AM (Somalia) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sedley,Lord Justice Jacob,Lord Justice Lloyd |
| Judgment Date | 25 February 2009 |
| Neutral Citation | [2009] EWCA Civ 114 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 February 2009 |
| Docket Number | Case No: C4/2008/1601 |
[2009] EWCA Civ 114
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
MR Justice Cranston
Before: Lord Justice Sedley
Lord Justice Jacob and
Lord Justice Lloyd
Case No: C4/2008/1601
CO/5660/04
Mr Raza Husain and Mr Ronan Toal (instructed by South West Law) for the Appellant
Mr Gerard Clarke (instructed by the Treasury Solicitors) for the Respondent
Hearing date: Monday 19 January 2009
Lord Justice Sedley :
History
The appellant, a national of Somalia now 32 years old, lived with his family in Baidoa. In 1997 fighting in the civil war reached Baidoa. Two of his brothers fled, but the appellant, his mother and one of his brothers stayed to try to protect the family property. His mother and brother were shot dead. The appellant too was wounded and probably left for dead, but he recovered and escaped. For three years he moved about the country to avoid the fighting. When finally he returned to Baidoa and found what had happened, he became disoriented, lost his memory and began wandering aimlessly. Relatives tried to care for him and arranged a marriage, but that soon fell apart. Meanwhile his brother Ibrahim had reached this country in 1999, and his other brother Ali in 2003. Both were recognised as refugees and now live in Bristol. Ibrahim has a family of his own.
The appellant arrived here by air in December 2003 and claimed asylum. His claim that he had come directly from Somalia – which he blamed on the agent—was false: he had in fact sought asylum in Italy the previous month. It now appears – though there has been no definitive finding of facts – that he had left Libya in a boat which broke down at sea, drifting for 3 weeks. When rescue finally came, only 15 of the 90 people on board were still alive. The survivors were taken to Italy, where they were treated in hospital. This was why the first EU landfall and the initial asylum claim were both made in Italy.
Once in the United Kingdom the appellant went to live with his older brother in Bristol. Both brothers and his elder brother's wife have since taken care of him. He has now been seen by a consultant psychiatrist, Dr Huws, whose reports were before the Administrative Court. They record, in short, that the appellant feels that he has lost everything except his brothers, and that enforced separation from them would cause a deterioration in the depressive illness and PTSD which Dr Huws diagnosed as manifestations of unresolved grief and which were causing the appellant to contemplate suicide. Dr Huws considered that successful counselling required a stable social context. The brothers confirmed that they were providing this: although the appellant was now accommodated in a hostel, he slept at Ibrahim's house, and one brother was always with him. Ibrahim described the appellant's continuing anxiety and his unwillingness to go out alone. Both he and Dr Huws anticipated that, if removed, the appellant would cease to be able to cope with his own fragile mental state.
The Dublin Regulation
We are indebted to Cranston J for a judgment – [2008] EWHC 1312 (Admin) – which, among other things, sets out with clarity the successive legislative frameworks governing rights of appeal for asylum-seekers whom it is proposed to remove to a safe third country.
In short, what was the Dublin Convention and is now known as the Dublin Regulation (EC 343/2003) seeks to prevent forum-shopping among EU states by requiring the country of first arrival, if asked to do so, to process an asylum-seeker's claim. Because removal for this purpose is capable in some cases of undercutting individuals' Convention rights, the combined effect of s.11 of the Immigration and Asylum Act 1999 and s.93 of the 2002 Act was to bar in-country appeals once a third country certificate had been issued save where a human rights claim had been made and had not been certified by the Home Secretary as clearly unfounded. Absent such a certificate, s.82 of the 2002 Act gave a right of appeal against removal without requiring the appellant first to leave the United Kingdom. It followed that a “clearly unfounded” certificate was a necessary accompaniment to a third country certificate if an in-country appeal was to be prevented.
The 2004 Act repealed and replaced these provisions, though without altering their substantial effect, from a date which was in due course fixed by statutory instrument as 1 October 2004. The same instrument made transitional provision for the continuance in effect of s.11 certificates “issued” before that date.
This case
Once the history outlined above had been established, Italy accepted responsibility under the Dublin Convention for examining the appellant's asylum claim. The Home Secretary in March 2004 accordingly prepared a safe third country certificate, which would have permitted removal to Italy without consideration of the asylum claim; but by the time it was served in October 2004 the statutory provisions under which it was drawn up had been repealed, and Cranston J in due course held it to have been a nullity. It was followed, on 21 October 2004, by a fresh letter refusing to consider the asylum claim in this country, rejecting the contention that removal to Italy would breach the appellant's art. 8 rights, and certifying that contention as clearly unfounded. This certification, if valid, meant that no appeal could be brought until the appellant had left the country: effectively, it stifled any appeal. The appellant nevertheless, without leaving, gave notice of appeal under s.82 of the Nationality, Immigration and Asylum Act 2002 (once in November and again in December 2004) against the decision.
Nothing of relevance then happened until, in April 2008, the Home Secretary sent a letter withdrawing the original certificate (which Cranston J eventually held to have been in any case a nullity) certifying the human rights claim as clearly unfounded under paragraph 5(4) of Sch.3 and enclosing a fresh third country certificate, this time under paragraphs 4 and 5 of Sch.3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004.
The Administrative Court decision
The appellant brought judicial review proceedings challenging the lawfulness of the successive certificates. For cogent reasons which can be read in full at §19–29 of his judgment, and which are not now contested, Cranston J held that the first third country certificate, having been composed but not having been served before the repeal of the empowering legislation, had not been “issued” in time and so was a nullity.
Paragraph 5(2) in part 2 of Sch 3 to the 2004 Act says that a person whose claim is the subject of a third country certificate “may not bring an immigration appeal by virtue of section 92( 2) or(3) of that Act”– that is to say, an in-country appeal. Paragraph 5(4) of Sch.3 says that a person whose human rights claim has been certified as clearly unfounded “may not bring an immigration appeal by virtue of section 92(4)(a) of that Act”. The question was therefore whether the fresh third country certificate together with the certificate under paragraph 5(4) of Sch.3, issued as a precaution shortly before the High Court hearing in 2008, operated to stifle the appeal, if – which was also contested – such an appeal had meanwhile been validly instituted, so long as the appellant remained in this...
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