R Ibrahim v The Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMr Justice Holman
Judgment Date01 March 2013
Neutral Citation[2013] EWHC 496 (Admin)
Date01 March 2013
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/6328/2011

[2013] EWHC 496 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Royal Courts of Justice

Strand

London WC2A 2LL

Before:

Mr Justice Holman

CO/6328/2011

Between:
The Queen on the Application of Ibrahim
Claimant
and
The Secretary of State for the Home Department
Defendant

MR HUGH SOUTHEY QC and MR ANDREAS PRETZELL (instructed by Lawrence Lupin Solicitors, Middlesex HA9 0EF) appeared on behalf of the Claimant

MR S MANKWELL ( MR M DONMALL FOR JUDGMENT ONLY) (instructed by the Treasury Solicitor) appeared on behalf of the Defendant

(As Approved)

The Issue

Mr Justice Holman
1

The Claimant is a young asylum seeker from Syria who claims to have been severely tortured there. He first claimed asylum in Bulgaria. The Secretary of State for the Home Department now wishes to remove him to Bulgaria for his asylum claim to be considered there, pursuant to the provisions of the EU regulation known as Dublin II. So terrified is the claimant of the prospect of ultimate return to Syria that he made an apparent attempt at suicide, and on other occasions significantly harmed himself whilst previously detained here. There is a body of medical evidence to the effect that there is a high risk of completed suicide if the Secretary of State now seeks to remove him, or redetains him as a step towards removal.

2

The claimant claims that his rights under Articles 3 and 8 of the European Convention on Human Rights are thus engaged and that he cannot, or should not, be removed or redetained. The Secretary of State has certified those claims to be "clearly unfounded", which precludes any in-country right of appeal to the Tribunal system. The sole question on the present judicial review is whether that certification is correct.

Certification

3

As the present issue concerns certification, it is convenient first to set out the legal framework for that process and the role of this court upon a judicial review of the certification. At issue in this case is removal of an asylum seeker to a safe third country, pursuant to Council Regulation (EC) No 343/2003 ("Dublin II") and the Asylum and Immigration (Treatment of Claimants) Act 2004.

4

Bulgaria is listed as a safe country in paragraph 2 of Part 2 of Schedule 3 to that Act. Paragraph 5 of Part 2 of Schedule 3 to that Act applies where the Secretary of State proposes to remove a person to a safe country (viz in this case Bulgaria), and the person is not a national or citizen of that state (which the claimant is not). Paragraph 5(4) provides that:

"(4) The person may not bring an immigration appeal… in reliance on a human rights claim… if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim… unless satisfied that the claim is not clearly unfounded."

5

The meaning and effect of the words "clearly unfounded" has been authoritatively stated by the House of Lords in

ZT (Kosovo) v SSHD [2009] UKHL 6 [2009] 1 WLR 348 . At paragraph 23 Lord Phillips of Worth Matravers said:

"Where, as here, there is no dispute of primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed then it is not clearly unfounded. It follows that a challenge to the Secretary of State's conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that a court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State's view was irrational."

At paragraphs 75 and 76 Lord Brown of Eaton-under-Heywood said:

"As I have said, the critical question for the Court's determination in these cases is: could the AIT possibly allow an appeal against the rejection of the claim or would it be bound to dismiss it (again, the opposite sides of the same coin)? Could the Court ever reach the position of saying: we ourselves do not think that an appeal to the AIT in this case would have been bound to fail but we think that it was reasonable for the Secretary of State to decide that it would? In my opinion it could not. If the Court concludes that an appeal to the AIT might succeed, it must uphold the challenge and allow such an in-country appeal to be brought.

It follows that on this issue also I agree with what Lord Phillips says at para 23 of his opinion."

