Bushara, R (On the Application Of) v Secretary of State for Home Department [2012] EWHC 3483 (Admin)

Case No CO/7357/2011[2012] EWHC 3483 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Friday, 16 November 2012
Strand
London WC2A 2LL
B e f o r e:
MR C M G OCKELTON
Sitting as a Deputy High Court Judge
Between
THE QUEEN ON THE APPLICATION OF BUSHARAClaimantv
Between
SECRETARY OF STATE FOR HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company165 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7404 1424(Official Shorthand Writers to the Court)
Mr G O’Ceallaigh (instructed by {"Claimant Solicitor}) appeared for ClaimantMr A Payne (instructed by Treasury Solicitors) appeared for Defendant
Judgment
[1]THE DEPUTY JUDGE: The claimant is a Sudanese national who, before illegally entering this country, claimed asylum in Italy and, it appears, was recognised as a refugee there. Although he originally said he had not been to Italy, and then that he had been there only for a few very short periods, he now says that he remembers being there for about 20 months and suffering harassment, destitution and homelessness.[2]The Secretary of State wants to remove him to Italy under Council Regulation 343/2003 ("Dublin II"). She has therefore issued removal directions against him. The claimant challenges the Secretary of State's decision. He says that there is a risk that in Italy he would be treated in a way that breaches his human rights or breaches the duty owed by Italy to refugees and asylum seekers on its territory. But the Secretary of State has certified his claims as clearly unfounded under paragraph 5(4) of schedule 3 to the Immigration and Asylum (Treatment of Claimants, etc) Act 2004. That fact, combined with the fact that his removal is to be to a member state of the EU, means that he has no in-country right of appeal against the decision to remove him. So he has brought proceedings for judicial review of the Secretary of State's decision. Permission was granted at a hearing by Singh J.[3]David Holgate QC, sitting as a Deputy Judge of this court, had granted a stay on the claimant's removal until the determination of the application for permission. Following the grant of permission the stay was not renewed, so there is no stay in force: but the Secretary of State has indicated in line with her usual policy that she will not seek to remove the claimant until his claim is determined.[4]The Court of Appeal has recently considered the legality of Dublin II removals to Italy, in four claims similarly brought as challenges to certification. In EM (Eritrea) and Others v SSHD [2012] EWCA Civ 1336 ("EM"), the court concluded that it was not arguable that the return of any of the claimants to Italy would entail a risk of inhuman or degrading treatment in violation of Article 3 of the European Convention on Human Rights. That decision, as it stands, is clearly not helpful to the claimant. The claimant now seeks a stay on these proceedings and a stay on his removal until such time as the Supreme Court shall have determined an application for permission to appeal in EM, although no such application has yet been made. The application for stays, which might in other circumstances have been regarded as exceedingly bold, is made by Mr O’Ceallaigh, who represents the claimant before me, and is based on the wording of the Court of Appeal's judgment, together with its order and, in particular, observations in the order itself relating to any onward appeal. The Secretary of State opposes these applications.[5]In order to do justice to the submissions made to me, I shall have to look at some of the judgments pre-dating EM at considerable length. That is perhaps unfortunate, but it is desirable because this application is a test case. If it is successful, this court will be likely to grant similar stays in all cases challenging proposed Dublin II removals to Italy, save perhaps where the Secretary of State is able to show that an individual case should be heard or that removal should proceed. If the application is not successful the Secretary of State will be entitled to continue removals to Italy on the strength of EM without awaiting the outcome of any further litigation on the issue. The Background: Dublin II and Greece[6]The Dublin II Regulation is a central part of the Common European Asylum System ("CEAS"), envisaged in the Tampere agreement of 1999, and now also including Directives 2003/9, 2004/83 and 2005/85 EC. The purpose of the Regulation appears from its title:
“Council Regulation establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the member states by a third-country national”
. The Regulation lays down a system under which an asylum seeker from outside the European Union is attributed to an individual member state that is responsible for his claim to be determined. For present purposes it can be said that if the asylum seeker is an adult with no family members in the Union, and no relevant travel or identity documents, who has entered the territory of a member state illegally from outside the Union, the member state in question is responsible for the first 12 months. Thereafter, any member state in which the asylum seeker has been present for more than 5 months (if more than one, the most recent) is responsible (that is Article 10 of the Regulation). It is implicit that responsibility for the determination of the application involves responsibility for provision of the benefits of the Refugee Convention if refugee status is granted. The necessary enquiries are assisted by the EURODAC system of comparing fingerprints taken from asylum claimants, established under Council Regulation 2725/2000. But Article 3(2) of the Regulation allows a member state, in whose territory the person is, to examine and determine his claim even if it does not have the responsibility for doing so.[7]The Regulation provides for member states to return an applicant unlawfully on their own territory to the responsible member state without examining his application. That is regarded as both lawful and reasonable because all member states are parties to the Refugee Convention and the European Convention on Human Rights. It may thus be assumed within the Union that removal to another member state will not create any risk of a person's treatment contrary to either Convention.[8]As the Court of Justice of the European Union said in NS v Secretary of State, C-411/10 (a judgment to which I shall have to return) at paragraphs 78 to 80:
"78: Consideration of the texts which constitute the Common European Asylum System shows that it was conceived in a context making it possible to assume that all the participating States, whether Member States or third States, observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol, and on the ECHR, and that the Member States can have confidence in each other in that regard. 79. It is precisely because of that principle of mutual confidence that the European Union legislature adopted Regulation No 343/2003 and the conventions referred to in paragraphs 24 to 26 of the present judgment in order to rationalise the treatment of asylum claims and to avoid blockages in the system as a result of the obligation on State authorities to examine multiple claims by the same applicant, and in order to increase legal certainty with regard to the determination of the State responsible for examining the asylum claim and thus to avoid forum shopping, it being the principal objective of all these measures to speed up the handling of claims in the interests both of asylum seekers and the participating Member States. 80. In those circumstances, it must be assumed that the treatment of asylum seekers in all Member States complies with the requirements of the Charter, the Geneva Convention and the ECHR."
