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||Neutral Citation Number:  EWHC 1262 (Admin)
||Case No: CO/1505/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
||Royal Courts of Justice
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE KING
||- and -
||The Secretary of State For The Home Department
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
HTML VERSION OF JUDGMENT
Crown Copyright ©
Mr Justice King:
- By these proceedings the Claimant challenges:
(i) the legality of his detention by the Defendant purportedly exercising her immigration powers, between the 22nd of December 2011 and the 23rd of May 2012;
(ii) the legality of the decision of the Defendant dated 15th 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 15th of April 2015 was made following a reconsideration of the claim provided for in a Consent Order of the 8th 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 14th 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 EM (R (EM)(Eritrea) v. SSHD  AC 1321) had determined the appropriate approach to considering such claims in a judgment handed down 19th 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 Tabrizagh (R (Tabrizagh) v SSHD  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 11th 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 17th of September 2014, but the argument became that that decision had been overtaken by the decision delivered on the 4th of November 2014 of the Grand Chamber of the ECtHR in Tarakhel (Tarakhel v. Switzerland (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 (MS and Others v SSHD  EWHC 1095 (Admin)) in a judgment delivered on 22nd 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 3rd of November 2015 was granted at an oral hearing of the Court of Appeal on the 08th of February 2016. The appeal has now been heard and judgment on the appeal handed down on the 1st of November 2016 sub nom NA (Sudan) v SSHD and MR (Iran) v SSHD  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 21st of December 2011 and 23rd May 2012.
- 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 21st 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 26th of November 2011.
The detention of the Claimant
- On the 22nd 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 23rd of May 2012 in the following circumstances.
The certification of the asylum claim on third country grounds
- On the 5th 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 20th 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 25th) whereupon on the same day, the 20th of January 2012, the Defendant declined to examine the asylum claim substantively on third party grounds, that is to say that there was a safe third country to which the Claimant could be sent. The Defendant certified the asylum claim on these grounds pursuant to paragraphs 4 and 5 of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc,) Act 2004.('the 2004 Act'). That schedule has effect by virtue of section 33 of the 2004 Act which is headed 'Removing asylum seeker to safe country'.
- Italy is a listed safe country for the purposes of Part 2 of the 2004 Act. The effect of certification in this instance was to remove (i) the bar on removal while an asylum claim is pending contained in section 77 of the Nationality and Immigration and Asylum Act 2002 ('the 2002 Act') and (ii) the right which would otherwise have existed under the 2002 Act to bring an in-country immigration appeal against any decision to remove where an asylum claim has been made while in the United Kingdom.
- The letter of the 20th of January informed the Claimant that he was now removable to Italy under paragraph 8 (1)(c) of Schedule 2 to the Immigration Act 1971, paragraph 8 being headed 'removal of persons refused leave to enter and illegal immigrants'.
Rejection of the Article 3 human rights claim.
- By letter dated the 23rd of January 2012 the Defendant also rejected the human rights claim made on his behalf by his then solicitors (Duncan Lewis) that the Claimant should not be removed to Italy on the grounds that such removal would be a breach of his rights under Article 3 of the ECHR not to be subjected to (amongst other things) 'inhuman or degrading treatment' and unlawful under section 6 of the Human Rights Act 1998. This claim was directed to concerns as to the living conditions and lack of reception facilities to which the Claimant would be exposed if he were returned to Italy.
- It was a claim in effect that because of the postulated Article 3 breach comprised in a removal to Italy, the Defendant was required to exercise her discretionary power under Article 3(2) of the Dublin II Regulation to examine the Claimant's asylum claim herself notwithstanding that under the Dublin II criteria such examination was the responsibility of Italy as the member state at whose border or in whose territory the claim had first been made.
- The claim was rejected (para.12) on the basis that the available evidence and the claims advanced 'do not come close to rebutting the presumption that Italy will treat him in compliance with the EU Charter, the Geneva Convention and the ECHR'.
- The Defendant noted in the course of her letter that Italy was a signatory to the ECHR and further as a Member State of the European Union was bound by, amongst other things, what is known as the Reception Directive laying down minimum standards for the reception of asylum seekers [Council Directive (CD) 2003/9/EC] and by the Qualification Directive [CD 2005/83/EC] setting minimum standards for the qualification and status of asylum seekers and status of asylum seekers, and by the Procedure Directive [CD 2005/85/EC] setting minimum standards for procedure granting and withdrawing refugee status.
