FOURTH SECTION
DECISION
Application no. 63388/11
A.E.
against the United Kingdom
The European Court of Human Rights (Fourth Section), sitting on 10 June 2014 as a Chamber composed of:
Ineta Ziemele, President,
Päivi Hirvelä,
George Nicolaou,
Nona Tsotsoria,
Paul Mahoney,
Krzysztof Wojtyczek,
Faris Vehabović, judges,
and Françoise Elens-Passos, Section Registrar,
Having regard to the above application lodged on 12 October 2011,
Having regard to the interim measure indicated to the respondent Government under Rule 39 of the Rules of Court and the fact that this interim measure has been complied with,
Having regard to the decision to grant priority to the above application under Rule 41 of the Rules of Court.
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Ms A.E., is an Eritrean national, who was born in 1983 and lives in Bedford. The Acting President of the Section granted the applicant’s request for her identity not to be disclosed to the public (Rule 47 § 4). She was represented before the Court by Wilson Solicitors LLP, a law firm based in London.
A. The circumstances of the case
2. The facts of the case, as submitted by the applicant, may be summarised as follows.
1. The background facts
3. The applicant left Eritrea in 2008 and travelled to Italy. It appears that she was eventually granted refugee status there on an unknown date, although she was not aware of the grant.
4. After six months in Italy, the applicant was informed that she was no longer entitled to accommodation or support and was told to leave the hostel where she was staying. She had nowhere else to live and no financial means. She was forced to share a room with a female friend and three men. After one of the men tried to rape her, the applicant left Italy and travelled to the United Kingdom.
5. She arrived in the United Kingdom on 19 January 2010. She was removed to Italy on 15 October 2010 because Italy was the Member State responsible for her asylum claim.
6. The applicant was given no assistance upon her arrival at the airport in Italy, despite her requests for help. From October 2010 until March 2011, she had to live in a squat in Milan where there were not enough beds for everyone so that she often had to sleep on the floor. She was repeatedly raped by different men staying in the same accommodation. Other people in the squat were able to see what was happening to her but did nothing to intervene. She witnessed the same thing happen to other women in the squat. If she tried to sleep in the train station to avoid the risk of sexual assault in the squat, she would usually be told to move on by the police. The men in the squat warned her not to tell the police what they were doing to her otherwise they would take revenge upon her. She was not provided with any food or means of subsistence and the queues at charities for food were so long that she often went without food.
7. Eventually, with the help of an Eritrean woman, she bought a train ticket to Calais.
2. The applicant’s asylum claim in the United Kingdom
8. The applicant returned to the United Kingdom on 21 April 2011. She was arrested and detained on arrival. On the same day, she made an application for asylum.
9. On 8 June 2011 the Secretary of State refused her asylum claim under the Dublin Regulation because she had been granted refugee status in Italy.
10. On 13 June 2011 the applicant’s representatives submitted detailed representations to the Secretary of State. They argued that the applicant was particularly vulnerable as a lone female who had given a clear and internally consistent account of her living conditions in Italy which was also consistent with the available objective evidence. They argued that her return to Italy would expose her to a real risk of ill-treatment contrary to Article 3 and therefore requested that she be granted leave to remain in the United Kingdom.
11. On 14 June 2011, the Secretary of State refused the applicant’s representations and maintained her position that it was safe for asylum seekers to be returned to Italy. Removal directions were set.
12. The applicant issued an application for permission to apply for judicial review at the High Court. She argued, inter alia, that her removal to Italy would breach her rights under Article 3 of the Convention. The removal directions were cancelled pending the High Court proceedings.
13. On 19 July 2011 permission to apply for judicial review was refused by the High Court. The applicant renewed her judicial review application to an oral hearing.
14. On 18 October 2011, the Secretary of State set new removal directions for the applicant to be returned to Italy on 28 October 2011.
15. On 27 October 2011 the High Court refused to grant a stay on removal pending the renewed oral hearing in the judicial review proceedings, referring inter alia to the arrangements made by the Italian authorities to accommodate the applicant upon her return.
16. On the same day the Acting President of the Fourth Section decided, in the interests of the parties and the proper conduct of the proceedings before the Court, to indicate to the Government, under Rule 39 of the Rules of Court, that the applicant should not be removed to Italy until further notice. Written observations on the admissibility and merits of the case were subsequently sought.
