R Yusef Saaid Muhamed Hamad and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Kerr |
| Judgment Date | 09 September 2015 |
| Judgment citation (vLex) | [2015] EWHC J0909-1 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 09 September 2015 |
| Docket Number | CO/4326/2013; CO/4664/2014 |
[2015] EWHC J0909-1
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
Mr Justice Kerr
CO/4326/2013; CO/4664/2014
POST JUDGMENT DISCUSSION
For the reasons given in the written judgment which I now formally hand down, and copies of which are available, the two applications for judicial review are dismissed and I will declare that the detention of the second claimant Mr Ararso was unlawful during part but not all of the periods during which he was detained, that is to say for the period from 16 September to 7 November 2014. The parties have submitted a draft order for my approval in agreed terms, for which I am grateful, and I will make an order in those terms.
In the usual way, I made a draft of my judgment available to the parties in advance, and I received their comments and suggested amendments, many of which I have adopted and for which I am grateful. I also state now for the record that I gave the parties the opportunity to make brief submissions on the case of Fardous v Secretary of State for the Home Department [2015] EWCA Civ 931 in which judgment was given by the Court of Appeal presided over by the Lord Chief Justice on 25 August 2015, after the hearing before me and indeed after I had prepared the initial draft of my judgment.
Both parties have made written applications for permission to appeal against aspects of my decision, which respectively went against them. I directed yesterday that neither party need attend if they did not wish to attend and were content for those applications to be decided on the basis of the written submissions that I have received, but that if either party wished to add anything in oral submissions to what had been said in those written submissions, then they should attend and it would then be appropriate for both parties to attend. I understand that neither party wishes to address the court orally this morning and that therefore their attendance has been dispensed with by consent.
The first application for permission to appeal is from the claimant and concerns the outcome of the substantive judicial review application, and the claimant takes essentially four points. The first is that it is said that there was an error of law relevant to Mr Ararso's application for judicial review by failing to take into account historic failings in the Malta asylum processing and adjudication system which would be relevant, it is said, to his likely treatment on his return to Malta; and on the basis of that it was said in the written submissions that it was necessary to decide the width of the article 18 right under the EU Charter. It seems to me that there is no substance in this point. The conditions in Malta, as I have found in the main judgment, are now such that the presumption of compliance with international obligations is not arguably rebutted, and I do not consider that there is any reason to apprehend any breach of Mr Ararso's rights under the EU Charter, even taken at their widest, in his favour.
Secondly, it said on the claimant Mr Ararso's behalf that his detention was unlawful, not just from 16 September until his release, as I have found, but in respect of the earlier period of detention from 28 August 2014 down to 15 September 2014. This claimant, it is clear from the submissions made in writing, disagrees with the court's factual assessment, but it seems to me that the absence of a putative judicial review until the letter before claim was sent is a factor which the court was and is entitled to find, as I have found, gave the Secretary of State reasonable grounds for exercising the power of detention during that initial period as an adjunct to the prospect of imminent removal, so I do not accept that there is any substance in that point.
Thirdly, Mr Ararso wishes on appeal, to re-open the question of the presumption of compliance by...
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