SM & Ors, R (on the application of) v The Secretary of State for the Home Department

INTRODUCTION

1. This is the judgment of the Tribunal, primarily written by Upper Tribunal Judge Canavan, but to which the other two members have contributed. The applicants each seek judicial review of the decisions of the respondent to certify their human rights claims as clearly unfounded. Pursuant to Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 , the respondent certified the applicants’ claims on the basis that each of them is to be returned to Italy. Part 2 applies, inter alia, to Italy since that State is listed in paragraph 2. Paragraph 5(4) requires the respondent to certify such a claim unless satisfied that the claim is not clearly unfounded.

2. Each of the applicants contends that he or she has a well-founded fear of persecution or other serious ill-treatment, if returned to their respective country of nationality. LEGAL FRAMEWORK

3. The respondent contends that since the applicants travelled to Italy from their home countries, before making their way to the United Kingdom, Italy is the EU state that is responsible for determining the applicants’ claims to international protection. The respondent, accordingly, intends to return the applicants to Italy by means of the process contained in Council Regulation 604/2103 (“the Dublin Regulation”).

4. Article 3 of the Dublin Regulation provides as follows: “1. Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zone. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter 3 indicate is responsible.

2. … Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible.”

5. Unless some other Member State can be so designated, if the criterion of Article 3(2) is satisfied, it is common ground that the United Kingdom would need to determine the applicants’ international protection claims. Even if that were not so, Article 17(1) provides for a residual discretion in this regard.

6. Both Article 4 of the Charter of Fundamental Rights and Article 3 of the European Convention of Human Rights proscribe subjecting a person to torture or inhuman and degrading treatment or punishment.

7. SOM and RK are asylum seekers. They submit that the evidence concerning the position of asylum seekers in Italy is such that their claims should not have been certified by the respondent as clearly unfounded.

8. Unlike SOM and RK, SM engaged with the Italian asylum system whilst he was in that country. He was given a residence permit. He is, accordingly, a Beneficiary of International Protection (BIP). The significance of this status will be addressed later. It is, however, necessary at this point to observe that, as a BIP, SM falls outside the Dublin III regime and is being returned pursuant to an agreement between the Italian authorities and the British authorities to re-admit individuals that Italy has recognised to be in need of international protection. Nothing material turns on this difference, so far as the judicial review applications are concerned.

9. Each of the applicants’ human rights claims, which were certified under Part 2 of Schedule 3 to the 2004 Act , involve the contention that, if returned to Italy as asylum seekers or BIPs, they face a real risk of treatment contrary to Article 3 of the ECHR. Each of the applicants submits that the state of the evidence is such that, if they had been allowed to bring their appeals before the First-tier Tribunal (which they would have been, but for certification), there was a realistic prospect that a First-tier Tribunal Judge might have allowed their appeals ( ZT (Kosovo) v SSHD [2009] UKHL 6 ).

10. The applicants do not suggest that, if they were returned to Italy, the authorities there would physically ill-treat them. Rather, the applicants contend, in essence, that those authorities would not make sufficient provision for their accommodation and welfare, with the result that they would face a real risk of being homeless and destitute.

11. Ordinarily, a person advancing this type of Article 3 claim would need to meet a very high threshold: N v United Kingdom (2008) 47 EHRR 885 .

12. Insofar as asylum seekers are concerned, the very high threshold described in N does not apply. The judgment of Laws LJ in GS (India) v SSHD [2015] EWCA Civ 40 explains why: “54. In MSS v Belgium and Greece 53 EHRR 28 the applicant was an Afghani asylum seeker whom the Belgian authorities desired to return to Greece under the Dublin Convention. He had been detained for a week in Greece before arriving in Belgium. At length he was returned from Belgium to Greece where he claimed asylum. There was much evidence before the Strasbourg court of the extremely deleterious conditions in which asylum seekers in Greece might be detained or had to live. The court concluded as follows: “249. The court has already reiterated the general principles found in the case law on article 3 of the Convention and applicable in the instant case. It also considers it necessary to point out that article 3 cannot be interpreted as obliging the high contracting parties to provide everyone within their jurisdiction with a home. Nor does article 3 entail any general obligation to give refugees financial assistance to enable them to maintain a certain standard of living.

