The Supreme Court gives guidance as to the correct approach in determining human rights challenges made by asylum seekers and refugees against their transfers between Member States.
Lisa Giovannetti QC and Alan Payne represented the Secretary of State in R (EM) v Secretary of State for the Home Department  UKSC 12.
The Supreme Court allowed appeals by asylum seekers and refugees who were resisting their return from the UK to Italy in reliance on Article 3 ECHR (inhuman and degrading treatment). The appeals raised an important issue of principle as to the relationship between EU law and the ECHR in the context of the common European asylum system. The Court of Appeal had concluded that it was bound by EU law to hold that even if an asylum seeker was able to establish that he was at real risk of being treated incompatibly with Article 3 in the country to which he was to be returned, this would not prevent his return, unless the source of the risk were “systemic deficiencies” in the asylum procedures that country. This conclusion was rejected by the Supreme Court who re-affirmed the well-established test set out in Soering v UK, observing that “It is self-evident that a violation of Article 3 rights is not intrinsically dependent on the failure of a system.” The Supreme Court indicated that the task for the court was to examine the foreseeable consequences of returning a particular applicant to the receiving country, bearing in mind both the general situation there and the applicant’s personal circumstances, including his or her previous experience in that country. On that basis the four appeals were remitted to the High Court for a fresh consideration as to the consequences of removal of each Appellant to Italy.