New Judgment: R (EM (Eritrea)) v Secretary of State for the Home Department  UKSC 12
19 Wednesday Feb 2014
On appeal from:  EWCA Civ 1336
This appeal concerned whether, and in which circumstances, an asylum seeker should be sent back to the country where they first claimed asylum where it is claimed that that would expose the individual to the risk of torture under ECHR, art 3.
The appellants were one Iranian national and three Eritrean nationals who came to the UK via Italy. One appellant claims he was tortured in Iran and is in need of treatment which he would not receive in Italy, and two of the appellants claim they were repeatedly raped in Italy. Italy is a presumed ‘safe country’ for return of asylum seekers and the Home Secretary found the appellants’ claims were clearly unfounded as to the treatment they received or feared they would receive in Italy. The Court of Appeal held that a systemic breach, rather than a mere breach of Italy’s obligations to treat asylum seekers with dignity would have to be found to allow the appellants to remain in the UK instead of being returned to Italy.
The Supreme Court unanimously allowed the appeals and remit the cases to the administrative court to determine whether there is a real possibility of treatment in violation of art 3 in Italy. It was wrong to find that only a systemic breach would justify not returning the appellants to Italy. The judgment in NS (Afghanistan) v Secretary of State for the Home Department  QB 102 did refer to a systemic breach but the CJEU’s focus was on Member States’ awareness of such a breach, rather than the type of breach. The CJEU was not questioning the test of a ‘real risk’ that the person would suffer treatment contrary to art 3. Breaches of a country’s obligation are likely to concern systemic failings, but a focus on those failings is only to establish that there is a real risk of a breach of art 3, rather than it being a distinct hurdle to be overcome.