I have been a solicitor with Wilsons since April 2010 and was a senior caseworker for 3 years before that, so I have a lot of experience of immigration law, including working on appeals and judicial reviews, in the High Court and in the Court of Appeal.
This week I was at the Supreme Court. This court hears appeals on arguable points of law of the greatest public importance, for the whole of the United Kingdom.
My client’s case has been ongoing since 2009 and has been marked out as a test case since the High Court. This means that we have been breaking new legal ground and setting precedent with our case. The outcome will have an impact on asylum seekers’ cases not only in the UK but across Europe.
The case is about the ‘Dublin II Regulation’, which allows member states of the EU to send back people claiming asylum in their territory to the first safe country in the EU they could or did claim asylum in. My client came to the UK after passing through Italy first. The Home Office thinks my client should go back to Italy to have his claim considered there. My client left Italy because Italy failed to meet my client’s basic human needs whilst he was claiming asylum there, such that he was left homeless and penniless on the street.
We are arguing that to return my client back to Italy would breach his unqualified rights (that is to say, rights cannot be even marginally infringed) under article 3 ECHR/ article 4 of the EU Charter of Fundamental Rights – ‘No one shall be subjected to torture or to inhuman or degrading treatment or punishment’. Our case is based on the evidence of several international NGOs and a wide range of other evidence I have obtained from experts and other sources. We say it shows that the Italian asylum process is not working well enough to protect my client from serious harm if he is sent back. The key legal point is that we say that the UK cannot make it harder than the usual test of ‘substantial grounds for believing there is a real risk of article 3 harm’ for my client’s case to be arguable just because Italy is an EU member state and signed up to the treaties.
The issue of asylum is highly politically charged. The UK wants to prevent at all costs taking greater responsibility for asylum seekers in Europe than it has to. At the same time there is constant media pressure about the burden of EU membership. Italy is struggling to cope as an EU ‘frontier state’ but neither the UK nor the EU as a whole has made any plans to help Italy. As far as we are concerned, no one should ever be subjected to inhuman or degrading treatment. Asylum seekers leave their home country not because they want to but because they are looking for protection.
As the case is so important the decision may be expedited by the court and we may have a decision sooner than usual but in any event within the next 3 months or so. We hope to be successful and show we have an arguable case to put to the immigration tribunal, so that they can assess by way of country guidance the safety of returns to Italy. If successful there, my client’s asylum claim will have to be looked at in the UK.