The court went on to observe, however, at 81:
"81: It is not however inconceivable that that system may, in practice, experience major operational problems in a given Member State, meaning that there is a substantial risk that asylum seekers may, when transferred to that Member State, be treated in a manner incompatible with their fundamental rights."
[9]In TI v United Kingdom [2000] INLR 211, the European Court of Human Rights had decided that the arrangements that were the predecessor of Dublin II did not absolve a state from responsibility to ensure that expulsion of a person would not create a risk of treatment contrary to Article 3. KRS and Nasseri[10]From about 2005 a number of individuals and organisations had raised the question of whether Greece might be a member state where there was such a risk. Two cases in particular in which the United Kingdom proposed Dublin removals to Greece made their way through the courts in parallel, resulting in judgments of the European Court of Human Rights in KRS v United Kingdom App number 32733/08 [2008] ECHR 1781 dated 2 December 2008, and of the House of Lords in SSHD v Nasseri on 6 May 2009. After considering material available to it, the European Court of Human Rights declared that KRS's application was manifestly unfounded, giving four reasons. First, there was no evidence that Greece was removing people to Iran, the country of KRS's nationality, so there was no evidential support for his expressed fear that he might be removed there in breach of his rights under the Refugee Convention. Secondly, Greece had a new asylum law and was bound by the relevant Directives. In the absence of proof to the contrary, (to use the words of the Court) it must be assumed that it would comply with its obligations. Thirdly, any failure to comply could be taken up by the claimant with Greece itself, if it happened, and he could seek a Rule 39 indication from the Court inhibiting his removal from Greece if that should be threatened. Fourthly, although "the objective information (...) on conditions of detention in Greece is of some concern, not least given Greece's obligations under Council Directive 2003/9 EC and Article 3 of the Convention", the position was that, "were any claim under the Convention to arise from those conditions it should also be pursued first with the Greek domestic authorities and thereafter in an application to this court [that is to say, to the European Court of Human Rights]". In other words, the risk of such treatment could not establish a claim against the state proposing removal to Greece. In SSHD v Nasseri [2009] UKHL 23, the House of Lords, citing KRS, reached a similar conclusion: there was no basis for saying that the claimant's removal to Greece risked a breach of his rights under the Refugee Convention or Article 3: in particular there was no reason to suppose that he would be removed to Afghanistan, his country of nationality, without proper consideration, Afghanistan being another country to which Greece was not effecting removals. MSS[11]The UNHCR took the view that the court's judgment in KRS had not fully considered whether Greece's procedures were compliant with its obligations under the Refugee Convention, and said so in letters to member states. It advised that member states should not execute Dublin II transfers to Greece but should instead determine applications themselves under Article 3(2) of the Regulation. MSS v Belgium and Greece, application number 30696/09, [2011] ECHR 108, concerned an Afghan national who had been removed from Belgium to Greece: the ECtHR was thus able to receive evidence of what had actually happened to him after his removal.[12]By the time the Court considered the matter in January 2011, there was a considerable number of reports "deploring" (that is the Court's word) the conditions for asylum seekers in Greece. The 23 main ones are listed at paragraph 160 of its judgment. The Court concluded first that Greece's treatment of the applicant had been in breach of Article 3. It then went on to consider whether Belgium had been in breach of Article 3 by returning the claimant to Greece. That meant considering what Belgium knew and what conclusion it should have drawn at the time of the expulsion.[13]The court referred to TI at paragraph 342. Although in the TI case the court rejected the argument that the fact that Germany was a party to the Convention absolved the United Kingdom from verifying the fate that awaited the asylum seeker it was about to transfer to that country, the fact that the asylum procedure in Germany apparently complied with the Convention, and in particular Article 3, enabled the court to reject the allegation that the applicant's removal to Germany would make him run a real and serious risk of treatment contrary to that Article. The court considered that there was no reason in that particular case to believe that Germany would have failed to honour its obligations under Article 3 of the Convention and protect the applicant from removal to Sri Lanka, if he submitted credible arguments demonstrating that he risked ill-treatment in that country.[14]The court also referred to KRS and as to that it is said, at paragraph 343:
"In the KRS decision (...) after having confirmed the applicability of the T.I. case-law to the Dublin Regulation (see also on this point Stapleton v Ireland (dec.) no. 56588/07, § 30, ECHR 2010-...), the Court considered that in the absence of proof to the contrary it must assume that Greece complied with the obligations imposed on it by the Community directives laying down minimum standards for asylum procedures and the reception of asylum seekers, which had been transposed into Greek law, and that it would comply with Article 3 of the Convention. In the Court's opinion, in view of the information available at the time to the United Kingdom Government and the Court, it was possible to assume that Greece was complying with its obligations and not sending anybody back to Iran, the applicant's country of origin. Nor was there any reason to believe that persons sent back to Greece under the Dublin Regulation, including those whose applications for asylum had been rejected by a final decision of the Greek authorities, had been or could be prevented from applying to the Court for an interim measure under Rule 39 of the Rules of Court."
But then it went on to say this:
"345. The Court must therefore now consider whether the Belgian authorities should have regarded as rebutted the presumption that the Greek authorities would respect their international obligations in asylum matters, in spite of the KRS case-law, which the Government claimed the administrative and judicial authorities had wanted to follow in the instant case ... . 347. The Court observes first of all that numerous reports and materials have been added to the information available to it when it adopted its K.R.S. decision in 2008. These reports and materials, based on field surveys, all agree as to the practical difficulties involved in the application of the Dublin system in Greece, the deficiencies of the asylum procedure and the practice of direct or indirect refoulement on an individual or a collective basis. 348. The authors of these documents are the UNHCR and the Council of Europe Commissioner for Human Rights, international non-governmental organisations like Amnesty International, Human Rights Watch, Pro-Asyl and the European Council on Refugees and Exiles and non-governmental organisations present in Greece such as Greek Helsinki Monitor and the Greek National Commission for Human Rights (see paragraph 160 above). The Court observes that such documents have been published at regular intervals since 2006 and with greater frequency in 2008 and 2009, and that most of them had already been published when the expulsion order against the applicant was issued. 349. The Court also attaches critical importance to the letter sent by the UNHCR in April 2009 to the Belgian Minister in charge of immigration. The letter, which states that a copy was also being sent to the Aliens Office, contained an unequivocal plea for the suspension of transfers to Greece (see paragraphs 194 and 195 above). (...) 353. The Belgian Government argued that in any event they had sought sufficient assurances from the Greek authorities that the applicant faced no risk of treatment contrary to the Convention in Greece. In that connection, the Court observes that the existence of domestic laws and accession to international treaties guaranteeing respect for fundamental rights in principle are not in themselves sufficient to ensure adequate protection against the risk of ill-treatment where as in the present case, reliable sources have reported practices resorted to or tolerated by the authorities which are manifestly contrary to the principles of the Convention (see, mutatis mutandis, Saadi v Italy [GC], no. 37201/06, § 147, ECHR 2008- ... ."
