CO/2899/2015 R Havel Khaled ("HK") and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Garnham |
| Judgment Date | 18 April 2016 |
| Neutral Citation | [2016] EWHC 857 (Admin) |
| Docket Number | Case No: CO/2899/2015 CO/1367/2015 CO/843/2015 CO/6016/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 April 2016 |
[2016] EWHC 857 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Garnham
Case No: CO/2899/2015
CO/3267/2015
CO/1367/2015
CO/843/2015
CO/6016/2015
"Khaled v SSHD No 1"
Mark Symes, David Chirico and Raza Halim (instructed by Duncan Lewis) for the FK, SK, HK and HD; Raza Halim instructed by Fadiga & Co for HH
Julie Anderson and Belinda McRae (instructed by the Government Legal Department) for the Defendant
Hearing dates: 1 st– 2 nd March 2016
Introduction
Since early 2014 many hundreds of thousands of asylum seekers and economic migrants have arrived in the European Union. A significant number have moved on from the first country in which they sought, or might have sought, sanctuary to the UK, arriving in this country irregularly or unlawfully. In a number of cases before this court the question has arisen as to whether the UK is entitled to return them to the country from which they arrived.
The circumstances of each such EU country are different. A number of test cases, each relating to arrivals from a different EU country, have been considered by the court. In R (on the Application of Tabrizagh) v SSHD [2014] EWHC 1914 (Admin), Elisabeth Laing J considered the lawfulness of return to Italy. In MS v SSHD [2015] EWHC 1095 (Admin) Lewis J also considered return to Italy, but he did so in the light of the decision of the Grand Chamber of the European Court of Human Rights ("ECtHR") in Tarakhel v Switzerland [2015] 60 EHRR 141, and new evidence about conditions in Italy. In Hamad v SSHD [2015] EWHC 2511 (Admin), Kerr J considered the lawfulness of return to Malta. In Pour v SSHD [2016] EWHC 401 (Admin), Ouseley J considered return to Cyprus. I am told that there are challenges to returns to Hungary currently being considered by the Court.
The cases before me concern the lawfulness of return to Bulgaria. The cases of four of the five claimants, namely HK, HH, SK and FK, also raise questions as to the lawfulness of the detention, pending removal. (Initials have been used, for convenience, throughout the proceedings and I adopt the same shorthand. In respect of two claimants, SK and FK anonymity orders have been granted.) The Claimants' arguments on each of those two issues was presented by a different advocate; Mr Symes on safety of return and Mr Chirico on unlawful detention.
It had been my intention to give a single judgment dealing with both issues. At about the time I completed the drafting of that judgment, however, both parties provided me with details of judgments from the Court of Justice of the European Union ("the CJEU") and opinions from the Advocate General which post-dated the hearing and which went to the unlawful detention issue. I indicated that I would welcome further oral submissions on the effect of those decisions and opinions. A date for the hearing of those further submissions is presently being fixed. Both parties confirmed, however, that their argument on those authorities would have no bearing on the safety of return cases. Accordingly, and with the approval of both parties, I have decided to produce a separate judgment on each of the two issues.
This judgment, which I have called " Khaled v SSHD No 1", addresses the arguments about safety of return to Bulgaria.
The Procedure and the Evidence
Time Estimate and Material before the Court
The time estimate for the hearing of this case, involving as it did both the propriety of returning Claimants to Bulgaria and the lawfulness of detention in the UK of four of them, was two days. The case raised matters of some importance both to the five claimants and to others awaiting possible return to Bulgaria. I understand that a number of cases are stayed behind this case.
The volume of material produced by the parties was considerable. There were three bundles of authorities containing reports of some 70 cases. There were seven bundles of documents, both case specific and of general application. The Claimants had wisely organised themselves so that they acted as a single team; nonetheless the skeleton arguments produced by the two sides ran for more than 170 pages. I was also provided with other notes and submissions which ran to some 20 pages.
Given the breadth of the issues to be covered the parties suggested, and I approved, a strict timetable for the making of submissions. As a result the hearing was completed in two days. That was achieved, however, only by the good sense and cooperation of the two competing legal teams and for that I am grateful. For future cases of this type, however, where generic challenges to the lawfulness of return to particular countries, and multiple unlawful detention claims are to be considered in a single hearing, a significantly more generous time estimate should be allowed.
There were deficiencies on both sides in preparation for this hearing. Documents were disclosed late. Amendments to pleadings were sought and made late. My general approach was to permit all relevant material to be admitted and arguments deployed, although I made it clear that I would take into account the effect of delay in my assessment of the value of, and response to, such material.
The Admissibility of Expert Evidence: the Amnesty International Report
One piece of evidence that caused particular difficulty was the expert report produced on behalf of the fifth Claimant, Hidyat Haji-Dyar. His solicitors had commissioned a report, dated 10 February 2016, from a Mr Tom Southerden of Amnesty International. This 42 page report was said to be " an independent expert opinion" in respect of the removal of Mr Dyar and " the general position regarding reception conditions and the operation of the Bulgarian asylum system in the context of the operation of Dublin returns to the country". The report makes clear that:
" Amnesty International cannot, and does not, field witnesses to provide evidence in the investigation of this kind. Our reports represent the considered opinion of a variety of specialist researchers from across our organisation and therefore it would not be appropriate for an individual to attend the proceedings to provide evidence orally."
This report was not the subject of an application to adduce expert evidence pursuant to CPR 35 and it was not the subject of discussion or correspondence between the parties. The report was disclosed by the Claimant to the Defendant in the middle of February 2016 amongst a collection of material the Claimants proposed including in a court bundle.
I agreed, with some reluctance, to permit the admission of this report into evidence. I did so because this case may be regarded as something of a test case for Bulgarian returns, and it would be unfortunate if what might be significant evidence from a respected Non-Governmental Organisation ("NGO") could not be considered. But I made it clear that the weight I would attach to the contents of this report would reflect the circumstances in which it was adduced. Particularly significant, it seems to me, was the fact that it was served late; that the Secretary of State had not had an adequate opportunity to respond to it; that it was the work of more than one individual, although only one was named; that its author had made clear that in no circumstances would he agree to be cross-examined on its contents; and that it was a private report from Amnesty International which had not been subject to public debate and consideration, as is commonly the case with publicly directed reports of NGO's like Amnesty International.
It was suggested in argument that CPR 35 did not apply, that it was not necessary for the Claimant to seek permission to rely on this report, that it was " common practice" in tribunals to serve such reports as they became available. Reliance was placed in support of these propositions on the decision of the Supreme Court in MN (Somalia) v SSHD [2014] UKSC 30.
I reject all of those submissions. First, CPR 35 does apply to judicial reviews like the present. I see no possible grounds for disregarding it. (I note that Mr Southerden makes reference in paragraph 107 of his report to the need to comply with the CPR). The nature of JR challenges, and the need for them to be considered expeditiously, makes all the more important the consistent application of the discipline provided by the CPR. There is a real danger of injustice if the rules of court are disregarded. If expert evidence is to be adduced, it requires the leave of the court and it needs to be disclosed to the opposing side in sufficient time to make possible a considered response. If expert evidence is to be adduced, it is essential that the court controls the process to ensure the orderly management of the proceedings. If there is a failure to comply with an order or a rule of court, an application for relief from sanctions will be necessary.
Second, the existence, if it be the case, of a common practice before tribunals to admit expert evidence without formal application and disclosure to the opposing party in good time, cannot, in my judgment, properly affect the approach to admissibility in this court. Mr Chirico, for the Claimant,...
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