14 February 2014

Asylum seekers who appeal against their removal to another Member State under the Dublin Regulation do not need to prove ‘systemic deficiencies’ in the asylum system of the destination State in order to successfully prevent removal, the UK Supreme Court ruled on 19 February 2014.

This decision unanimously overturns the Court of Appeal’s October 2012 judgment. The Supreme Court sets out what it regards as ‘the correct approach’: Dublin returns must not take place where ‘substantial grounds have been shown for believing that the person concerned … faces a real risk’ in the destination Member State of inhuman or degrading treatment contrary to Article 3 of the European Convention on Human Rights (ECHR).

The Supreme Court held that proving ‘systemic deficiencies’ in the reception conditions and asylum procedure is but one route to establishing a real risk of ill-treatment, rather than ‘a hurdle to be surmounted’. A rigorous assessment of both the general situation and the individual’s personal circumstances, including his or her previous experiences, is required.

The Supreme Court concluded that the Court of Justice of the European Union, in its decision on N.S. and Others, did not intend to make ‘systemic deficiencies’ a necessary condition to stop a Dublin return.

The judgment arises from the joined appeals of three Eritrean asylum seekers and one from Iran against their return to Italy under the Dublin Regulation. With the correct legal approach now clarified by the Supreme Court, the factual merits of the individual cases will be dealt with by the High Court to determine whether their removal to Italy is prohibited by the risk of ill-treatment.

The ruling comes a week after the Grand Chamber of the European Court of Human Rights heard the case of Tarakhel v. Switzerland, which will decide whether the Dublin removal of an Afghan family to Italy would violate their Convention rights.

This article originally appeared in the ECRE Weekly Bulletin of 21 February 2014
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