Judgment in the test case of SM & Ors v SSHD was handed down by the Upper Tribunal on 4 December 2018. The Tribunal quashed the decision to certify SM and RK’s human rights claims as “clearly unfounded” on the basis that their particular vulnerability, combined with the latest evidence of profound problems with the Italian reception system meant that that the Secretary of State should either exercise the discretion to consider their claims here or obtain an assurance that they would be provided with appropriate accommodation. The evidence before the Tribunal predated the latest Italian government’s anti-migrant policies.
Greg Ó Ceallaigh of Garden Court Chambers acted for SM, a recognised refugee with severe mental health problems, having experienced brutal persecution in Darfur. He first fled to Libya where he lived until the Arab Spring brought down the government. He then travelled to Italy where he was recognised as a refugee. He was kept in violent and dangerous conditions however, and after being attacked in an incident where another man was stabbed with a broken bottle he left and travelled to the United Kingdom. The Secretary of State certified his claim that return to Italy would breach Article 3 ECHR as “clearly unfounded” and he challenged that decision.
The Tribunal found that the threshold for Article 3 ill-treatment may be met in cases involving demonstrably vulnerable asylum seekers and beneficiaries of international protection (BIPs). In doing so, the Tribunal considered significant new evidence, which it found altered the picture from previous cases considering removal to Italy. The Tribunal placed particular weight on a recommendation made by the UNHCR to the SSHD to use the Dublin regulations’ “discretionary clause” in a “proactive and flexible” manner, particularly in relation to vulnerable applicants. The Tribunal found that the UNHCR’s recommendation reflects general concerns, supported by the evidence, about the capacity of the Italy asylum system to provide adequate safeguards for particularly vulnerable people. The Tribunal concluded that a “failure to consider whether to exercise discretion in cases involving demonstrably vulnerable individuals is likely to render a decision unlawful”.
The Tribunal goes on to state that if the SSHD decides not to exercise his discretion in the case of a particularly vulnerable asylum seeker or BIP, the SSHD would “need to seek an assurance from the Italian authorities that support and accommodation is in place before effecting a transfer”. This is to “ensure that particularly vulnerable asylum seekers will be safeguarded while waiting for suitable support and accommodation, of which there is an acute shortage”. Failure to obtain an assurance prior to transfer is likely to give rise to a human rights claim which is not clearly unfounded.
The Tribunal allowed SM and RK’s applications for judicial review and SOM’s was dismissed on the basis that she was not particularly vulnerable.
Counsel instructed are Victoria Laughton (1 Pump Court Chambers), David Chirico (1 Pump Court Chambers) and Greg Ó Ceallaigh (Garden Court Chambers). Instructing solicitors were Aisling Ní Chuinn and Giulia Tranchina of Wilson Solicitors LLP and Aleksandra Stankiewicz of Duncan Lewis.
The full judgment is available to view here: SM & Ors v SSHD