A v Secretary of State for the Home Department

LORD JUSTICE MAURICE KAY: This is a renewed application for permission to appeal, permission having been refused on the papers by Keene LJ on 11 April. The applicant is a 16-year old boy from Somalia. He seeks to advance a human rights claim but thus far he has not succeeded in doing so in this jurisdiction because the view has been taken that under the Dublin II Regulation, this country must defer to Italy, where the applicant had first made a claim on route from Somalia to the United Kingdom.

There are similarities between this case and the case of G [2005] EWCA Civil 546 in which I gave the leading judgment. However, Mr Fripp submits that whereas the decision of this court in G has foreclosed some arguments which the current applicant might otherwise have had available to him, there are other points which had been decided by Wilson J, as he then was, at first instance in G in a manner adverse to this applicant which ought now to be considered by this court on the basis that they have a real prospect of success. They are points which ultimately were not taken in the Court of Appeal in G. There are two such points and Mr Fripp rightly accepts that he would need to succeed on both in order to achieve a successful outcome.

The form of the present proceedings is one wherein the applicant sought permission to apply for judicial review of a decision of the Secretary of State to issue removal directions and to certify the applicant’s Article 8 claim under Section 93.2(b) of the 2002 Act. In the Administrative Court, Toulson J refused permission to apply for judicial review on 25 November 2005 and as I have indicated, Keene LJ later refused permission to appeal on the papers.

The two points of construction which arise in relation to the Dublin II Regulation derive from articles 5 and 6 of that Regulation. Essentially the Regulation, in succession to the previous Dublin Convention, addresses the problem where there are extant applications in more than one member state. The Regulation prescribes a series of tests. Article 5 is in these terms:

“1.

The criteria for determining the member state responsible shall be applied in the order in which they are set out in this chapter.

“2.

The Member State responsible in accordance with the criteria shall be determined on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State.”

Article 6 so far as material then provides:

“Where the applicant for asylum is an unaccompanied minor, the Member State responsible for examining the application shall be that where a member of his or her family is legally present, provided that this is in the best interest of the minor.”

“Family member” is defined in article 2(2) as including :

“The guardian when the applicant for asylum is a minor and unmarried.”

The term “guardian” is not separately defined.

The applicant has in this country a half sister and a brother, either or both of whom Mr Fripp seeks to characterise as his guardian. What stood in his way before Toulson  J was the decision of Wilson J in G to the effect that “guardian” was a limited concept connoting “the external investment of a person with formal responsibility”. It seems that Keene LJ was persuaded by that narrow approach to the meaning of “guardian”. Since the papers were before Keene LJ, Mr Fripp has helpfully expanded his submissions on the question whether the word “guardian” should be so narrowly construed in the context in which it appears.

Suffice it to say on this point that, in my judgment, he has established arguable grounds for his preferred wider meaning of the word “guardian”. He observes that in article 15 the term “legal guardian” is used, thus providing the basis for a degree of differentiation. He further observes other EU legislation which enables him to make a submission, which may prove to be either right or wrong, to the effect that the wider meaning of “guardian” as being the person “responsible, whether by law or by custom” may be appropriate. He refers to a Council resolution of 26 June 1997, a directive of 29 April 2004 and another directive of 27 January 2003. All these are referred to in the statement which Mr Fripp filed with the court for the purposes of paragraph 4.14(a) of the Practice Direction.

So far so good. I am satisfied that the case is arguable and has a real prospect of success. That is to say, it cannot be said to have no such prospect.

The second point of construction upon which Mr Fripp would need to succeed relates to article 5.2 and the correct meaning of:

“… determined on the basis of the situation obtaining when the asylum seeker first lodged his application with a member state”.

In G Wilson J rejected a submission that this effectively means “the situation truly obtaining, whether or not then discernible”. That submission has not previously been considered in this court. It seems to me to be a submission which is not self-evidently correct. However, I take the view that it merits consideration in this court, not least because we are here dealing with a situation which arises not infrequently and which impinges upon the welfare of minors.

Mr Fripp has constructed a careful argument. I do not feel able to say that it has no prospect of success and accordingly I propose to grant permission. I was initially concerned as to where these points of construction might ultimately take the case, in view of the fact that in relation to article 8 of the ECHR, Toulson J plainly concluded that to remove the applicant would not be a disproportionate interference. However, I am persuaded by Mr Fripp that that was an inevitable finding on the basis of Toulson J’s conclusions on the points of construction to which I have referred. As a result of those findings, the applicant was to be returned not to Somalia but to Italy in the context of the findings that were made about his lack of relevant family life in this country.

If at the end of the day this court accepts both, and I emphasise both, of Mr Fripp’s submissions on construction, then the issue of proportionality in relation to Article 8 would call for reconsideration at that stage, at which point any return would be to Somalia. I therefore do not consider the existing decision of Toulson J upon proportionality to be necessarily determinative of the issue within the long term.

In his written submissions, Mr Fripp invites the court under the CPR to treat this hearing as ultimately an application for permission to apply for judicial review, and to grant permission on the basis that the matter would then return to the High Court for a substantive hearing. Although I have not thus far received any submissions this morning on that issue, it seems to me that the better course is simply to grant permission to appeal and for the case to be considered as a substantive appeal in this court. I say that because if it were simply remitted to the Administrative Court for a substantive judicial review hearing, that court would find itself confronted with at least persuasive authority, in the form of Wilson J’s judgment in G, which would prompt a further appeal to this court.

Accordingly, it seems to me that the better course is for a substantive appeal to take place in this court, at which appeal it would of course be open to this court itself to decide whether or not to grant judicial review in the light of its conclusions, whatever they may be, on the issues of construction.