RM v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice King |
| Judgment Date | 26 May 2017 |
| Neutral Citation | [2017] EWHC 1262 (Admin) |
| Docket Number | Case No: CO/1505/2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 May 2017 |
[2017] EWHC 1262 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice King
Case No: CO/1505/2012
David Jones & Louise Hooper (instructed by Sutovic & Hartigan Solicitors) for the Claimant
Colin Thomann (instructed by GLD) for the Defendant
Hearing dates: Tuesday 27th October & Wednesday 28th October 2015
Approved Judgment
By these proceedings the Claimant challenges:
(i) the legality of his detention by the Defendant purportedly exercising her immigration powers, between the 22 nd of December 2011 and the 23 rd of May 2012;
(ii) the legality of the decision of the Defendant dated 15 th of April 2015 to certify as clearly unfounded the Claimant's claim that removal to Italy pursuant to the Dublin II Regulation would breach his human rights under Articles 3 and 8 of the European Convention on Human Rights ('ECHR').
That decision of the 15 th of April 2015 was made following a reconsideration of the claim provided for in a Consent Order of the 8 th of March 2015. The Claimant had by that date filed numerous additional materials said to qualify as objective evidence and said to demonstrate a deterioration of the country situation in Italy. This was in fact the third such decision made on the claim and was in effect a decision to maintain the earlier decisions made first in January 2012 and then again on the 14 th of July 2014. That latter decision had itself been a reconsideration following the submission of further materials (press reports between April and June 2014). By the date of the decision under challenge the Supreme Court in ( R (EM) (Eritrea) v. SSHD EM [2014] AC 1321) had determined the appropriate approach to considering such claims in a judgment handed down 19 th of November 2014.
This second head of challenge involved a challenge to the approach and reasoning of two first instance judgments.
The first was that of Elisabeth Laing J. in ( R (Tabrizagh) v SSHD Tabrizagh [2014] EWHC 1914 (Admin) in a judgment which was the first to apply the approach set down in EM in the context of considering challenges on human rights grounds to proposed Dublin returns to Italy. That judgement was handed down on the 11 th of June 2014. She considered in detail the evidence about conditions in Italy as at that date. By that judgment she held the evidence did not establish a real risk that the Claimants in those cases (one of whom suffered post-traumatic stress disorder) would suffer treatment contrary to Article 3 ECHR if returned to Italy. She dismissed the claims that the Defendant had acted unlawfully in certifying those claims as clearly unfounded. Permission to appeal that judgment was refused at hearing before the Court of Appeal on 17 th of September 2014, but the argument became that that decision had been overtaken by the decision delivered on the 4 th of November 2014 of the Grand Chamber of the ECtHR in ( Tarakhel v. Switzerland Tarakhel (2015) 60 EHRR 28). The submission was that the Court's reasoning represented a substantial departure from its earlier case-law;
The second was that of Lewis J. in ( MS and Others v SSHD MS [2015] EWHC 1095 (Admin)) in a judgment delivered on 22 nd of April 2015 (not long after the decision under challenge in these proceedings) in 3 cases raising the issue whether Tarakhel together with evidence about more recent developments in Italy meant that Tabrizagh could not be relied on as authoritative guidance in cases of proposed Dublin returns to Italy.
In the event Lewis J. declined to disturb the approach in Tabrizagh, finding that Tarakhel was to be confined to its facts involving a family with children. Lewis J.'s judgment, following what might be fairly described as an exhaustive survey of objective country materials, was in its upshot that in the case of other vulnerable asylum applicants proposed to be returned to Italy as represented by the Claimants before him, each of whom had what was described severe mental health problems, the claim challenging a decision to certify the human rights claim under Article 3, failed. The concluding paragraph of the judgment was in these terms:
'163. No Tribunal properly directing itself, could conclude that there are substantial grounds for believing that there is a real risk of the Claimants being exposed to treatment contrary to Article 3 ECHR if they were returned to Italy. There is no legitimate basis upon which a tribunal properly directing itself could conclude that the evidential presumption that the Italian authorities would comply with their obligations under EU law and international law has been rebutted. There is no legitimate basis upon which a tribunal could conclude that, considering the individual situation of each Claimant, against the overall situation in Italy, there are substantial grounds for believing that there is a real risk of breach of Article 3 ECHR in respect of any one of these three Claimants if that Claimant was returned to Italy. In those circumstances the Defendant acted lawfully in certifying each of the Claimants' human rights claims as clearly unfounded. These claims for judicial review are therefore dismissed.'