Further, the court held that diplomatic assurances did not avail Belgium because:
"(...) the agreement document is worded in stereotyped terms (see paragraph 24 above) and contains no guarantee concerning the applicant in person. No more did the information document the Belgian Government mentioned, provided by the Greek authorities, contain any individual guarantee; it merely referred to the applicable legislation, with no relevant information about the situation in practice."
[15]As regards the possibility of the applicant seeking a Rule 39 indication after removal to Greece, the court's view now was that:
"357. While considering that this is in principle the most normal course of action under the Convention system, the Court deems that its analysis of the obstacles facing asylum seekers in Greece clearly shows that applications lodged there at this point in time are illusory. The Court notes that the applicant is represented before it by the lawyer who defended him in Belgium. Considering the number of asylum applications pending in Greece, no conclusions can be drawn from the fact that some asylum seekers have brought cases before the Court against Greece. In this connection it also takes into account the very small number of Rule 39 requests for interim measures against Greece lodged by asylum seekers in that country, compared with the number lodged by asylum seekers in the other States."
The court concluded:
"358. In the light of the foregoing, the Court considers that at the time of the applicant's expulsion the Belgian authorities knew or ought to have known that he had no guarantee that his asylum application would be seriously examined by the Greek authorities. They also had the means of refusing to transfer him. 359. The Government argued that the applicant had not sufficiently individualised, before the Belgian authorities, the risk of having no access to the asylum procedure and being sent back by the Greek authorities. The Court considers, however, that it was in fact up to the Belgian authorities, faced with the situation described above, not merely to assume that the applicant would be treated in conformity with the Convention standards but, on the contrary, to first verify how the Greek authorities applied their legislation on asylum in practice. Had they done this they would have seen that the risks the applicant faced were real and individual enough to fall within the scope of Article 3. The fact that a large number of asylum seekers in Greece find themselves in the same situation as the applicant does not make the risk concerned any less individual where it is sufficiently real and probable (see, mutatis mutandis, Saadi, cited above § 132)."
[16]It is clear from the passages that I have set out that the presumption that a European Union member state will comply was endorsed by the European Court of Human Rights in MSS: the court decided, however, that whereas the information before the court in KRS was not sufficient to displace the presumption, that now available to the court and to the Belgian Government was sufficient. NS[17]NS was an Afghan asylum seeker who challenged the United Kingdom's decision to remove him to Greece. The Court of Appeal made a reference to the Court of Justice of the European Union for a preliminary ruling; the Grand Chamber considered the matter together with a reference from Ireland raising similar questions. Its judgment NS v Secretary of State for Home Department [2011] EUECJ c-411/10 and c-493/10 is dated 21 December 2011. For present purposes the crucial questions are those summarised in paragraphs 70 to 71 as follows:
"70. By the second question in Case C-411/10 and the first question in Case C-493/10, the referring courts ask, in essence, whether the Member State which should transfer the asylum seeker to the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible is obliged to assess the compliance, by that Member State, with the fundamental rights of the European Union, Directives 2003/9, 2004/83 and 2005/85 and with Regulation No 343/2003. 71. By the third question in Case C-411/10, the Court of Appeal (England & Wales) (Civil Division) asks, in essence, whether the obligation on the Member State which should transfer the asylum seeker to observe fundamental rights precludes the operation of a conclusive presumption that the responsible State will observe the claimant's fundamental rights under European Union law and/or the minimum standards imposed by the above mentioned directives."
After some general observations at paragraph 78 to 81 about the CEAS which I have already read, including the observation that it is conceivable that there might be major operational problems in a Member State leading to a substantial risk of a person returned being treated in a way that is incompatible with fundamental rights, the court continued at 82:
"82. Nevertheless, it cannot be concluded from the above that any [I interpose that must mean in the context ‘the merest’] infringement of a fundamental right by the Member State responsible will affect the obligations of the other Member States to comply with the provisions of Regulation No 343/2003. 83. At issue here is the raison d'être of the European Union and the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other Member States, with European Union law and, in particular, fundamental rights. 84. In addition, it would be not be compatible with the aims of Regulation No 343/2003 were the slightest infringement of Directives 2003/9, 2004/83 or 2005/85 to be sufficient to prevent the transfer of an asylum seeker to the Member State primarily responsible. Regulation No 343/2003 aims - on the assumption that the fundamental rights of the asylum seeker are observed in the Member State primarily responsible for examining the application - to establish, as is apparent inter alia from points 124 and 125 of the Opinion in Case C-411/10, a clear and effective method for dealing with an asylum application. In order to achieve that objective, Regulation No 343/2003 provides that responsibility for examining an asylum application lodged in a European Union country rests with a single Member State, which is determined on the basis of objective criteria. 85. If the mandatory consequence of any infringement of the individual provisions of Directives 2003/9, 2004/83 or 2005/85 by the Member State responsible were that the Member State in which the asylum application was lodged is precluded from transferring the applicant to the first mentioned State, that would add to the criteria for determining the Member State responsible set out in Chapter III of Regulation No 343/2003 another exclusionary criterion according to which minor infringements of the above mentioned directives committed in a certain Member State may exempt that Member State from the obligations provided for under Regulation No 343/2003. Such a result would deprive those obligations of their substance and endanger the realisation of the objective of quickly designating the Member State responsible for examining an asylum claim lodged in the European Union. 86. 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."