6

Guided by that authority and those passages it seems to me that I myself must ask myself the question whether I consider the asserted human rights' claim to be "clearly unfounded". If I do, then the judicial review must fail. If I do not, then it should be allowed. If the claim realistically might succeed on an appeal before a Tribunal, then it is not clearly unfounded. If it is bound to fail, then it is clearly unfounded.

7

My attention was drawn to the very penetrating analysis of the authorities on this topic by Beatson J at paragraphs 55 to 73 of his recent judgment in Toufighy v SSHD [2012] EWHC 3004 (Admin). It appears to me to leave intact, in cases falling within paragraph 5(4) of Part 2 of Schedule 3 to the 2004 Act, the approach which I have much more briefly summarised and described above. However, I bear firmly in mind the wise words of Beatson J at paragraph 73 of his judgment in Toufighy:

"73. The justification for a substitutionary approach in this context may be that the question whether a claim is bound to fail at the Tribunal is particularly suitable for determination by a court, involving, as it does, questions of access to an independent adjudicative body. The question can be described as "highly justiciable". Maurice Kay LJ stated in MN (Tanzania) that a generous approach to the scope of the judicial review jurisdiction where the decision denies a person access to the immigration appellate system at the outset is understandable. But it is important not to lose sight of the fact that the jurisdiction remains a reviewing jurisdiction, and that the, admittedly labyrinthine, legislative provisions in the 2002 and 2004 Acts give the Secretary of State a certain "gate-keeping" function as to the availability of an appeal by the process of certification. Care must be taken not inappropriately to deprive the Secretary of State of that function."

I will keep that passage firmly in mind.

The context of the hearing and the nature of the inquiry

8

Clearly the question whether an appeal might succeed or is bound to fail must itself be decided by reference to a correct statement of the relevant law, and I will attempt to do so. But I wish to stress that I consider the present case to be highly fact specific. I do not believe that (in the context of the present judicial review) it raises any new point of law. It is not my intention to state any new proposition of law, or indeed to establish some precedent for any other case. It seems to me also that the process of deciding within a judicial review whether a claim is clearly unfounded requires to be kept within proportionate bounds. This is a review of the certification, not the hearing of a substantive human rights' appeal.

9

I completely accept a submission by Mr David Manknell, on behalf of the Secretary of State, that the purpose and process of certification is fundamental to one of the objectives of the Dublin II regulation, namely swift return to the single member state responsible for examining the asylum application under the hierarchy of criteria within the regulation (in this case Bulgaria). That objective would be severely thwarted if removal could be delayed by the simple act of making an appeal. So the purpose of certification is to screen out or prevent appeals by application of the statutory threshold test, namely if clearly unfounded.

10

It is, as Beatson J neatly put it in paragraph 73 of Toufighy quoted above, a "gate keeping function" as to the availability of an appeal. But although fundamental to the effective operation of Dublin II, the process is nevertheless a screening or threshold or gate-keeping one and the test keeping is indeed a low one. The task of a court on a judicial review of the certification must obviously be performed judicially, conscientiously and with due regard both to the fundamental purpose of certification and to the context of asylum; and with proper respect for the decision of the Secretary of State, but, as it seems to me, it must also be performed proportionately.

11

Patently this is not a fact-finding exercise and indeed it is common ground that I must largely, although not naively or uncritically, take the facts to be as stated by, or on behalf of, the claimant. Nor, in my view, is it an occasion for exhaustive consideration of the law, which may indeed require fuller consideration in the context of the facts as found, rather than the facts alleged.

12

During the present hearing I was privileged to hear advocacy and submissions of the utmost skill and highest order from both Mr Hugh Southey QC leading Mr Andreas Pretzell, on behalf of the claimant, and Mr David Mankwell on behalf of the Secretary of State. I am deeply grateful to them all. But the anticipated scale of the present hearing has surprised and concerned me. We know from paragraph 22 of the transcript of the judgment of Mr Clive Lewis QC, who granted permission to apply for judicial review on 23 May 2012, that it took him "more than a day" to read the material...

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