgaria, Greece, Italy and Malta”

“Experience in recent years has demonstrated the importance of moving beyond CARAs as reception centres. The problems created by the size and management of these centres have led to a worrying drop in reception standards. Originally designed to host asylum seekers for at most 25/30 days, the lack of places across Italy and the slowdown in asylum procedures mean that seekers are held in them for extremely long periods (up to a year) at high cost to the state given the low quality of services they offer and the possibility of abuse and inefficiency within them and particularly their inability to provide the services that might assist the seekers through possible subsequent integration processes.” (8). In the section of her second report addressing Mr Dangerfield’s evidence as to the number of places available in CARAs, SPRARs and CSAs, Ms Leo deals inter alia with whether Dublin returnees could be accommodated in CARAs. She says that the standards in such centres are “very very low” and quotes a Parliamentary report about a particular centre. She then refers to the UNHCR Note, describing it as “highlighting the absolute need to do away with the CARA system” and proceeds to quote from a different translation of the passage which I have set out above. (9). As regards that evidence at para. 124 of his judgment Lewis J says: “Reading Ms Leo's 2015 report, the reader would assume from the language that a fair summary of the UNCHR view is that the UNCHR considers that there is ‘an absolute need’ to do away with the CARA system. The full text, not exhibited to Ms Leo's statement, gives a very different view. In context, the document sets out recommendations for implementing the recast Directives. It notes that, despite major improvements, problems remain in relation to reception and integration. The first sentence of the paragraph containing the quotations relied upon by Ms Leo, but not cited by her says: ‘Experience in recent years has demonstrated the importance of moving beyond CARAs as reception centres’. That is far removed from the impression that Ms Leo seeks to give of the document that there is ‘an absolute need’ to do away with the CARA system.” (10). Mr Husain submits that that is an unfair criticism. Ms Leo says in her appeal statement that the difference between the phrases “do away with” and “move beyond” simply reflect two different translators’ (i.e. those employed by the Secretary of State to translate the Note and those employed by Wilsons to translate her statement) translation of the same Italian word (superamento). She was not intending to use any different language from UNHCR. As to the addition of the word “absolute”, she says that that was done in her own text rather than in the passage which she quoted, and it will accordingly have been quite apparent that it represented her own emphasis. She says that it is a legitimate emphasis. She points out that in any event in a later passage the English version of the Note recommends “abandoning the CARA model”, which seems pretty “absolute”. (11). I do not agree with most of the Judge’s criticism of this part of Ms Leo’s report. Even without the benefit of her explanation about the different translations I do not believe that there is, in this context, a substantial difference between “do away with” and “move on from”: the substance is that UNHCR was recommending that the Italian authorities abandon the CARA model because of the deficiencies to which it refers. I do not believe that that point required to be qualified by reference to other parts of the Note, which deal with other matters; and if, as seems to be implied, the Judge was intending to criticise Ms Leo for not exhibiting the full Note, which was a public document fully identified by her in a footnote, I cannot agree. I am not clear whether the Judge meant to say that Ms Leo did not quote the sentence beginning “Experience in recent years”; but if he did he was simply wrong, perhaps being misled by the different translations. The one point on which I can agree to some extent is that the use of the word “absolute”, even if it can be justified as accurate, may tend to suggest a degree of advocacy rather than strict impartiality; but it is no more than a small straw in the wind. The third criticism: research about reception at Fiumicino and Malpensa (12). This criticism concerns the passage which I have set out at para. 201 above. At para. 126 of his judgment the Judge said this: “Ms Leo's reports give the impression of being based upon research but, on analysis, they are not. In relation to arrivals at Rome airport, for example, Ms Leo notes in her 2014 report that a particular association is undertaking thorough research. The results of that research, if it is available, has not been presented to this court. Ms Leo then goes on to say that ‘is possible to predict what will be revealed by the research from the data gathered to date’. No details of that data are provided but Ms Leo goes on to conclude that no persons are offered any form of reception or social support at the airport. She then infers the same would be true of Milan, based on (unspecified) research done ‘a few years ago’. None of that could legitimately be viewed as properly sourced, objectively presented material.” (13). I agree with the Judge that this part of Ms Leo’s evidence was unsatisfactory but I believe that the way that he expresses his criticism is unfortunate. He was quite right to point out that it is unsatisfactory that the data behind her statement that the BIPs who were the subject of the study “were not offered any form of reception or social support”