AS v Secretary of State for the Home Department
| Jurisdiction | Northern Ireland |
| Judge | Keegan J |
| Judgment Date | 26 June 2017 |
| Neutral Citation | [2017] NICA 39 |
| Date | 26 June 2017 |
| Court | Court of Appeal (Northern Ireland) |
1
Neutral Citation No: [2017] NICA 39
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
Ref: KEE10323
Delivered: 26/06/2017
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
________
BETWEEN
AS
Appellant
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
AND IN THE MATTER OF A DECISION BY THE SECRETARY OF STATE
FOR THE HOME DEPARTMENT DATED 24 JULY 2015
IN THE MATTER OF AN APPLICATION BY AS FOR JUDICIAL REVIEW
________
Before: Weir LJ, Deeny J and Keegan J
________
KEEGAN J (delivering the judgment of the Court)
Introduction
[1] This is an appeal from a decision of Maguire J delivered on 15 November 2016
wherein he dismissed the appellant’s application for judicial review. Mr McQuitty
BL represented the appellant and Mr Henry BL represented the respondent. We are
grateful to both counsel for their written arguments and for their focussed oral
submissions.
[2] Leave to apply for judicial review was granted in March 2016 after a contested
hearing. The Order 53 Statement is dated 30 July 2015. The relief sought is an order
of certiorari, an order of mandamus and a declaration that the decision taken was
unlawful. The grounds given for the challenge were twofold, namely:
(a) that the decision was contrary to Article 3 of the European Convention on
Human Rights (“ECHR”) in that the Home Office declined to seek the proper
assurances from the Italian authorities; and
2
(b) that the decision was in breach of Section 55 of the Border, Citizenship and
Immigration Act 2009 (“Section 55”)
[3] The appeal notice is dated 22 December 2016. It sets out a large number of
grounds, however, wisely, Mr McQuitty focused on the two core points which
appear in the Order 53 Statement and which may be characterised as the ‘Tarakhel’
point emanating from application of the principles of the European Court of Human
Rights (“ECtHR”) Grand Chamber decision of Tarakhel v Switzerland [2015] 60
EHRR 28 and the ‘best interests’ point which involves application of Section 55.
Factual Background
[4] In support of her application the appellant filed an affidavit dated
9 November 2015 and a rejoinder affidavit dated 19 May 2016. We have recited the
salient parts of those affidavits when dealing with the history of this case.
[5] The appellant is a Somali national who was born on 8 January 1988 and who
is now 29 years of age. She states that she left Somalia in 2010 by herself after her
husband was kidnapped by Al-Shabaab. She says that she travelled to Kenya, Sudan
and Libya before boarding a boat to Italy. The appellant states that she fled to Bari
in Southern Italy where she sought asylum and where she was ultimately granted
refugee status on 12 April 2012. The appellant avers that she took this course to
avoid persecution in Somalia at the hands of Al-Shabaab.
[6] In her affidavit the appellant describes her life in Italy in unfavourable terms.
This is despite the grant of refugee status. She states that she was initially provided
with accommodation and lived in a two-bedroom house. However, according to the
appellant seven people lived in the house and there was no food. The appellant
refers to overcrowding and states that she only obtained food thanks to the
benevolence of a local church. The appellant also states that she could not speak the
Italian language or write Italian. The appellant states that she was not provided
with benefits or support. The appellant describes how these circumstances led to a
situation where she became homeless. She then developed gastric problems and
internal bleeding and she states that she required hospital admission in Bari. The
appellant states that after this medical intervention the Somali community in Bari
helped her fund a flight to return to her homeland of Somalia. In December 2013 the
appellant flew from Italy to Addis Ababa and returned to live with her husband.
[7] Following from her return to Somalia on 2 February 2014 the appellant states
that she and her husband encountered further difficulties with Al-Shabaab. When
the appellant said that she was pregnant a query was raised by her accusers over
whether her husband was the father. This was framed as a question due to the
appellant’s previous stay in Italy. The appellant states that she was accused of
having an illegal marriage. The appellant then states that she was asked to prove
her marriage and when she could not provide the documentation she had to flee the
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