R (Abdullahi Ahmed Mahamed) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston: |
| Judgment Date | 13 June 2008 |
| Neutral Citation | [2008] EWHC 1312 (Admin) |
| Docket Number | Case No: CO/5660/04 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 13 June 2008 |
[2008] EWHC 1312 (Admin)
IN THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
QUEEN'S BENCH DIVISION
Mr Justice Cranston
Case No: CO/5660/04
Ronan Toal (instructed by South West Law) For The Claimant
Ingrid Simler Qc (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 2 May 2008
Introduction
The concepts of certification and of issuing a certificate have a long history in our law. At common law, before a system of appeals developed, a process of certification enabled a decision before the justices of assize to be brought before the King's Court at Westminster. With the growth of the state, officials and public bodies, not least the various registries which were established, gave certificates of matters within their knowledge or authority. The concept of issuing a document can also be traced back centuries. In relation to legal pleadings it is found in the Year Books and one meaning of issue in this context was to finish or get out the pleading. On occasion the two concepts combined – certificates were, in the relevant statutory language, issued.
The present case involves certification, and the issue of certificates, in the context of an application for judicial review of decisions by the Secretary of State for the Home Department (“the Secretary of State”) taken in respect of Abdullahi Ahmed Mahamed (“the Claimant”). There are two types of certificate involved, first, safe third country certificates and secondly, certificates that a claimant's human rights claims are clearly unfounded. The effect of these certificates would be that the Claimant's asylum application will not be considered substantively in this country. Although the Claimant has a right of appeal against the decision to remove him to Italy this right may only be exercised abroad. The Claimant contends that the original safe third country certificate was a nullity because it was not “issued” until after the relevant legislation was repealed. Issue, in his submission, means served. Recently the Secretary of State drew up another safe third country certificate, which the Claimant argues is also not effective to prevent an in-country appeal. Partly this revolves around whether a prohibition on bringing an appeal is a prohibition on bringing and continuing an appeal. The Claimant also contends that the Secretary of State was not justified in certifying his human rights claims as clearly unfounded.
Background
The Claimant is from Baidoa in Southern Somalia. There is only a short statement from the Claimant himself and it is necessary to piece together his story from an account he gave to a consultant psychiatrist, Dr Rhodri Huws, and from what his elder brother, Ibrahim, has said. Apparently the family all lived together in Baidoa until 1997. As a result of the fighting there the Claimant and his other brothers, Ali and Bashir, and Ali's wife, fled. Ibrahim, their mother and another brother, Said, remained behind to try to protect the family property. The very day the others left their home was attacked and the mother and Said were shot dead. Ibrahim himself was shot but the gunmen must have thought he was dead and left. Meanwhile the Claimant was separated from his other brothers. On his account he moved around the country, avoiding the fighting, returning to Baidoa in 2000. He learnt what had happened, lost his memory and wandered around aimlessly. He was looked after by relatives, hospitalised and then married but the marriage was unsuccessful. Ibrahim came to this country in 1999 and was granted refugee status. His brother Ali arrived in the United Kingdom in 2003 and was also given refugee status after an appeal. Both brothers live in Bristol with their families.
The Claimant came to the United Kingdom via Italy. On his account the journey to Italy was by ship: the boat broke down, a number of people were lost overboard and a friend lying next to him died. His elder brother, Ibrahim, has tracked down Italian television news footage which apparently shows a number of people being taken off the ship, many of whom appear to be quite traumatised. Ibrahim has said that at one point in the footage he could see the Claimant coming off the ship and then later there was a shot of him in hospital. The Claimant told Dr Huws that he spent fifteen days in hospital. On his account people at a local Italian church helped to get him to Britain.
The Claimant arrived in the United Kingdom at Stansted Airport on 24 December 2003 without a passport or other relevant documents and claimed asylum. He said that he left Somalia the previous day and that he had not sought asylum elsewhere. He maintained that account despite being told it was not credible. It was subsequently discovered, through a positive fingerprint match, that he had made an application for asylum in Italy in November. Thus in late December 2003 he was notified that he was liable to be detained and returned to Italy. His solicitors, South West Law, asked for a reconsideration of his case. Meanwhile Italy had been asked, and in March accepted responsibility, to take him back under terms of the Dublin Regulation, a European Union instrument designed to allocate responsibility for processing an asylum application to the Member State which permitted the applicant to enter or reside ( Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national [2003] OJ L 50/1.)
On 22 March 2004 the Defendant signed a certificate for the Claimant's removal to a safe third country, Italy. This is a key document in this case (“the safe third country certificate”). The certificate was in a standard form letter, signed by a Home Office official from the Third Country Unit on behalf of the Secretary of State. Headed “Immigration and Asylum Act 1999. Certification of Asylum Application on Third Country Grounds,” the letter outlined that the Claimant, having claimed asylum, could be returned to Italy under the Dublin Regulation by virtue of section 11(1) of the 1999 Act and paragraph 8(1)(c) of Schedule 2 of the Immigration Act 1971, since Italy had accepted responsibility and was a safe third country. Paragraph 345 of the Immigration Rules provided that asylum applications would normally be returned without substantial consideration if there was a safe third country. There were no grounds for departing from the practice in the Claimant's case. The letter concluded:
“ Third country certificate
It is hereby certified that the conditions mentioned in section 11 (2) of the Immigration and Asylum Act 1999 are satisfied, namely that:
(a) the authorities in Italy have accepted that, under standing arrangements, Italy is the responsible State in relation to your claim for asylum; and
(b) you are not a national or citizen of Italy.
Right of Appeal
You should refer to the attached notice of decision, appeals form and accompanying leaflet given to you with this certificate for details of how and when to appeal.”
The certificate was sent to the Immigration Service at Bristol to be served on the Claimant but because of an administrative oversight it was not, in fact, served at that time, although this was not discovered until June. That month the Secretary of State wrote to South West Law, the law firm acting on behalf of the Claimant, confirming that Italy had been approached under the Dublin Regulation but that “a decision has not yet been served on your client.”
After June the Secretary of State made efforts to locate the Claimant and to effect service of the certificate. However, it was not possible to locate him and by 18 June 2004 the Claimant was recorded as an immigration absconder. In a statement immediately before the trial the Claimant's brother said that in fact the Claimant lived continually at his house throughout this period. Admittedly he did not report consistently to the Immigration Service: on one occasion he was ill and on others he was told he did not need to do so. The Secretary of State has said that continuing efforts to relocate the Claimant were unsuccessful until 6 October 2004, when he was detained after voluntarily reporting to a police station. A form, IS82D, was served on him that day, together with the safe third country certificate. The IS82D is entitled “Notice of Refusal of Leave to Enter”, and reads that the Claimant's application for asylum has been refused “for the reasons set out in the attached certificate.” The Claimant is refused leave to enter and the form continues: “I have given/propose to give directions for your removal to Italy, by flight/ship/train to be notified.” The right of appeal, on identified grounds, is then explained, although the form makes plain that because of the certificate an appeal could not be instituted while the Claimant remained in the United Kingdom. Removal directions, dated 14 October 2004, were subsequently set to take effect at 7.50am on 22 October 2004. They were on form IS151D for removal of the Claimant to Italy on flight BA 572 as an illegal entrant or other immigration offender. The decision was said not to be appealable.
On 18 October the Claimant was seen for the first time by Dr Rhodri Huws, a consultant psychiatrist, acting on the instructions of South West Law. His report, dated 20 October, records the Claimant's story and the...
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