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Malik, R (on the Application of) v Secretary of State for the Home Department, [2008] EWHC 888 (Admin) (16 April) (Administrative Court 2008)




Neutral Citation Number: [2008] EWHC 888 (Admin)



CO/1462/2008

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE 
ADMINISTRATIVE COURT 



Royal Courts of Justice 
Strand
London WC2A 2LL



16th April 2008

B e f o r e :

MR JUSTICE HOLMAN
____________________

Between:


THE QUEEN ON THE APPLICATION OF MALIK

Claimant


v



THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Defendant

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____________________

Ms R Chapman (instructed by Luqmani Thompson & Partners) appeared on behalf of the Claimant 
Mr S Singh (instructed by the Treasury Solicitor) appeared on behalf of the Defendant 

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  1. MR JUSTICE HOLMAN: This is a renewed application for permission to apply for judicial review after refusal by Cranston J on paper. This particular case has been listed for hearing before me this morning as a discrete and isolated case. However, it is clear that it raisesfor consideration the same or a similar question that arises in a growing number of other cases before this court. That question relates to the manner in which asylum seekers who are removed to Greece under the Dublin II Regulation may be treated by, and within Greece. This particular claimant is a person who travelled from Afghanistan and eventually arrived in the United Kingdom, where he claimed asylum. It transpired that he had passed through Greece, although he had not claimed asylum there. In other words, in the jargon that is now applied to these cases, he would be a "take charge" returnee to Greece, not a "take back" one.

  1. Paragraph 3 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 makes provision for certain countries to be automatically treated as safe countries for asylum purposes. In the present case, the Secretary of State proposes to remove this claimant to Greece for his asylum claim to be considered by the Greek authorities, and has certified, in accordance with paragraphs 4 and 5 of part 2 of Schedule 3 to that Act. The Secretary of State has not given discrete consideration to the underlying merits of the asylum claim.

  1. In the case of Nasseri v Secretary of State for the Home Department [2007] EWHC 1548 (Admin), McCombe J, sitting at first instance, has declared that those provisions of that Act are incompatible with the European Convention on Human Rights. That decision of McCombe J has been the subject of an appeal to the Court of Appeal. I understand that the arguments were heard about a month ago, but the Court of Appeal has not yet handed down its judgments.

  1. As well as the decision of McCombe J as to incompatibility, a growing body of material is being produced by this claimant and other claimants in a similar situation as to the factual situation likely to be faced by asylum seekers in Greece, including those returned there under the provisions of the Dublin II Regulation. This has led to a quite substantial number of applications for permission to apply for judicial review by claimants in the same or similar situations to this claimant. One such was the claimant in the case of Zego v Secretary of State for the Home Department [2008] EWHC 302 (Admin), in which Underhill J gave judgment on 5th February 2008.

  1. In that judgment Underhill J considered an argument that it would be unlawful to remove that claimant to Greece, at any rate until the decision of the Court of Appeal in Nasseri. On the other side, he was strongly pressed by the argument that, pursuant to section 4(6) of the Human Rights Act 1998, a declaration of incompatibility does not affect the validity, continuing operation or enforcement of the provision in respect of which the declaration of incompatibility has been given. In that case, counsel for the claimant had submitted that the provisions of section 4 of the 1998 Act did not represent a complete answer to the Nasseri argument, but Underhill J said, "the more I think about it the more casuistical I find that argument." Nevertheless, he went on to consider the evidence that was before him in that particular case. It is clear that it included an express letter from the Greek authorities saying that they would accept back that claimant under the Dublin Regulation. He said that that claimant:

"... will, as evidenced by the terms of the letter from the Head of the Aliens Division [in Greece] which I have set out, have been returned by specific arrangement with this country under the Dublin Regulation. There is no reason whatever to suppose that he will be treated irregularly or, more particularly, that the specific promise contained in the final sentence of that letter, that he would be given the chance to apply for asylum, will be broken. None of the evidence relied on by the counsel for the claimant applies to a return of that character in those circumstances."

Mr Justice Underhill continued by saying:

"I do not need to rely only on the terms of the letter..."

Pausing there, the use of the word "only" in that sentence indicates that Underhill J did indeed rely, in part, on the terms of the express letter from the Greek authorities. He continued, however, by relying also on a witness statement from Laura Saunders, an official in the Border and Immigration Agency. He said that he had no reason to disbelieve the evidence of Miss Saunders, which was to the effect that she has been informed by the head of the Greek Dublin Unit that they will fairly and appropriately deal with "take charge" cases, who are returned to them under the Dublin Regulation. So in Zego Underhill J refused to grant permission to apply for judicial review. I have been informed today that there is an appeal pending to the Court of Appeal from that decision of Underhill J; although I should make plain that I myself am unclear, and counsel appearing before me today are unclear, whether that is, at this stage, a pending application for permission to appeal to the Court of Appeal, or whether permission has already been granted and it is a pending substantive appeal.

