R and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson |
| Judgment Date | 30 October 2012 |
| Neutral Citation | [2012] EWHC 3004 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/6292/11935/2010 |
| Date | 30 October 2012 |
[2012] EWHC 3004 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Beatson
Case No: CO/6292/11935/2010
Paul Turner (instructed by Azam and Co Solicitors) for the Claimants
Jonathan Hall (instructed by The Treasury Solicitor) for the Defendant
Hearing dates: 4 and 5 October 2012
Further submissions: 8, 9 and 19 October 2012
Introduction
Council Regulation 343/2003 , of 18 February 2003, the Dublin II Regulation, and the Directive it replaced, are important parts of the Common European Asylum System. That system contains substantive minimum standards with respect to the treatment of applicants for asylum and the examination of their applications in Member States. One purpose of the Dublin II Regulation (see Recital 3) is to introduce "a clear and workable method for determining the Member State responsible for the examination of an asylum application lodged within the EU" rapidly, and to prevent forum-shopping by applicants for asylum.
Broadly speaking (and subject to special provision for unaccompanied minors and those who have a family member who has been allowed to reside in a Member State), the Dublin II Regulation provides that the Member State that is responsible for a person's asylum application is the Member State which that person first entered or which granted that person a residence document or visa ("the first state"). The central question in these judicial reviews is whether, although under the Dublin II Regulation Hungary is the state responsible for examining the claimants' applications for asylum, the situation in Hungary ("the first state") means that the United Kingdom ("the second state") is obliged to assume responsibility for doing so pursuant to Article 3(2) of the Regulation.
The claimants in the two cases before me challenge the Secretary of State's decision to remove them to Hungary and to certify their asylum and human rights claims on third country grounds pursuant to paragraph 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 ("the 2004 Act") as "clearly unfounded". For different reasons they claim that to remove them to Hungary will breach their rights under the European Convention on Human Rights ("ECHR"). They both maintain that, as it cannot be said that their claims are bound to fail, the certification of those claims was unlawful, and they are entitled to in-country appeals before an immigration judge.
The claimants originally made what can be described as a "generic" challenge to Dublin II returns to Hungary because of the overall position of asylum seekers and refugees there. They in substance questioned whether anyone can be removed to Hungary under the Regulation. There is still a "generic" aspect to the challenge of Mr Sharif Ahmed Duran, the claimant in CO/11935/2010, but it is less general and only concerns Somali nationals. In the case of Mrs Manizah Toufighy, the claimant in CO/6292/2010, the primary focus is now an allegation that removal to Hungary will violate the Article 8 rights of the claimant's children within the United Kingdom.
"Generic" challenges have been made in respect of Dublin II removals to Greece and to Italy. Those concerning returns to Greece have succeeded in both the Grand Chamber of the European Court of Human Rights ("ECtHR") and in the CJEU: see MSS v Belgium and Greece [2011] ECHR 108 and Joined Cases C-411/10 and C-493/10NS v Secretary of State for the Home Department and ME and others v Refugee Applications Commissioner [2012] 2 CMLR 9. After the hearing in the cases before me, on 17 October 2012, the Court of Appeal gave judgment in EM (Eritrea) v Secretary of State for the Home Department [2012] EWCA Civ 1336 rejecting a challenge to Dublin II returns to Italy. These decisions (which are discussed at [76] – [84]) laid down the conditions which such a challenge must satisfy if it is to succeed. But even in the case of a non-generic challenge, they set the legal and regulatory context against which submissions such as those on behalf of the claimants in the cases before me must be assessed.
