In the Upper Tribunal (Immigration and Asylum Chamber)
Heard at Leeds Combined Court
16 September 2016 and
22 May 2017
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
MR C M G OCKELTON, VICE PRESIDENT
The Queen on the Application of
HAMDI HUSSAIN ALI HADEY
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Mr M. Karnik, instructed by Switalskis Solicitors,
appeared on behalf of the Applicant.
Mr V. Mandalia, instructed by the Government Legal Department, appeared on behalf of the Respondent.
This is an application for judicial review, with permission granted by HHJ Kaye QC. The applicant is a national of Sudan. He challenges the respondent's decision to certify his asylum claim and return him to Italy for the substantive consideration of that claim, under the provisions of Council Regulation 604/2013 EU ('Dublin 3'). The claim raises the question whether the applicant is entitled to resist transfer on the grounds of a breach of his Convention rights and procedural questions in relation to Dublin 3, as well as a number of issues about the way in which these proceedings have been conducted. After setting out the facts, it will be convenient to consider the issues in that order.
The applicant claims a date of birth in 1992. By 21 May 2015 he was in Italy; his fingerprints were taken in connexion with a claim to asylum there apparently under the name of Hamdey Housen with a date of birth in 1989. He arrived in the United Kingdom, apparently illegally, on 8 July 2015 and claimed asylum. He was detained on suspicion of illegal entry. A Eurodac search revealed that he had previously made a claim in Italy. The respondent made a formal request that Italy take him back; that request was accepted by default and confirmed by Italy on 7 August 2015. On 11 August 2015 the respondent refused the applicant's asylum claim, certifying it on third country grounds, with a view to his return to Italy, pending which he remained in detention. Removal directions were set on 8 September for the applicant's removal on 17 September.
he applicant obtained the services of Lawrence Lupin Solicitors, who on 16 September 2015 issued judicial review proceedings in the High Court (CO/4436/2015) on his behalf, challenging the certification, the removal directions and the detention. The proposed removal was deferred when the respondent was served with the claim. Two days later there was a rule 35 report in which its author expressed the view that the applicant "may have been the victim of torture". The applicant was released from detention on 24 September, and granted temporary admission subject to reporting conditions. His solicitors wrote to the respondent on 20 October 2015 asking for confirmation that his asylum claim was being substantively considered by the respondent, that is that the respondent no longer sought to rely on the certification and did not propose removal under Dublin 3. I do not know of any direct reply to that letter, but on 3 November 2015 Timothy Brennan QC sitting as a Deputy High Court Judge refused permission on all grounds raised by claim CO/4436/2015. The application for permission was not renewed.
On 18 February 2016 the respondent therefore continued with the process interrupted by the judicial review. She served a s 120 Notice, inviting the applicant to give any, or any additional, reasons why he should not be removed in accordance with the decision previously made, and indicated that he would not be removed before 11 March 2016. There was no response to the s 120 Notice. On 2 March the applicant was detained on reporting, and on 3 March new removal directions were set, for his removal to Italy on 11 March. He was given a copy of the decision of 11 August 2015 that had been the subject of his judicial review challenge.
The applicant obtained the services of new solicitors, Switalskis. They wrote a pre-action protocol letter on 7 March 2016, and on 10 March issued the present proceedings, also seeking urgent relief in the form of a stay on the applicant's removal. The stay was granted on 10 March 2016 and the applicant was released from detention on 21 March 2016. Permission to proceed with this application was granted in general terms on 5 June 2016. Meanwhile, on 16 March 2016, the respondent, having considered the applicant's case, made a new decision, again certifying the claim on third country grounds.
The application came before me on 16 September 2016 when I heard argument on most of the issues raised by the application but was persuaded that the substantive question whether the applicant's Convention rights would be breached by his removal required further evidence, which was to be obtained from the Medical Foundation. A report was obtained. It is dated 16 January 2017. Switalskis filed it on 15 March 2017. There is also now evidence relating to the conduct of this claim and that in the High Court. After hearing further argument on 22 May 2016 I indicated my decision and Mr Mandalia made submissions as to costs.