This court was invited not to follow the decision in MS which it was submitted was wrongly decided, and not binding upon the court. In support of this submission the Claimant relied on the arguments set out in the 'Further Grounds for Judicial Review' dated 26.8.2015 and the detail in the MS appellants' skeleton argument as submitted to the Court of Appeal in seeking permission to appeal, a copy of which was provided to me.
At the date of the hearing before me the question of permission to appeal in MS had yet to be determined. Since the hearing, permission to appeal in MS although refused on the papers by Beatson LJ on the 3 rd of November 2015 was granted at an oral hearing of the Court of Appeal on the 08 th of February 2016. The appeal has now been heard and judgment on the appeal handed down on the 1 st of November 2016 sub nom NA (Sudan) v SSHD and MR (Iran) v SSHD [2016] EWCA Civ 1060. The appeals in the surviving claims (two of them had been compromised) were dismissed. The leading judgment of Underhill L.J is a detailed rebuttal of the grounds of appeal relied upon in the hearing before me and a detailed upholding on appeal of the approach and reasoning of Lewis J.
In the circumstances I am bound to follow the reasoning and approach of Lewis J. as upheld by the Court of Appeal, or more accurately I am bound to follow the reasoning and approach to claims of this nature as determined by the Court of Appeal in its recent judgment.
This inevitably means in my judgement that the claim under the second head of challenge must fail unless I consider there is merit in the alternative way in which the claim was pursued before me. This was not identified in the amended grounds of claim nor in the Claimant's skeleton argument but it amounted to a submission that there was material objective evidence as to conditions in Italy before the Defendant when she made her decision, certain passages of which were highlighted before me, and/or further updated objective evidence served on the defendant on 20.8.2015, that was significantly different from the objective material considered by Lewis J. and that in the light of that material this court could properly come to a decision as regards this Claimant, different from that reached by Lewis J. and as upheld by the Court of Appeal.
It is convenient if I deal first with the first head of claim going to the legality of the Claimant's five month detention between the 21 st of December 2011 and 23 rd May 2012.
Background
The Claimant is a national of Iran now aged 32 years. In December 2011 he arrived in the United Kingdom illegally hidden (according to him) in the back of a lorry, having previously claimed asylum in Italy in November 2011. On the 21 st of December 2011 he was encountered on the M1 and arrested by the police on suspicion of being an illegal immigrant. He was taken to a police station. On that same day he claimed asylum in the United Kingdom on the grounds that his life was in danger in Iran.
When questioned he was less than candid as to his history since leaving Iran. He stated he had travelled through Turkey but could not recall anywhere else. In his screening interview when asked whether he had ever claimed asylum in any country before, he answered 'No'. When asked why he had not claimed asylum in any other country he had passed through, he said he had not seen anywhere else.
Subsequently a search of the Claimant's fingerprints against the European Union Eurodac database revealed that the Claimant had in fact claimed asylum in Italy on the 26 th of November 2011.
The detention of the Claimant
On the 22 nd of December 2011 the Claimant was detained by the Defendant purportedly exercising her powers contained in the Immigration Act 1971, in particular those in Schedule 2 at paragraph 16(2)(b) allowing for detention of an illegal entrant pending removal. That detention continued until the 23 rd of May 2012 in the following circumstances.
The certification of the asylum claim on third country grounds
On the 5 th of January 2012 the Defendant made a formal request to Italy to accept the return of the Claimant to Italy and responsibility for examining the Claimant's asylum claim under Article 16 of the Dublin II regulation [(EC) no.343/2003] ('Dublin II'). On the 20 th of January 2012 such acceptance took effect by default for want of a response within the prescribed 14 day time limit provided for in Article 20(c) (although as it happened, formal acceptance was received from Italy on the 25 th) whereupon on...
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