The case falls within the scope of the Charter as the UK national authorities are implementing EU law for the purpose of Article 51(1) of the Charter. The EU law connecting element is Article  3(2) of Dublin II Regulation (Regulation 343/2003), which allows Memebr State to refuse the return of an asylum seeker in the state of first arrival.

The UK Supreme Court reconciled the potentially conflictual interpretation of the two European supranational courts on the matter, by interpreting the N.S. and others preliminary ruling in light of established jurisprudence of the ECtHR, such as the Soering case. The UK Supreme Court held that, under EU law, Member States have to comply with the ECHR, and also the 1998 Human Rights Act which requires the Home Secretary to conform to the ECHR. The UK Supreme Court established that the legal test to be followed when determining whether particular violations of human rights amount to legitimate grounds for limiting mutual trust should be the ECtHR Soering test coupled with the M.S.S and N.S. thresholds. Thereby, both operational, systemic failures in the national asylum systems and individual risks of being exposed to treatment contrary to Article 3 ECHR and Article 4 EU Charter should be considered as legitimate thresholds for the limitation of the principle of mutual trust

The UK Supreme Court approach was echoed by other national judgments on Dublin transfers, including under the revised Dublin III Regulation transfers.

As regards Dublin transfers to Italy, the Administrative Court of Nantes quashed a decision of a Dublin transfer to Italy based on the administration failure to carry out “a full and rigorous examination of the consequences of the applicant’s transfer in Italy”, and in particular of the existence of the N.S. conditions of “substantial grounds for believing that there are systemic flaws in the [Italian] asylum procedure and in the reception conditions”. 

Similarly, the Supreme Administrative Court of Slovenia required the administration to carry out a rigorous examination of the circumstances regarding accommodation in Italy when an applicant for international protection claimed a threat of ill treatment and provided supporting evidence and reports. 

The Prague Regional Court quashed the administrative decision of returning an asylum seeker in Bulgaria based on the absence of an assessment run by the administration of whether the Bulgarian asylum system enables an adequate health and other necessary measures. 

The prohibition of inhumane and degrading treatment lies at the heart of the controversy surrounding the operation of the Dublin System for determining the responsible Member State for asylum applications and for transferring individuals accordingly. Prompted by the ECtHR’s decision in MSS v Belgium, the Court of Justice adopted the ‘systemic deficiencies’ test in NS finding that under Article 4 of the EU Charter a Member State is obliged to suspend a transfer to a Member State under the Dublin System if ‘it cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in [the receiving] Member State amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhumane or degrading treatment within Article 4 of the Charter.’ The CJEU confirmed the ‘systemic deficiencies’ test in subsequent jurisprudence on Dublin transfers to Greece (Puid, Abdullahi). Whether this obligation corresponds to the ECHR’s jurisprudence under Article 3 ECHR is open to question and there remains a certain tension between the two Courts on this issue. For instance, the 2014 Tarakhel judgment of the ECtHR clarifies that ‘in the case of “Dublin” returns, the presumption that a Contracting State which is also the “receiving” country will comply with Article 3 of the Convention can therefore validly be rebutted where “substantial grounds have been shown for believing” that the person whose return is being ordered faces a “real risk” of being subjected to treatment contrary to that provision in the receiving country.’ (para. 104). The ECtHR requires that the N.S. ‘systemic deficiencies’ test should not be the sole test to establish violations of Article 3 ECHR, but also an individual examination of the case, in particular a “thorough and individualised examination of the situation of the person concerned" in the state of destination might also lead to find a violation of Article 3 ECHR (Tarakhel v Switzerland, paras. 101 and 121).