The Claim Form of 10 March 2016 states that the decision challenged is "Certification of the Applicant's asylum claim and removal directions" on "11 August 2015 served 3 March 2016" and the grounds expand on the assertion that the decision was not served until the latter date. There are four heads of challenge: first, that the respondent's opportunity to remove the applicant under the terms of Dublin 3 ceased six months after Italy's deemed acceptance of the take back request on 30 July 2015, so no removal after 30 January 2016 is lawful; secondly, that there is in the United Kingdom no mechanism for an effective remedy against a Dublin 3 decision as required by art 27 of that Regulation, nor has any effective remedy been available to the applicant; thirdly, that in any event the applicant's return to Italy would expose him to a risk of ill-treatment contrary to art 3 of the ECHR or art 4 of the Charter; fourthly that the decisions under challenge are unlawful in that the respondent failed to exercise or consider exercising the discretion she has to determine the asylum claim substantively.
1. Risk of ill-treatment
This is the claim that by returning the applicant to Italy, and hence subjecting him to Italy's treatment of asylum-seekers, the respondent will be breaching the applicant's rights protected under the ECHR, specifically that he will be subjected to torture or inhuman or degrading treatment or punishment. This is an exceptionally well-tried argument: amongst the leading cases are the decisions of the CJEU in
NS v SSHD, conjoined cases C-411/10 and 493/10 and most recently
Tarakhel  ECHR 1185, the Supreme Court in
EM (Eritrea) and others v SSHD  UKSC 12, the Court of Appeal in
NA (Sudan) v SSHD  EWCA Civ 1060, upholding the decision of Lewis J in
R (MS, NA and SG) v SSHD  EWHC 1095 (Admin) and at  EWCA Civ 1398 refusing permission to appeal against the decision of Laing J in
R (Tabrizagh and others) v SSHD  EWHC 1914 (Admin) and the High Court in
R (Elaythmby) v SSHD  EWHC 2182 (Admin) (Sales J), as well as
Tabrizagh. The principles to be derived from the authorities may be shortly stated as follows. It is of course open to a person threatened with removal to argue that there is a real risk of his being treated contrary to art 3. There is, however, a "significant evidential presumption" (
Elaythamby, approved in
EM) that member states will comply with their Convention obligations. It may be possible to show that in a particular state the state of affairs is such that nobody ought to be returned there, but this will require evidence of systemic failings in the asylum procedure there. Otherwise, it will be necessary to show that the individual's own particular circumstances (including his previous experience in the country in question) raise a risk of treatment contrary to the Convention. According to
Tarakhel, if the evidence shows a heightened risk for a person with the claimant's particular characteristics, that does not of itself make the removal unlawful, but it will be unlawful until the removing state has been able to assure itself that the risk will not eventuate.
Paposhvili v Belgium (application no 41738/10), a decision of the ECtHR not concerned with a Dublin removal, re-emphasises that position in general in relation to a pre-existing medical condition.
espite the best endeavours of a number of applicants' and claimants' representatives, it is clear that it has not been established that there is a systemic failure of the asylum system in Italy, such that removals there are in general unlawful. Both
NS in the Court of Appeal and
Tarakhel in the CJEU are to that effect, albeit in the latter case there were reservations as to the treatment of individual classes of returnee, specifically children.
The material upon which Mr Karnik relied does not change this. He referred me in particular to a few passages in the most ECRE aida report on Italy relating to Dublin returnees, but failed to explain how they showed the risks he was seeking to establish. The report is clear at pp 64-5 that people who encounter the Dublin procedure are not treated in the same way as those seeking asylum in Italy as a country of first refuge, and those returned under Dublin 3 are eligible for reception facilities in particular if (like the applicant) they have not previously been in (and absconded from) such facilities. There are special arrangements for vulnerable returnees, who will be allowed temporary reception until an alternative facility is found. Sometimes, Dublin returnees organise settlements for themselves. Much of this and similar material was examined in
NA. There is nothing here capable of upsetting the conclusions reached in that or any of the other cases to which I have referred.
Mr Karnik also referred me to two decisions of courts in other member states. One, a decision of the Austrian Verfassungsgericht, was adduced apparently to establish the irrelevant and wholly unsurprising fact that that court has made a decision implementing the decision of the CJEU in
Tarakhel. The other case cited was a single decision of an administrative court, of unspecified jurisdiction and unspecified place in the hierarchy of courts, in a single district of a single region of a single German Land. It was not suggested that the case was representative of anything (in the German system it could not be in our sense binding at any level), and Mr Karnik did not know whether its conclusions were overturned on appeal. The decision was that on the facts of the case the individual could not be returned to Italy. The introduction of these cases was a complete waste of time, and the preparation of translations a complete waste of money, but one is inclined to say that if the second of them was the best that could be done to support the applicant's case it does not look as though the case can be a strong one.
