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Court of Appeal lays down hyper-strict approach to EU asylum claims


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ZV (Lithuania) v Secretary of State for the Home Department [2021] EWCA Civ 1196 is an important case about the admissibility of asylum claims made by EU citizens. There is a long-standing rule that asylum claims by EU nationals will only be considered in exceptional circumstances. It is presently contained in the Immigration Rules (and was based on EU law) and the government is proposing to replicate it in the Nationality and Borders Bill.

The rule is based on the twin assumptions that an EU member state will not persecute its own citizens and that, if a third party is attempting to persecute its citizens, the state will be willing and able to protect them. As the Court of Appeal notes in this case, the rule is known at EU level as the “Spanish protocol” because the rule was proposed by the Spanish government (it was annoyed with Belgium for granting asylum to members of the separatist group ETA). In principle, the rule sounds quite sensible.

The facts of this case illustrate how harsh it can be. ZV is a Lithuanian citizen who was trafficked to the UK. Like all trafficking victims, she suffered horrendous abuse and exploitation. In 2012, she managed to briefly escape back to Lithuania while the man who had trafficked her to the UK was in prison. The trafficker’s associates found ZV, abducted and raped her, and then re-trafficked her to the UK.

Having been freed from control of the trafficker after he was deported to Lithuania, ZV claimed asylum in the UK. The Home Office declared her claim inadmissible on the grounds that she was an EU national and had not demonstrated exceptional circumstances to justify the consideration of her claim. ZV challenged the refusal to consider her claim by judicial review but was unsuccessful before the High Court.

Shockingly, the Court of Appeal reached the same conclusion on the facts. Even though ZV had been trafficked to the UK twice, the court concluded that there was not a clear risk that Lithuania would be unable to offer sufficient protection:

Shocking though that episode was, it does not justify any general conclusion of that kind. There is no suggestion in the Appellant’s account that she had made herself known to the authorities on her return or alerted them to any concerns about further ill-treatment by DE, who was still in the UK: on the contrary, she says that she went back thinking that “everything had finished”. I do not blame her for that belief, but the only question for the Court is whether what happened to her required, or indeed could have justified, a conclusion by the Secretary of State that this was an exceptional case where an EU member state was unable or unwilling to offer proper protection to its nationals.

The Court of Appeal took a very strict approach to the test in this case. The judgment illustrates that an EU national seeking asylum in the UK will have to provide very strong evidence that sufficient protection would not be available in their country of origin just to overcome the admissibility hurdle.

Finally, in relation to a separate ground of challenge, the court concluded that the medical support provided in immigration detention is sufficient to discharge the UK’s obligations to support trafficking victims. This was even though being detained meant that ZV did not benefit from an individualised trafficking assessment conducted by the Salvation Army:

Many of her immediate needs, such as accommodation and subsistence, were of course catered for as long as she remained in detention. As regards her medical and psychological needs, Garnham J [in the High Court] was entitled to take the view that a distinct formal assessment was not required in circumstances where she was already under the care of the professional staff, first at Bronzefield and then at Yarl’s Wood. In EM (see para. 53) counsel for the claimant conceded that there was nothing in ECAT [the Convention against Trafficking] that required there to be an “individualised assessment” (by which I take him to have meant such a distinct formal assessment) and the Court evidently regarded that concession as correctly made… What matters is the substance of the support provided rather than matters of formal process.

The court therefore dismissed ZV’s appeal.

For more on inadmissibility rules in asylum cases generally, see Colin’s briefing: new UK approach to refugees and safe third countries.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Alex Schymyck

Alex Schymyck

Alex is a barrister at Garden Court Chambers