R and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Hickinbottom |
| Judgment Date | 28 June 2013 |
| Neutral Citation | [2013] EWHC 2281 (Admin) |
| Docket Number | CO/2841/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 28 June 2013 |
[2013] EWHC 2281 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Nottingham Combined Court Centre
60 Canal Street
Nottingham
NG1 7EL
Mr Justice Hickinbottom
CO/2841/2012
Mr Sibghat Kadri QC & Mr Rashid Ahmed ( instructed by Britannia Law Practice LLp) appeared on behalf of the First Claimant
Mr Sibghat Kadri QC & Mr Rashid Ahmed and Ahmet Rashid (instructed by Britannia Law Practice LLP) appeared on behalf of the Second Claimant Mr D Manknell (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
(As Approved by Court)
Introduction
The Claimants, father and daughter, are citizens of Iran, and practising Muslims. They arrived in the United Kingdom via France, and they claimed asylum. Under European law, as between Member States there are criteria for ascertaining which State is responsible for determining an asylum application. On the basis of those criteria, in respect of the Claimants, that Member State was France, as the first country within the Union territories at which they arrived. France has accepted responsibility for determining any asylum claim. Consequently, the Secretary of State contends that she can simply return the Claimants to France, without considering the merits of their asylum claim, which will be decided in France.
However, the Claimants say that, by returning them to France, the United Kingdom would be in breach of its obligations under the European Convention on Human Rights ("the ECHR") because, as part of her religious observation, the Second Claimant at times wears the burka and, on arrival in France, both Claimants will be the subject of domestic French law which prohibits the wearing in public of clothes which cover the face, and makes the wearing of such clothing, and the forcing of another to wear such clothing, a criminal offences. As a result, the Claimants submit, they cannot be returned to France, and the United Kingdom must determine their asylum claim.
Background
The First Claimant ("the Claimant") was born on 22 July 1971 in Iran, where his father, mother, five siblings and former wife still live. The Claimant married in 2001, and the Second Claimant ("M") was born on 22 August 2002. The Claimant obtained a divorce in 2007, and his daughter has lived with him since. He says that, because of his political views and activity in Iran, he was forced to leave that country in February 2011 when, disguised, on false passports and with the help of others including his brother, an agent and a woman who travelled with him, he fled his home country with his daughter. They travelled by coach to Turkey, and then by air to France and thence to the United Kingdom, where, on 6 July 2011, they arrived at Luton Airport and claimed asylum.
The Claimant submitted a statement in support of his application for asylum, which focused exclusively on why he would be at risk on return to Iran. However, a Eurodac search revealed that the Claimant had been fingerprinted in France on 24 June 2011, and the United Kingdom made a formal request of France to accept responsibility for the Claimants' asylum claim. France formally did so on 5 December 2011; and, on that same day, the Secretary of State refused the asylum claim of both the Claimant and M on safe third country grounds, that is on the basis that they could safely be removed to France where their application for refugee status would be considered and determined. In that letter the Secretary of State certified that it was proposed to remove the Claimants to France and, in her opinion, they were not French nationals. Under paragraph 5(1) and (2) of Part 2 of schedule 3 to the Asylum and Immigration (Treatment of Claimants Etc) Act 2004 ("the 2004 Act"), that certificate meant that the Claimants were denied an appeal against the refusal of asylum here.
The following day both were served with decision letters, and also a notice of a family returns conference scheduled to be held on 31 January 2012 together with a questionnaire for the Claimant to complete before that meeting. On 4 January, the Claimant was sent a letter confirming the appointment, and encouraging any affected children to attend the meeting. Under the heading, "Presence of children", the letter said this:
"We hope to see all of your family at the Family Return Conference as the decisions being made will affect all of you. Though we recommend that all family members should be present at your Family Return Conference, if possible, we can conduct the conference without your child being present if you would prefer this…. If your children do not attend, it is important that you inform them of what is being discussed at the conference so that they fully understand the situation and can begin preparing themselves for return."
The Claimant received that letter on 6 January.
The meeting was indeed held on 31 January. M did not attend. The Claimant, at the meeting, provided the completed questionnaire, where, for the first time, there was reference to M's dress. In answer to a question designed to ensure that the Claimant understood that, if he did not voluntarily leave the United Kingdom, he and his daughter were liable to be removed, he responded, as follows:
"Yes understand but what about my daughter's school? She wears a cover but France won't except her at school. Mentally she will suffer a lot. France gave us a letter to leave in 8 days. Did not treat us well."
I should note that the Claimant did not apply for asylum whilst he had been in France.
In addition to that questionnaire, the head teacher at the primary school where M had been studying for four months sent the UK Border Agency ("the UKBA") a letter saying that M was an industrious and settled pupil, and that the school would be concerned about the impact of a family move to France would have on M's well-being and future welfare.
The Claimant's first language is not English; it is Farsi. An appropriate interpreter was present at the 31 January meeting. At that meeting, the possibility of the Claimant's return to France or alternatively Iran was discussed. The Claimant was invited to make any further written representations if he wanted anything else to be taken into account as to why he wished to stay in the United Kingdom; and the meeting was adjourned to 20 February at the Claimants' home in Derby to enable him to do so. It was therefore made clear to the Claimant that the Secretary of State was willing to reconsider her December decision on the basis of any other representations the Claimant cared to make. Another letter (wrongly dated 16 January) was given to the Claimant at the 31 January meeting, confirming the arrangements for 20 February, and once more encouraging the attendance of any affected children at the second meeting.
Written representations were submitted by the Claimant's solicitors on 6 February, which, amongst other things, asked whether the Secretary of State was going to consider the merits of the asylum claim or whether it was intended to return the Claimants to France. That letter made no reference to M's dress, or to any problems her wish or religious obligation to wear a veil in France might cause.
On 14 February, the Secretary of State responded by confirming the December decision to refuse the asylum claim on safe third country grounds, and confirming that it was proposed to remove the Claimant and M to France. In the light of the representations which had been lodged about M, that letter also referred to the United Nations Convention on the Rights of the Child ("the UNCRC") and section 55 of the Borders, Citizenship and Immigration Act 2009, and the duty that they impose on the Secretary of State to give primary consideration to the best interests of any child affected by an immigration decision. The letter stated that those interests had to be balanced against the Secretary of State's duty to maintain effective immigration control. The decision-maker considered that the Claimants would have the same opportunities for development and the same level of support in France (including in relation to education), and that there was no evidence that they would not. Insofar as the claim was based on M's human rights and her best interests, it was consequently refused.
On 20 February, UKBA officers attended the Claimant's home, as had been arranged, but there was no one there. That same day, various documents were served on the Claimants by posting them through their home letter box: the documents included notices refusing leave to enter the United Kingdom, notices of removal directions to France set for 21 March 2012 and notification of temporary admission with self-check-in removal directions for that date.
The question of M's dress was not pursued further in correspondence, until, on 16 March 2012, this claim was issued, challenging the decision of 14 February to refuse the asylum claim on safe third country grounds, and the decision to set removal directions. Save for the oblique reference in the 31 January questionnaire to which I have referred, the summary grounds of claim raised for the first time the contention that removal of the Claimants to France would violate the Claimants' ECHR rights, because of the effect of domestic French law prohibiting face-covering clothing. The claim was focused exclusively on French Law No 2010-1192, to which I shall shortly come, which prohibits the wearing of face covering clothing in public.
In answer to the claim, the Secretary...
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