“1. Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zone. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter 3 indicate is responsible. 2. … Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.”
“54. In MSS v Belgium and Greece 53 EHRR 28 the applicant was an Afghani asylum seeker whom the Belgian authorities desired to return to Greece under the Dublin Convention. He had been detained for a week in Greece before arriving in Belgium. At length he was returned from Belgium to Greece where he claimed asylum. There was much evidence before the Strasbourg court of the extremely deleterious conditions in which asylum seekers in Greece might be detained or had to live. The court concluded as follows: “249. The court has already reiterated the general principles found in the case law onarticle 3 of the Convention and applicable in the instant case. It also considers it necessary to point out that article 3 cannot be interpreted as obliging the high contracting parties to provide everyone within their jurisdiction with a home. Nor does article 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living. 250. The court is of the opinion, however, that what is at issue in the instant case cannot be considered in those terms. {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 Directive 2003/9 laying down minimum standards for the reception of asylum seekers in the member states (‘the Reception Directive”). 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 their rights and provide for his essential needs. 251. The court attaches considerable importance to the applicant’s status as any asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection. 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 EU 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 the responsibility of the state may 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’. 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 European 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 in 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 ofarticle 3 of the Convention .” … 57. There appears to be a fork in the road, on the court’s own reckoning, between the approach in N v United Kingdom 47 EHRR 885 on the one hand and the MSS case 53 EHRR 28 on the other. It is on the face of it difficult to find any governing principle, applied across the learning, which provides a rationale for departures from the article paradigm. There are, however, certain strands of reasoning. In the MSS case it is to be noted that Greece (unlike Belgium) was not impugned for breach of article 3 on account of anything that would happen to the applicant in a third country to which Greece proposed to remove him, but by reason of his plight in Greece itself. One may compare R (Limbuela) v Secretary of State for the Home Department[2006] 1 AC 396 , in which the House of Lords was concerned with the dire straits to which certain asylum seekers in this country were reduced for want of access to public funds, and held that there was a violation of article 3. In the MSS case a critical factor was the existence of legal duties owed by Greece under its own law implementing EU obligations: paras 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. … 59. This in the MSS … the court looked for particular features which might bring the case within article 3, and found them – in Greece’s legal duties and the applicant’s status as an asylum seeker …”
“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. …. 68. …. I consider that a more open-ended approach to the question of the risk of breach of article 3 is required. Although one starts with a significant evidential presumption that listed states will comply with their international obligations, a claim that such a risk is present is not to be halted in limine solely because it does not constitute a systemic or systematic breach of the rights of refugees or asylum seekers. Moreover, practical realities lie at the heart of the inquiry; evidence of what happens on the ground must be capable of rebutting the presumption if it shows sufficiently clearly that there is a real risk of article 3 ill treatment if there is an enforced return.”
“165. The question in these cases is whether any of the Claimants might arguably satisfy the FTT that return to Italy would expose him to an article 3 risk. There are two generic issues here: whether i). the argument, by those Claimants who are, or might be, asylum seekers on their return, that the evidential presumption is displaced, is bound to fail before the FTT; and ii) the argument by those Claimants who are, or would on any view, very shortly after their return home, become BIPs, or receive humanitarian protection, that they are at real risk of article 3 ill treatment is bound to fail before the FTT. (a) Asylum claimants: the evidential presumption 166. Mr Knafler QC accepted that the approach of Kenneth Parker J, as described by Lord Kerr in EM, is the correct approach. Could the FTT, applying the approach to the relevant evidence, arguably find that the evidential presumption of compliance has been displaced? I consider that it could not. I have already summarised the evidence at some length, so I can give my reasons briefly. I agree that the presumption is, as Mr Payne put it for the Secretary of State, not a hurdle; but it is a very important part of the inquiry when the allegation is that there is a generalised risk of article 3 ill treatment in Italy which arises regardless of the returnee’s profile.”
“169. The issue is not, contrary to the submission of Mr Knafler QC, whether the SRC [Swiss Refugee Council] and Braunschweig reports are “capable of belief” such that, if they are, the evidential presumption is displaced. There are two questions. First, what weight could the FTT rationally give those reports, if and to the extent that they differ from the UNHCR’s ‘pre-eminent and possibly decisive’ assessment? The answer to that question is “Very little”