R (on the Application of Mohammed Rogee) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Whipple |
| Judgment Date | 15 December 2015 |
| Neutral Citation | [2015] EWHC 3645 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/4096/2013 |
| Date | 15 December 2015 |
[2015] EWHC 3645 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Whipple
Case No: CO/4096/2013
Harriet Short (instructed by Wilson Solicitors LLP) for the Claimant
John-Paul Waite (instructed by the Government Legal Department) for the Defendant
Hearing dates: 10 November 2015
Introduction
The Claimant is a national of Iran born on 11 April 1986. The Defendant has decided to remove the Claimant to Italy, where his asylum claim will be processed. When proceedings were first issued, the challenge extended to the issue of removal directions and the decision to detain the Claimant pending removal, but those aspects of the case have now fallen away and the single issue before me is whether the Defendant was entitled to certify the Claimant's asylum claim as "clearly unfounded" pursuant to Schedule 3, Part 2, paragraph 5(4) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. If that certification stands, the Claimant can be sent to Italy, as the Defendant seeks to do, and the Claimant will have no in-country right of appeal against that decision. This is another "Italy" case, to add to the growing number.
Facts
The Claimant was encountered at Mildenhall Industrial Park on 16 February 2013. He was hiding in the back of a lorry. He claimed asylum, was served with illegal entry papers, and was detained.
A screening interview took place. The Claimant said that he had travelled from Iran, to Turkey, and then by boat to Italy. He had then travelled by lorry to the UK, and was unable to give details of any countries he had passed through on the way. He said his life was in danger in Iran because he had burned the Koran and his friend had filmed him doing this and had passed the film to the authorities. He feared for his life. He said he had been finger-printed in Italy.
A travel history interview followed. He was asked about his time in Italy. He said that he was finger-printed around 12 hours after he arrived. He then spent a day detained in an Italian police station. He said nothing else about his time in Italy.
The Defendant established that the Claimant had first entered Italy illegally on 16 December 2012. He had been finger-printed as an illegal entrant, but had not apparently claimed asylum in Italy. On 21 February 2013, the Defendant made a formal request to Italy under Article 10.1 of the Dublin II Regulation. Italy accepted that request by default. The Defendant refused the Claimant's asylum claim and certified it on safe third country grounds.
History of Litigation
The Claimant issued proceedings against the Defendant on 8 April 2013, challenging the Defendant's decisions dated 16 February 2013 (to detain), and 22, 26 and 27 March 2013 (to certify and remove). The matter was stayed by consent on 11 June 2013 pending the Court of Appeal's conclusion in AB (Sudan) v SSHD, which was decided by the Court of Appeal on 26 July 2013 ( [2013] EWCA Civ 921). Once that stay was lifted (as in due course it was), the matter came before Charles George QC sitting as a deputy judge of the High Court, who granted permission on the papers on 10 March 2014, directing that the matter was not to be listed until after judgment had been handed down in R (Tabrizagh and others) v SSHD, then proceeding under Court reference CO/585/2013. His observations included this:
"The outcome of Tabrizagh and Ors, to be heard in May 2014, may make any hearing in the present application unnecessary (in which case the court should be informed promptly). On the other hand there is some additional material about conditions in Italy contained in the Supplementary Bundle…."
Tabrizagh has now been heard by Laing J, who dismissed the applications on 11 June 2014, [2014] EWHC 1914 (Admin). The Court of Appeal confirmed Laing J's decision on 17 September 2014, [2014] EWCA Civ 1398. Notwithstanding the failure of the challenge in that case, the Claimant has persisted in this judicial review.
Since Tabrizagh was decided, Lewis J has refused a number of challenges by asylum-seekers whose claims, like this Claimant's, had been certified and who were to be returned to Italy, in R (MS) v SSHD [2015] EWHC 1095 (Admin), a decision handed down on 22 April 2015. Beatson LJ refused permission to appeal in that case on the papers on 28 October 2015, noting that Lewis J had not erred in his analysis of the evidence about treatment of asylum seekers in Italy. I am told that the Appellants intend to renew the application for permission to appeal orally and I have been provided with a copy of the skeleton argument in support of the application to renew.
Returning to the history of this case, permission having been granted on 10 March 2014, the parties agreed a further stay on 11 July 2014, so that the Defendant could take a new decision on the Claimant's human rights claim in light of EM in the Supreme Court ( R (EM (Eritrea)) v SSHD [2014] UKSC 12, [2014] AC 1321). The Defendant's further decision was dated 25 September 2014 and is the decision now under challenge. In that "replacement decision" the Defendant refused the Claimant's Article 3 claim and maintained that the Claimant could safely be returned to Italy; the claim was certified as clearly unfounded.
The Claimant filed amended grounds of claim on 21 November 2014. The matter was again stayed (by consent) to enable the Defendant to consider the amended grounds. After MS was handed down on 22 April 2015, the Defendant invited the Claimant to discontinue, but the Claimant confirmed an intention to carry on. Detailed Grounds of Defence were lodged on 29 April 2015. The Claimant lodged amended grounds (in fact, by now, these were re-amended grounds) on 9 September 2015 together with additional evidence, said to indicate systematic deficiencies in the support and treatment of asylum seekers in Italy. The Claimant maintained (at that stage) two challenges: (i) against the Defendant's decision to certify the Article 3 human rights claim as 'clearly unfounded', and (ii) to the decision to remove and to detain pending removal. Since that date, challenge (ii) has been abandoned and only challenge (i), the certification challenge, remains. On 15 October 2015, the Defendant replied to the amended grounds, maintaining the safety of returning the Claimant to Italy. On 16 October 2015, the Defendant responded by letter to further evidence filed by the Claimant, concluding that the evidence provided by the Claimant did not indicate any systemic deficiency, nor did it disclose any grounds to suggest an Article 3 breach in his particular case, with specific attention given to the Claimant's medical evidence suggesting that he had PTSD and other psychological symptoms,...
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