R Mozaffar Baradaran v Melike Baradaran and Another Sikh Council Hampshire (Intervener)

Hearing date: 13 May 2014

Approved Judgment

Master of the Rolls:

The appellants are Iranian nationals (father and daughter) who by these proceedings challenge the Secretary of State's decision on 5 December 2011 to refuse their asylum claims on safe third country grounds and to remove them to France. France has accepted responsibility for their asylum claims pursuant to the Council Regulation 343/2003/CE ("the Dublin II Regulation"). Before Hickinbottom J, they challenged their return to France on the basis of French Law 2010–1192 of 11 October 2010 ("the 2010 law") which effectively bans the wearing of the burka and the niqab in public. They alleged that this would breach their rights under articles 3, 8, 9, 11 and 14 of the European Convention on Human Rights ("the Convention"). Their claims were dismissed by the judge in their entirety. Maurice Kay LJ gave them permission to appeal in relation only to articles 8, 9 and 14 by reference only to the French Law 2004–228 ("the 2004 law") and in relation to section 55 of the Borders, Citizenship and Immigration Act 2009 ("BCIA"). The 2004 law had not featured in argument before the judge. It is, however, common ground that the appeal is concerned with the 2004 law and not the 2010 law. The 2004 Law provides that "in public elementary schools, middle schools and secondary schools, the wearing of symbols or clothing by which the students conspicuously indicate their religious belief is prohibited".

The facts

The first appellant ("B") was born in Iran. The second appellant ("M") is his daughter. She was born on 22 August 2002. B divorced his wife in 2007 and he and M have lived together since then. He says that he was forced to leave Iran in February 2011 because of his political views and activity in Iran. He and his daughter are both practising Muslims who according to their religious faith believe that females should cover their heads in public. They went first to France and then came to the UK. On 5 December 2011, France formally accepted responsibility for dealing with their asylum claim. On the same day, the Secretary of State refused the claim on safe third country grounds on the basis that they could safely be removed to France where their application for refugee status would be determined.

On 31 January, a family return conference was convened. This was attended by B, but not M. B presented a questionnaire which he had completed. In answer to a question designed to ensure that he understood that, if he did not leave the UK voluntarily, he and his daughter were liable to be removed, he responded:

"Yes, understand but what about my daughter's school? She wears a cover but France won't accept her at school. Mentally she will suffer a lot. France gave us a letter to leave in 8 days. Did not treat us well."

The head teacher at the primary school where M had been studying for four months sent the UK Border Agency a letter saying that she was an industrious student and a settled pupil, and that the school would be concerned about the impact of a family move to France on her well-being and future welfare.

Following the conference, written representations were submitted by B's solicitors in their letter of 6 February 2012. These made no reference to M's dress or to any problems that wearing a veil in France might cause. On 14 February, the Secretary of State responded by confirming the decision to refuse the asylum claim on safe third country grounds and stated that she proposed to remove B and M to France. The letter also stated that section 55 of the BCIA had been taken into account.

The question of M's dress was not pursued further in correspondence. On 16 March 2012, however, the appellants issued these judicial review proceedings challenging the decision of 14 February. The summary grounds of claim asserted that removal of the appellants to France would violate their Convention rights, because of the effect of domestic French law which prohibited face-covering clothing.

In answer to the claim, the Secretary of State cancelled the removal directions and issued a new decision on 7 June 2012 responding to the Convention claims. The new decision confirmed the 5 December 2011 decision to refuse the asylum claim. It also rejected the human rights claim, dealing at some length with the best interests of M. Under para 5(4) of Part 2 of the Schedule to the 2004 Act, the letter certified that the human rights claim was clearly unfounded. It was this decision which was in substance the real target of the claim before the judge.

The judgment

As I have said, the claim before the judge was directed to the 2010 Law and the argument advanced by Mr Sibghat Kadri QC concentrated on article 3 of the Convention. At para 102 of his judgment, the judge accepted the Secretary of State's submission that "potential treatment at the hands of the French state under the 2010 Law could not, even as a future hypothetical construct, anywhere near approach the high threshold required to engage article 3". At para 103, he said that there was no reliable evidence that France systematically fails to comply with its obligations under the Convention with the risk of a serious violation of the dignity of an asylum-seeker such as would amount to degrading treatment for the purposes of article 3. On the contrary, the French government and especially the French courts take their obligations in respect of human rights compliance seriously. That is underlined by the consideration by the Conseil d'Etat of the 2010 Law. Permission to appeal the judge's decision in relation to article 3 was refused by Maurice Kay LJ and I need say no more about it.

The second ground of challenge before the judge was that, in breach of article 8 of the Convention and section 55 of the BCIA, the Secretary of State had failed to have regard to the best interests of M as a primary consideration. The judge rejected this ground. He said that the argument based on the 2010 Law had not been raised at the time of the letter of 5 December 2011; and when it was raised in these proceedings, it was adequately addressed in the letter of 7 June 2012 (to which I shall refer later). At para 117, the judge concluded in any event that the case against removal was "too exiguous" to stand up in any legal forum "when set against the history of their entry and stay here, and the legal imperatives for removing them to France".

The report of Professor Lichere dated 8 April 2014

The report of Professor Lichere dated 8 April 2014 provides the only evidence available to this court as to the meaning and effect of the 2004 Law. A number of facts emerge from the report. First, the 2004 Law provides that in public (i.e. state) schools, the wearing of symbols or clothing by which students conspicuously indicate their religious belief is prohibited. This would extend to the wearing of a scarf, a hijab, a jilbab, a niqab or a burka. The prohibition applies only in public schools. There is no such prohibition in private schools. Secondly, the only sanction for breach of the law is expulsion from the school. Before this sanction is applied, there is a "dialogue phase" during which the student is denied access to the classrooms. During this phase, the student is usually kept in study rooms and given courses in writing. Following expulsion, the student has the possibility of continuing his or her schooling by correspondence. No criminal or other sanction is imposed by the courts. Thirdly, the Conseil d'Etat considered the conformity of the law with articles 8, 9, 10 and 14 of the Convention in its rulings of 5 December 2007 and 6 March 2009. It concluded that the law "does not either have an excessive impact on freedoms of thought, conscience; moreover such a penalty, which is imposed without discrimination between the beliefs of the students, does not breach the non-discrimination principle…" Fourthly, in 2009 the ECtHR considered the compatibility of the 2004 Law with the Convention in the six conjoined cases of Aktas (no 43563/08), Bayrak (no 14308/08), Gamaleddyn (no 18527/08), Ghazal (no 29134/08), Singh (no 25463/08) and Singh (no 27561/08). The court held that, although the ban constituted a restriction on the applicants' freedom to manifest their religion, it pursued the legitimate aim of protecting the rights and freedoms of others and public order and was not disproportionate. A "spirit of compromise on the part of individuals was necessary in order to maintain the values of a democratic society" and "expulsion was not disproportionate as a sanction because the pupils still had the possibility of continuing their schooling by correspondence courses". The court also rejected an argument based on discrimination: the ban "applied to all conspicuous religious symbols". The claim was rejected at the admissibility stage as manifestly unfounded.

The Dublin II Regulation

The...