A presumption that members of an alliance of states such as those which comprised the European Union would comply with their international obligations in regard to refugee protection did not extinguish the need to examine whether in fact those obligations would be fulfilled when evidence was presented that it was unlikely that they would be. The removal of a person from a member state of the European Union was forbidden if it were shown that there was a real risk that the person removed would suffer inhuman or degrading treatment in violation of article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It did not need to be shown that the source of that risk was a systemic deficiency in the asylum and reception procedures of the state to which the person was being removed.

The Supreme Court so held, allowing the appeals of four claimants who had previously claimed asylum in Italy, and in respect of whom the Italian authorities had accepted responsibility or had granted refugee status,, from a decision of the Court of Appeal (Richards and Sullivan LJJ, Sir Stephen Sedley) [2013] 1 WLR 576 to dismiss the appeals of (1) the claimant, EM, a national of Eritrea, from a decision of Kenneth Parker J [2012] 1 CMLR 1190 on 2 July 2012; (2) the claimant, EH, a national of Iran, from a decision of Mr Stephen Males QC sitting as a deputy judge of the Queen’s Bench Division [2012] EWHC 512 (Admin) on 15 February 2012; (3) the claimant, AE, a national of Eritrea, from a decision of Mr J M Ockleton sitting as a deputy judge of the Queen’s Bench Division [2011] EWHC 3826 (Admin) on 10 November 2011 and (4) the claimant, MA, a national of Eritrea, from a decision of Langstaff J [2012] EWHC 56 (Admin) on 31 January 2013, in each case dismissing the claimant’s claim for judicial review by way of an order to quash the decision of the Secretary of State for the Home Department that his claim for asylum was clearly unfounded and to remove him to Italy. The Supreme Court remitted the cases to the Administrative Court for determination.

LORD KERR OF TONAGHMORE JSC, with whom the other members of the court, agreed, said that the first state in which asylum was claimed should normally be required to deal with the application and, where the application was successful, to cater for the refugee’s needs. The presumption that the first state would comply with its obligations should not stifle the presentation and consideration of evidence that the consequence of enforced return would be a violation of the asylum seeker’s fundamental rights. A violation of article 3 did not require that the complained of conditions said to constitute inhuman or degrading conditions were the product of systemic shortcomings. The violation of article 3 rights was not intrinsically dependent on the failure of a system. The Court of Appeal’s conclusion that only systemic deficiencies in Italy’s asylum procedures and reception conditions would constitute a basis for resisting transfer to Italy could not be upheld. Therefore all four cases would be remitted to the Administrative Court so that examination of the evidence might take place to determine whether in each case it was established that there was a real possibility that, if returned to Italy, the claimant would be subject to treatment in violation of the Convention.