The Queen (on the application of Jeyasuthan Jeyarupan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Philip Mott |
| Judgment Date | 20 February 2014 |
| Neutral Citation | [2014] EWHC 386 (Admin) |
| Docket Number | Case No: CO/6148/2012 |
| Date | 20 February 2014 |
| Court | Queen's Bench Division (Administrative Court) |
[2014] EWHC 386 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Philip Mott QC
Sitting as a Deputy High Court Judge
Case No: CO/6148/2012
Claire Physsas (instructed by Duncan Lewis) for the Claimant
Andrew Deakin (instructed by Treasury Solicitor) for the Defendant
Philip Mott QC:
The Claimant seeks to challenge four decisions of the Defendant in relation to the return of the Claimant to Cyprus under the provisions of EU Council Regulation 343/2003 ("Dublin II").
The Claimant is a Sri Lankan Tamil, born on 21 April 1981. He has one brother and one sister, who both live now in the UK. His father went missing during the last stages of the civil war in Sri Lanka in May 2009. His mother is alive and still lives in Sri Lanka. In November 2006 the Claimant fled Sri Lanka and travelled to Cyprus where he claimed asylum. His asylum claim was refused and he applied for administrative recourse. This was dismissed on 23 April 2012, but by that time the Claimant had left Cyprus. On 7 May 2012 he arrived in the UK where he again claimed asylum. Under the terms of Dublin II, Cyprus was the country responsible for dealing with his asylum claim (including a renewed asylum claim with fresh evidence), and on 31 May 2012 the Defendant issued a decision letter indicating that she proposed to remove the Claimant to Cyprus.
This initial decision led to the Claim Form being issued on 13 June 2012. In response to that, and the Grounds filed by the Claimant, a supplemental decision letter was sent on 3 July 2012. Permission was granted on one ground only by John Bowers QC on 14 December 2012. The Claimant has sought permission to appeal from the Court of Appeal on other grounds, but the hearing of that application has been adjourned to be heard with other similar cases on 6 March 2014. The ground on which permission was granted is a discrete one, and the hearing before me has proceeded on that ground alone.
On 16 January 2014 the Defendant sent a further supplemental decision letter, dealing with submissions and comments made during the oral permission hearing. On 23 January 2014 the Claimant filed further witness statements. On 28 January 2014 the Defendant sent another supplemental decision letter, dealing with the effect of the new evidence.
In the light of these developments the Claimant applied to amend his grounds to challenge all four decision letters, but still limited to the single ground on which permission was granted. This application was not opposed, and I allowed it.
The ground on which permission was granted by the learned Deputy Judge was the argument that the Defendant ought to have exercised her discretion under Article 3(2) of Dublin II to determine the Claimant's asylum claim in the UK, notwithstanding that Cyprus is the country with responsibility under Dublin II. The challenge raises three principal issues:
i) What is the extent and nature of the discretion under Article 3(2), when considered in the light of the Regulation as a whole, and in particular the Preamble and Article 15?
ii) Is a decision by the Defendant not to exercise her discretion under Article 3(2) justiciable, that is, reviewable on public law grounds in this court? If so, it is accepted that any challenge would involve normal public law principles of Wednesbury unreasonableness.
iii) If so, is the decision lawful? This involves looking at two aspects of the decision letters, taken as a whole. Has the Defendant adequately considered the exercise of her discretion? Is the Defendant's conclusion rational?
The Claimant was refused permission to challenge the decision to return him to Cyprus on ECHR grounds, on the basis that his detention conditions there would breach Article 3 and that the level of legal support and assistance there would be insufficient to ensure that he had a fair trial in breach of Article 5. This refusal is to be reconsidered by the Court of Appeal on 6 March 2014, but it was accepted that I should proceed on the assumption that Cyprus is a safe third country which will treat the Claimant properly and will adjudicate upon his asylum claim fairly. As a result, no human rights issues arise. For that reason, the narrow ground argued at this hearing would be determined in the same way whether the third country was France, Germany or Norway on the one hand, or Greece, Italy or Cyprus on the other. The conditions in the third country are not at issue here.
