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Hugh SoutheyThe Supreme Court will hear the appeal from the judgment of the Court of Appeal in EM v Secretary of State for the Home Department [2012] EWCA Civ 1336.

Background

One of the issues that arises as a consequence of the common European asylum system is the extent to which states are required to consider complaints that another member state will fail to comply its obligations in international law if a person is removed to that state. For example, it was alleged that in this case there was a risk that the appellants would be exposed to treatment that would violate their rights under ECHR, art 3 if required to claim asylum in Italy.The Court of Appeal judgment

The key passage of the Court of Appeal judgment is paragraph 47, which states that:

“. . . what the [Court of Justice of the European Union] has consciously done in [NS v Secretary of State for the Home Department (C-411/10 and C-493/10)] is elevate the finding of the [the European Court of Human Rights] 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 v Belgium and Greece (App No. 30696/09)] 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.”

This passage demonstrates how the Court of Appeal held that an asylum seeker can only object to removal to another member state of the European Union on the basis of risk of ill-treatment if there are systemic failures in the proposed destination state.

Supreme Court consideration

The judgment of the Court of Appeal raises a number of issues. Key among them include:

  1. How can it be acceptable for a state to transfer a person to another state where there is a real risk of ill-treatment contrary to ECHR, art 3 when that article is said to be absolute.
  2. How can there be a real risk of ill-treatment contrary to art 3 without there being a systemic failure by the state where that risk arises. States are expected to have systems in place that avoid a real risk of article 3 ill-treatment.

These issues and others will be considered by the Supreme Court on 6-7 November 2013. The panel will be Lords Neuberger, Kerr, Carnwarth, Tolson and Hodge.