In this context Mr Karnik, who had previously asked me not to follow the judgment of Lewis J, now confines his argument to the specific circumstances of the applicant, submitting that both his previous history in Italy and his present vulnerability demonstrate that there is the potential of a risk to him, that the respondent has not sought to exclude by inquiry. He seeks to show that the recent medical report, which considerably postdates the decision under challenge, evidences a risk that the respondent should have been aware of through her knowledge of the applicant and her dealings with him in detention. In particular, it is said, the applicant has always said that he was ill-treated in Italy, he has attempted suicide in detention in the United Kingdom and remains a suicide risk, and his mental health problems will not be adequately ameliorated in Italy because the Italian authorities will not know about them.
The report by Dr Hamer for the Medical Foundation, obtained in the circumstances set out above, is exceptionally thorough. At paragraphs 13-48 his history is recorded, including his family circumstances, his account of torture and other ill-treatment in Sudan, and his journey from Sudan to Libya, then through Italy and France to the United Kingdom. In Italy he had his fingerprints taken but says he does not know why. The only ill-treatment recorded in Italy is that "when he was called into the office he resisted being dragged and was pushed from behind by a third policeman. He was forced to place his hands inside a [fingerprint] machine. He did not know what this was for and felt very scared" (para 41). He and the group he was with were given no assistance, but appear to have had little difficulty in continuing their journey northwards, and were evidently in sufficiently good health to do so: the applicant "decided to walk" over the Italian-French border to Nice, a journey of three or four days. It seems to me, and on the evidence I decide, that there is simply nothing in this account (which is not inconsistent with what he has said previously) that could amount to circumstances raising a concern from his history that he might be subject to treatment contrary to art 3 on his return to Italy. Perhaps the "pushing" was regrettable, but the police were dealing with a substantial group of uncooperative illegal immigrants. The treatment falls very substantially short of the level required to show a breach of art 3, and if he were treated in the same way again, that would not be a breach of that or any other article of the Convention or of the Charter. There is, however, no particular reason to suppose that a person returned under Dublin 3 would be treated in the same way as when he was in Italy before: see NA at . It is true that the applicant and his colleagues received no real assistance from the Italian authorities, but there is no evidence that they needed any.
Dr Hamer's physical examination of the applicant is at paras 63-89 of his report; his interpretation of the lesions at paras 119-134 and his assessment of them at paras 159-166. Using the terminology of the Istanbul Protocol, Dr Hamer concludes that the lesions attributed by the applicant to physical abuse in Sudan are consistent with the applicant's account.
Looking then at the psychological state of the applicant, he said (para 12) that he had no mental health problems prior to his arrest and detention in 2015, that is to say prior to his arrival in the United Kingdom, although (para 50) he has been feeling depressed since his experiences of ill-treatment in Khartoum. Paragraphs 50-53 of Dr Hamer's report set out the applicant's mental health history and interventions during the time he has been in this country. Paragraphs 90-118 report Dr Hamer's psychological examination of the applicant; the evidence is interpreted at paragraphs 135-148 and there is a separate assessment of suicide risk at paras 149-158. There is a diagnosis of Post-Traumatic Stress Disorder and depression, and an assessment that there are a number of factors putting the applicant at increased risk for future suicide, including most importantly the present diagnosis, but also other factors set out at paras 154-156 and in summary at para 169.
"157. While some of these factors may persist whatever the outcome of his asylum claim, it is important to recognise that if Mr Hadey is compelled to be removed to a different country then his protective factors against suicide would be reduced as it is likely to take some time to establish whatever contact and help might be available from the healthcare services where he finds himself. His past experience of being in Italy suggests that, whatever the reality of that country's approach to asylum seekers, he would perceive being returned there as him being abandoned and alone, he would lose what social contacts he has, he would become more isolated and he would re-experience his perception that he is alone in the world and that no one really cares about him. These are all risk factors for suicide and increasing them can only increase the likelihood that Mr Hadey will become more depressed and more at risk from suicide. While I considered Mr Hadey to be at low risk of suicide at the time of my final interview with him, on balance I consider he is at a greater than average risk for future suicide. While it is, as stated, impossible to predict with total certainty the future actions of an individual, in my opinion Mr Hadey should be considered at high risk of attempting suicide if he suffers an adverse change in circumstances, including a decision to return him to Italy.
158. If it is decided to return Mr Hadey to Italy it would be important to re-assess his mental state and suicide risk before he is returned and to organise the appropriate handover of concerns regarding his mental state and suicide risk to the authorities who would be receiving him."