- The Defendant referred in part to what was then a very recent judgment of the Court of Justice of the European Union (CJEU) in NS v SSHD dated 21st of December 2011 and the principle there enunciated that the presumption of compliance, which the court had endorsed, might be rebutted by sufficient relevant evidence establishing that the transferring Member State could not be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in the receiving Member State amounted to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment; and that Article 1 of the EU Charter of Fundamental Rights (The Article headed 'Human dignity' and providing that' human dignity is inviolable. It must be protected and respected'), did not lead to a separate answer.
- The letter also referred to what was then a recent decision of Kenneth Parker J in EM then sub nom Medhanye  EWHC 3012 delivered on 18th of November 2011 rejecting a human rights Article 3 claim challenging removal to Italy on like grounds as being advanced by the Claimant.
Certification of the human rights claim as clearly unfounded
- By her letter of 23rd January the Defendant did not only reject the human rights claim. She also certified the claim as clearly unfounded pursuant to paragraph 5(4) of Part 2 of Schedule 3 to the 2004 Act. The effect of certification was to remove the right of the Claimant which would otherwise have existed under section 92(4)(a) of the 2002 Act to bring an in-country immigration appeal on human rights grounds against the decision to remove to Italy (under section 82(1) of the 2002 Act) to a First-tier Tribunal of the Immigration and Asylum Chamber.
- It is to be noted that paragraph 5(4) obliges the Defendant to certify unless satisfied that the claim is 'not clearly unfounded'. The subparagraph is in these terms:
'(4) the person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act in reliance on a human right claim to which this subparagraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this subparagraph applies unless satisfied that the claim is not clearly unfounded'.
- The emphasis in the above citations is that of this court.
The setting of Removal Directions (RDs)
- On the 2nd of February 2012 removal directions were set for the removal of the Claimant to Italy on the 13th of February 2012.
The commencement of these judicial review proceedings leading to a cancellation of the RDS but not the immediate release of the Claimant
- On the 10th of February 2012 the Claimant lodged these judicial review (JR) proceedings. As then formulated the claim was a challenge to the decision to remove and the decision to certify the asylum claim, on the ground that the Claimant's return to Italy would breach the UK's obligations under EU law with regard to Article 1 of the EU Charter on Human rights (see paragraph 23 above). As at February 2012 Kenneth Parker J's decision in Medhanye in November 2011 had determined a like Article 3 ECHR challenge adversely to the Claimant's position (again see above at paragraph 24) but had granted permission and deferred determination of a challenge based on Article 1 of the EU Charter pending the promulgation of the CJEU decision in NS. The undetermined issue was whether Art1 EU Charter conferred any wider right for present purposes than that conferred by Article 3 ECHR. The grounds lodged in February 2012 referred to this issue as still being a live one in this jurisdiction notwithstanding that by February 2012 the CJEU NS judgment had been published (21st of December 2011) and notwithstanding that that judgment had held that no wider right was conferred and hence Article 1 would not lead to any different answer in the case being considered in NS.
- At this early stage of the proceedings, the feared risk of what would await the Claimant if he were to return to Italy and which was said to be a breach his Article 1 EU Charter right, was put in these terms:
'The Claimant asserts that on or shortly after a return to Italy there is a real chance he will be destitute and homeless on the street, given the fact that the available places in reception facilities fall considerably short of the number of asylum seekers. He will be unable to work; unable to exercise any meaningful challenge to his plight; and this cumulatively amounts to breach of his human dignity.'
- Following service of the JR application, the Defendant cancelled the removal directions but the Claimant continued to be detained.
The Defendant's resetting on 14th of May 2012 of removal directions following receipt on the 9th of May 2012 of the 'without merit; renewal no bar to removal' Order of 20th March 2012 refusing permission on the papers.
- On the 16th of March 2012 (outside the 21 day time limit allowed for in CPR 54.8) the Defendant filed and served her Acknowledgement of Service and summary grounds of defence (AOS).
- At paragraph 4 of those grounds it was said that the Claimant's claim was wholly without merit having regard to the 'clear principles' established in the judgments of the CJEU in NS; of the ECtHR in MSS v Belgium and Greece (2011) 53 EHRR 2, 21 January 2011: of Kenneth Parker J. in Medhanye; of Hickinbottom J. in EW  EWHC 2957 (Admin) and that of the Court of Appeal refusing permission to appeal in EW  EWCA 508; and that the evidence and submissions advanced by the Claimant 'do not even arguably come close to rebutting the presumption that Italy will treat him in compliance with the requirements of the EU Charter, the Geneva Convention and the ECHR.'
- A letter from the Government Legal Department (GLD) of the same date (16th of March 2012) to the Administrative Court requested that the Court 'give consideration to expediting this matter on account of the Claimant remaining in detention'. The request was made that the papers be put before a Judge 'immediately' with a request for urgent consideration of the applications on the papers.
