*R (on the application of EM (Eritrea) v Secretary of State for the Home Department and other appeals

Immigration – Asylum seeker. The appellants had originally travelled to Italy and sought asylum or refugee status, but had left Italy and arrived in the United Kingdom. The Secretary of State determined that they should be returned to Italy and certified their claims as clearly unfounded. The appellants had all sought judicial review of those decisions. The Court of Appeal, Civil Division, had concluded, based on the decision of the Court of Justice of the European Union in NS v Secretary of State for the Home Department and other cases: C-411/10 and C-493/10 [2012] All ER (EC) 1011 (NS), that the sole ground on which a second state was required to exercise its power under art 3(2) of the Dublin II Regulation to entertain a re-application for asylum or humanitarian protection, and to refrain from returning the applicant to the state of first arrival, was that the source of risk to the applicant was a systemic deficiency, known to the former, in the latter's asylum or reception procedures. On the facts, the situation in Italy had not reached that mark. The Supreme Court held that the Court of Appeal had erred and misinterpreted NS. The correct test had remained that in Soering v United Kingdom (Application 14038/88)[1989] ECHR 14038/88.

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