NS, R (on the application of) v Secretary of State for the Home Department

We have decided, albeit with some reluctance, that we should accede to Miss Rose's suggestion that we refer questions arising on this appeal in relation to the EU law to the CJEU -- the Luxembourg court. -- and that in the meantime we should stay the balance of the proceedings, not least because there is a case due to come before the Grand Chamber on 1 September. We are inclined to think that this course will actually hasten matters rather than hold them up. It seems to us clear that, if we were to hear this appeal, there would be a petition to appeal to the Supreme Court, and we would have thought that the Supreme Court would, as the final court of appeal, be bound to refer the EU law points to the Luxembourg court as the points are not clear.

In those circumstances it would put the parties and the court to extra cost and it would cause extra delay if we were not to grasp that particular nettle now. We understand that there are around a thousand cases in the pipeline across the EU which raise similar points, and it seems to us that the sooner and more efficiently that these issues can be resolved the better. So, with some reluctance, because it involves aborting a two-day appeal intended to start this morning, we think the best solution is to refer the issues of EU law to the Luxembourg court.

So far as the ECHR issues are concerned, it seems to us that it would be sensible to stay those issues. There is, as has been pointed out, an inevitable interrelationship between the two sets of issues, and, even if it were not for the fact that the Grand Chamber case due to be heard on 1 September will be of considerable assistance so far as at least some of the ECHR issues are concerned, we would still have been minded to adjourn in relation to those issues.

Mr Cox, with the benefit of his experience, says that the reference in this case to the Luxembourg court might not represent as long and drawn out a delay as it sometimes does, and he also says that it is likely that the Strasbourg court may wait to give its decision until it has heard from the Luxembourg court.

So far as procedure is concerned, we would invite the parties to prepare a draft reference for the court to consider. This should set out a narrative containing the factual background, and identify the issues which the parties believe should be considered by the Luxembourg court. We will then consider the draft, resolve any disputes as to the content, and, if we feel it appropriate, make any amendments. We will notify the parties of our proposed amendments so that they can comment on them.

There is one specific matter which we should mention in relation to one of the conclusions reached by Cranston J, from whom this appeal arises. In the course of his very clear and careful judgment he concluded, in paragraph 155, that the Secretary of State (the respondent) was not bound to act in accordance with the EU fundamental rights protected from the Charter when acting within the scope of the EU law. I refer to what he said in paragraph 155:

“155.

Recital 15 of the Dublin Regulation records that it respects the fundamental rights and principles recognised in particular by the Charter of Fundamental Rights. Given the Polish and United Kingdom Protocol, the Charter cannot be directly relied on as against the United Kingdom although it is an indirect influence as an aid to interpretation. It will be recalled that Article 1 of the Charter makes human dignity inviolable. Article 18 provides that the right to asylum shall be guaranteed, and Article 19(2) provides that “no one may be removed to a State where there is a serious risk that he or she would be subjected to inhuman or degrading treatment”. None of these rights are directly enforceable against the Secretary of State. A transfer under the Dublin Regulation cannot be challenged on the basis that it is not compatible with the right to human dignity or the right to asylum, or will be in breach of Article 19(2).”

The reason we mention this point is that the Secretary of State no longer seeks to support that finding, as is clear from paragraph 8 of the respondent's notice, which states:

“8.

Contrary to the Judge’s holding, the Secretary of State accepts, in principle, that fundamental rights set out in the Charter can be relied on as against the United Kingdom, and submits that the Judge erred in holding otherwise (judgment, paragraphs 155 and 157, first sentence). The purpose of the Charter Protocol is not to prevent the Charter from applying to the United Kingdom, but to explain its effect.”

Mr Robertson QC, who appears for the EHRC, makes the point that, in the absence of something being said in this court, what Cranston J held in paragraph 155 may be cited in other cases. As my Lord, Laws LJ pointed out, another High Court judge is not obliged to follow what one of his colleagues has held, but comity and consistency normally represent strong arguments to support the contention that he should do so. Accordingly, it is only right that there is a record of the fact that Cranston J’s conclusion on this point is not supported by the respondent in whose favour it has been made.

It is also right to mention that the respondent Secretary of State does not contend in relation to the exercising of her discretion under Article 3(2) of the Dublin regulation, that that exercise does not fall within the scope of the EU law and that the Charter does not accordingly apply to it. That point had been hotly contested by the interveners, Amnesty International and UNHCR and, EHRC, as well as by the appellant, and it is only right to record that that is the respondent's position now.

My Lord, Laws LJ suggests, and, subject to any objection, I agree with him, that the interveners should have the right to participate in the drafting of the reference.