- In the event although the question of permission was dealt with expeditiously on the papers by Deputy High Court Judge Stuart Catchpole QC on the 20th of March 2012 (that being the date of his order), for unknown reasons the Order he made was not sent out to the parties until the 9th of May 2012. It was received by both the Claimant and the GLD on that date.
- By that order permission to apply for judicial review was refused. On the face of the Order the case was 'considered to be totally without merit' and renewal was 'no bar to removal without further order'.
- The reasons given for refusing were these:
'For the reasons set out in the (AOS) there are no arguable grounds of challenge. There is no evidence on which the Claimant could argue with any prospect of success that Italy has the type of persistent and systemic deficiencies that would be required to rebut the presumption that Italy complies with its obligations in relation to asylum seekers.'
- Following receipt of the Order refusing permission the Defendant on the 14th of May 2012 reset removal directions for the removal of the Claimant to Italy on 23rd of May 2012. The Claimant remained detained.
- On the 21st of May 2012 the Claimant instructed his present solicitors who the same day lodged an out of time application to renew the application for permission, on amended grounds, to include a challenge to the legality of the Claimant's detention. In a co-joined application for interim relief they drew the attention of the court to pending linked appeals to the Court of Appeal in a number of cases involving challenges to removal to Italy (MA; EH: AE). Permission to appeal to the Court of Appeal had been granted in MA on the 4th of April; in EH on the 10th of April by Hooper LJ who had suggested that that appeal be listed as a test case on the question of returns to Italy under the Dublin Regulation; in AE on the 1st of May 2012 by Stanley Brunton LJ who made the direction linking the 3 appeals and a further direction that the listing of those appeals should await the then still outstanding decision of Kenneth Parker J in Medhayne (see above at paragraph 29) on the Article 1 Charter point listed for hearing on the 28th of June 2012, and that any appeal from that case was to be listed as a test case.
- In response to the application for interim relief, Underhill J. (as he then was) granted an injunction prohibiting the Defendant from removing the Claimant pending a decision on the renewed application for permission but also staying that application pending the outcome of the linked appeals in MA, EH, and AE.
- On receipt of that injunction against removal, the Defendant cancelled the removal directions and on the 23rd of May 2012 released the Claimant from detention.
The legal framework applicable to the Defendant's exercise of her power of detention
- The burden is upon the Defendant to justify the legality of the Claimant's detention. (R (Lumba) v Secretary of State for the Home Department  UKSC 12;  1 A.C. per Lord Dyson at para.44.
- It is not in dispute that in detaining the Claimant on the 22nd of December 2011 and in maintaining that detention until the 23rd of May 2012 the Defendant was exercising a statutory power to detain the Claimant as an illegal entrant into the United Kingdom, pending the making of directions for his removal. That power was conferred by a combination of section 4 (2)(d) of the Immigration Act 1971 and paragraph 16(2) of Schedule 2 to the Act.
- The power so conferred is not however an unfettered one. It is subject to the well established common law 'Hardial Singh' limitations first espoused by Woolf J, as he then was, in R v. Governor of Durham Prison, ex parte Hardial Singh  1 WLR 704.706 D-F. These limitations were expressed in the four principles set out by Dyson LJ, as he then was, in R (I) v SSHD  EWCA Civ 888 at para 46. Adapting what is there set out to the present situation of a removal as distinct from deportation, those principles are as follows:
(i) The Secretary of State must intend to (remove) the person and can only use the power to detain for that purpose;
(ii) The (person to be removed) may only be detained for a period that is reasonable in all the circumstances;
(iii) If before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect (removal) within that reasonable period, he should not seek to exercise the power of detention;
(iv) The Secretary of State should act with reasonable diligence and expedition to effect removal.
- The correctness of these principles were confirmed by the majority of the Supreme Court in Lumba.
- The meaning of principles (ii) and (iii) has been much explored in subsequent authorities but it is sufficient for present purposes if I make reference to the following.
- As to the second principle:
Dyson LJ himself said in (I) at para 48 (adapting his words to a case of removal):
'It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending (removal)…But in my view they include at least the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a (removal), the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of the detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences.'
And then as Lord Dyson in Lumba at paragraph 24 (again with the same adaptations):
'As to the second principle, in my view this too is properly derived from Hardial Singh. Woolf J said that (i) the power of detention is limited to a period reasonably necessary for the purpose (as I would say) of facilitating (removal); (ii) what is reasonable depends on the circumstances of the particular case; and (iii) the power to detain ceases when it is apparent that (removal) will not be possible within a reasonable period. It is clear at least from (iii) that Woolf J. was not saying that a person can be detained indefinitely provided that the Secretary of State is doing all she reasonably can to effect (removal).'