The court then considered briefly the judgment of the ECtHR in MSS and the material before that court. The judgment continues:
"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 Regulation No 343/2003 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."
At paragraphs 95 to 98, the court noted the finding that, for the above reasons, an asylum seeker cannot be removed to Greece, has the impact that the member state in whose territory the asylum seeker is has the responsibility of examining the claim, under Article 3(2) of the Dublin II Regulation.[18]Its conclusion on the questions is at paragraphs 99, and following, as follows:
"99. It follows from all of the foregoing considerations that, as stated by the Advocate General in paragraph 131 of her Opinion, an application of Regulation No 343/2003 on the basis of the conclusive presumption that the asylum seeker's fundamental rights will be observed in the Member State primarily responsible for his application is incompatible with the duty of the Member States to interpret and apply Regulation No 343/2003 in a manner consistent with fundamental rights. 100. In addition, as stated by N.S., were Regulation No 343/2003 to require a conclusive presumption of compliance with fundamental rights, it could itself be regarded as undermining the safeguards which are intended to ensure compliance with fundamental rights by the European Union and its Member States. 101. That would be the case, inter alia, with regard to a provision which laid down that certain States are 'safe countries' with regard to compliance with fundamental rights, if that provision had to be interpreted as constituting a conclusive presumption, not admitting of any evidence to the contrary. 102. In that regard, it should be pointed out that Article 36 of Directive 2005/85, concerning the safe third country concept, provides, in paragraph 2(a) and (c), that a third country can only be considered as a 'safe third country' where not only has it ratified the Geneva Convention and the ECHR but it also observes the provisions thereof. 103. Such wording indicates that the mere ratification of conventions by a Member State cannot result in the application of a conclusive presumption that that State observes those conventions. The same principle is applicable both to Member States and third countries. 104. In those circumstances, the presumption underlying the relevant legislation, stated in paragraph 80 above, that asylum seekers will be treated in a way which complies with fundamental rights, must be regarded as rebuttable. 105. In the light of those factors, the answer to the questions referred is that European Union law precludes the application of a conclusive presumption that the Member State which Article 3(1) of Regulation No 343/2003 indicates as responsible observes the fundamental rights of the European Union. 106. Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the Member States, including the national courts, may not transfer an asylum seeker to the 'Member State responsible' within the meaning of Regulation No 343/2003 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 that provision."
Returns to Italy: EM[20]Meanwhile, claimants have sought to resist Dublin removals to other countries, particularly Italy. In EM the court considered four applications for judicial review, challenging as clearly unfounded the certification of claims that removal to Italy would in each case be a breach of a claimant's Convention rights. The certification was, like that of the present claimant’s claim, under paragraph 5(4) of schedule 3 to the 2004 Act. On judicial review, the court proceeds by taking the facts claimed as credible and considering whether an appeal to a tribunal would be bound to fail. Of the four claimants, three reported problems in Italy, variously including corrupt officials, homelessness, disgracefully unsuitable accommodation and destitution; several asserted medical conditions caused by their history or likely to be aggravated by any problems in Italy. One, AE, had already been returned to Italy but again left that country and entered the UK illegally. One, MA, raised claims asserting that because of the interference with private and family life, her removal from the United Kingdom would be unlawful irrespective of destination. One, EH, had been in Italy only a short time and had not himself suffered any mistreatment there: he made his claim in reliance of the experience of others.[21]The judgment of the Court of Appeal was given by Sir Stephen Sedley. He summarised the evidence relating to each individual claimant and that of the asylum system in Italy, noting that the Secretary of State's position was that there is a functioning asylum system in Italy, but that the claimant's case was that whatever the position might be in theory, the practical position was that the system was, "in large part dysfunctional" and that anyone arriving in or returning to Italy faces a very real risk of destitution.[22]He began his treatment of the "the legal position" as follows:
"If the matter stopped here, we would be bound, on the evidence we have summarised to conclude that there was a triable issue in all four cases as to whether return to Italy entailed a real risk of exposing each claimant to inhuman or degrading treatment contrary to article 3 of the ECHR. It would follow that the Home Secretary's Certificates were of no effect and that an in-country appeal against removal was available, in which the nature and gravity of the risk to each claimant would be set against the legal and case-specific reasons for his or her removal. But it is the Home Secretary's case that none of this arises unless and until it can be shown that Italy is in systemic rather than sporadic breach of its international obligations, and that the requisite standard and mode of proof of this are beyond anything adduced in the present cases. 33. How this position has been reached can be tracked through three recent cases, two of them decided by the European Court of Human Rights and therefore of persuasive but not binding force, the third decided by the Court of Justice of the European Union and binding upon us."
He then summarised KRS and set out extracts from MSS. He concluded at paragraph 39:
"Two things can be said of this jurisprudence, which for the present has placed Greece outside the Dublin II system. One is that the assessment of risk on return is seen by the Strasbourg court as depending on a combination of personal experience and systemic shortcomings which in total may suffice to rebut the presumption of compliance. The other is that in this exercise the UNHCR's judgment remains preeminent and possibly decisive."
He then explained the particular position of the UNHCR before discussing NS in a section headed 'The Court of Justice of the European Union'. After summarising the issues and citing from the paragraphs I have set out above, he said this:
"46. The Court took care (paragraphs 81-2) to distinguish a true systemic deficiency from 'operational problems', even if these created 'a substantial risk that asylum seekers may (...) be treated in a manner incompatible with their fundamental rights'. 47. It appears to us that what the CJEU has consciously done in NS is elevate the finding of the ECtHR that there was in effect, in Greece, a systemic deficiency in the system of refugee protection into a sine qua non of intervention. What in MSS was held to be a sufficient condition of intervention has been made by NS into a necessary one. Without it, proof of individual risk, however grave, and whether or not arising from operational problems in the state's system, cannot prevent return under Dublin II. 48. We have no choice but to approach the present claims on the same footing. Although questions were raised in the course of argument as to whether the return to Italy of a claimant already granted refugee status there would fall under Dublin II, the reasoning of the CJEU in NS plainly calls for a uniform approach to the present cases."
