W.A. and Others v. Italy: Is a cry for help not enough to trigger non-refoulement?

By Dr Juan Ruiz Ramos

Introduction

W.A. and Others v. Italy concerns the procedures that States ought to follow to avoid violating the principle of non-refoulement under Article 3 of the European Convention on Human Rights (Convention). While procedural matters often do not create as much hype among academics as questions of substance—such as the definition of ‘refugee’—, properly considering the nitty-gritty of asylum and expulsion procedures can make the difference between living in safety and suffering persecution. Two authors who have done an excellent job of reviewing the nuances of procedures attached to non-refoulement are Marcelle Reneman and Fanny De Weck.

The present judgment raises an important question: what actions must a migrant facing expulsion take in order to trigger an obligation for the authorities to examine his individual case in the light of non-refoulement?

The facts

Mr W.A. is a Sudanese national who reached the Italian coast after being rescued by the Italian navy. On the 18th of August 2016, he was taken to a police station, where he was detained for five days. During that time, he was interviewed by the police for identification purposes.

It is at this point that the applicant’s and the Government’s accounts of the facts begin to diverge. According to the Government, this interview had been conducted in the applicant’s mother tongue in the presence of three Arabic-speaking cultural mediators, yet Mr W.A. had ‘refused to ask for international protection’. Moreover, the applicant was handed an information sheet (‘foglio notizie’ in Italian) on which he, on the one hand, had ticked the option that he ‘did not wish to go back to his country of origin’ but, on the other hand, had signed a handwritten declaration in Italian and Arabic stating that ‘I do not wish to ask for international protection’.

For his part, the applicant alleged that during the interview he had ‘clearly indicated that he did not wish to be repatriated to Sudan’. It is important to note that, according to Mr. W.A., the interview lasted only a couple of minutes and that communication was hampered by the fact that the interpreter—which, in his version of the facts, was only one—spoke a different variety of Arabic than himself. Although Mr. W.A. does not mention the ‘foglio notizie’ in his version of the facts, he does insist that, while detained, he had made it clear that his possible repatriation to Sudan would put his life at risk. He does nonetheless admit that he had not used the exact wording indicating a request for international protection.

Following the Government’s account of subsequent events, on the 24^th of August Mr. W.A. appeared before the Justice of the Peace for a hearing regarding the refusal-of-entry order issued by the police. The applicant’s lawyer opposed the deportation relying on the principle of non-refoulement under Article 3 Convention. However, the Justice of the Peace decided to uphold the order on two grounds: (1) Mr. W.A.’s refusal to ask for international protection during the interview with the police; and (2) the applicant’s signed declaration in the ‘foglio notizie’. Additionally, he cited the Memorandum of Understanding signed between Italy and Sudan in 2016. Mr. W.A. was removed to Sudan on that very same day—together with 39 other Sudanese nationals—after trying in vain to offer physical resistance.

The judgment

The European Court of Human Rights (the Court) agreed with the Government that the procedural limb of Article 3 Convention—the duty to provide effective guarantees to protect the applicant against refoulement—had not been breached. The Court gave weight to the fact that the declaration in the ‘foglio notizie’ was written in Arabic, and that ‘there is nothing in the case file to indicate that [his] level of literacy was such that he might not have understood [its] content’. It also endorsed the finding of the Justice of the Peace that Mr. W.A. had been aware of the possibility of requesting international protection during the first interview but had chosen not to do so. The Court then noted that the applicant ‘did not challenge that information but contended that he had not been given the chance to understand what the consequences of not requesting asylum would be in his case’. It added that the applicant’s lawyer had failed to emphasise the personal risks that his client would face in the event of repatriation. Only such individualised arguments ‘might have outweighed [Mr W.A.’s] previously expressed refusal to apply for asylum’. The fact that he eventually obtained refugee status in Niger was not evidence of a lack of guarantees on the part of the Italian authorities, particularly since, prior to his expulsion, the applicant had not mentioned that he belonged to a tribe persecuted by the Sudanese Government.

Commentary

In W.A. v. Italy, the Court recalls that ‘it is in principle for the applicant to adduce evidence capable of proving that there are substantial grounds for believing that (…) he would be exposed to a real risk of being subjected to treatment contrary to Article 3’. The main question raised by this judgment is: at which point in time must this evidence be provided, and to what extent? The Court was faced with two conflicting possible answers. On the one hand, the Government argued that information concerning the potential risk of ill-treatment should be formulated ‘in the framework of an asylum request’. In its view, a simple declaration of fearing being removed outside the context of an asylum procedure was not sufficient evidence to trigger the obligations deriving from the principle of non-refoulement. On the other hand, Mr. W.A. submitted that Article 3 Convention applies irrespective of whether an asylum request has actually been made.

