Upper Tribunal (Immigration and asylum chamber), 2018-12-04, [2018] UKUT 429 (IAC) (R (on the application of SM & Others) v Secretary of State for the Home Department (Dublin Regulation – Italy))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President, Upper Tribunal Judge Craig, Upper Tribunal Judge Canavan |
| Status | Reported |
| Date | 04 December 2018 |
| Published date | 14 December 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Dublin Regulation – Italy |
| Hearing Date | 24 May 2018 |
| Appeal Number | [2018] UKUT 429 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
R (on the application of SM & Others) v Secretary of State for the Home Department (Dublin Regulation – Italy) [2018] UKUT 00429 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House |
Decision Promulgated |
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On 21, 23 and 24 May 2018 |
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Before
MR JUSTICE LANE, PRESIDENT
UPPER TRIBUNAL JUDGE CRAIG
UPPER TRIBUNAL JUDGE CANAVAN
Between
THE QUEEN ON THE APPLICATION OF
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S M
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S O M
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R K
(ANONYMITY DIRECTION MADE)
Applicants
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Representation
For SM: Mr G. Ó Ceallaigh, instructed by Duncan Lewis Solicitors
For SOM: Ms V. Laughton, instructed by Wilsons Solicitors
For RK: Mr D. Chirico, instructed by Wilsons Solicitors
For the Respondent: Mr A. Payne and Mr J. Anderson, instructed by the Government Legal Department
Anonymity
Rule 14: The Tribunal Procedure (Upper Tribunal) Rules 2008
Anonymity was granted at an earlier stage of the proceedings because the cases involve protection issues. It is appropriate to continue the order. Unless and until a tribunal or court directs otherwise, the applicants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their families. This direction applies both to the applicants and to the respondent.
(1) Subject to paragraph (2) below, on the evidence before the Upper Tribunal, no judge of the First-tier Tribunal, properly directed, could find there is a real risk of an asylum seeker or Beneficiary of International Protection (BIP) suffering Article 3 ill-treatment if returned to Italy pursuant to the Dublin Regulation, by reason only of the situation that the person concerned may be reasonably likely to experience in Italy, as a “Dublin returnee”. The evidence does not rebut the general presumption that Italy will comply with its international obligations in such cases.
(2) However, the evidence before the Upper Tribunal is markedly different from that previously considered by the High Court in “Dublin” cases concerning Italy, such that it cannot, without more, be said a human rights claim based on Article 3 is bound to fail, if the claim is made by a ‘particularly vulnerable person’ (as described in paragraph (3) below).
( 3) The categories of “vulnerable persons” identified in the Reception Directive are a starting point for assessing whether a person has a particular vulnerability for the purposes of this paragraph. The extent of a person’s particular vulnerability must be sufficiently severe to show a potential breach of Article 3. It is difficult to specify when a particular vulnerability might require additional safeguarding to protect a person’s rights under Article 3. The assessment will depend on the facts of each case. However, a person who makes general assertions about mental health problems without independent evidence or who has been diagnosed with a mild mental health condition or has a minor disability may have sufficient resilience to cope with the procedures on return to Italy, even if it entails the possibility of facing a difficult temporary period of homelessness or basic conditions in first-line reception facilities. There will be cases where a person’s particular vulnerability is sufficiently serious that the risk of even a temporary period of homelessness or housing in the basic conditions of first-line reception might cross the relevant threshold. Such cases are likely to include those with significant mental or physical health problems or disabilities. Other people may have inherent characteristics that render them particularly vulnerable e.g. unaccompanied children or the elderly.
(4) In the case of a ‘particularly vulnerable person’, the following considerations apply:
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A failure by the respondent to consider whether to exercise discretion under article 17(2) of the Dublin Regulation is likely to render the certification decision unlawful;
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If the respondent considers whether to exercise such discretion but decides not to do so, the return and reception of the person concerned will need to be well-planned. Although the Italian authorities would not want to leave a particularly vulnerable asylum seeker or BIP without support, the evidence indicates that there is no general process, similar to that which exists for families with children, to ensure that particularly vulnerable persons will not be at real risk of Article 3 treatment, while waiting for suitable support and accommodation, of which there is an acute shortage. In order to protect the rights of such a person in accordance with the respondent’s duties under the European Convention, the respondent would need to seek an assurance from the Italian authorities that suitable support and accommodation will be in place, before effecting a transfer.
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It follows that a failure to obtain such an assurance prior to the transfer of a particularly vulnerable person is likely to give rise to a human rights claim that is not necessarily ‘bound to fail’ before the First-tier Tribunal.
TABLE OF CONTENTS
Note: underlined headings are bookmarked in the electronic version
Page
GLOSSARY 7
INTRODUCTION 8
LEGAL FRAMEWORK 8
THE EVIDENCE 18
Introduction to the evidence 18
Scope of the assessment 18
Summary of the evidence 19
Comments on the ‘Fact-finding Mission Report’ 21
Overview of the situation in Italy 24
Overview of the asylum procedure 30
Initial registration (fotosegnalamento) 30
Formal registration (verbalizzazione and C3 form) 30
Interview and decision by the Territorial Commission (CTRPI) 30
Suspension of the procedure 31
Access to reception and accommodation 32
Reception and accommodation 32
Emergency facilities – CPSA / Hotspots 33
Temporary reception facilities – CAS 34
First-line reception facilities – Regional Hubs (CARA / CDA) 37
Second-line reception facilities – SPRAR 38
Other sources of support and accommodation 45
Vulnerable persons 45
Transfers under the Dublin Regulation 52
Overview of the procedures 52
Issues relating to registration and reception 55
Rome 57
Milan 62
Venice 67
Bari, Brindisi and Lecce 68
Naples 70
Living conditions 70
Access to healthcare 73
Beneficiaries of International Protection (BIPs) 76
Assistance on return 78
Renewal of permits 78
Accommodation and integration 80
The Tribunal’s observations on the evidence 84
GENERAL CONCLUSIONS 88
A. ‘Ordinary cases’ (not exhibiting particular vulnerabilities
or disabilities) 88
B. Vulnerable persons (including asylum seekers and BIPs) 91
C. Beneficiaries of International Protection 95
THE INDIVIDUAL CASES 96
Findings relating to SM 97
Findings relating to SOM 98
Findings relating to RK 99
ANNEX
Schedule of Background Evidence 101
GLOSSARY
AIDA Asylum Information Database
AMIF Asylum, Migration and Integration Fund
ANCI National Association of Italian Municipalities
Associazione Nationale Comuni Italiani
ASGI Association for Juridical Studies on Immigration
Associazione per gli Studi Giuridici sull’Immigrazione
CARA Centre for the Reception of Asylum Seekers
Centro di accoglienza per richiedenti asilo
CAS Emergency Accommodation Centre
Centro di accoglienza straordinaria
CDA Accommodation Centre for Migrants
Centro di accoglienza
CNDA National Commission for the Right of Asylum
Commissione nazionale per il diritto di asilo
CPSA First Aid and Reception Centre
Centro di primo soccorso e accoglienza
CTRPI Territorial Commission for the Recognition of International Protection
Commissione territoriale per il reconoscimento della protezione internazionale
MEDU Doctors for Human Rights
Medici per i diritti umani
MSF Doctors without Borders
Medecins Sans Frontieres
SPRAR System of Protection for Asylum Seekers and Refugees
Sistema di protezione per richiedenti asilo e rifugiati
SRC Swiss Refugee Council
INTRODUCTION
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This is the judgment of the Tribunal, primarily written by Upper Tribunal Judge Canavan, but to which the other...
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