Scottish Human Rights Law Group

W, an asylum seeker of Eritrean nationality, sought judicial review of the decision of the Secretary of State which certified that W’s human rights claim to remain in the UK was clearly unfounded. W had illegally entered the UK, and had been arrested and detained. Fingerprint checks against the European fingerprint database uncovered that the appellant had previously illegally entered Italy.  The UK authorities were deemed to have accepted responsibility for W’s claim by default, as Italy failed to respond to a formal request to accept responsibility for W under its obligations in EU Regulation 343/2003 on determining the Member State responsible for examining an asylum application. W’s asylum claimed was considered and refused by the UK, on the grounds that W had passed through a safe third country, an application based on family ties in the UK was also refused.  W made further representations that removal to Italy would breach his Article 3 rights as the conditions for asylum seekers in Italy were such that they amounted to inhuman and degrading treatment.

The Court refused to allow W’s application, holding that no general right to accommodation or to a minimum standard of living could be founded on the Convention rights, European law or from domestic legislation.  The Court further held that the setting of such a minimum standard was a matter for the legislature, not for the courts, and that one member of the EU could not be expected to police the asylum policy of another Member State to the extent W suggested.   There was a presumption that Italy would uphold its commitments in international law and there was no evidence of the systematic, routine, or even regular frustration of the making or pursuit of an asylum application in Italy, or delaying of the determination of such an application to any unreasonable degree, or the failing to provide appropriate information to asylum seekers.   When considering the living conditions which W would be subjected to in Italy the Court applied R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66, where the House of Lords determined that whilst poor living conditions could amount to inhuman and degrading treatment in breach of Article 3, that article did not prescribe a minimum standard of social support for those in need, and did not require the state to provide a home or minimum level of financial assistance to all within its care.  Living conditions which amount to a breach of Article 3 must be derived from some positive action on the part of the state, not on mere passivity on its part.  In the instant case the Court determined that on the evidence, the deprivations and restrictions that W might suffer if returned to Italy were few and relatively minor. If returned, it was very likely that he would have the benefit of several weeks’ accommodation and then, if his application had not been determined, the likely time before its determination would be no more than a few weeks.  W had, therefore, not satisfied the Court that he would suffer treatment meeting the high threshold of “inhuman and degrading” within the meaning of Article 3. The decision of the Secretary of State to certify W’s claim under Article 3 as clearly unfounded was, thus, justified and any appeal against that decision would, on the evidence, be bound to fail.

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