The concluding sentence of paragraph 169, summarising the position, is as follows:
His risk is likely to increase and should be reassessed if there are significant changes in is circumstances, including developments in his asylum case."
I draw from this report the following conclusions. First, the only factor that is identified that might properly hinder return to Italy on the basis of a p
rospective breach of Convention rights is the suicide risk. Dr Hamer identifies that risk and indicates that it may well increase if the process to return him to Italy continues. It is not, however, suggested that this would prevent his return to Italy or make it inadvisable. What is required is that the position be reassessed if he is to be returned (paras 158 and 169) and that if he is returned it will be necessary to organise the handover of concerns to the receiving authorities to avoid the risk of reducing his own protective factors by any delay in establishing the appropriate contacts (paras 157-8).
In the present case there is no perceptible risk that the applicant's medical records will not be made available to the Italian authorities. The Secretary of State has an obligation to communicate to the Italian authorities everything she knows about the applicant's medical needs, and will in accordance with her established practice 'pre-notify' the return of a vulnerable person. The applicant has specifically consented to the disclosure of his medical records for that purpose. As Underhill LJ observed in
NS at  note 17, it is not clear that such consent is necessary in any case. Mr Karnik seemed at one point to suggest that the applicant might withdraw his consent, but there is no evidential basis for that or for any other speculation about what might happen if the receiving authorities were not aware of the applicant's needs.
In my judgment the applicant has wholly failed to establish the reality of a risk that he will be treated in a way that breaches his Convention rights if he is returned to Italy.
It is common ground between the parties and clear on both the text of the Regulation and the decided cases that in a number of respects Dublin 3 provides enhanced protection for those affected by decisions under the Regulation. In particular it provides for there to be an effective remedy against a transfer decision. The importance of such a remedy is emphasised in Preamble 19 to the Regulation, which notes that "in order to ensure that international law is respected, an effective remedy against such decisions should cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred". Articles 26, 27 and 29 of the Regulation are as follows:
Notification of a transfer decision
1. Where the requested Member State accepts to take charge of or to take back an applicant or other person as referred to in Article 18(1)(c) or (d), the requesting Member State shall notify the person concerned of the decision to transfer him or her to the Member State responsible and, where applicable, of not examining his or her application for international protection. If a legal advisor or other counsellor is representing the person concerned, Member States may choose to notify the decision to such legal advisor or counsellor instead of to the person concerned and, where applicable, communicate the decision to the person concerned.
2. The decision referred to in paragraph 1 shall contain information on the legal remedies available, including on the right to apply for suspensive effect, where applicable, and on the time limits applicable for seeking such remedies and for carrying out the transfer, and shall, if necessary, contain information on the place where, and the date on which, the person concerned should appear, if that person is travelling to the Member State responsible by his or her own means.
Member States shall ensure that information on persons or entities that may provide legal assistance to the person concerned is communicated to the person concerned together with the decision referred to in paragraph 1, when that information has not been already communicated.
3. When the person concerned is not assisted or represented by a legal advisor or other counsellor, Member States shall inform him or her of the main elements of the decision, which shall always include information on the legal remedies available and the time limits applicable for seeking such remedies, in a language that the person concerned understands or is reasonably supposed to understand.
1. The applicant or another person as referred to in Article 18(1)(c) or (d) shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal.
2. Member States shall provide for a reasonable period of time within which the person concerned may exercise his or her right to an effective remedy pursuant to paragraph 1.
3. For the purposes of appeals against, or reviews of, transfer decisions, Member States shall provide in their national law that:
(a) the appeal or review confers upon the person concerned the right to remain in the Member State concerned pending the outcome of the appeal or review; or
(b) the transfer is automatically suspended and such suspension lapses after a certain reasonable period of time, during which a court or a tribunal, after a close and rigorous scrutiny, shall have taken a decision whether to grant suspensive effect to an appeal or review; or
(c) the person concerned has the opportunity to request within a reasonable period of time a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal or review. Member States shall ensure that an effective remedy is in place by suspending the transfer until the decision on the first suspension request is taken. Any decision on whether to suspend the implementation of the transfer decision shall be taken within a reasonable period of time, while permitting a close and rigorous scrutiny of the suspension request. A decision not to suspend the implementation of the transfer decision shall state the reasons on which it is based.
4. Member States may provide that the competent authorities may decide, acting ex officio, to suspend the implementation of the transfer decision pending the outcome of the appeal or review.