- As to the third principle, my attention was drawn by Miss Hooper to the observations of Hickenbottom J in R (Mahford) v. SSHD  EWHC 2057 at para.6 (again adapting his words to a case of removal):
'(iii) whilst in some cases a reasonable time will have expired already and immediate release will be inevitable, in most cases the crucial issue will be whether it is going to be possible in the future to remove the (detainee) within a reasonable time having regard to the period already spent in detention. In considering such prospects, it is necessary to consider by when the Secretary of State expects to be able to (remove) the (detainee) and the basis and degree of certainty of that expectation. Where there is no prospect of removing the deportee within a reasonable time, then detention becomes arbitrary and consequently unlawful under Article 5, and the (detainee) must be released immediately.
(iv) There is no red line, in terms of months or years, applicable to all cases, beyond which time for detention becomes unreasonable. What is a 'reasonable time' will depend upon the circumstances of a particular case, taking into account all relevant factors.'
My conclusions on the challenge to the legality of the Claimant's detention
- In making her challenge to the legality of this detention, Miss Hooper put her case in two ways.
- Her first submission was in effect that the initial exercise of the power was Wednesbury unreasonable and irrational or otherwise 'Lumba' unlawful, being contrary to the Defendant's own established guidance (reflecting she would say the guidance given in International Instruments such as the February 1999 Guidelines On Applicable Criteria And Standards Relating To The Detention of Asylum–Seekers issued by the Office of the United Nations High Commissioner For Refugees), relating to the treatment of persons making a valid application for protection as asylum seekers, under which there was a general presumption in favour of temporary admission or release rather than detention. See the Defendant's own Enforcement Instructions and Guidance (EIG) chapter 50.
- I find it impossible to uphold this first submission. The Claimant was no ordinary asylum seeker applicant. He was one to which the Dublin II Regulation was applicable and was susceptible to third country removal. His detention was for removal in accordance with the Regulation and the risk of his absconding was reasonably assessed by the Defendant as being very real. In this regard the Defendant, as was submitted by Mr Thomann, was entitled to take into account the lack of candour on the part of the Claimant (see paragraph 13 above), the fact that the Claimant had succeeded in absconding from Italy, had entered the United Kingdom by subterfuge, lacked ties to the UK, and had demonstrated a blatant disregard for the UK's immigration laws.
- Her principal submission however was that this five month period of detention fell foul of the Hardial Singh principles (ii) and (iii). In particular it was submitted that at the very latest from the inception of the Claimant's judicial review application on the 10th of February 2012, it fell foul of principle (iii) in that from that date it could not be reasonably considered that removal could be effected within a reasonable time. It is said that the Secretary of State should have known that ongoing issues as to third country removal, reflected in the active litigation before the High Court in Medhanye, and appeals pending before the Court of Appeal in EH, MA, AE in respect of grants of permission, stays on removal and the linking of those cases in April and May 2012, meant that as from 10th of February 2012, or at the very latest again from April 2012, there was no realistic or sufficient prospect of removal of the Claimant within a reasonable time.
- The submission on principle (ii) included submissions of lack of diligence on the part of the Defendant (which might be said to rely also on principle (iv)). In particular reliance was put on (i) some initial delay in presenting the request to Italy for assumption of responsibility which was not formulated until the 5th of January 2012 from which date the default provisions of the Regulation could not take effect for 14 days; (ii) the fact that following the issue of Judicial Review proceedings, removal enforcement action was effectively suspended by operation of the Defendant's own guidance, EIG Chapter 60, yet the Defendant did not move to expedite preparation of her Acknowledgement of Service whose eventual lodgement on the 16th of March was outside the standard timetable of 21 days. A further complaint raised in the skeleton argument was that the Defendant did not make a formal application to the Administrative Court for expedition of the judicial review application as allegedly 'arguably established by the fact the decision in on permission was not notified until the 9th of May 2012.'
- It was further submitted that the High Court decision of the 20th of March received on the 9th of May, refusing permission, should not have been dispositive of the substance of the JR application given the decision of the Court of Appeal to grant leave in EH on the 10th of April 2012.
- I have been unable to accept these submissions. That is to say I have been unable to conclude that by reason of the matters relied on, the period of detention in this case fell foul of the Hardial Singh principles (ii) or (iii), or indeed (iv), such as to render the continuing detention until the release on the 23rd of May unlawful. My reasoning is as follows.
- The complaints as to lack of diligence are de minimis having regard to the identified delays complained of. Moreover, contrary to the Claimant's submission, there is evidence that the Defendant asked that the Claimant's judicial review claim be dealt with on an expedited basis.