In EU law, the answer to this question is more straightforward than in the case law on Article 3 Convention. The Asylum Procedures Directive—to be replaced by the Asylum Procedures Regulation under the New Pact—distinguishes between ‘making’ and ‘lodging’ an application for international protection (Article 6). The former simply refers to a migrant’s statement, in person or in writing, of his fear of being persecuted in the event of removal. It is not necessary for the person to explicitly use terms such as ‘asylum’ or to comply with any administrative formalities in order for an application to be deemed to have been ‘made’. For its part, the application is considered to have been ‘lodged’ once the authorities have elaborated an official report on the asylum request. Applicants enjoy a right to remain in the country as soon as they ‘make’ an application for international protection (Articles 2(c) and 9 of the Directive).

Unlike the more flexible approach of EU law, however, the Strasbourg Court in W.A. v. Italy seems to require migrants to explicitly request asylum in order to trigger States’ procedural obligations under non-refoulement. The Court twice underlined the fact that Mr. W.A. had refused to ‘ask for international protection’ or to ‘apply for asylum’. This created a sort of presumption of non-applicability of the principle of non-refoulement, which could only have been rebutted later by Mr W.A.’s lawyer by emphasising the personal risks he would run if returned to Sudan.

Without intending to undermine the legal soundness of the Court’s reasoning (the facts were, after all, not as clear as in M.K. and Others v. Poland—see here for a comment on this blog—or M.A. and Others v. Lithuania), I believe there are several elements in the facts of this case and in previous case law that could have led the Court to a different conclusion.

First, the Court often reiterates that the Convention does not contain a right to asylum (Hirsi Jamaa [GC], para. 113), and it is therefore difficult to understand why in W.A. v. Italy it insists that an explicit request for international protection is the only way to be protected by non-refoulement under Article 3. Secondly, the applicant argued that he did not understand what ‘asylum’ meant. A person fearing for his or her life and coming from a different cultural and legal background should not be expected to understand the technicalities of asylum procedures: merely expressing a fear of returning should be enough for the authorities to begin an assessment of whether non-refoulement would be breached­—which they did not do in the present case. The Court could have drawn on its previous finding in M.A. and Others v. Lithuania that “a wish to apply for asylum [does] not need to be expressed in any particular form”. Thirdly, even if Mr. W.A. was unclear as to why he did not want to be removed to Sudan, his context could have led the authorities to suspect that he was most likely an asylum-seeker: communication at the initial interview was hampered due to the interpreter speaking a different variety of Arabic, and Italy was at that time granting asylum to Sudanese nationals. In fact, in a case that ran parallel to W.A. v. Italy, the applicants managed to enter the asylum procedure and were granted refugee status (see A.E. and Others v. Italy). Note also that the Court has in the past underlined the importance of a “reliable system of communication” between the authorities and asylum-seekers (M.S.S. v. Belgium and Greece).

More importantly, however, Mr. W.A.’s lawyer did explicitly invoke the principle of non-refoulement just before his expulsion. The Court dismissed the significance of this by stating that the lawyer had not emphasised the ‘personal risks that the applicant would incur’. However, it is settled case law that ‘the starting-point for the assessment of a real risk upon removal should be the examination of the general situation in the destination country’ (Khasanov and Rakhmanov v. Russia [GC], para. 96). While situations of generalised violence—in the absence of individual persecution—will create such a risk only ‘in the most extreme cases’ (Sufi and Elmi v. UK), the Italian authorities did not even examine the general situation in Sudan before expelling Mr. W.A. The mere invocation of non-refoulement by the lawyer should have been enough for the authorities to carry out an individual examination of the applicant’s situation, using information on the country of origin as well as a thorough interview where he could explain his personal story. In this regard, the Court referred to A.E. and Others v. Italy and affirmed that in that case, ‘it was on the basis of the applicants’ personal experiences that the authorities granted them the refugee status’. However, in that case the applicants were able to speak about these experiences because the authorities activated the procedural obligations arising from the principle of non-refoulement and interviewed them in the context of an asylum procedure, which did not happen in Mr. W.A.’s case.

Conclusion

In Chapter 7 of her book When Human Become Migrants, Marie Dembour notes that, in Article 3 Convention cases on the return of so-called failed asylum-seekers, the facts at issue concerning the applicant’s story are typically disputed. She then observes that it is extremely rare for the Court to go against the State’s domestic assessment of the facts, given that the Court has a subsidiary character and it can therefore not always determine them afresh. W.A. v. Italy shows that this deference to the State’s version of the facts might extend not only to the substantive aspects of non-refoulement (i.e. whether the risk of ill-treatment in case of deportation would be ‘real’) but also to the procedural ones (i.e. whether the authorities gave the applicant an opportunity to avail himself of the protection of non-refoulement by examining his particular situation). This deference is particularly evident when considering that the Court did not address the applicant’s contention that ‘the Government had provided no evidence for their argument that clear information had been given to the group of Sudanese nationals concerning asylum’. In my view, the Court places an excessive burden on asylum-seekers to understand the intricacies of asylum procedures upon reaching European territory, making it difficult for those who do not ask for asylum in the early stages to claim the protection of non-refoulement at a later point.