He then went on to look at the general evidence about the asylum system in Italy in the context of the submission by counsel for the claimants that the presumption of state compliance could be rebutted by adequate evidence of personal risk. The UNHCR sought further improvements in the system and expressed concerns, but did not suggest that other countries should avoid returns to Italy. Other reports, however, spoke of undercapacity, failure to look after vulnerable people properly, and lack of necessary funding, among other problems. The court's principal conclusions are at paragraphs 61 to 64:
"61. This material gives a great deal of support to the accounts given by three of the claimants of their own experiences of seeking asylum in Italy. If the question were, as Ms Carss-Frisk submits it is, whether each of the four claimants faces a real risk of inhuman or degrading treatment if returned to Italy, their claims would plainly be arguable and unable to be certified. But we are unable to accept that this is now the law. The decision of the CJEU in NS v United Kingdom has set a threshold in Dublin II and cognate return cases which exists nowhere else in refugee law. It requires the claimant to establish that there are in the country of first arrival 'systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers (...) [which] amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment (...)'. 62. In other words, the sole ground on which a second state is required to exercise its power under article 3(2) Regulation 343/2003 to entertain a re-application for asylum or humanitarian protection, and to refrain from returning the applicant to the state of first arrival, is that the source of risk to the applicant is a systemic deficiency, known to the former, in the latter's asylum or reception procedures. Short of this, even powerful evidence of individual risk is of no avail. 63. The totality of the evidence about Italy, although it is extremely troubling and far from uncritical, does not in our judgment come up to this mark. While undoubtedly at a number of points it either overtly alleges or powerfully suggests systemic failure, it is neither unanimously nor compellingly directed to such a conclusion. At least equal if not greater, weight has to be accorded to the far more sanguine – and more recent - UNHCR report, echoed as it is, albeit more faintly, by the Hammarberg report. While what amounts to a systemic deficiency must to a considerable degree be a matter of judgment, perhaps even of vocabulary, the evidence does not demonstrate that Italy's system for the reception of asylum seekers and refugees, despite its many shortcomings and casualties, is itself dysfunctional or deficient. This is so whether one focuses on the body of available reports on Italy or the comparative findings in MSS about Greece. 64. It has to follow that the four claims before the court, despite their supporting testimony of individual risk, are incapable of succeeding under article 3 on the present evidence, and that the Home Secretary is therefore justified in that respect in certifying them. The same necessarily applies to any distinct argument raised by AE and EH under article 8 by reference to the effect of conditions in Italy on their mental health."
The final paragraphs of the judgment reject MA's separate claim that her removal would breach Article 8 rights.[23]The court's order is not part of its judgment, but it is unusual in that it contains a narrative comment. In any event, it must indicate what the court considered appropriate in order to give effect to its judgment and for that reason it might be used to assist in explaining anything that was not clear from the judgment itself. The relevant paragraphs of the order are these:
"5. The appellants are refused permission to appeal to the Supreme Court [it should be for the Supreme Court to decide whether to grant permission to appeal but this court recognises it as problematical for NS and MSS may pull in different directions. While NS binds the court, so does the EU principle not undercutting ECHR rights such as those articulated in MSS]. 6. There shall be an order prohibiting the respondent from removing the appellants from the UK pending the final determination from the Supreme Court of their application for permission to appeal to the Supreme Court."
No application for permission to appeal to the Supreme Court has been made. I am told that the problem is funding. The claimants have sought funding in order to make the necessary application. The Supreme Court has extended time for a notice of appeal until 28 days after the Legal Services Commission's decision on funding. [I was told at the conclusion of this judgment that funding has been granted so time is running.][24]Following the publication of the decision in EM and the sealing of the Order, there was a suggestion that other claims raising similar issues should be stayed and that the removal of claimants to Italy should be stayed on terms similar to those in the Order. The Secretary of State opposed that suggestion. The present hearing was arranged, and was to be confined to the issue of whether a stay on the proceedings should be granted. Both parties before me, however, have made their submissions also in relation to stay on the claimant's removal, as indeed was envisaged by a request from the court to consider the following issues:
“1. Whether the Court of Appeal's decision to stay the removal of the appellants in EM & Others pending applications for permission to appeal to the Supreme Court should apply to other cases raising the same issues. 2. If so, why this case is so different that it should not be covered by such a stay. 3. What criteria should be considered by the court in determining whether or not this case or any other case is different from EM & Others. 4. In how many cases is this issue of stay anticipated to arise.”
Stay on removal and stay of proceeding: the tests[25]A stay on removal is interim relief in proceedings such as these. The starting point is the decision of the House of Lords in American Cyanamid Co v Ethicon [1975] AC 396, modified as appropriate to issues of public law. I have been referred in particular to the decision of Cranston J in R (Medical Justice) v Secretary of State for Home Department [2010] EWHC 1425 (Admin), and that of the Court of Appeal in NB (Algeria) v Secretary of State for Home Department [2012] EWCH Civ 1050. The latter decision may be sui generis because, in its observations on granting a stay on removal, the court was dealing with a defect identified in the structure, found in statute and in procedure rules, for appeals to the Court of Appeal against decisions of the Upper Tribunal refusing permission to apply for judicial review. In that context, the Secretary of State agreed that the default position should be that a stay would be granted because otherwise the right of appeal to the Court of Appeal would probably be nugatory, given the difference between urgency of cases challenging imminent removal and the leisurely way in which the rules allowed and indeed required them to progress to the stage of seeking permission to appeal to the Court of Appeal. But the court's acceptance that a stay should be the default position was bolstered by three factors identified by the Master of the Rolls in this judgment at paragraph 39:
"(...) the purpose of the stay is to protect the court's jurisdiction (...) the damage to the public interest (represented by the Secretary of State) is, at least in the majority of cases, likely to be less if a stay is wrongly granted and the applicant is not removed when he would otherwise have been, than the damage to the applicant if a stay is wrongly refused, and he is removed before he can successfully appeal the Upper Tribunal's refusal to permit him to seek JR (...) it will always be open to the Secretary of State to apply to discharge any stay, where it is appropriate."
