R (Ahmadi) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE CRANE,MR JUSTICE SCOTT BAKER |
| Judgment Date | 12 September 2002 |
| Neutral Citation | [2002] EWHC 1847 (Admin),[2002] EWHC 1897 (Admin),[2002] EWHC 1926 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 12 September 2002 |
| Docket Number | NO: CO/3894/2002,CO/3894/02 |
[2002] EWHC 1847 (Admin)
IN THE HIGH COURT OF JUSTICE
Royal Courts of Justice
The Strand
London WC2
Mr Justice Crane
CO/3894/02
MR N BLAKE QC AND MR M HENDERSON (instructed by HACKNEY COMMUNITY LAW CENTRE, LONDON E5 OPD) appeared on behalf of the Claimant.
MR P HAVERS QC AND MS S RAHMAN (instructed by THE TREASURY SOLICITOR, LONDON SW1H 9JS) appeared on behalf of the Defendant.
This is an application for permission to apply for judicial review. The particular decision is the decision to maintain a certificate certifying the human rights grounds advanced on behalf of the applicants as manifestly unfounded, a maintenance, to use that word, contained in two letters of 13th August 2002. There is also an application for interim relief in terms of an injunction requiring steps to be taken to return the applicants and their family from Germany.
The matter has a considerable history. The applicants are from Afghanistan. They arrived first in Germany and claimed asylum there and that was refused, but in fact they came to this country and claimed asylum here. It was discovered that they had previously applied in Germany and the asylum application was refused and certified on the basis that their asylum application and any consequent proceedings should be decided in Germany. The certification, for that purpose, was on 8th November 2001.
There have been two sets of judicial review proceedings before. On 12th February human rights claims were certified and on 18th February an application was made for judicial review designed to quash that certification, the second certification. Those proceedings were ultimately the subject of refusals on the papers and at an oral hearing on 9th May 2002.
On 25th July the parents were detained at a mosque in Stourbridge where they were at the time. Further judicial proceedings were launched but they resulted in a consent order withdrawing that application for judicial review.
Removal arrangements were made and were to take effect on 14th August 2002. Shortly before that there had been an application to the family judge on behalf of the children and, ultimately, he ruled on 10th August that although the children remained wards of court, the court had no power to override the Secretary of State's removal powers. It follows that as things stood on 10th August there were removal directions and the family were to be removed on 14th.
In the original judicial review proceedings there had been submissions based on both Article 3 and Article 8 in particular, but there had been no medical evidence placed before the court. What then happened was that very shortly before the proposed removal two medical reports were placed before the Secretary of State. One was a psychiatric report on Mrs Ahmadi by Dr Stuart Turner and the second was the psychological report of Dr Craig on the two children which had been prepared on the directions, or with the permission at least, of a judge in the family proceedings.
Two letters were written on behalf of the Secretary of State on 13th August. The first in time, it appears, is the one to the Hackney Community Law Centre and it related in particular to Mrs Ahmadi and it dealt not only with Dr Turner's report but with an opinion from Dr O'Brien which had been obtained at the request of the Secretary of State. The second letter, written to the solicitors who acted in the family proceedings, dealt with in fact both sets of medical matters, but also went on to deal with what would happen when the family were in Germany and I will return to that in one moment.
The issue whether the certification of the human rights claim was manifestly unfounded has this importance: if that certificate has been issued and not quashed, it follows that any appeal to a special adjudicator must be pursued from outside the United Kingdom; if, on the other hand, a certificate is quashed or is not issued there is an appeal in this country. Either way there is a right of appeal but as Mr Blake, on behalf of the claimants, rightly points out, the opportunities for exercising, in practice, the right of appeal from outside the country are much less and that is therefore a very important distinction in practice.
I note that Article 3 is no longer pursued for present purposes, but at the core of the claimant's case today is that the Secretary of State inaccurately recorded what the family's status would be in Germany. It is to be noted that although there is some very heated correspondence, any assertion that it was a deliberate inaccuracy is not pursued today.
Following the writing of those letters, which were of course sent by fax very shortly indeed before removal was to take place, the matter came by telephone before Roderick Evans J acting as the duty judge. Unusually for telephone applications, he had the benefit of a three-way conversation with both Mr Blake QC, and Mr Havers QC on behalf of the Secretary of State, and there is also a note of that hearing. Ultimately, having taken into account the various submissions and having the letters of 13th August before him, he said this:
“I have to apply ordinary public law principles and decide whether these decisions are capable of being challenged. I have come to the conclusion that the challenge which the Applicants wish to make to these decisions are untenable. They cannot be properly argued and therefore I am not prepared to grant any injunction.”
And he refused an injunction to hold up the removal and in the course of subsequent remarks he made clear that he had taken into account the crucial letter in question.
The second letter of 13th August includes paragraphs 8, 9 and 10. They relate to the state of the immigration status and the facilities that would be available in Germany.
“8. Further, the family are no longer asylum seekers in Germany, having been granted residence there on humanitarian grounds. Therefore the family will not be settled in a reception centre as these facilities are for people whose asylum claims are being processed, and not for people in this family's position who have been granted residence in Germany.
9. Accordingly upon their return to Germany, the family will have settled rights of residence. This means that they will be housed within the Community and, as they are lawfully entitled to reside there, they will have full access to the various social and welfare provisions of the German state. The Children are of an age to adapt quickly to life in Germany and will be able to attend School and make friends and the family will be able to establish themselves within the wider Community.
10. The Secretary of State submits that against this background, any potential rights of residence which may have accrued from the family pursuing a further asylum claim in the UK are purely speculative and is arguably of more adverse consequences to the family than the opportunity to establish a new life and settled existence in Germany.”
In my view, although in the papers these have been called “assurances” that is not an accurate way of describing statements of part of the basis upon which the Secretary of State was considering the maintenance of the certificate.
There is now evidence before the court from Doris Schaffer, who is a liaison officer with the Federal Office for the Recognition of Foreign Refugees in Nuremberg, Germany, on secondment to the Home Office. She sets out information about the state of the immigration status and asylum status of the claimants. There is also before the court a letter from a German lawyer, Herr Dietrich, and also a statement from Mr Makhlouf from the claimants’ present solicitors relating to conversations with, in particular, a German lawyer, Juliane Scheer, who is now, I think, representing the claimants as a lawyer in Germany.
The main thrust of Mr Blake QC's arguments today is that if one looks at that material, or even only at the statement of Frau Schaffer, the basis of paragraphs 8, 9 and 10 of the letter of 13th August may be shown to be incorrect. The letter includes the description of the opportunity in Germany “to establish a new life and settled existence in Germany”. It refers to settled rights of residence and it refers to full access to the various social and welfare provisions of the German state. It is, in my view, arguable that if one reads the statement of Frau Schaffer the status of the applicants, and hence their access to accommodation and benefits, is something rather different from settled rights of residence. I am not, of course, finally deciding whether there is such an inconsistency today, but in my view it is arguable and the matter should come before a court by way of judicial review. And, as I have said, the legal status in immigration and asylum terms has relevance to the type of accommodation that would be available and to the kind of benefits that would be available. It also, in terms of the information from Frau Scheer and Herr Dietrich, appears possibly to have relevance to the availability of medical treatment and medical treatment may be of particular importance in view of the medical evidence placed before the court.
The Secretary of State in his letter of 13th August ultimately took into account both the medical evidence that was placed before him and, no doubt by way of balancing and considerations of proportionality, the kind of status and existence that the applicants and their children could face in Germany. I have not taken into account the actual events that have taken place in Germany for today's purpose (except in...
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