The Claimant asserts that the decision is open to challenge because of two features of his case:
i) His brother came to the UK and was granted refugee status on 10 March 2011. Public law principles of consistency of decision-making require a decision on the Claimant's asylum claim to be made in the same jurisdiction, even though it will not be at the same time. In addition, because of the substantial overlap between the two claims, the Claimant requires the evidence of his brother in support, and his brother is unlikely to be able to travel to Cyprus to give that evidence.
ii) The Claimant has family connections in the UK of such a nature that he should be allowed to stay and have his asylum claim dealt with here on humanitarian grounds. Permission to challenge the decision to return him to Cyprus on ECHR Article 8 grounds was refused, and it is accepted that this decision must be made on the assumption that the claim based on family connections falls below the threshold of ECHR Article 8.
For reasons which will appear later in this judgment, I have concluded that the decision not to exercise the discretion under Article 3(2) of Dublin II is not open to review by this court. I have also concluded that, even if it were reviewable on normal public law grounds, the Claimant's challenge would fail because the decision was a lawful and rational one.
Factual Background
I turn first to the underlying facts relating to the Claimant, taken from the evidence served on his behalf and assuming it to be correct for present purposes.
i) His family lived in Vavuniya until 1990, when the Claimant would have been 9 years old. In 1990 they were displaced, and they moved again in 1993. In 1996 the family separated. The Claimant, then aged about 15, and his sister (three years younger than him) moved back to Vavuniya, a government controlled area. Their mother joined them there later that year, and still lives there to this day. Their father and elder brother remained in Puliyankullam, in an area controlled by the LTTE.
ii) On 9 May 1997 the Claimant was detained by PLOTE, one of the Tamil militant groups working with the government. He was accused of helping the LTTE and tortured. They accused his brother of being a member of the LTTE (which, according to the brother, was untrue at that date). He was released after 25 days into the protective control of TELO, another Tamil militant group working with the government. He joined their student wing and was allowed to attend school.
iii) On 21 April 1998 the Claimant's brother joined the LTTE. In his asylum interview he says that he was asked to do so and agreed without thinking of the consequences. In his witness statement for these proceedings he says he was forced to join the LTTE. After initial training he worked for the political section. He did this until March 2001 when his mother asked him to leave and he did so.
iv) Meanwhile, in May 1999 the government forces and PLOTE turned against TELO. The Claimant fled to Columbo on his own. Whilst there he was arrested again on 23 August 1999 because he was mistaken for his brother, due to his brother's involvement in the LTTE. His release was secured by a member of TELO and he fled to India, where he stayed until 2004.
v) He returned to Sri Lanka in May 2004 on a boat belonging to the LTTE. In return he was asked to undergo military training / instruction in politics and did so from June to August 2004. At the end of this training he became an assistant at the Vavuniya office of LTTE's political wing.
vi) In 2005 he was re-arrested by PLOTE and the government CID, but released when his mother complained to the police and the LTTE. He was released because the peace process was then continuing. The LTTE sent him to Jaffna and told him to keep a low profile.
vii) In August 2005 the LTTE sent the Claimant to join a de-mining group run by an NGO called Danish De-Mining Group ("DDG"). The Claimant worked in the Jaffna team. At the same time his brother was working for the DDG in the Vavuniya team, having joined them in 2003. The brother worked in Trincomalee from December 2003 to April 2006, and thereafter until December 2006 he was in Jaffna.
viii) In 2006 the peace process broke down and DDG ceased its operations. The Claimant was still in Jaffna. His brother was also in Jaffna at that time and was trapped in the camp for four months, but then left with the retreating DDG Vavuniya team in January 2007, going to Trincomalee by ship and from there home to Vavuniya.
ix) Meanwhile, on 20 August 2006 the Claimant was arrested again by PLOTE and the government CID. He was kept in detention and ill-treated. His captors had full details of him and his previous detention records, and also details of his brother. His brother was aware of this arrest, and told the UK authorities about it in his asylum interview.
x) The Claimant escaped on 17 September 2006 and fled to Trincomalee. On 10 November 2006 he left Sri Lanka with the help of an agent and went to Northern (Turkish)...
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