R Majit v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 18 March 2016 |
| Neutral Citation | [2016] EWHC 741 (Admin) |
| Docket Number | CO/570/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 March 2016 |
[2016] EWHC 741 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Cranston
CO/570/2016
Mr Raza Halim (instructed by Duncan Lewis) appeared on behalf of the Claimant
Miss Julie Anderson (instructed by Government Legal Department) appeared on behalf of the Defendant
This is an application for a so-called "generic" stay — in fact, an interim injunction — on all Dublin III Regulation returns to Bulgaria pending judgment in a test case relating to that issue ( Khaled v Secretary of State for the Home Department CO/2899/2015). Dublin III (shorthand for Regulation (EU) No 604/2013) is the current legal basis for the principle in the European Union that only one Member State is responsible for examining an asylum application and other Member States may return persons to that Member State for an assessment to occur.
The injunction sought in this case will not benefit the claimant since there is already an order of this Court granting him permission to apply for judicial review and staying his case pending judgment in the test case. Thus, effectively, what is being sought is an injunction to benefit other persons whom the Secretary of State intends to remove to Bulgaria under Dublin III, even if those other person have made no application in this Court or elsewhere in relation to their removal unless they consent to be removed. The issue was not raised in Khaled.
The justification for the application is that apparently there are already at least forty orders of the Court of Appeal or the Upper Tribunal Immigration Asylum Chamber where permission to apply for judicial review of decisions to remove to Bulgaria has been granted. Yet, it is said by Mr Halim, the Secretary of State egregiously continues to remove persons to Bulgaria under Dublin III. He submits that the grant of permission to apply for judicial review in those other cases illustrates that there is clearly a triable issue in such cases and the balance of convenience undoubtedly points in the direction of interim injunctive relief.
Although Khaled has been heard, judgment, he says, is likely to be some time off because of the complex evidential and legal arguments advanced there concerning Article 3 of the European Convention on Human Rights (EHCR), Article 4 of the Charter of Fundamental Rights of the European Union and the interpretation of Dublin III itself. There is an obvious need, he contends, to stem what are, prima facie, unlawful removals. He adds that it is a waste of public funds and judicial and administrative time to require persons threatened with removal to have to take legal proceedings in circumstances where the Secretary of State should desist from that course pending the outcome in Khaled.
The arguments in Dublin III (Bulgarian returns) do not turn on the individual circumstances of the persons affected but are about generic reception conditions in Bulgaria for all arriving after removal from the United Kingdom. Mr Halim rests in particular on a judgment of Lord Justice Christopher Clarke in HN (Afghanistan) v Secretary of State for the Home Department [2015] EWCA Civ 1043. In that case, Lord Justice Christopher Clarke had given permission for certain appellants to appeal a decision of the Upper Tribunal. Ultimately, early this month when the appeal was heard the Court of Appeal dismissed the appeal: R (On application of HN and SA) (Afghanistan) (Lead cases associated Non-Lead Cases) v Secretary of State for the Home Department [2016] EWCA Civ 123.
Lord Justice Christopher Clarke having given permission, the appellants made application for interim relief as regards other persons to be removed with them on a specific flight to Kabul on 21 April 2015. An order to that effect had been given out of hours by Lady Justice Rafferty. Ultimately, the order that Lord Justice Christopher Clarke made was as follows:
"The appellant's application for further interim relief is granted in the form of a stay on a removal from the UK until further order of the Court of Appeal, for all other persons [i.e. not the appellants] facing forced removal from the UK on the charter flight PVT 081 to Kabul on 26 August 2015 who were not habitually resident in the Provinces of Bamyan, Panjsher and Kabul."
In the course of his judgment, Lord Justice Christopher Clarke said that the logic of the grant of permission to appeal was that the appellants would arguably face a real risk of injustice to them and, more importantly, danger. He noted that persons other than the appellants might make applications for interim relief against removal but "others may not be in a position to do so in time to prevent their removal on Wednesday of next week". He then said (paragraph 21):
"It seems to me that this Court probably does have jurisdiction to make an order of the type now sought under the general power to make an injunction whenever it is just and convenient to do so or under the Court's inherent jurisdiction. I make no final decision in relation to that. It seems to me that in any event it has jurisdiction to make an order such as the one that I propose to make on an interlocutory basis."
Then continuing (at paragraph 23):
" ….. In a public law case when a consideration which affects one group of applicants affects others who are not or not yet parties to the proceedings in that or a very similar way it seems to me proper for the recent stay ordered by the Court to extend to those in the latter as well as the former category. At any rate, that seems to be appropriate on the facts of the present case."
In his submissions Mr Halim contends that this is an a fortiori case. He submits that the present cases are not troubled by fact-sensitivity since they affect all returnees to Bulgaria under Dublin III. There is no need to distinguish an area to which returnees to Bulgaria will be sent as there was in the HN litigation reflected in the order I have quoted. Nor, in this case, is there a need for the Secretary of State to trouble itself with determining whether returnees are vulnerable.
Consequently, he urges me to apply the approach of Lord Justice Christopher Clarke in the HN (Afghanistan) decision and to grant generic interim relief to this case.
There are, in my view, three reasons why this is not appropriate.
First, the relief which is being sought is on behalf of persons unknown. By contrast with the situation in HN, where the identity of those on the specific flight was identifiable, Miss Anderson submitted that there was a general principle that litigation cannot be carried out on behalf of individuals save with their consent and in strictly defined circumstances.
In argument, I identified...
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R NN v Secretary of State for the Home Department
...case was not exceptional. He relied heavily on the decision of Cranston J in R(Majit) v Secretary of State for the Home Department [2016] EWHC 741 (Admin), [10]–[18], where the judge refused this form of relief to a class of persons other than the claimant (who already had interim relief) ......