250. The court is of the opinion, however, that what is at issue in the instant case cannot be considered in those terms. {The] obligation to provide accommodation and decent material conditions to impoverished asylum seekers has now entered into positive law and the Greek authorities are bound to comply with their own legislation, which transposes Community law, namely Directive 2003/9 laying down minimum standards for the reception of asylum seekers in the member states (‘the Reception Directive”). What the applicant holds against the Greek authorities in this case is that, because of their deliberate actions or omissions, it has been impossible in practice for him to avail himself of their rights and provide for his essential needs.

251. The court attaches considerable importance to the applicant’s status as any asylum seeker and, as such, a member of a particularly underprivileged and vulnerable population group in need of special protection. It notes the existence of a broad consensus at the international and European level concerning this need for special protection, as evidenced by the Geneva Convention, the remit and the activities of the UNHCR and the standards set out in the EU Reception Directive.

252. That said, the court must determine whether a situation of extreme material poverty can raise an issue under article 3.

253. The court reiterates that it has not excluded ‘The possibility that the responsibility of the state may be engaged [under article 3] in respect of treatment where an applicant, who was wholly dependent on state support, found herself faced with official indifference in a situation of serious deprivation or want incompatible with human dignity’.

254. It observes that the situation in which the applicant has found himself is particularly serious. He allegedly spent months living in a state of the most extreme poverty, unable to cater for his most basic needs: food, hygiene and a place to live. Added to that was the ever-present fear of being attacked and robbed and the total lack of any likelihood of his situation improving. It was to escape from that situation of insecurity and of material and psychological want that he tried several times to leave Greece …” …

263. In the light of the above and in view of the obligations incumbent on the Greek authorities under the European Reception Directive, the court considers that the Greek authorities have not had due regard to the applicant’s vulnerability as an asylum seeker and must be held responsible, because of their inaction, for the situation in which he has found himself for several months, living in the street, with no resources or access to sanitary facilities, and without any means of providing for his essential needs. The court considers that the applicant has been the victim of humiliating treatment showing a lack of respect for his dignity and that this situation has, without doubt, aroused in him feelings of fear, anguish or inferiority capable of inducing desperation. It considers that such living conditions, combined with the prolonged uncertainty in which he has remained and the total lack of any prospects of his situation improving, have attained the level of severity required to fall within the scope of article 3 of the Convention.” …

57. There appears to be a fork in the road, on the court’s own reckoning, between the approach in N v United Kingdom 47 EHRR 885 on the one hand and the MSS case 53 EHRR 28 on the other. It is on the face of it difficult to find any governing principle, applied across the learning, which provides a rationale for departures from the article paradigm. There are, however, certain strands of reasoning. In the MSS case it is to be noted that Greece (unlike Belgium) was not impugned for breach of article 3 on account of anything that would happen to the applicant in a third country to which Greece proposed to remove him, but by reason of his plight in Greece itself. One may compare R (Limbuela) v Secretary of State for the Home Department [2006] 1 AC 396 , in which the House of Lords was concerned with the dire straits to which certain asylum seekers in this country were reduced for want of access to public funds, and held that there was a violation of article 3. In the MSS case a critical factor was the existence of legal duties owed by Greece under its own law implementing EU obligations: paras 250 and 263 which I have cited; and it is clear that the court attached particular importance to the fact that the applicant was an asylum seeker. …

59. This in the MSS … the court looked for particular features which might bring the case within article 3, and found them – in Greece’s legal duties and the applicant’s status as an asylum seeker …”

13. At [250] of MSS the ECtHR made reference to the Reception Directive (2003/9/EC), as bearing upon the Article 3 ECHR position of asylum seekers in Greece. The significance of the Reception Directive in the context of “Dublin certifications” was examined in detail by Sales LJ in R (HK Iraq) & Others v SSHD [2017] EWCA Civ 1871 : “41. … counsel for the appellants accept that their circumstances do not meet the usual stringent test laid down in N v United Kingdom (2008) 47 EHRR 885 , GC, and discussed by this court in GS (India) v Secretary of State for the Home Department [2015] EWCA Civ 40 ; [2015] 1 WLR 3312 in relation to return to a country which will not meet their medical needs with treatment to the same standard as is available in the UK. However, they contend that asylum seekers are in an especially vulnerable category of person and that the case-law shows that a higher standard of appropriate medical or other care may be required under Article 3 in the state to which they are returned than under the usual N v United Kingdom approach.

