ALJ and A, B and C’s Application
| Jurisdiction | Northern Ireland |
| Judge | Stephens J |
| Judgment Date | 2013 |
| Neutral Citation | [2013] NIQB 88 |
| Date | 14 August 2013 |
| Court | Queen's Bench Division (Northern Ireland) |
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Neutral Citation No. [2013] NIQB 88 Ref:
STE8712
Judgment: approved by the Court for handing down Delivered:
14/08/2013
(subject to editorial corrections)*
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
________
JUDICIAL REVIEW
________
ALJ and A, B and C’s Application for Judicial Review [2013] NIQB 88
IN THE MATTER OF AN APPLICATION BY ALJ and A, B and C FOR
JUDICIAL REVIEW
________
STEPHENS J
Anonymisation
[1] I have anonymised the names of the applicants by the use of initials. I
have done so for two reasons. The first is that children are involved. I make an
order under Article 170(7) of the Children (Northern Ireland) Order 1995
providing that no person shall publish any material which is intended, or
likely, to identify any child involved in these proceedings or an address or
school as being that of a child involved in these proceedings except in so far (if
at all) as may be permitted by direction of the court. The second reason is that
this is an asylum application and the circumstances of the application may
impact (a) on relatives of the applicants who are in the applicant’s country of
origin and (b) on the applicants if in the event they are to be returned to their
country of origin.
Introduction
[2] ALJ, a mother, now 37 and A, B and C, her three children, who are now
respectively 18, 16 and 12 years old, all Sudanese nationals challenge:-
(a) a decision of the UK Border Agency to remove them to Ireland
under Council Regulation (EC) No. 343/2003 (“Dublin II
Regulation”) (“the removal decision”). The applicant contends
that the UK Border Agency’s Operational Guidance Note of
August 2011 (C/23 and C/25) provides that anyone who is a non-
Arab Darfuri, as they contend that they are, should not be
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returned to Sudan and could not reasonably be expected to
relocate elsewhere in the Sudan on the basis that Sudan is not a
safe country for those of that ethnic origin. However the
applicant contends that if they are removed from the United
Kingdom to Ireland then there is a real risk that the Irish
authorities do not have a similar view and have already
determined that the applicants should be returned to Sudan (in
breach of Article 4 of the Charter of Fundamental Rights (the
“Charter”) (Prohibition of torture and inhuman or degrading
treatment or punishment)) and in addition that the conditions in
which they will be required to live in Ireland are in breach of
Article 1, (Human dignity is inviolable. It must be respected and
protected), Article 4 and Article 7 (Respect for private and family
life. Everyone has the right to respect for his or her private and
family life, home and communications) of the Charter.
(b) conversely the applicant asserts that there has been a failure to
exercise discretion to determine the applicants’ asylum claims in
the United Kingdom under Article 3(2) of Dublin II Regulation on
the basis that the applicants will wrongly be refouled to Sudan if
returned to Ireland and also on the basis of the conditions to
which the applicants will be subjected if they are returned to
Ireland. That in such circumstances the respondent was obliged to
exercise its powers under article 3(2) of the Dublin II Regulation
and assume responsibility to examine the applications for asylum
within the United Kingdom. If the respondent did not do so then
the applicants would be exposed to a serious risk of violation of
their fundamental rights enshrined in Article 4 of the Charter and
also for instance Article 1 and Article 7.
(c) that in circumstances where there is no obligation to exercise its
powers under article 3 (2) that the exercise of the residual
discretion under that article ought to be exercised in accordance
with a clear consistent and publicly expressed policy and the
applicants seek a declaration that the acknowledged absence of
any policy to guide the exercise of discretion vitiates the failure to
exercise discretion in this case.
(d) that in deciding to return the applicants to Ireland the respondent
incorrectly took into account that Ireland complies with Council
Directive 2003/9/EC laying down the minimum standards for the
reception of asylum seekers (“the minimum standards directive”)
when in fact Ireland has opted out of that directive and the
evidence is that they do not meet the standards set out in that
directive.
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(e) that there has been a failure by the Secretary of State to properly
discharge the statutory duty under Section 55 of the Borders,
Immigration and Citizenship Act 2009 which provides that the
Secretary of State must make arrangements for ensuring that any
function of the Secretary of State in relation to immigration,
asylum or nationality is discharged “having regard to the need to
safeguard and promote the welfare of children who are in the
United Kingdom”. The applicants assert that there has been a
failure to have regard to the need to safeguard and promote the
welfare of B and C and also A when he was a child. That the
Secretary of State has failed to approach her decision in a lawful
way in that she failed to determine, as a necessary first step, what
would be in the best interests of each child and this failure made it
impossible to accurately balance the competing interests.
Furthermore the respondent failed to take into account the
children’s country of origin and the real risk of refoulment to
Sudan and the detrimental effect upon A’s mental health of return
to Ireland.
[3] In addition the applicants contend that there has been a failure to
address A’s human rights claim under Article 3 ECHR regarding the risk of
suicide/self-harm by return to Ireland. However this challenge was no longer
pursued by the applicant as in the period between the issue of these
proceedings and the hearing the issue was addressed by the UK Border Agency
on 31 July 2012.
[4] In making the removal decision under the Dublin II Regulation and in
declining to assume responsibility to examine the applications for asylum
within the United Kingdom the respondent contends, and the applicants agree,
that there is a presumption that Ireland will comply with its international
obligations which presumption is rebuttable. The respondent contends that the
sole ground on which that presumption can be rebutted and the sole ground on
which it is obliged to exercise discretion under Article 3(2) of Dublin II
Regulation not to return the applicants to Ireland and to determine their
asylum claims in the United Kingdom, is that the source of risk to the
applicants is a systemic deficiency, known to the authorities in the United
Kingdom, in the Ireland’s asylum or reception procedures amounting to
substantial grounds for believing that the asylum seeker would face a real risk
of being subjected to inhuman or degrading treatment (Article 4 of the Charter)
on return to Ireland. Short of this, even powerful evidence of individual risk is
of no avail. The applicants contend that there should be no need to establish a
systemic deficiency if the applicants establish a real individual risk to them and
also that the systemic deficiency need not be nor should it be restricted to
Article 4 of the Charter. That for instance it would be sufficient to establish
systemic deficiency in Ireland’s compliance with its obligations under Article 7
of the Charter, respect for private and family life.
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