If the case of Tarakhel was considered another body blow to the Dublin system, the recent Court of Appeal case of NA (Sudan) v The Secretary of State for the Home Department [2016] EWCA Civ 1060 has picked up the Dublin system up off the ropes for another round.

The Court decided that Tarakhel did not extend to other vulnerable persons and was only ever intended to apply to families with children. And the two appellants in NA (Sudan) were extremely vulnerable, suffering a range of health problems including severe depressive disorder, and the risk of suicide, with one appellant suffering a history of rape and sexual abuse in Italy.

In coming to this conclusion the Court relied on the decision of several cases decided since Tarakhel involving individuals suffering from serious PTSD, health problems, and the risk of suicide. In some, children were involved, and it decided that general, rather than specific, assurances were sufficient, representing a further rollback of Tarakhel.

The Court reaffirmed the fundamental question as being whether, in assessing all the circumstances of an individual’s case, substantial grounds have been shown for believing that the person concerned faces a real risk of being subjected to treatment meeting the article 3 threshold. But the starting point is always going to be the presumption, labelled as a ‘significant evidential presumption’ by the Court, that member states will comply with their obligations. The Court decided in the case of Italy that the presumption was not rebutted, taking the opportunity to remind us all that:

‘the situation in Italy is in no way comparable to that in Greece and that a general ban on returns to Italy cannot be justified.’ [111]

Arguments were put forward about the inadequate supply or suitability of accommodation being such that it resented a breach of Article 3, but these were also dismissed by the Court. It was not accepted that a short delay in suitable accommodation being found or the sub-optimal quality of such accommodation, and the associated support, would be a breach of article 3. In fact, the Court concluded, this was not a case

‘where the available statistics raised a prima facie case that Italy was unable or unwilling to provide accommodation where required by its obligations under article 3.’ [169]

The Court accepted many individuals were living in Italy in deplorable conditions but those returned to Italy would not end up destitute and would, appearing to suggest, be in an advantageous position. An individual would be returned to Italy accompanied by a medical escort or medical records, or even both, and will be offered assistance by the airport NGOs where proper assessments will be conducted to meet the particular needs of the returnee.

While these assessments may be variable, and some may be sub-optimal, there was no evidence in front of the Court to suggest that vulnerabilities will be ignored. For those with tragic experiences in Italy, it will only be relevant to the question about whether that person will now receive proper accommodation, healthcare and support and the evidence suggested a returnee will receive all the support necessary to enable that individual to access the treatment he or she now needs.

This is the most recent in a long history of cases and is unlikely to be the last word. It however does mean that cases stayed behind this decision do need to be reconsidered.

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