UK - R (on the application of EM (Eritrea)) and Others (Appellants) v Secretary of State for the Home Department (Respondent)

Lord Kerr began his reasoning by outlining the presumption of compliance that exists between Member States of the European Union. At its heart is the presumption that all Member States are in compliance with their legal obligation, removing the need to investigate each other’s systems before transfer. It reflects not only principled but also pragmatic considerations. If a state were required to conduct an in-depth investigation into the merits of another state’s asylum system every time a return was imminent, all efficiency and co-operation would be lost, resulting in “bureaucratic quagmires”.

However, in line with the very nature of legal presumptions, they are not set in stone. Where evidence is presented that show that fundamental rights could be infringed upon return to another Member State, this presumption of compliance can be rebutted.

Therefore, in light of this, the Court was tasked with shaping the exact nature of this presumption of compliance. Lord Kerr found that the Court of Appeal’s requirement that a “systemic failure” exists in the Member State of origin for return to be resisted was wholly inappropriate to ensure that fundamental rights, specifically Article 3 ECHR, are respected. Its interpretation of NS was therefore incorrect as it was too restrictive in nature. Although the Court of Justice in NS did refer to systemic deficiencies, this was in the context of determining whether the Member State was aware of such deficiencies, not when determining the type of deficiency required. Rights infringement can be evidence of a systemic deficiency, however there was nothing to suggest that a systemic deficiency had to be present in order for return to be resisted.

The Court of Justice’s usage of the phrase “major operational problems” did not necessarily point to the intrinsic deficiencies of the system itself. The word “system” did not mean the actual system itself but the overall treatment of asylum seekers.

Lord Kerr opined that the real source of the risk of Article 3 being infringed was therefore operational problems, not systemic deficiencies. The Court noted that “it is self-evident that a violation of Article 3 rights is not intrinsically dependent on the failure of a system”. The operation of the Court of Appeal’s interpretation would be arbitrary in practice. Under this formulation, the fact that some of the applicants could be homeless upon return to Italy could not have been a consideration, as this did not originate from a systemic deficiency of the Italian asylum system.  This did not provide protection of Article 3 ECHR, and thus an alternative test had to be formulated.

Having established that the Court of Appeal’s approach was incorrect, Lord Kerr found that the Soering test was more appropriate. Removal must be forbidden if there exists a real risk that the person will be subjected to inhuman or degrading treatment upon transfer. Under Article 3(2) of the Reception Directive Member States must “ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence”. This and the Dublin Regulation must therefore be read in conjunction with fundamental rights.

In addition, such an interpretation is favourable as it satisfies the United Kingdom’s obligations to ensure conformity with the ECHR under the Human Rights Act 1998. As the ECtHR stated in MSS, Article 3 includes the right to be placed in living conditions which do not give rise to ill treatment. Furthermore in R (Limbuela), the Court stated that Article 3 is violated if “by the deliberate action of the state, [asylum seekers are] denied shelter, food or the most basic necessities of life”.

With these considerations in mind, if the living conditions of an asylum seeker upon transfer would breach Article 3, then transfer cannot take place.