42. In that regard they pointed to Article 13(2) of Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers ("the Reception Directive"). I note that there is a recast version of this Directive, 2013/33/EU, promulgated in 2013 – see NA (Sudan) v Secretary of State for the Home Department [2016] EWCA Civ 1060 , [40]. We were not taken to this but I do not understand that there is any material difference between them in this respect. Article 13(2) of the Reception Directive provides: "Member States shall make provisions on material reception conditions to ensure a standard of living adequate for the health of applicants and capable of ensuring their subsistence."

43. This suggests that a Member State has a heightened set of obligations in relation to treatment of asylum seekers which is capable of informing the standard of care required for the purposes of Article 3 of the ECHR if an asylum seeker is returned there. However, counsel also explained that it is not part of the appellants' case that the standard of treatment laid down in Article 13(2) is simply to be regarded as establishing the relevant test for violation of Article 3 of the ECHR.

44. In my view, there is force in the appellants' contention that the test under Article 3 for proper treatment of an asylum seeker in relation to medical needs they may have, including in relation to any mental illness they have, involves a heightened set of obligations on the receiving state, beyond those laid down in N v United Kingdom.

45. In the MSS judgment at paras. [250]-[254] the ECtHR referred to the obligations on Member States under the Reception Directive and to an international consensus on the need for special protection of asylum seekers as a particularly underprivileged and vulnerable population group ([251]). Its focus in that case was on whether a situation of extreme material poverty could raise an issue under Article 3 ([252]) in relation to an asylum-seeker who was left to live on the streets for months, "unable to cater for his most basic needs: food, hygiene and a place to live" ([254]). But I do not think that the reasoning in the case in relation to Article 3 is necessarily restricted to these matters.

46. Although counsel for the appellants did not refer to it, it is noteworthy that Chapter IV of the Reception Directive sets out "Provisions for Persons with Special Needs", and Article 17(1) in that Chapter states this general principle: "Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence, in the national legislation implementing the provisions of Chapter II relating to material reception conditions and health care [i.e. including Article 13(2)]."

47. The corresponding Article 21 in the recast Directive expands this list to include "victims of human trafficking, persons with serious illnesses, persons with mental disorders …": the provision is set out in NA (Sudan) at [44]. In my view, these provisions are capable of informing the application of Article 3 of the ECHR in terms of helping to identify the categories of asylum-seekers who may be regarded as having special vulnerabilities which potentially heighten the standards of treatment to be expected in respect of them in the state to which they are returned.

48. In the Tarakhel judgment at paras. [94] and [118] the ECtHR re-affirmed previous case-law to the effect that the assessment of the minimum level of severity at which Article 3 is engaged is relative, and "depends on all the circumstances of the case, such as the duration of the treatment and its physical or mental effects and, in some instances, the sex, age and state of health of the victim." At para. [118] the Court reiterated the need referred to in MSS at para. [251] for special protection of asylum-seekers as a particularly under-privileged and vulnerable group, and at para. [119] stated: "This requirement of 'special protection' of asylum seekers is particularly important when the persons concerned are children, in view of their specific needs and their extreme vulnerability. This applies even when, as in the present case, the children seeking asylum are accompanied by their parents … Accordingly, the reception conditions for children seeking asylum must be adapted to their age, to ensure that those conditions do not 'create … for them a situation of stress and anxiety, with particularly traumatic consequences' … Otherwise, the conditions in question would attain the threshold of severity required to come within the scope of the prohibition under Article 3 of the Convention."