Factual background and procedural history
The procedural history of both cases is complex and somewhat depressing. But it is not unusual. Grounds originally asserted have not been pursued, in the case of one of the claimants, in the light of evidence obtained after proceedings were launched. In that case the effective challenge is now to the defendant's response to amended grounds filed later. That response addressed matters not addressed in the original decisions. In the other case amended grounds were filed some seven months after proceedings were launched. These are therefore cases in which the court is asked to exercise its supervisory jurisdiction over a moving target. There has been movement by both parties. Particularly in a case requiring its "anxious scrutiny" the court should be flexible, and seek to deal with the substantive issue between the parties at the time of the hearing if it can do so fairly. But care must also be taken lest it appear to become part of the initial decision-making process rather than the body exercising a supervisory jurisdiction.
CO/6292/2010: Mrs Manizah Toufighy is a 36 year old Iranian national with two children now aged 15 and 12, who arrived in the United Kingdom from Amsterdam on 14 January 2010 and claimed asylum. Her claim is now that, notwithstanding the scheme of the Dublin II Regulation, removing her and her children to Hungary will, having regard to the children's best interests, breach the family's Article 8 rights.
On 31 March 2010 the authorities in Hungary accepted responsibility for determining Mrs Toufighy's asylum claim. In the light of that acceptance, in a decision dated 4 May, the Secretary of State declined to consider her asylum claims substantively, and certified the claim on third country grounds. On 7 May 2010 she set directions for the removal of Mrs Toufighy and her children to Hungary. These proceedings were lodged on 3 June 2010, and at that time, the challenge was to the decisions dated 4 and 24 May 2010. Sweeney J granted interim relief staying removal.
It appears to be common ground that Mrs Toufighy has never been in Hungary. The decision to certify her claim on third country grounds was based on the fact that she and her children had been issued with Hungarian visas which as a result of Article 9(2) of the Dublin II Regulation made Hungary responsible for examining her application for asylum. It was originally contended on her behalf that the decisions to certify her claim on third country grounds and set removal directions were unlawful because she had never been issued with a Hungarian visa. It was also contended that she and her children would be made destitute if removed to Hungary, so that doing so would amount to a breach of their rights under Article 3 of the European Convention on Human Rights (the "ECHR"). Stadlen J gave permission only in respect of the second of these contentions but neither was pursued at the hearing.
CO/11935/2010: Mr Sharif Ahmed Duran is a 22 year old Somali national. He arrived in the United Kingdom on 14 May 2010 and claimed asylum. He claims that, if returned to Hungary, he will be at risk of treatment contrary to Article 3 of the ECHR. Alternatively, he claims that, because of the unavailability of family reunion for citizens of Somalia, returning him to Hungary risks treatment contrary to Article 8, either on a freestanding basis, or when read together with the prohibition on discrimination in Article 14 of the ECHR.
Because Mr Duran had been in Romania, the Secretary of State first requested the authorities there to accept responsibility for determining his asylum claim. They refused stating that Hungary was responsible for his case. On 16 September 2010 the Hungarian authorities accepted responsibility. In decisions dated 17 September 2010 the Secretary of State (a) declined to consider Mr Duran's asylum claim substantively, and (b) certified it on third country grounds. On 25 October Mr Duran was detained, and directions were set for his removal to Hungary on 18 November 2010. At the time these proceedings were lodged, on 16 November 2010, his challenge was to those decisions At that time it was contended that to remove him to Hungary would place him at risk of treatment contrary to Article 3 of the ECHR because, if he is so removed, the conditions in camps in Hungary combined with a lack of support will force him to live on the streets and be destitute.
Permission in Mr Duran's case was given only three weeks before the hearing before me. This in part was because of a dispute as to whether Mr Duran's case was to be listed together with Mrs Toufighy's case or to be stayed behind it. There also appears to have been an administrative glitch on the part of the Administrative Court. It was only on 22 May 2012 that HHJ Sycamore gave directions in his case, and it was only on 11 September that the application for permission came before Collins J. He granted permission on the papers, and ordered that Mr Duran's case be heard together with Mrs Toufighy's. By then, there had also been a number of important changes in the way the challenges are put.
On 20 June 2011, almost a year after Mrs Toufighy was granted permission, amended grounds 1 were served on her...
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