February 19, 2014
The Supreme Court has today given its judgment in the case of R (on the application of EM (Eritrea)) v Secretary of State for the Home Department (Respondent)  UKSC 12:
Previously, the Court of Appeal had rejected the Appellants’ appeals and they faced return to Italy under the ‘Dublin regulation’, where they had previously claimed asylum. In Italy, they had faced destitution, rape and lack of any care for mental health problems. The Court of Appeal had decided that the decision of the Court of Justice of the European Union in NS (Afghanistan) v Secretary of State for the Home Department  QB 102 meant that the Appellants had to show a systemic failure in the asylum system in Italy to prevent their return there.
The Supreme Court overturned the decision of the Court of Appeal, finding that there was no need to show a systemic failure, and restated a consistent line of authority on Article 3 of the European Convention on Human Rights, stretching back to Soering v United Kingdom (1989) 11 EHRR 439. The Court held that whether or not there was a systemic failure in the Italian system, the Appellants could not be returned to Italy if it is shown that there is a real risk upon being transferred they will suffer treatment contrary to Article 3 of the ECHR. The court must examine the foreseeable consequences of sending any claimant to the receiving country, bearing in mind both the general situation there and the claimant's personal circumstances, including his or her previous experience.
EM and AE were represented by Wilson Solicitors LLP, Monica Carrs-Frisk QC, Raza Husain QC, David Chirico and Mark Symes.
Watch Lord Kerr read out the summary judgment at the Supreme Court.
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