5. Member States shall ensure that the person concerned has access to legal assistance and, where necessary, to linguistic assistance.
6. Member States shall ensure that legal assistance is granted on request free of charge where the person concerned cannot afford the costs involved. Member States may provide that, as regards fees and other costs, the treatment of applicants shall not be more favourable than the treatment generally accorded to their nationals in matters pertaining to legal assistance.
Without arbitrarily restricting access to legal assistance, Member States may provide that free legal assistance and representation not be granted where the appeal or review is considered by the competent authority or a court or tribunal to have no tangible prospect of success.
Where a decision not to grant free legal assistance and representation pursuant to this paragraph is taken by an authority other than a court or tribunal, Member States shall provide the right to an effective remedy before a court or tribunal to challenge that decision.
In complying with the requirements set out in this paragraph, Member States shall ensure that legal assistance and representation is not arbitrarily restricted and that the applicant's effective access to justice is not hindered.
Legal assistance shall include at least the preparation of the required procedural documents and representation before a court or tribunal and may be restricted to legal advisors or counsellors specifically designated by national law to provide assistance and representation.
Procedures for access to legal assistance shall be laid down in national law.
Modalities and time limits
1. The transfer of the applicant or of another person as referred to in Article 18(1)(c) or (d) from the requesting Member State to the Member State responsible shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request by another Member State to take charge or to take back the person concerned or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3).
If transfers to the Member State responsible are carried out by supervised departure or under escort, Member States shall ensure that they are carried out in a humane manner and with full respect for fundamental rights and human dignity.
If necessary, the applicant shall be supplied by the requesting Member State with a laissez passer. The Commission shall, by means of implementing acts, establish the design of the laissez passer. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44(2).
The Member State responsible shall inform the requesting Member State, as appropriate, of the safe arrival of the person concerned or of the fact that he or she did not appear within the set time limit.
2. Where the transfer does not take place within the six months' time limit, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State. This time limit may be extended up to a maximum of one year if the transfer could not be carried out due to imprisonment of the person concerned or up to a maximum of eighteen months if the person concerned absconds.
3. If a person has been transferred erroneously or a decision to transfer is overturned on appeal or review after the transfer has been carried out, the Member State which carried out the transfer shall promptly accept that person back.
4. The Commission shall, by means of implementing acts, establish uniform conditions for the consultation and exchange of information between Member States, in particular in the event of postponed or delayed transfers, transfers following acceptance by default, transfers of minors or dependent persons, and supervised transfers. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44(2)."
The applicant claims that he has not been provided with an effective remedy in the terms of art 27. This may be regarded as somewhat surprising, given that he has pursued one judicial review claim already, and is in the course of pursuing another, during which he has been allowed to draw on new factual material about his own medical condition, that his Dublin 3 removal has been suspended during the course of the judicial reviews, and that he had, and exercised, the opportunity to seek a judicial order staying his removal pending the outcome of the present claim, following which the removal directions were deferred. Mr Karnik's position is that the Regulation requires more than this.
It seems to me, with respect, that Mr Karnik's submissions on these points are somewhat wide of the mark. He attempts to make them good by synthesising what he says would be an effective remedy and comparing that with what the applicant has available to him; even on that basis it is far from easy to discover what it is that the applicant is said to have lacked. But that is not an appropriate process in any event. The question is whether the obligations imposed by the Regulations have been met in this case.
First must be the question whether the judicial review process is an "effective remedy in the form of an appeal or review". For the respondent Mr Mandalia relies on the decision of Beatson J (as he then was in
R (YZ and others) v SSHD  EWHC 205 that the respondent's own process of review is a "review" for these purposes. But it is not a review before an independent court or tribunal, and I am content for these purposes without deciding the point to assume that the phrase in inverted commas is to be interpreted in accordance with art 47 of the Charter. On the other hand, it is necessary to bear in mind what is being reviewed. The decision under review is not a refusal of asylum. It is the decision to enable another member state, whose obligations under international law and the law of the Union are no lighter than those of the United Kingdom (I use that phrase to encompass the differences in the applicability of the Reception Conditions Directives), to receive the applicant and determine his asylum claim. The applicant's effective remedy needs (in order to be effective) to be an investigation of whether his rights will be violated (the word used by art 47) by that process. In the United Kingdom the remedy provided is a judicial review. That remedy has as its starting-point the circumstance of the receiving country's own obligations to the applicant if he be within its territory, and balances against that the particular factual circumstances of the applicant and any evidence as to the relevant state of affairs in the receiving country. Because the claim is a human rights claim it partakes of the intensive scrutiny appropriate in such circumstances. In my judgment the claim that the process is not an "effective remedy" within the meaning of art 27.1 is unarguable. And even if the case could be made in general there is nothing in the present case that is suggested should have been the subject of review in order to meet the requirements of art 27.1, but has been excluded from being reviewed.