[26]Absent such special circumstances as were present in NB, the person seeking interim relief must show that there is a real prospect of succeeding at trial. That test, according to Browne LJ in Smith v ILEA [1978] 1 All ER 411 is the same as asking whether the action is not frivolous or vexatious and whether there is a serious question to be tried. If the applicant can show that, the next question is where the balance of convenience lies. In a public law test case, two particular factors are likely, in my judgment, to be relevant to that decision: on the one hand, the impact upon the applicant himself and any others in like position and whether refusing the relief is likely to cause a loss that cannot be remedied; on the other hand, the impact on the public and whether granting the relief is likely to inhibit regular administration and, if so, to what extent, for how long and in how many cases.[27]A stay on proceedings may be associated with the grant of interim relief, but it is essentially different. In determining whether proceedings should be stayed, the concerns of the court itself have to be taken into the balance. Decisions as to listing, and decisions as to which cases are to be heard at any particular time are matters for the court itself and no party to a claim can demand that it be heard before or after any other claim. The court will want to deal with claims before it as expeditiously as is consistent with justice. But, on the other hand, it is unlikely to want to waste time and other valuable resources on an exercise that may well be pointless if conducted too soon. If, therefore, the court is shown that there will be, or there is likely to be, some event in the foreseeable future that may have an impact on the way a claim is decided, it may decide to stay proceedings in the claim until after that event. It may be more inclined to grant a stay if there is agreement between the parties. It may not need to grant a stay if the pattern of work shows that the matter will not come on for trial before the event in question. The starting point must, however, be that a claimant seeks expeditious determination of his claim and that delay will be ordered only if good reason is shown.[28]In cases where a request for a stay on proceedings is coupled, expressly or by necessary implication, with a request for interim relief, the court will need to take into account the factors relevant to both types of decision, and may need to take into account a third: that by securing interim relief and a stay, the applicant may be asking the court to use its powers to give him, for as long as he can secure it, a benefit that he may not obtain at the trial. Submissions on EM[29]Mr O’Ceallaigh, for the claimant, submitted that the terms of the order in EM show that the Court of Appeal was not confident of the correctness of its decision. He explained that that was because in paragraphs 32 and 61 the court had essentially recognised that a return would, or at any rate might, put the claimant at risk of treatment breaching Article 3 but that the binding authority of NS compelled the court, nevertheless, to dismiss the claims. He submitted that there was "a serious issue to be tried" by the Supreme Court because the CJEU had "raised the threshold for what amounts to a breach of Article 3 in the Dublin II context". At paragraph 5, the Court of Appeal's order was "effectively determinative of the question whether or not there is an issue to be tried in the case".[30]He advanced what are essentially grounds of appeal against the decision of the Court of Appeal and gave his view that they raised "a constitutional issue of some complexity". He asserted that funding would be made available and that the Supreme Court would grant permission to appeal.[31]He said that, for these reasons, the present claimant's case should not be determined on the authority of EM, but should be stayed and await the views of the Supreme Court. He said that all similar cases should be granted stays against removal for the same period. There would be no serious disadvantage to the defendant, who could in any event apply for expedition of the matter before the Supreme Court, whereas the disadvantage to the claimant would be dramatically more, if his claim were determined in accordance with EM, and he were then removed to Italy where he would, on the basis of the same decision, be at arguable risk of treatment, contrary to Article 3. The Court of Appeal's findings, he said, amount to a finding that the claimants in EM face a risk of irreparable harm. Mr O’Ceallaigh reminded me that in R(Mahlu) v SSHD [2012] EWHC 2623 (Admin), Ouseley J had said, admittedly before EM, that:
"I would find it very difficult to see that a person should be removed to Italy as the Secretary of State contends while it is on the face of it at least arguable or potentially arguable that such an act would breach his Article 3 rights."
Mr O’Ceallaigh's written submission is that this observation:
"(...) Applies now a fortiori as the claimant's position that he faces a real risk of inhuman and degrading treatment has been vindicated - the question before the Supreme Court will be whether the CJEU has altered Article 3 ECHR to the extent that he is to be denied his protection"
. There is, in Mr O’Ceallaigh's submission, no relevant difference between the claimants in EM who have stays on removal granted by the Court of Appeal and other claimants such as that before me.[32]Mr Payne submitted that the claimant had misunderstood the decision of the Court of Appeal. The court was addressing the distinction to be drawn, in assessing risk of future ill-treatment, between those cases in which removal would be to a country within the EU and other cases. It had not granted permission to appeal, and "the rule is what the Court of Appeal says is the law, is the law, unless and until overruled by a superior court or Parliament". That is a quotation from the decision of the Court of Appeal in Bhatia and Others v SSHD [2011] EWCA Civ 895, at [70]. Similarly, in a different context, the Court of Appeal in SG (Iraq) v SSHD [2012] EWCA Civ 940 held that the authority as a precedent in law afforded to country guidance decisions of the Upper Tribunal:
"Remains authoritative unless and until it is set aside on appeal or replaced. There would a basis for a stay on removal in a case where the existing country guidance suggested that removal should take place only on the basis of a clear and coherent body of evidence to show that the decision was in error."