- It seems to me that in principle a five month period of detention pending removal under the Dublin Regulation cannot be said to be other than a reasonable period necessary to effect the removal.
- Moreover on the material before me, the Defendant in my judgment throughout this period, until the grant of the court injunction on the 21st of May, was entitled to consider that the removal of the Claimant to Italy could be effected within a reasonable time. There was no submission to me that following service of the injunction the Defendant did not act expeditiously in arranging the Claimant's release. The risk of the Claimant absconding throughout this period was reasonably thought by the Defendant to be a real one for the reasons I have already identified. In this regard the Defendant is entitled to pray in aid the fact this justification for detention was accepted by the FtT which refused the Claimant's bail applications on 2nd of April 2012 and 17th of May 2012.
- Throughout this period the only barrier to the removal standing in the path of the Defendant were the JR proceedings served on the 10th of February 2012. However, as that date, it seems to me, the Defendant was entitled to consider that the merits of that application on the grounds then being pursued, relying solely upon Art 1 of the EU Charter, were poor. As at that date, the authoritative judgement of the Luxembourg court (the CJEU) in NS had recently been promulgated and was not helpful to the Claimant's cause. Nor were such decided domestic cases as there were on removals to Italy. The Defendant's then considered view reflected in her AOS, that this particular claim was totally without merit, was vindicated by the High Court Order of the 20th of March refusing permission and certifying the claim as totally without merit with renewal being no bar to removal.
- The subsequent grants of permission in separate claims on different evidence beginning with that in April 2012, would not in themselves, in my judgment, render the Defendant's assessment of the prospects for this Claimant's removal, as unreasonable, pending the Defendant's receipt of the order on permission in this case, which was sought expeditiously albeit in the event not sent out for some weeks.
- I have in coming to these conclusions had regard to the witness statement of Lesley Elliot, a Higher Executive Officer within the Defendant's Third Country Team, concerning the monthly reviews of the Claimant's detention during the relevant period. She confirms that the Claimant was detained for the purpose of effecting the Claimant's removal to Italy. The Defendant kept the Claimant's detention under review. She maintained it because of the risk that the Claimant would abscond if released on temporary admission. She further considered that removal to Italy could be effected within a reasonable time. As Lesley Elliot explained, throughout the period of the Claimant's detention there was no order preventing the Claimant's removal and no general stays on removals to Italy. The only barrier to the Claimant's removal was his judicial review claim which the Defendant had requested be dealt with on an expedited basis.
- It is not without significance that Lesley Elliot in paragraph 22 of her statement confirms that:
'removals to Italy continued throughout this period.'
- For all these reasons the Defendant has in my judgment discharged the burden upon her of justifying in law the detention of the Claimant throughout from 22nd of December 2011 until his release on the 23rd of May 2012.
- It follows that the head of claim challenging the legality of detention fails.
The challenge to the certifying of the Claimant's claim that removal to Italy would breach his human rights under Article 3 of the ECHR.
- I turn now to this second head of claim.
- I have already set the scene for my consideration of this claim in paragraphs 2 to 10 above.
- The applicable principles are not controversial.
Establishing an Article 3 breach in removal to Italy.
- Article 3 of the ECHR provides that 'No one shall be subject to torture or to inhuman or degrading treatment or punishment'. The present claim concentrates on the protection given by the Article 3 right from being subject to 'inhuman or degrading treatment'. It is common ground that to establish that removal to Italy would be contrary to the Claimant's Article 3 right, the Claimant is required to show that there are substantial grounds for believing that his removal would expose him to a real risk of being subjected to inhuman or degrading treatment (the test established in Soering v UK (1989) 11 EHRR 439). The Supreme Court in EM as a result of its analysis of the then recent jurisprudence from the ECtHR and the Court of Justice of the European Union, rejected the proposition espoused by the Court of Appeal, that where the challenge to removal is based (as in this case) on an allegation that such a 'real risk' arises as a consequence of the asylum procedures or reception conditions in the receiving state, that the Claimant could succeed only if he established 'systematic deficiencies' in those procedures or conditions. Establishing such deficiencies was one way of establishing the 'real risk' referred to, but it was not the only way: Consideration must be given not only to the general situation and practical realties on the ground, but to the Claimant's personal circumstances, including his or her previous experiences.
- I should record that this Claimant did not seek to rely on his own personal circumstances as such, other than his claim to being within a vulnerable group of persons as a person with mental health vulnerabilities and who also suffers from epilepsy. He certainly did not rely on any previous experiences in Italy. As regards the Claimant's mental health, Mr Thomann made the point that although the Claimant had been on anti depressants and had been referred to counselling, there was no report of self harm. Mr Thomann made a submission which I accept that the overall picture is of a person with mental health vulnerabilities but not one suffering from severe mental health difficulties which had been a feature of the appellants in MS.