Secondly, there is the question whether national law provides adequately for suspension of the removal decision in such a way as to meet the requirements of art 27.3 and 4. The applicant's arguments under this head appear to me to be, if possible, even more hopeless. The principle that ministers must act in accordance with their published policy is at the heart of administrative law, which is part of the relevant national law. In Chapter 60 of the respondent's Enforcement Instructions and Guidance there is a clear policy instruction that when a judicial review claim is properly issued 'The Home Office will normally defer" removal. Particular exceptions are given; and any departure from the norm established by this statement would itself be subject to examination, by judicial review if necessary. So there is in the vast majority of cases suspension within the terms of art 27.3(a). In cases where that does not happen, for any reason, there is no doubt that at any time before his removal a person may apply to the High Court or, in an appropriate case, this Tribunal, for an Order staying his removal. Although the application may initially be made without notice, the application can be renewed if refused and in terms of 'close and rigorous scrutiny of the request' I cannot see any proper basis for saying that the Upper Tribunal Judge or High Court Judge is in some way relieved from applying such scrutiny to what is contained in the request. The general requirement to give reasons is part of national law and is specifically required by the Tribunal's rules, and in either case a refusal decision can be subject to further appeal (and application for the suspension of removal pending any such appeal). There is therefore always the possibility of process within art 27.3(c).
The purpose of art 27.4 is, in the context of the obligations imposed by art 27.3, entirely clear. It is to make provision for suspension of removal without the order of a court or tribunal, in cases where the national law does not make provision for automatic suspension. If art 27.4 were not there, the Regulation might be read as being met only in the case of court-ordered suspensions in such cases. It is, as it seems to me, absolutely obvious that for the purposes of English law the Secretary of State's power to suspend removal falls within this provision, and when, and to the extent that, that power is exercised, the removal is suspended within the terms of art 27. I reach that conclusion without needing to draw assistance from
YZ at , but that authority is available for anybody who thinks there is any doubt about it.
On this issue too there is simply no basis for suggesting that the relevant requirements have not been met in the individual case. The applicant had the benefit of suspension under the policy after the issue of his first judicial review until it was determined, and so far as I can see would have had the same benefit in these proceedings: certainly the respondent asserts that the policy would have applied to him as the stated exclusions to the "normal" course do not apply. In addition, he had access to an independent court or tribunal, which ordered suspension of the removal decision, an order that he has not challenged on the ground of lack of close or rigorous scrutiny.
Thirdly, there is the requirement of notification of rights. I do not need to decide whether there was sufficient notification of the right to seek review within the meaning of art 26, because there is no doubt that the applicant had the knowledge that any notification would have given him: it has enabled him twice to bring judicial review claims. Whether or not there is any general failure to meet the requirements of this article, no such failure can be said to have had any effect on the applicant. And, given the applicant's prevarication on the service and contents of notices, this is not a suitable case to determine the issue: his evidence is not sufficiently reliable.
Of the three arguments raised on art 27, two are wholly without merit in general terms, all three had no impact on the present case, and all three are wholly academic. The effect of the decision having been suspended, the time available for the applicant's removal runs for six months from the final determination of these proceedings, in accordance with art 29.1. That time has not expired and the argument based on art 29 also fails.
I turn now to the applicant's remaining ground of challenge, also based on an aspect of Dublin 3 procedure. Article 17 makes it clear that the Secretary of State has a discretion to examine substantively a case that is not its responsibility under the Regulation:
By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation.
The Member State which decides to examine an application for international protection pursuant to this paragraph shall become the Member State responsible and shall assume the obligation associated with that responsibility. Where applicable, it shall inform, using the 'DubliNet' electronic communication network set up under Article 18 of Regulation (EC) No. 1560/2003, the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of, or to take back, the applicant.
The Member State which becomes responsible pursuant to this paragraph shall forthwith indicate it in Eurodac in accordance with Regulation (EU) No. 603/2013 by adding the date when the decision to examine the application was taken."
