Medhanye, R (on the application of) v Secretary of State for the Home Department  EWHC 3012 (Admin) (18 November 2011
The claimant was an Eritrean national who claimed asylum in the UK. Inquries by SSHD revealed that the he had previously claimed asylum in Italy. The Italian authorities had accepted, pursuant to the Dublin II Regulation, that they were responsible for dealing with his asylum application.
The claimant was informed in December 2008 that he would be returned to Italy, and in 2009 SSHD certified his human rights claim in relation to return to Italy as ‘clearly unfounded’. The claimant sought permission to challenge SSHD’s maintenance of those decisions in the light of subsequent material that had been submitted in relation to the claim,whilst also seeking a stay pending determination of NS.
The challenge was on two grounds. Firstly, it was asserted that return would violate EU law -specifically Article 1 of the Charter of Fundamental Rights (CFR). Secondly, it was argued on the basis of MSS principles that return would violate Article 3 ECHR because of the conditions encountered on return to Italy.
1.The ECJ has yet to issue judgment in NS on whether CFR applies to decisions under Dublin II, and if so, the nature of the relationship between Article 1 of CFR (right to dignity) and Article 3 ECHR. Permission is therefore granted on this basis, and judgment is stayed pending the ECJ’s judgment;
2. In relation to Article 3 ECHR arguments, the material adduced by the Claimants in relation to ECHR risks was not sufficiently strong to meet the KRS test – KRS states that in the absence of proof to the contrary, there is a presumption that state parties to Dublin II will abide by ECHR obligations.
This case has obvious implications for returns by the UK to Italy under Dublin II given this stay of judgment pending a ruling by the ECJ in NS. As the Court puts it, ‘it is probable that no returns to Italy can be made until the ECJ issues its judgment.’
In relation to Article 1 CFR arguments, the Court seemed sceptical that the ambit of Article 1 could be any wider than Article 3 ECHR. It was also concerned that the ECJ may not even specifically address this discrete point if they adopt the Advocate General’s opinion in NS. At para 45 the Court states
I do not see the basis upon which it could realistically be held that the returnee’s right to “dignity” had nonetheless been infringed. Ex hypothesi, the returnee would have been treated in a manner that was humane, that did not degrade him or her, and that accordingly respected and protected his or her “dignity”. To postulate some form of humane and non-degrading treatment that nonetheless violated a right to “dignity” would both create intolerable uncertainty as to precisely where the line should be drawn, and would also tend to trivialise what the framers of the Charter no doubt intended to enumerate as undisputed and generally recognised “fundamental” rights. No doubt quite a lot of day to day conduct on the part of public authorities affronts, or could be perceived as affronting, an individual’s “dignity” in a broad sense. But to classify such conduct, when it could not properly be regarded as inhumane or degrading within the meaning of Article 3 ECHR, as a violation of a “fundamental” human right would seem to do no more than fortify that school of critics who continue to see force in Bentham’s celebrated aphorism regarding such rights.
The judgment is also important as it highlights the high evidential burden that will apply in ECHR challenges in cases where return is contemplated to an ECHR contracting state.
When addressing evidence about Italy in this case, the Court emphasizes at para.24, by reference to MSS, the need for ‘numerous reports from reputable organisations which all agree that there are serious deficiences in Italian asylum practice.’ It notes
The Courts have consistently held that evidence of aberrations does not demonstrate that a country is unsafe, so long as it has –
“a system which will, if it operates as it usually does, provide the required standard of protection for the asylum seeker. No country can provide a system which is 100 per cent effective. There are going to be aberrations.” (see R v Home Secretary ex p. Adan (CA)  3 WLR 1274 at pages 1293-1294).
Following KRS, the existence of such a system is to be presumed. It is for the Claimant to rebut that presumption, by pointing to a reliable body of evidence demonstrating that Italy systematically and on a significant scale fails to comply with its international obligations to asylum seekers on its territory
The Court also highlights in particular, the weight that will be attached to the views of the UNHCR and the European Commissioner for Human Rights in ECHR challenges of this kind.