18th Aug 2010
The secretary of state was entitled to return a Sudanese asylum seeker to Italy under Regulation 343/2003.
The claimant (X) applied for permission to seek judicial review of decisions of the defendant secretary of state to refuse his asylum claim, to certify his claim and to set directions for his removal to Italy under Regulation 343/2003. X, a national of Sudan, had initially sought asylum in Italy. He had come to the United Kingdom on three occasions. On his account, when he was returned to Italy on a previous occasion, the circumstances were so bad that he returned to Sudan, where he was tortured. The secretary of state did not accept that account. X argued that (1) the reports of an expert in Italian law cast doubt on the conclusion of Hickinbottom J. in R (on the application of EW (Eritrea)) v Secretary of State for the Home Department (2009) EWHC 2957 (Admin) that there was no evidence that Italy avoided or sought to avoid its international obligations towards asylum seekers; (2) the position in relation to the application of the European Convention on Human Rights 1950 had changed as a result of a test case which was due to be heard in the European Court of Human Rights; (3) the approach of the secretary of state was arguably wrong given the reference which had been made to the Court of Justice of the European Union in R (on the application of S) v Secretary of State for the Home Department (2010) EWHC 705 (Admin), (2010) 160 NLJ 548 on the issue of the secretary of state's discretion under Regulation 343/2003 not to transfer where that would expose a claimant to a risk of violation of his fundamental rights.
(1) The evidence in the expert's reports was not sufficiently persuasive, given Hickinbottom J.'s very detailed findings, to render arguable the contention that he was wrong in relation to the conclusions he reached regarding Italy, EW followed. (2) Although the test case might produce a variation in principle, it was clear that in both EW and S this court did not find any breaches of art.3 of the European Convention. Article 3 had purchase in particular factual contexts, and importantly for Italy Hickinbottom J. in EW found that it had none. On that basis, X's second submission was not arguable, EW and S followed. (3) EW was determinative as to the factual situation in Italy, and the findings of Hickinbottom J. made X's final submission unarguable, EW followed.
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