- The Supreme Court EM further upheld the jurisprudence of the CJEU in NS v SSHD  QB 102 and the formulation of principle in the judgment of Sales J. (as he then was) in R (Elayathamby) v SSHD 2011 EWHC 2182 (Admin), that there was a 'significant evidential presumption' that listed states would comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory. So in this case there is such a presumption that Italy will comply with the minimum standards laid down in the Reception Directive, the Qualification Directive and the Procedure directive (see again 22 above).
- The onus is therefore on any Claimant to produce sufficient evidence to rebut these presumptions if his Article 3 claim is to succeed. Lord Kerr in EM put the matter thus at para 67 'in order to rebut the presumption a Claimant will have to produce sufficient evidence to show it would be unsafe to rely on it' and at para 68: '...practical realities lie at the heart of the inquiry: evidence of what happens on the ground must be capable of rebutting the presumption of it shows sufficiently clearly that there is a real risk of article 3 ill treatment if there is an enforced return'
The challenge to certification
- But for the certification in this case, it would have been for a First-tier Tribunal on an in-country appeal against the Defendant's decision of 15th April 2015, to determine whether the Claimant had discharged the burden upon him to establish that his removal to Italy would breach his Article 3 rights, applying the principles and tests set out above.
- It is again common ground that the role of this court when considering, as here, a challenge to certification, is to subject the Defendant's decision to the most anxious scrutiny, required where human rights are involved. A certificate that the claim is clearly unfounded can be only issued if 'on any legitimate view' the Claimant's assertion that his enforced return would constitute a violation of his human rights, would be bound to fail on appeal. See Lord Kerr in EM at para. 6 and the cases there cited. If therefore on one legitimate view of the evidence relied on by the Claimant to rebut the evidential presumptions referred to, there are substantial grounds for believing that there is a real risk of the Claimant facing inhuman or degrading treatment in breach of Article 3, then the Defendant could not lawfully have certified that the claim was clearly unfounded. The certificate would have to be quashed meaning the Claimant's human rights claim would have to go a FtT on appeal. If that appeal were to succeed, then the Defendant would be obliged to examine the asylum claim substantively (in effect entertaining a re-application by the Claimant for asylum).
The basis of the Claimant's challenge to certification in this case
- Miss Hooper understandably in her submissions, delivered necessarily before the handing down of the Court of Appeal judgment in NA, concentrated upon the 'on any legitimate view' test. The test is not whether this claim is bound to succeed on appeal but whether it is bound to fail. She reminded the court that when applying this test, the court must on authority (see again EM at para 8) take the Claimant's factual case at its highest, and further that the court is being asked to consider only whether the evidence relied on by the Claimant is capable of disclosing that that there is a real risk if the Claimant were removed to Italy, of inhuman/degrading treatment materialising which would reach the Article 3 threshold.
- Miss Hooper submitted that in determining this head of challenge, the court must consider three things:
(i) does the harm/treatment feared taken at it highest reach, the admittedly high Article 3 threshold?
(ii) is the evidence relied on by the Claimant capable of disclosing on one legitimate view, that such treatment might materialise?
(iii) if so did the defendant err in public law terms in certifying the claim as clearly unfounded?
- Although it is clear on established authority that mere homelessness or a mere lack of treatment for a medical condition is on its own insufficient to make good an Article 3 claim, the basic submission of Miss Hooper was that if the Claimant could establish that on removal to Italy there was a real risk he would become homeless and destitute, unable to cater for his most basic needs, then as a member of a vulnerable group, he would, at least on one legitimate view of the jurisprudence of the ECtHR and the CJEU, succeed in establishing a real risk of treatment contrary to Article 3.
- Miss Hooper relied on the decision of the ECtHR in MSS v Belgium and Greece (2011) 53 EHRR 2 (relying on paragraphs 249 to 264) as establishing that such harm/treatment so feared by the Claimant was capable of reaching the Article 3 threshold ('a situation of homelessness and destitution for an asylum seeker constitutes a breach of Article 3').
- Miss Hooper relied on the decision of the ECtHR in Tarakhel as establishing that as a matter of principle applicable to all cases, (and thus in effect answering without more the three questions set out above in the Claimant's favour), based on its consideration of evidence ('data and information') relating to the capacities of the reception arrangements in Italy, the possibility of any asylum seeker lacking accommodation in Italy or being accommodated in insalubrious or violent conditions, sufficient to reach the Article 3 threshold for exposure to inhumane/degrading treatment, could not be dismissed as unfounded. She relied in particular the following observations in paragraph 115 in Tarakhel:
'While the structure and overall situation of the reception arrangements in Italy cannot in themselves be a bar to all removals of asylum seekers to that country, the data and information set out above, nevertheless raises serious doubts as to the current capacities of the system. Accordingly, in the court's view, the possibility that a significant number of asylum seekers may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, cannot be dismissed as unfounded.'