  1. In a later case of Saeedi v Secretary of State for the Home Department [2008] EWHC 673 (Admin), in which he gave judgment on 26th February 2008, Sullivan J effectively followed the decision of Underhill J in Zego and in that case also refusedpermission to apply for judicial review of a decision to return a "take charge" asylum seeker to Greece under the Dublin Regulation. At paragraph 16 of his judgment Sullivan J said:

"Not only is that evidence [some generic evidence which had been placed before the court] of a relatively general kind, it is plain that insofar as it identifies a problem, it is a problem in circumstances which are very far removed from the circumstances of the present case. There is nothing to suggest that someone who is returned from this country under the Dublin Regulation, following formal acceptance by the Greek authorities of the obligation to determine an asylum claim, will be treated otherwise than in accordance with the Refugee Convention."

  1. In the present case, in contrast to the cases of Zego and Saeedi, there has not in fact been any formal acceptance by the Greek authorities of this claimant. As I understand it, they have so far remained completely silent in response to inquiries by the Secretary of State as to whether they will take charge of this particular asylum seeker if he is removed by her to Greece. I do not know whether ultimately that is a distinction of significance; but clearly in the case of Zego in a passage which I have quoted, and again in the case of Saeedi, the judges attached some weight or significance to the fact that in those cases there had been clear, formal acceptance by the Greek authorities of the claimant. In other words, the claimants in those cases would be being returned under arrangements made with the Greek authorities and would presumably be expected at the point of arrival on arrival.

  1. As I have said, in the present case permission to apply for judicial review was refused on paper by Cranston J on 12th March 2008. He observed as follows:

"Whatever the findings in Nasseri on appeal, section 4(6) of the Human Acts Right 1998 means that paragraph 3 of Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 continues in force. That means there can be no breach of the claimant's Article 3 rights by returning him to Greece because he will not be sent back to Afghanistan in contravention of those rights. Along with Underhill J in Zego v SSHD, my judgment is that the assurances of the defendant on what will happen in practice on the claimant's return to Greece are entitled to respect."

The "assurances of the defendant" to which he refers are, I believe, essentially the same assurances as those based upon the statement of Laura Saunders in the Zego case. Within the actual four corners of the present case, I am not aware of any evidence about "assurances" from the Greek authorities. There is merely an assertion in paragraph 18 of the summary grounds of defence that:

"In any event, the defendant has been assured by the Greek authorities, through regular contact between officials dealing with the Regulation, that Greece does not at present refoule asylum seekers to Afghanistan, even if their applications for asylum are rejected."

  1. Since that decision by Cranston J on paper on 12th March 2008, there have been a number of developments. First, the argument in Nasseri in the Court of Appeal has actually taken place. Second, further generic evidence has been accumulating in relation to the manner in which asylum seekers are treated in Greece. I do not give detailed consideration to that evidence today, in part because a voluminous body of material has merely been handed up to me since I began hearing this case in the courtroom this morning. But it was referred to and briefly quoted from in a skeleton argument by counsel for the claimant dated 15th April 2008, but only received by me by fax shortly before I came into court today. It includes, in particular, a very recent report dated 9th April 2008, headed "A gamble with the right to asylum in Europe -- Greek asylum policy and the Dublin II Convention", jointly produced by certain Norwegian authorities and a Greek Helsinki monitor. I say no more, for the purposes of this judgment, than that if what is selectively quoted in the skeleton argument is reliableand true, it paints, at best, a very worrying picture of the treatment of asylum seekers in Greece, including those returned under the Dublin Regulation.

  1. The third development is that there has been a continuing flow of applications to this court that raise substantially the same point. I myself am conscious of having considered two applications for permission to apply for judicial review on paper within the last week or so in which I have directed that the application for consideration on paper be, in effect, adjourned and resubmitted to a judge after the judgments of the Court of Appeal in Nasseri are available.

  1. There have been placed before me this morning the decisions on paper in three cases in the last few weeks. Two of those cases were decisions by Blake J. In one of them, Ali Shahussain, he granted permission to apply for judicial review, observing:

"1. The evidence submitted by the claimant suggests that there is an arguable case that returns to Greece is unlawful.

2. This evidence does not appear to have been considered in the case of Zego.

3. There should be a stay on listing of this application until the outcome of the Court of Appeal decision in Nasseri is available. The claimant should promptly examine the arguability of the present grounds in the light of the court of appeal judgment."

In the second case, Manhal Hassan Al Hamood, Blake J, on the same date, adjourned the question of permission, observing:

"1. Removal to be stayed pending judgment of Court of Appeal in Nasseri.

