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Hugh-Southey-2

The Supreme Court has now decided that all that an asylum seeker need prove in order to prevent their removal to a third country in Europe is that there is a real risk of treatment contrary to article 3. There is no requirement that the risk of ill-treatment need to be systemic. In some ways the extraordinary thing about this case is that it required the Supreme Court to determine the issue, given that the parties were agreed on the outcome.

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 article 3 of the European Convention on Human

Rights 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 [2011] EUECJ C-411/10 and C-493/10] is elevate the finding of the [the European Court of Hu

man 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 [2011] ECHR 108] 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.

Outcome

The judgment starts by recording that all of the parties were agreed that the approach of the Court of Appeal was wrong and the issue was whether there was a real risk of treatment contrary to article 3 (paragraph 3). The only relevance of the fact that a person will be sent to Europe is that there is a presumption there will be compliance with article 3 in other European countries (paragraph 64). This represents a restatement of what should have been obvious. European Union law cannot undermine the European Convention on Human Rights. That is hardly surprising in light of the fact that article 6(3) of the Treaty on European Union provides that:

Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Union’s law.