17. On 10 November 2011 the applicant’s renewed application for permission to apply for judicial review was refused by the High Court. The applicant intimated her intention to appeal the decision.
18. The Government accordingly requested an adjournment of the proceedings before this Court pending the conclusion of the domestic proceedings. On 28 November 2011 the Acting President decided to adjourn the proceedings.
19. Permission to seek judicial review was subsequently granted by the Court of Appeal.
20. On 17 October 2012 the Court of Appeal dismissed the judicial review application. The applicant sought leave to appeal to the Supreme Court. Leave was subsequently granted.
21. On 19 February 2014 the Supreme Court upheld the applicant’s appeal as to the correct test to be applied under Article 3 of the Convention in cases concerning removals to European Union countries, and remitted the case to the High Court for examination of the evidence and a decision on the particular facts of the applicant’s case.
3. Proceedings before this Court
22. In light of the Supreme Court judgment, and considering that it might be appropriate to strike out the case pending completion of the domestic proceedings, the Court by letter dated 2 April 2014 invited the respondent Government to provide an undertaking that no steps would be taken to deport the applicant until the domestic proceedings had concluded. On the same date, the applicant was invited to confirm whether, if such an undertaking were given, she would be prepared to withdraw her application, without prejudice to her right to lodge a new application in due course in the event of an unfavourable outcome in the domestic proceedings.
23. By letter dated 3 April 2014 the respondent Government informed the Court that the Home Office had confirmed that the applicant would not be removed from the United Kingdom until the domestic litigation in her case was complete.
24. By letter dated 25 April 2014 the applicant informed the Court that she did not wish to withdraw her case and sought a continuation of the adjournment. She argued that no specific findings on her particular case had been made by the Supreme Court and that as a consequence her case was in the same position as it was when the proceedings were first adjourned in 2011 (see paragraph 19 above). In her submission, circumstances had not changed to such an extent as to warrant withdrawal of the application.
COMPLAINT
The applicant complains that, if returned to Italy, there is a real risk that she will face ill-treatment in breach of Article 3 of the Convention both as a result of the dire living conditions facing refugees and asylum seekers there and the risk of sexual abuse.
THE LAW
25. Article 37 of the Convention provides:
“1. The Court may at any stage of the proceedings decide to strike an application out of its list of cases where the circumstances lead to the conclusion that
(a) the applicant does not intend to pursue his application; or
(b) the matter has been resolved; or
(c) for any other reason established by the Court, it is no longer justified to continue the examination of the application.
However, the Court shall continue the examination of the application if respect for human rights as defined in the Convention and the Protocols thereto so requires.
2. The Court may decide to restore an application to its list of cases if it considers that the circumstances justify such a course.”
26. In order to determine whether an application should be struck out of the list pursuant to Article 37 § 1 (c) the Court must consider whether the circumstances lead it to conclude that “for any other reason ... it is no longer justified to continue the examination of [it]”.
27. In the Court’s view, the particular circumstances of this application are such that it is no longer justified to continue its examination. Matters have evolved significantly since the lodging of the application in 2011. As a result of the judgment of the Supreme Court of February 2014, the applicant’s challenge to her removal will now be re-examined by the High Court and a fresh decision given. It will be open to the applicant to appeal against the decision if it is not in her favour. Throughout the domestic proceedings, including any appeals, the applicant will benefit from the undertaking given by the Government in its letter of 3 April 2014 which confirmed that she will not be removed from the United Kingdom until the final conclusion of the domestic proceedings. Should the applicant be dissatisfied with the outcome of the domestic proceedings, she will have the opportunity to lodge a new application with the Court (including the possibility of requesting an interim measure under Rule 39 of the Rules of Court).
28. In accordance with Article 37 § 1 in fine, and having regard to the ongoing domestic proceedings, the Court finds no special circumstances regarding respect for human rights as defined in the Convention and its Protocols which require the continued examination of the case at this time. Accordingly, it is appropriate to lift the interim measure indicated under Rule 39 of the Rules of Court and strike the case out of the list.
For these reasons, the Court unanimously
Decides to strike the application out of its list of cases.
Françoise Elens-PassosIneta Ziemele
RegistrarPresident
Full & Egal Universal Law Academy