- Miss Hooper's analysis of the combined effect of the decisions in MS and Tarakhel led to her bold submission in her skeleton argument (at paragraph 11):
'It is not open to the Defendant to certify as 'clearly unfounded' the claim that if removed to Italy the Claimant will be without accommodation as an asylum seeker and therefore subject to a breach Article 3, absent specific and individual evidence from the Defendant that this identified, not unfounded risk, will not arise in this case.'
- Whether Tarakhel in fact establishes the all embracing proposition contended for, was a matter of acute debate before me as it had been before Lewis J. in MS. Both parties relied in the observations of the ECtHR in A.S v Switzerland (application 39350/13)(20/09/2015) at paragraphs 35 to 38 in support of their rival contentions.
The effect of the Court of Appeal decision in NA
- The difficulty this Claimant has always faced in pursuing this challenge to the certification, is that the argument that Tarakhel establishes the proposition contended for, was rejected by Lewis J. in his first instance decision in MS, he holding it was a decision to be confined to its particular facts involving a family with children. More fundamentally was that after what I have already described as an exhaustive survey of objective country material relating to Italy, (and including a consideration of four particular reports relied on by the MS Claimants, one from Chiara Marchetti (a sociologist at Milan university) at para. 123 and 2 reports from a Miss Loredona Leo dated 15th of September 2014 and 18th of March 2015 at paras. 124 - 1277 and the Braunswschweig report at para. 128), Lewis J. rejected the public law challenge to certification, on grounds analogous to those being pursued before me, in the claims of claimants with mental health problems more serious than that to which the present Claimant can lay claim. He did so in the trenchant terms I recorded at the beginning of this judgment. Mr Thomann made the legitimate submission that the Defendant's conclusions as to the country conditions bearing upon the Claimant's return to Italy, set out in her decision of the 15th of April was 'shared a matter of days after her decision, by Lewis J. giving judgment in the lead cases.'
- Before me Miss Hooper was able to seek to meet these difficulties by seeking to persuade me that (i) Lewis J.'s interpretation of Tarakhel was wrong and/or (ii) that his analysis of the objective country material was fundamentally wrong and that he had approached his consideration of that evidence in a fundamentally flawed way. He had simply looked at each piece of evidence individually and considered the limitations of each, rather that taking an holistic approach and considering the cumulative effect of the evidence on conditions in Italy. Miss Hooper sought to persuade me that on an holistic approach to the evidence, this court should reach an opposite conclusion on the certification challenge, and rule that on one legitimate view of the evidence any appeal was not bound to fail.
- Even if I were considering these submissions without the benefit of the Court of Appeal judgment on the appeal against the judgment of Lewis J., I would have found it difficult to uphold these submissions. With the benefit of the Court of Appeal decision, it is impossible for me to do so.
- It follows in my judgment that on the face of things up to this stage of the argument, the challenge to the certification cannot succeed.
- However before reaching any final decision on this head of challenge, I must have regard to the alternative way in which Miss Hooper put her case (assuming the approach, reasoning and analysis of the objective country evidence in the judgment of Lewis J. was not open to challenge), namely that there was before the Defendant when she made her April 2015 decision, evidence which was not before Lewis J., and that any proper analysis of that material must lead to a different conclusion from that than reached by Lewis J on what was said to be more limited material.
- It is of note that this ground did not appear and was not foreshadowed in the amended grounds or in Miss Hooper's skeleton argument.
- It is in fact in my judgment a ground without any substance. I say this notwithstanding the amount of time which was spent in the hearing before me identifying from the material that which was before the Defendant (Listed in Section C of the Bundle headed 'Objective Evidence') and that which was not before Lewis J.
- I am prepared to accept that as a matter of fact some 50% of the material was not before Lewis J. But having reviewed this evidence myself and (indeed the material set out in section D which was submitted to the Defendant in August 2015 post her decision) in fact adds little to the thrust of the evidence before Lewis J. It was as Mr Thomann put it, in reality 'more of the same', and certainly nothing within it would justify the court revisiting the 4 reports identified above, which were at the core of the submissions made but rejected in the judgments of both Laing J. and Lewis J.
- I agree with Mr Thomann that one has to look at the particular passages now relied on, in the context in which they appear. What emerges in my judgment is that there is nothing new which casts a different light on the factual position on the ground in Italy analysed by Lewis J. or on the effect of the jurisprudence emerging from the ECtHR in its admissibility decisions regarding the evidential presumption of compliance in the case of Italy.