That is from paragraphs 67 and 69 and there is an internal reference to paragraph 27.[33]For those reasons, it was held in SG that there was no reason for granting a stay, either of the proceedings or on removal in that case: although, as to the latter, the present claimant has an assurance that he will not be removed while the present claim awaits determination. Mr Payne continued that there is a distinction to be drawn between the claimants in EM on the one hand and the present and other claimants on the other, for the same reasons as given in the Court of Appeal in AH (Iran) and Others v SSHD [2008] EWCA Civ 895. That case concerned removals to Greece at time when the Court of Appeal had decided in Nasseri that removals to Greece were not unlawful. The Court of Appeal refused leave to appeal to the House of Lords but granted a stay on Mr Nasseri's removal pending the decision of the House of Lords on his petition for leave to appeal. There had as yet been no decision on that petition. At paragraphs 27 and following, Stanley Burnton LJ said this:
"27. There remains the question of consistency: the principle that like cases should be treated alike. The Secretary of State has agreed to and this court has granted a stay of removal in the case of Nasseri, and it is said that the principle of consistency requires this court to treat the cases before us, which are indistinguishable from Nasseri, similarly. In my judgment, the short answer is that given by Mr Beer in his skeleton argument. These cases are distinguishable from Nasseri. In that case, the Secretary of State agreed to a Stay pursuant to a policy to do so where there is a petition for leave to appeal pending before the House of Lords in order not to appear to stultify the appeal by making it academic. The Court of Appeal granted as stay because of the Secretary of State's agreement to it. Those considerations do not apply in the present cases. 28. I would, therefore, in each of the cases before us, refuse permission to appeal and therefore refuse a stay of removal. 29. I understand there are a number of cases in which a stay has been sought on grounds similar to the present. I would expect cases on all fours with those before us to be decided similarly. The pendency of the petition for leave to appeal to the House of Lords in Nasseri does not of itself justify a stay of proceedings to remove the asylum seeker to Greece under the Dublin Regulation, at least where the asylum seeker is a national of a country to which the evidence is that Greece is not returning failed asylum seekers."
[34]Mr Payne also provided the information sought by this court's fourth question: there are currently 150 cases challenging return to Italy and approximately 314 individuals awaiting return to Italy. About 45 individuals arrive from Italy every month and would, unless a stay is granted, be subject to removal to Italy. Mr Payne also reminded me that the UNHCR has not suggested that returns to Italy be suspended and no other country has suspended returns to Italy. For one country to do so, he submitted, would upset the balance of the sharing policy lying behind the CEAS. In determining the public interest in granting a stay I should take into account the lack of any apparent merit in the claim, the very considerable delay likely to be involved, the large number of cases affected and the likely impact if the United Kingdom alone was seen as a haven against removal to Italy. Discussion[35]EM is a decision of the Court of Appeal. Its exposition of the law is binding on this court. Further, it is a unanimous and very recent decision. In these circumstances, its view of the evidence before it must be treated as authoritative.[36]In view of the submissions made before me I must begin by considering what EM decided. As I have indicated, Mr O’Ceallaigh's developed position was that the court had found on the evidence that there was a risk of ill-treatment in Italy, but had decided that, as a matter of law binding on it, it was required to ignore that risk in the absence of evidence of a systemic breakdown of the asylum system. That reading of EM is, as it seems to me, impossible for at least two reasons. The first is that it would carry the implication that the court considered itself bound by the Court of Justice of the European Union to treat the protection against removal given by Article 3 as other than absolute. It would not extend to protection from a risk arising from removal to a member state, save where there had been a systemic breakdown. Mr O’Ceallaigh does indeed refer in his written submissions to a question whether Court of Justice of the European Union has "altered" Article 3. But that would be a conclusion at odds with all the existing jurisprudence on Article 3 and it is inconceivable that the Court of Appeal could have reached it without express consideration of its ambit; further, with respect, it would appear unlikely if in those circumstances it would have refused permission to appeal.[37]Secondly, if the first two sentences of paragraph 61 of EM are to be read as a finding that there would be a risk of a breach of Article 3, that finding would appear to have been made without any full consideration of the impact of the principle of comity and trust underlying all the decisions to which it referred, including MSS. Neither MSS nor NS treat that principle as unimportant: on the contrary, it is in both the starting of discussion. In each of those cases the result is reached by establishing a reason for departing from the principle of comity and international trust, not by ignoring it. In both of them it is recognised that there is a presumption of compliance that needs to be rebutted by a claimant such as the present.[38]But there is simply in my judgment no need to read paragraph 61 of the Court of Appeal's judgment in EM in the way that Mr O’Ceallaigh suggests, or to read paragraph 47 as leading to a decision to that effect. The question before the court was not whether the claimants would be at risk on return to Italy, but whether an appeal to a tribunal on the ground that their expulsion to Italy would carry a risk of a breach of Article 3 would be bound to fail. In order to answer that question, the court had to look at the evidence in order to assess for itself whether the claims were arguable on that basis. KRS and MSS in the European Court of Human Rights, and NS in the Court of Justice of the European Union, all showed that in the assessment of the risk, it was necessary to take into account the fact that the destination country was one bound by the same conventions and, as member states, subject in part to the same regime, as creating a presumption. EM holds that the effect of NS in that a systemic failure of the asylum-seeking system in the receiving country is a condition precedent to an individual claim that return will expose him to risk of treatment contrary to the conventions, rather than merely as something to take into account.[39]EM is not a decision about risk on return to Italy. It is a decision about the process of the assessment of risk in a court or tribunal. In assessing whether an individual would be at risk on return to a member state, the fact that the receiving state is itself bound by the same conventions and community law as the sending state is to be regarded as obviating the risk unless there is a systemic failure in the receiving state. This is no more an inroad into the absolute nature of Article 3 than was the decision of the European Court of Human Rights in KRS. Unless there has been such a failure, the person is adequately protected: he has his rights against the receiving government and, if necessary, the possibility of recourse to the European Court of Human Rights from the receiving country.[40]Having reached the view that it did reach about the effect of NS, the court in EM had no need to consider what its findings would have been if systemic failure had been merely one factor to take into account. But it is equally inconceivable that it can be taken to have found that returning a person to Italy, an EU country, would risk a breach of Article 3 without reaching a clear view that the trust and burden sharing that is the basis of the CEAS no longer applied to Italy.