Supreme Court rules on the circumstances in which an asylum seeker can be sent back, under the Dublin II Regulation, to the country where he or she first arrived

19/02/14

R(EM(Eritrea)) v Secretary of State for the Home Department [2014] UKSC 12

The Dublin II Regulation lays down rules allocating responsibility between the EU Member States in respect of asylum claims brought by persons from third countries.  The general position is that a claim must be determined by the State in which the asylum seeker first arrived.  An asylum seeker must therefore be returned to that first Member State by any other Member State in which they subsequently arrive. 

This appeal was brought by asylum seekers who argued that their return to Italy by the UK Government was precluded because it would result in such a breach of their human rights.  The Court of Appeal had held that the obligation on the UK not to return the appellants only arose if Italy was in “systemic breach” of its human rights obligations towards asylum seekers.  In so holding, the Court of Appeal had considered itself to be bound by the judgment of the CJEU in NS(Afghanistan) v Secretary of State for the Home Department  which, according to the Court of Appeal, adopted a more restrictive approach than the European Court of Human Rights.  In allowing the appeal, the Supreme Court accepted the Appellants’ and UNHCR’s submissions that the Court of Appeal had misinterpreted the judgment in NS: that judgment was on all fours with the relevant ECHR case law and did not require evidence of “systemic” breaches.  The threshold is lower than that.  A Member State is precluded from returning an asylum seeker to another Member State if it can be shown that this would result in a real risk of a breach of their fundamental rights.

The judgment is here.