- It is worth recording at this point the factual conclusions Lewis J. came to. They were helpfully summarised in Mr Thomann's skeleton argument in the following terms (a summary which I accept to be accurate):
(a) the amount of provision made by the Italian authorities had increased;
(b) when the Italian authorities had experienced a large influx of migrants in 2011 they had responded to the strains by creating extra accommodation places;
(c) on no reasonable analysis could a Tribunal consider that the official figures relied on by the Appellants' legal teams, demonstrated a shortfall or a glaring discrepancy between demand for facilities and provision (judgment para.115);
(d) UNHCR reports relied on, had not painted a picture which began to meet the relevant test (para.117).
- To this summary must be added that Lewis J. considered that there was no reliable evidence in the scores of reports submitted by the Claimants before him, that a returnee to Italy would be prevented from being provided with a place at an appropriate facility (paragraph 130), and nor was there any basis upon which a tribunal could legitimately conclude that the reports assisted in establishing that Italy would not comply with its Directive obligations in respect of returning asylum seekers.
- I share with Lewis J. the unhelpfulness of having a plethora of material placed before the court, as opposed to a concentration by the Claimant (as happened before Laing J.) on three or four particular reports thought to be of note. Be that as it may, Miss Hooper did prepare for me a helpful schedule of extracts from the Section C bundle which she particularly relied on. It would not be proportionate for the court to go through and comment on every extract but I do make the following observations on the certain extracts as examples of why I consider the material now relied on, changes nothing:
(i) C11- C16: 20.01.14: the newspaper interview with the Director of SPAR – what emerges from this extract is that there had been an increase in demand following the influx of asylum seekers which had driven the Italian authorities to take emergency steps in order to meet the same. But as Lewis J. (and indeed Laing J.) found, evidence of emergency and temporary solutions is not evidence of a breach of the Reception Directive; there is critical difference between a country having to make emergency provision to meet an influx and a country systematically failing to meet its international obligations;
(ii) C19: Ministry Interior data on Migrant Arrivals: 20,500 by April 2014 compared with 2,500 during same period in 2013. This is the sort of evidence considered by both Laing J. and Lewis J. The raw data does not assist in establishing that which the Claimant would like to establish, namely the increase in numbers in itself gives rise to reasonable grounds to believe there is a real risk of an Article 3 breach on an enforced return to Italy. What the full extract demonstrates is that the Italian Authorities were aware of the need to expand reception facilities to meet increased demand. The numbers in themselves moreover do not indicate how many who arrived would stay in Italy and become asylum seekers or refugees.
(iii) C30-C32: 07.05.2014: Journalist report on i-Italy 'As Immigrants Arrive, Reception Centres Share Despair'. Miss Hooper emphasised the passage at C31, noting that there had been 43,000 arrivals in the whole of 2013 whereas during the first four months of 2014, 25,000 had already arrived and the Interior Ministry feared that the entire system might be brought to collapse; and the like passage at C35 in the News Team Report of May 2014 that by that month some 34,800 people had made the crossing from North Africa. But Mr Thomann was able to point to other passages indicating the numbers of migrants moving on from Italy and as he properly submitted, there are many reasons identified why persons leave, and it is not possible to infer the reason is homelessness or destitution;
(iv) C60 (9th June 2014): draft resolution of the EU parliamentary assembly with explanatory memorandum by the Raporteur explaining 'The gravity, complexity and extent of the issues raised by these arrivals in Italy have now reached crisis proportions. This is an emergency which demands an emergency response in addition to longer term policy changes'. But again as Mr Thomann pointed out, within the report (see paragraph 54) there is a welcome given to the intent of the Italian authorities to increase the capacity of the SPRAR (Protection system for Asylum seekers and Refugees) system and although at para.58 there was reference to reports of worrying overcrowding being still recurrent in Sicily there is no picture emerging of any systemic deficiencies in the Italian system or of a picture of practical realities on the ground of homelessness and destitution among asylum seekers capable of being recognised as crossing the Article 3 threshold.
- There is moreover nothing in the material now relied on which suggests that although the mental heath problems suffered by the claimants in MS or in AS v Switzerland were not sufficient to cross the Article 3 threshold on a return to Italy, the personal circumstances of the present Claimant with lesser, albeit genuine problems, means he is in a position to establish a real risk of breach of Article 3.
- For all these reasons I dismiss the head of claim which challenges the certification decision of April 2015. I adopt in respect of this Claimant the conclusion reached by Lewis J. at paragraph 163 of his judgment in MS.
- It follows that I must and do dismiss the entirety of this claim.
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