49. Counsel for the appellants submitted that this reasoning also extends to cover asylum seekers who suffer from a mental illness who, like children, may also have heightened needs and increased vulnerability. In my view, even though we were not shown a judgment which has gone this far, there is force in this submission as well. If it could be shown that there was a significant risk that an asylum seeker with a recognised mental illness would be subjected to such poor living conditions in the state to which he was to be returned that he would suffer a marked deterioration in that illness or that he would receive no treatment in that state to cope with its effects, I consider that it is well arguable that the principles for application of Article 3 laid down in MSS and Tarakhel would be engaged.

50. Laws LJ at paras. [54]-[63] in his judgment in GS (India) highlighted the different approach to Article 3 standards in relation to asylum-seekers pursuant to the MSS and Tarakhel judgments, as contrasted with the usual position under N v United Kingdom . Underhill and Sullivan LJJ agreed with this part of his judgment: see [105] and [116], respectively. That the discussion took place in the context of a comparison of N v United Kingdom , a case concerning standards of health-care which would be encountered in the state to which the individual was returned, and the MSS and Tarakhel judgments suggests that the members of the court contemplated that poor standards of health-care which would be received by an asylum seeker in the state of return could in principle, in an appropriate case, give rise to an issue under Article 3 on application of the heightened standard of care for asylum-seekers referred to in those judgments.

51. The same point can be made still more strongly with reference to the judgment of Underhill LJ (with which McFarlane and Simon LJJ agreed) in NA (Sudan) v Secretary of State for the Home Department [2016] EWCA Civ 1060 . That case concerned the return of asylum seekers to Italy under the Dublin Regulation arrangements. Underhill LJ again referred to the guidance in the MSS and Tarkhel judgments in relation to the treatment of asylum seekers. As he put it at [159] in relation to NA's case: "The essential issue for the judge was … simply whether there was a serious risk that if she were returned NA would not be accommodated in a SPRAR [a special type of reception centre]: this subsumes the question whether she would receive proper healthcare, and specifically psychiatric care, since it is not argued that even if she were in a SPRAR her needs would not be attended to". The judge at first instance had found that there was no real risk that NA would not be placed in a SPRAR in Italy and hence no real risk she would suffer ill-treatment in violation of Article 3, and this court upheld that assessment. Nonetheless, in his formulation of the issue I think it is clear that Underhill LJ considered that it was at least arguable that NA would have been able to complain of a violation of Article 3 if the evidence showed that her need for psychiatric care would not be accommodated in Italy. “

14. The United Kingdom has not adopted the recast Reception Directive (2013/33/EU). Italy has done so. Both Directives, however, make provision for healthcare; the needs of vulnerable persons; the desirability of preserving family unity; and the schooling and education of minors.

15. As is plain from the judgment of Sales LJ in HK (Iraq) , the significance of the Reception Directive, for our purposes, is that it helps to explain why the very high threshold of N v UK need not be met by asylum seekers and BIPs in cases of this kind. But HK (Iraq) also makes it plain (at paragraph 43) that the Reception Directive is not to be treated as a verbal extension of Article 3 of the ECHR.

16. In the present cases, the respondent sought to rely on the ECtHR’s judgment in AS v Switzerland 920170 65 EHRR 12, in support of the proposition that Laws LJ had, in fact, been wrong in GS (India) to find that a “fork in the road” had occurred with MSS , pursuant to the Dublin Regulation. The applicant, AS, suffered from severe post-traumatic stress disorder, for which he was receiving treatment in Switzerland. He relied on Tarakhel v Switzerland (2015) 60 EHRR

18. 28, in which the Court held that specific assurances were required from the Italian authorities that family members would not be separated, if returned to Italy in order for their asylum claims to be dealt with.

19. The ECtHR refused to extend Tarakhel to include persons in the same position as AS. Furthermore, having noted the very high threshold in N v United Kingdom and D v United Kingdom (1997) 24 EHRR CD 145, the Court held as follows: “37. In the Court’s view, the applicant’s case cannot be distinguished from those cited in [32] and [33] above. It does not disclose very exceptional circumstances, such as in D v United Kingdom , where the applicant was in the final stages of a terminal illness, AIDS, and had no prospect of medical care or family support. Accordingly, the Court finds the implementation of the decision to remove the applicant to Italy would not give rise to a violation of art. 3 of the Convention”.

