Any asylum practitioner is likely to come across cases where, rather than investigate the merits of an asylum claim, the Home Office seeks to return their client to a third country elsewhere in the European Union deemed under the Dublin II Regulation to have prior responsibility for assessing the claim, most often because that was the first territory in which they were fingerprinted or recorded as having claimed asylum having crossed the borders into the Member States. Any international system of co-operation in the assessment of asylum claims, in order to have integrity, needs to have some level of trust in the processes and decision making of fellow States, and so it is perfectly sensible for participants to proceed from an assumption that each of them respects the standards of the system as a whole. But when particular countries experience large scale arrivals that test their capacity to breaking point, or are unable to cater for the particular needs of returnees, what approach should national courts take in assessing whether the ensuing problems involve a breach of Article 3 ECHR?

The Supreme Court in EM Eritrea and Others [2014] UKSC 12 has now answered this question in its keenly awaited ruling addressing the test for compatibility of returns under the Dublin II Regulation with European Union law, and in doing so has overturned the decision below. The Court of Appeal had found that even if there were difficulties within an asylum reception system which created a substantial risk of incompatibility with asylum seekers’ human rights, this could only bar returns under Dublin II where the problem arose due to a systemic failure. However, the Supreme Court disagrees, and in a single opinion by Lord Kerr with which the other Judges unanimously concur, it has now been made clear that in third country cases, as in all others, the relevant question is whether there is a real risk of the minimum level of severity being traversed. Identification of a systemic failure is one route by which this may be demonstrated, but it is by no means a necessity in every case.

Whilst there is a presumption that fellow Member States comply with their responsibilities vis-á-vis fundamental rights, says Lord Kerr, this does not “extinguish the need to examine whether in fact those obligations will be fulfilled”: and the presumption must never stifle the presentation and consideration of relevant evidence. And, although UNHCR evidence is of special importance given the organisation’s unique and unrivalled expertise in asylum law, Member States may nevertheless acquire knowledge of the possibility of inhuman and degrading treatment via other mediums. As was submitted by UNHCR at the hearing, just because UNHCR had not called for a halt of returns to Italy, this did not mean the agency had given Italy “a clean bill of health”.

What does this mean in practice? In future Dublin cases, Italian or otherwise, it will be essential to evaluate all the facts of the case, including any individual characteristics which might make an asylum seeker more vulnerable. The Supreme Court did not look at the evidence for itself, and so the question of the adequacy of Italy’s reception conditions for asylum seekers remains moot: a group of cases has been identified to test the issue, presently listed to be heard together before a High Court Judge after 1 May 2014. And even that may not be the last word on the subject: the Grand Chamber of the European Court of Human Rights heard Tarakhel v Switzerland on 12 February 2014 and will in due course express its own view on the situation.

Lord Kerr adds that “The Dublin Regulation and the Reception Directive must be interpreted and applied in conformity with fundamental rights”, which may well indicate that it would be wrong to extend the principle that Dublin II does not generally confer individual rights to challenge allocations of responsibility between Member States so as to prevent asylum seekers from raising arguments based on Article 15 of Dublin II, addressing humanitarian dependency.

As well as your correspondent, the legal team included Monica Carrs-Frisk QC, Raza Husain QC, David Chirico, Melanie Plimmer, Michael Fordham QC, and Marie Demetriou, instructed by Wilsons LLP, Sutovic and Hartigan, Switalskis, and UNHCR. The case could not have been taken so far without the assistance of NGOs across Europe, including the AIRE Centre and ECRE.