[41]The Court of Appeal refused permission to appeal and gave no indication that, in general, removals to Italy should not proceed. It stayed the removal of the claimants before it without making any difference between them in respect of the merits of their claims. I do not think there is any good reason for interpreting those stays as a model for the way in which courts should treat other cases in which a removal to Italy is threatened. The stays were no doubt granted following the claimant's indication that they intended to appeal, to ensure that if it decided to grant permission the Supreme Court would have before it claimants whose cases had not become academic. This is exactly the same position as in Nasseri, save that no application for permission has yet been made. The stays on the removal of the actual claimants in EM do not imply that other stays should be granted. Those threatened with removal ought, in my judgment, to expect that the law as expounded in EM will be applied to them. The difference between the claimants in EM and other claimants is precisely that: the claimants in EM have their stays because they are the claimants whose position was considered in EM and who may bring an appeal to the Supreme Court against the Court of Appeal's decision; nobody else is in that position.[42]The origin of the observation in paragraph 5 of the order in EM is unexplained. Although Mr Payne represented the Secretary of State in EM, he was not present when judgment was given. It indicates the possibility of an interesting discussion but not that the Court of Appeal had any doubt about the correctness of its decision. Whether or not NS and MSS "pull in different directions", they both show that in order to succeed in a claim of this sort, a person would have to show why the receiving country could no longer be trusted to fulfil its convention obligations or even to enable those within its territory to enforce their rights: they both show the need to rebut a presumption. The discussion envisaged by the observation is thus not shown to have any direct bearing on the instant cases because, on the facts, the presumption of Italy's compliance had not been rebutted, to use the words of MSS at paragraph 345. That conclusion is apparently supported by the attitude of the UNHCR and the fact that no other country has suspended removals to Italy.[43]In this analysis I have had to stray dangerously close to doing what Mr O’Ceallaigh clearly wanted me to do, which is to reach a view about whether EM is rightly decided. That is not my role. I need, however, to decide whether there is any basis for the stays sought, and I cannot do that without a clear view of what EM did decide and what might be the ambit of any appeal.[44]Having done that, however, my position must be that set out in Bhatia. If, as Mr O’Ceallaigh suggested, that is a case that concerns only the issue of costs, the background was that the Secretary of State had refused to grant claimants permission to work despite a decision of the Court of Appeal in their favour. Some of the decisions under appeal carried the implication that a claim that relied on a decision of the Court of Appeal was not “plain and obvious” if permission to appeal to the Supreme Court had been granted. In his judgment which the other members of the court agreed, Pill LJ described that position as "unjustifiable". The observations in Bhatia are clearly relevant here, as are the decisions in SG and AH, demonstrating that, following the decision of the Court of Appeal, particularly one regarded as of general impact, the position should be that this court applies the law as stated.[45]In order to obtain interim relief by way of a stay on removal, Mr O’Ceallaigh needs to start by showing that his claim for judicial review has a realistic prospect of success. He says that there is a serious issue to be tried, but even using that phrase of equivalent meaning it seems to me that he is in difficulty. At the level of this court or of a tribunal, the assessment of risk is governed by EM and by NS. It may seem odd to apply the dicta in Bhatia to an application for a stay said to arise out of a possibility of an appeal. But the position at the level of this court has to be that the law is as stated by the Court of Appeal unless there is some good reason for departing from that principle. To say that there is a realistic prospect of success here is to say that the court might realistically accept the argument that, before a tribunal, the claimant might not fail. But that is to say that neither the decision in EM nor that in NS would be treated as binding on the tribunal and, in addition, that there would be evidence before the tribunal demonstrating a sufficient failure in the Italian system to remove the presumption of compliance. It seems to me that proposition is fanciful: and it remains fanciful even if I give full weight to the observation attached to paragraph 5 of the order in EM. Whether the issue of systemic breakdown is treated as a condition precedent or not, the evidence is not there. For the avoidance of doubt, it appears to me that the position would be exactly the same if an application had been made to the Supreme Court and if the Supreme Court had granted permission, unless it had given clear reasons in its grant for indicating that there should be a departure from the general rule. I therefore consider that the claimant has no realistic prospect of success in his claim. I will nevertheless go on to consider where the balance of convenience would lie.[46]If this claimant is entitled to a stay on removal, it is said, rightly in my view, that every other claimant threatened with removal to Italy would be entitled to a similar stay. In looking at the balance of convenience I do, therefore, need to look at these cases as whole, as well as at the claimant's case individually. The numbers are considerable. Further, I accept Mr Payne's submission that a factor to take into account is the imbalance in the CEAS that would be caused by one member state staying returns to Italy. The public interest in allowing the Dublin II process to take its course is considerable. There is little to set on the other side. It has not at any stage been established that the claimant is at actual risk of ill-treatment if removed to Italy, nor, that, if necessary, he will not be able to enforce his rights in Italy. Even if he had a realistic prospect of success in the present claim, that would mean only that he would be allowed to argue his case before a tribunal; not that he would win it. There is no good reason to suppose that removal would cause this claimant irreparable harm. The balance is in favour of refusing a stay on removal.[47]Turning now to the application for a stay on the proceedings, the position is that the law is settled at the level of this court and Court of Appeal by the decision in EM and, as I have said, that decision must also be considered as authoritative as an assessment of the evidence before the court. A stay is sought in order to enable this claim to be decided after the Supreme Court might have reached a decision on an appeal against the decision of the Court of Appeal in EM. But, for the reasons I have given, it does not appear to me that there is good reason to say that any such decision would have a material effect on this claim. Further (though I do not think it makes any difference) , there has been no application for permission in EM and, of course, no grant of permission. This court ought to proceed on the basis that the law is as the Court of Appeal has said it is; and there is no good reason why it should not do so promptly, while the Court of Appeal's assessment of the facts is still up to date. On behalf of the present claimant, Mr O’Ceallaigh says there is new material supporting his claim. If that is so, he can no doubt rely on it in pursuing the application, for which he has permission, and can do so promptly. Decision[48]For these reasons I shall refuse the application for a stay on the proceedings and I shall refuse the application for a stay on the claimant's removal. For the avoidance of doubt, I indicate that the ambit of this judgment goes beyond the facts of the claimant's case, and that it can therefore be regarded as capable of being cited.