20. We do not consider that AS enables us to depart from the approach of the Court of Appeal in GS (India) and subsequent cases. Even if that approach were not binding on us (which we consider it is), it is still high authority, from which the Tribunal might deviate only if the Strasbourg jurisprudence consistently pointed in a different direction. As matters stand, it does not.

21. Our conclusion on this issue means it is unnecessary to examine the effect on the D and N line of cases of the ECtHR judgment in Paposhvili v Belgium [2017] Imm AR 867.

22. Two crucial points need, however, to be made clear. First, even though the very high threshold set by D and N need not be met, the applicants are still faced with the fact that the threshold for finding Article 3 harm is in any event high. Conditions that are unpleasant and even harsh are by no means necessarily ones that amount to inhuman or degrading treatment.

23. Secondly, those seeking to show that their return from one EU State to another may entail a violation of Article 3 start at a significant disadvantage, in evidential terms. This is because they have an evidential presumption to displace.

24. The way in which a real risk of Article 3 violation is proved, in cases of this kind, is described by the Supreme Court in EM (Eritrea) v SSHD [2014] UKSC 12 : “63. Where, therefore, it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his removal to that state is forbidden. When one is in the realm of positive obligations (which is what is involved in the claim that the state has not ensured that satisfactory living conditions are available to the asylum seeker) the evidence is more likely to partake of systemic failings but the search for such failings is by way of a route to establish that there is a real risk of article 3 breach, rather than a hurdle to be surmounted.

64. There is, however, what Sales J described in R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin) , at para 42(i) as “a significant evidential presumption” that listed states will comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory. It is against the backdrop of that presumption that any claim that there is a real risk of breach of article 3 rights falls to be addressed. ….

68. …. I consider that a more open-ended approach to the question of the risk of breach of article 3 is required. Although one starts with a significant evidential presumption that listed states will comply with their international obligations, a claim that such a risk is present is not to be halted in limine solely because it does not constitute a systemic or systematic breach of the rights of refugees or asylum seekers. Moreover, practical realities lie at the heart of the inquiry; evidence of what happens on the ground must be capable of rebutting the presumption if it shows sufficiently clearly that there is a real risk of article 3 ill treatment if there is an enforced return.”

25. We need now to describe how the Article 3 legal/evidential issues operate in the present proceedings, insofar as those proceedings involve a challenge to the respondent’s decisions under paragraph 5(4) of Schedule 3 to the 2004 Act to certify the applicants’ claims as clearly unfounded.

26. The applicants submit that: “When reviewing a “clearly unfounded” certificate on public law grounds, the reviewing Tribunal or Court must take a claimant’s case at its reasonable highest, proceeding on the basis that any legitimate conflicts in evidence or disputes about the evidence may be resolved in favour of the claimant.” (skeleton argument paragraph 60).

27. In certification cases under section 94 of the 2002 Act, taking a case at its “reasonable highest” will often involve an acceptance that an individual’s account of his or her experiences in a foreign country is reasonably likely to be true. Only if the account of those experiences is so problematic as to be incapable of belief by any rational judicial fact-finder will the position be otherwise. By the same token, we have approached the evidence of the individual applicants on the basis that what those individuals say they have experienced outside the United Kingdom is reasonably likely to represent the truth. In the case of the witnesses, we have no reason to doubt the truth of what they have seen and heard.

28. None of this is, however, determinative. In cases of the present kind, the task of the Court or Tribunal is to analyse a wide range of evidential material, emanating from different sources, including organisations of varying reputation and status, as well as the accounts of individuals, in order to arrive at a holistic conclusion of whether the “significant evidential presumption” that an EU State will comply with its obligations under Article 3 ECHR has been displaced.