Mr Karnik argues that the decision of the respondent in the present case fails to demonstrate awareness of that discretion and fails to give reasons for not exercising it. He faces a number of difficulties here. First, it is not clear that the exercise of this discretion is justiciable: in one of the authorities upon which he relied,
R (MA) v SSHD, JR/2203/2017, the applicant's counsel conceded (see ) that the discretion under art 17.1 was not justiciable. This is a point of some importance, which Mr Karnik did not address. The decisions allowing judicial enquiry into the exercise or non-exercise of the discretion under art 17.2 refer to the fact that the discretion under that paragraph is available specifically for the promotion of such objectively assessable ends as family unity. The discretion under art 17.1 is too wide to be characterised in that way.
Suppose, however, that the art 17.1 discretion is justiciable. There is nothing in the present case showing that the respondent failed to take anything relevant into account, or took anything irrelevant into account, in making her decision. For the reasons already given the applicant's return under Dublin 3 is not unlawful; and there is also nothing in the present case to give any basis for saying that a reasonable Secretary of State, acting within the terms and spirit of the Regulation and acting fairly between one returnable potential subject of a Dublin 3 return and another, should decide in her discretion to consider this applicant's case substantively. The claim has therefore to be solely on the basis that the decision is bad for failing to mention the discretion. I see no good reason for requiring the Secretary of State to add extra sentences to a decision in a case where she has not been asked to exercise the discretion and there is no evident reason why it should be exercised. But even if there were such a duty, it would by itself not be a reason for granting judicial review in a case like the present where it is not shown that there is any reason for making the relevant decision in the applicant's favour. The applicant has lost nothing by the alleged breach of duty.
For the foregoing reasons I dismiss the claim on all the grounds advanced. The UK's national law provides an effective remedy as required by the Regulation, and an effective remedy was available to the applicant. The time available for return to Italy has not yet expired. In any event there was no perceptible reason at the date of the decisions under challenge, and there is no perceptible reason now, why it should be said that the decision to return the applicant to Italy was unlawful. Further, the current position is that the handover will be able to be accompanied by exactly the sort of information required to prevent the applicant's suicide risk. The Secretary of State took into account everything that she needed to take into account in making her decision and there was nothing that ought to have or realistically could have caused her to decide in the exercise of her discretion that the applicant should not be subject to what is supposed to be a routine and swift procedure.
3. The Process in the present case
I must now consider a number of aspects of the way in which this application has been managed by the applicant and those representing him. These are matters to which Mr Mandalia on behalf of the respondent has drawn attention at various stages.
First, there is the fact that these proceedings are primarily directed at a decision, the certification decision of 11 August 2015, that has already been the subject of an unsuccessful challenge by way of judicial review. The assertion that that decision had not been served until the applicant was given a copy in March 2016 was maintained for a surprisingly long time, given that the respondent drew attention to the relevant facts in her Acknowledgment of Service. No comment was made to the Tribunal on that matter before the grant of permission, and Mr Karnik now says that given that there was a grant, on as I have said, general grounds, the judge granting permission must have thought there was nothing in the suggestion that the application should be struck out as abusive. There have been various more or less (mostly less) satisfactory explanations for how the applicant came, through his solicitor, not merely not to mention the previous judicial review but to assert that the decision challenged in it was unknown to him. There have been similar explanations of why the applicant's present solicitors, were led into thinking that the claim they were making was not a repeat claim.
Much more to the point is that the applicant's case has not been seriously modified in the light of the information that those representing him have had for so long. The applicant's reply simply indicates that new material is now available, without substantiating the implied submission that the new material could cast doubt upon a decision taken before it was available, or on a previous judicial determination of a challenge to that decision. And there has been no application to amend either the grounds of challenge or the target of the challenge. As Mr Mandalia points out, the challenge to the certification decision had already been dealt with, properly on the basis of the information available at the time it was made. If it be right (and Mr Karnik has not shown that it would not be right) simply to recognise that state of affairs, the only thing mentioned in the claim form that could properly be challenged in these proceedings is the setting of removal directions on 3 March 2016, on which I comment further below.
A further difficulty is that arising from the second certification decision, on 16 March 2016. That date was after the issue of these proceedings. The claim form does not therefore mention it, and the applicant has not mentioned it. In particular there has been no attempt to amend the claim form in order to add a challenge to that decision. A challenge would now be well out of time. The new decision means that a challenge to the 2015 certification is academic: the second certification decision survives unchallenged whatever the outcome of this application.