2. Papers to be placed promptly before judge for further consideration following that judgment."

In the third case, Zakiri, permission was granted by Collins J, who is the lead judge of this court, on 3rd April 2008. He observed:

"There is a clear difference between 'take back' and 'take charge' cases. The decision in Zego distinguishes Nasseri on grounds which are said to show that there is in truth no danger of refoulement. Paragraph 10 of the acknowledgment of service misses the point. It is not suggested that Greece would breach Article 3 by its own conduct, but that there would be a real risk of refoulement without proper consideration of the asylum claim. The UNHCR reports suggest a real risk may exist. Since the court is obliged to act in a way which respects the ECHR and the deeming provision does not mean that the removal must, whatever the circumstances, take place, I think that the safety of Greece deserves careful and detailed consideration. Accordingly, I am prepared to grant permission. There is a need for expedition, but that depends on the defendant producing her evidence as soon as possible. Removal must not take place until the hearing of the claim or further order."

On behalf of the Secretary of State, Mr Sarabjit Singh objected to my giving any consideration to, or taking any account of, those three paper decisions. He submitted that they were merely paper decisions and there was no indication (as indeed is the case) that either judge had given any permission for their observations to be looked at, or relied upon, in any other case.

  1. Today, Ms Chapman, on behalf of the claimant, has strongly urged me to grant permission to apply for judicial review. Her essential submission is that the decisions in Zego and Saeedi are either wrong or, at any rate, distinguishable because in those cases there was a formal acceptance by the Greek authorities, which there has not been in this case. She submits that there is a growing body of material as to the position faced by asylum seekers removed to Greece, and that if it was appropriate for Blake J to give permission in the Ali Shahussain case, and Collins J to give permission in the Zakiri case, I also ought to grant permission in this case. On the other hand, Mr Singh has strongly submitted that I should refuse permission. He submits, in effect, that I should exercise my own independent judgment. He relies on Zego andSaeedi, and submits that there is no relevant basis of distinction between this case and those cases. He relies upon the statement of Laura Saunders that was prepared in the Zego case and submits that it should carry as much weight with me as it did with Underhill J.

  1. I, for my part, am not prepared to accede to either of these arguments. With all due respect to Collins J and Blake J, I am not myself currently persuaded that merely because judgments are awaited in the case of Nasseri, it is right or yet ready to grant permission in these cases or this case. I note that in paragraph 3 of his observations in Ali Shahussain, Blake J commented that the claimant should promptly examine the arguability of the grounds in the light of the Court of Appeal judgments. My own feeling is that it is preferable for this court to decide how to exercise its discretion whether or not to grant permission, when informed by the Nasseri judgments.

  1. On the other hand, I am most certainly not prepared to accede to the submission of Mr Singh that I should simply refuse permission in this case, ignoring the approach and decisions of Collins J and Blake J. What is, or should be, obvious in a field of such importance as asylum is that the approach of this court should be as uniform as possible. It would be wildly capricious if there was a series of divergent decisions on the issue of permission, depending upon which individual judge these applications happened to come in front of. It seems to me that if it is right to grant permission, or at any rate, postpone consideration of permission, in the three decisions of Blake J and Collins J to which I have referred, then it would be very wrong of me simply to refuse this renewed application for permission and leave the way open for this particular claimant to be returned forthwith to Greece.

  1. In my view, two things really are necessary. First, the judgments of the Court of Appeal in Nasseri must be seen for whatever light they may or may not throw on the resolution of these cases. Second, there does need to be some form of composite hearing at which this issue, which is largely common to all these cases, has some composite consideration. I was urged today by Ms Chapman, who, as I understand it, acts also in a number of the other cases, to give some directions for a composite hearing. It does not seem to me right that I, sitting today on this single case, should do that. At all events, so far as the present case is concerned, and for the reasons which I have endeavoured to describe, I propose to adjourn this renewed application for permission to apply for judicial review, to be relisted after the judgments of the Court of Appeal in Nasseri are available.

  1. That, I think, concludes it, does it not?

  1. MS CHAPMAN: My Lord, I am grateful for the helpful judgment. Might we have permission to rely on this for the purpose of endeavoring to persuade the Secretary of State to stay the other matters pending the judgment in Nasseri?

  1. MR JUSTICE HOLMAN: I never know what is really meant by "having permission to rely on a judgment". I am merely co-equal with many other judges who sit in this court, but you can certainly have a transcript made and, as far as I am concerned, you can do anything you like with it.

  1. MS CHAPMAN: I am grateful, my Lord.

  1. MR JUSTICE HOLMAN: It is entirely a matter for other judges what weight, if any, they choose to give to it.

  1. MS CHAPMAN: Yes, my Lord.

  1. MR JUSTICE HOLMAN: What I am not sure about is, on permission decisions, whether these judgments are automatically transcribed.

  1. MS CHAPMAN: My Lord, they are not. I believe I have to ask for it to be publicly funded as well.

  1. MR JUSTICE HOLMAN: Well, I think in the circumstances of the case, without giving any steer as to its utility, I will say that a transcript of the judgment that I have just given be made at the expense of public funds and, may I say, as a matter of extreme urgency, because these cases, in fact, are coming in all the time. How quickly could you do that? All right. Well, that will be done as a matter of extreme urgency. For that reason, I will keep all these papers with me so as to correct it.

  1. MS CHAPMAN: I am very grateful, my Lord.