29. We agree with Mr Payne that this evidential presumption is integral to the analysis of the evidence.

30. The approach mandated by EM (Eritrea) is also crucial to the “certification” question. Laing J articulated this point at paragraphs 165 and 166 of her judgment in Tabrizagh and others v SSHD [2014] EWHC 1914: “165. The question in these cases is whether any of the Claimants might arguably satisfy the FTT that return to Italy would expose him to an article 3 risk. There are two generic issues here: whether i) the argument, by those Claimants who are, or might be, asylum seekers on their return, that the evidential presumption is displaced, is bound to fail before the FTT; and ii) the argument by those Claimants who are, or would on any view, very shortly after their return home, become BIPs, or receive humanitarian protection, that they are at real risk of article 3 ill treatment is bound to fail before the FTT. (a) Asylum claimants: the evidential presumption

166. Mr Knafler QC accepted that the approach of Kenneth Parker J, as described by Lord Kerr in EM , is the correct approach. Could the FTT, applying the approach to the relevant evidence, arguably find that the evidential presumption of compliance has been displaced? I consider that it could not. I have already summarised the evidence at some length, so I can give my reasons briefly. I agree that the presumption is, as Mr Payne put it for the Secretary of State, not a hurdle; but it is a very important part of the inquiry when the allegation is that there is a generalised risk of article 3 ill treatment in Italy which arises regardless of the returnee’s profile.”

31. Laing J then went on to give her reasons. She observed that the UNHCR, “while making robust and objective criticisms, has not painted a picture which begins to meet the relevant test” (paragraph 167). In this regard, she had already noted at paragraph 87 that the UNHCR report did not call for any Member State to suspend Dublin returns to Italy. By contrast, the applicants in the cases before her had relied upon a report known as the Braunschweig Report, which painted “a gloomier picture of reception conditions for asylum seekers”. Nevertheless, Laing J held that “If and to the extent that [the Report] differs from the UNHCR reports, the FTT would be bound to prefer those” (paragraph 89).

32. Laing J returned to the Braunschweig Report at paragraph 169, which also merits setting out in full because it bears directly on the submission on behalf of the present applicants that we have set out at above (paragraph 24): “169. The issue is not, contrary to the submission of Mr Knafler QC, whether the SRC [Swiss Refugee Council] and Braunschweig reports are “capable of belief” such that, if they are, the evidential presumption is displaced. There are two questions. First, what weight could the FTT rationally give those reports, if and to the extent that they differ from the UNHCR’s ‘pre-eminent and possibly decisive’ assessment? The answer to that question is “Very little”. Second, could the FTT find that (where they do not differ from the UNHCR report) they show ‘omissions on a widespread and substantial scale’ or ‘substantial operational problems’ sufficient to displace the significant evidential presumption of compliance? That is, substantial operational problems with the whole asylum acquis, not just operational problems with some aspects of it. The answer to that question is, ‘No’”.

33. Beginning at paragraph 170 of her judgment, Laing J undertook a similar exercise in respect of BIPs.

34. We have dwelt on Tabrizagh at some length because it demonstrates how the certification issue must be resolved in cases of this kind. In particular, it shows the evidential presumption in action, by reference to the various strands of evidential material, including the views of UNHCR, which carry significant weight. We shall have more to say about this later.

35. Mr Chirico criticised paragraph 169 on the basis that Laing J was wrong to hold that a report that departed from the UNHCR’s assessment could not have weight. There are two points to make about this. First, paragraph 169 is on any view correct, as regards the questions there posed. Those questions were the right ones for a reviewing court or tribunal to ask, in a certification case of this kind; not whether the reports themselves were “capable of belief”.

36. Secondly, we do not read paragraph 169 as saying that no report, regardless of what it said, could ever have weight. In giving her answers to her self-posed questions, Laing J was merely saying that these particular reports could rationally be given only little weight. Her reasons are to be found at paragraph s 89 et seq.

37. Important though the evidential presumption is, it does not absolve the respondent or the Tribunal from the task of assessing the evidence before him or it. In this regard, we note that in R (Ibrahimi) v SSHD [2016] EWHC 2049 (Admin) , Green J, (as he then was), summarising the position regarding returns to Hungary, criticised the respondent for relying “simply on sweeping generalisations about presumptions” when what “was required when the decisions were taken given that even the UNHCR was beginning to express serious concerns about Hungary was a detailed analysis of the actual facts” (paragraph 178). With that in mind, it is necessary to embark on our task.