If the removal directions, setting 11 March 2016 as the date of removal, are the only decision mentioned in the claim form and capable of challenge in these proceedings there is a further difficulty, because those directions were suspended on the issue of this application (independently of the judicial order staying removal) and there is no possibility that that direction could now be carried out. Mr Karnik's response to this problem was to say at the end of the hearing that he treated challenged removal directions as a continuing act by the respondent. That is a novel approach and had not previously been heralded in the claim form or any of the other documents or submissions by the applicant's legal representatives. In the circumstances there was no argument on this point: but I am inclined to think that it is simply wrong. The proper procedure is to challenge the decision giving rise to the removal directions (here, the certification), which although a single decision on a single date will unless quashed authorise any subsequent removal directions. The challenge to the removal directions needs to accompany a challenge to the decision they implement, but the removal directions themselves are specific and have no continuing effect. It is also difficult to envisage the circumstances in which a challenge to removal directions could succeed in the absence of a successful challenge to the decision they will implement.
The next feature of the case to which Mr Mandalia draws attention is the fact that, in breach of the directions given at the hearing on 16 September 2016, and without any good explanation at all, the applicant's solicitors retained the new medical report for two months before serving and filing it. Another difficulty is that although by the date of the resumed hearing the arguments based on the medical report were apparently the high point of the claim, there was no application to amend the grounds to allow it to be considered.
I must finally refer to the matter of the claim for damages. That claim was in the original claim form. The respondent's grounds of defence noted that no basis seemed to have been given for the claim or for the implication that this Tribunal had jurisdiction to award damages in the circumstances of the case. There is a reference to the matter at the end of the applicant's written reply but the issue has not been pressed. I do not know why it was raised or on what basis. If it was not going to be pursued it should not have been raised.
Relying on rule 10 Mr Mandalia has submitted that the conduct of those representing the applicant has been such that there should be an order that they pay the Secretary of State's costs. There has been no substantive response from the applicant's representatives.
These submissions go essentially to the issue of costs. I heard the application on the basis that it was not being struck out, and allowed issues to be argued despite the evident failures of the applicant's legal team to conduct the case properly. As the application has failed, the respondent is not prejudiced (save financially) by that course of action, which appeared to me to be expedient in the circumstances.
Before indicating my view and my decision on this topic, I should draw attention to other features of the way in which this case has been pursued, which for understandable reasons were not the subject of submissions by Mr Mandalia, but are matters of concern. I have already referred to the waste incurred by the submission, and translation, of the Austrian and the German cases. Similar considerations relate to Mr Karnik's written "reply" dated 1 September 2016, large parts of which simply repeat what had previously been submitted. The point is not merely that this is not the appropriate content of a response, but it is a waste.
I am further concerned about the lack of realism in relation to a number of the points argued. Of course the fact that an argument is unsuccessful does not mean that it should not have been made, but in my view there must be serious doubt about whether the applicant's advisers had properly evaluated the strengths and weaknesses of their case, based in particular on what was actually said in the recent medical report. In making his submissions Mr Mandalia suggested that Switalskis had taken the view that because there was public money available they would run the case. I reach no decided view on whether that is accurate, but I am not at all surprised that it should be said, and I note that this comment too has not been the subject of any response by them or on their behalf. I do not include Mr Karnik in those observations.
The claim has failed and the respondent is entitled in principle to her costs. I am persuaded that this is a case in which the conduct of the applicant's representatives has been such that there should be an order that they pay the Secretary of State's costs, summarily assessed at £15,348.70. Normally there would be an order simply that the applicant's publicly funded costs be subject to detailed assessment. In view of the matters to which I have referred I regard it desirable that there be a proper inquiry into the representatives' expenditure of public funds in these proceedings and I make the usual order subject to that proviso.
C. M. G. OCKELTON
VICE PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 24 August 2017
APPLICATION FOR PERMISSION TO APPEAL
I refuse permission to appeal.
In relation to grounds 1, 3 and 4, the facts and circumstances of this case do not raise the issues in anything other than an academic way. The applicant has had a full judicial examination of his case, including all the issues he wanted determined, he has had a stay on his removal pending that application, and he has wholly failed to show any circumstance that ought to have led to the exercise of the art 17.1 discretion.
In relation to ground 2, the position is that a "high risk of attempting suicide" is not a proper summary of the medical evidence read as a whole, which does not even suggest that the applicant should not be returned to Italy provided certain preparation is done, and there is no reason to suppose that it will not be.
C. M. G. OCKELTON
VICE PRESIDENT OF THE UPPER TRIBUNAL
IMMIGRATION AND ASYLUM CHAMBER
Date: 24 August 2017