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

This judgment is in seven parts, namely:

This is an application for leave to appeal against an order of the Administrative Court refusing to grant a stay of judicial review proceedings, pending a possible appeal to the Supreme Court in a related action.

This litigation concerns the operation of Council Regulation (EC) No. 343/2003, which is generally referred to as the “Dublin II Regulation”. The Dublin II Regulation provides a regime for determining which Member State within the European Union will deal with each asylum seeker. The Regulation contains provisions for the removal of asylum seekers and refugees within the EU to the Member State which has responsibility for them.

In this judgment, I shall refer to the Court of Justice of the European Union as “CJEU”. I shall refer to the European Convention on Human Rights as “ECHR”. ECHR Article 3 provides:

Although I am only dealing with an application for permission to appeal against an interlocutory order, this application is of some importance. In the court below, both parties agreed and the judge recorded that the stay application was a “test case”. A large number of other cases are affected by the court’s order refusing to grant a stay. Likewise a large number of other cases will, in the short term, be affected by my decision on the present application for permission to appeal.

After these introductory remarks, I must now turn to the facts.

The claimant is a Sudanese national. In August 2008 the claimant arrived in Italy and claimed asylum. That application was granted and the claimant obtained refugee status in Italy.

In June 2011 the claimant entered the United Kingdom illegally and made a claim for asylum in this country. The claimant also claimed an entitlement to remain here on human rights grounds. The claimant put forward those claims on a false basis. He omitted reference to the fact that he had previously sought and obtained asylum in Italy.

The Secretary of State established the true position on the basis of fingerprint evidence and other inquiries. She decided that, under the provisions of the Dublin II Regulation, Italy was the country responsible for dealing with the claimant’s asylum claim. Therefore the claimant should be removed to Italy.

By letter dated 25 July 2011 the Secretary of State gave notice of that decision to the claimant and set removal directions. The Secretary of State also certified that the claimant’s various claims to remain in this country were clearly unfounded. The effect of that certification was that the claimant had no right of appeal to the First-Tier Tribunal whilst he was still in this country.

The claimant was aggrieved by the Secretary of State’s decision. Accordingly he commenced the present proceedings.

By a claim form issued in the Administrative Court on 2 August 2011 the claimant applied for an order to quash the Secretary of State’s decision of 25 July and the accompanying removal directions. The grounds on which the claimant applied for judicial review were that he had suffered harm in Italy amounting to degrading treatment within Article 3 of ECHR. That comprised homelessness, destitution, humiliation, physical assault and discrimination. If the claimant were to be returned to Italy, he would live in similar conditions as a refugee in that country and that would amount to inhuman or degrading treatment contrary to Article 3 of the ECHR.

On 24 November 2011 Mr Justice Singh granted permission to the claimant to proceed with the judicial review claim. In due course this action was listed to be tried on 14 November 2012.

In the meantime other litigation was proceeding through the courts which may have a bearing on the claimant’s claim. That was a group of cases known as EM, EH, AE and MA. In each of those cases, the Secretary of State proposed to return an individual to Italy under the Dublin II Regulation and the individual argued that such a step would entail a real risk of inhuman or degrading treatment contrary to ECHR Article 3. Those four cases came before the Court of Appeal in September 2012. Two of those cases were appeals against decisions of the Administrative Court rejecting the individuals’ claims. The other two cases were substantive judicial review hearings in the Court of Appeal, permission to proceed having been refused below. Strictly speaking, therefore, two of the individuals were appellants and two were claimants. I shall refer to all four of them as “the individuals”. The Court of Appeal found in favour of the Secretary of State in all four cases: see EM (Eritrea) v SSHD [2012] EWCA Civ 1336. The four individuals indicated their intention to appeal to the Supreme Court.

The issue then arose as to whether this present case should proceed or whether it should be stayed pending the possible appeal to the Supreme Court in EM. On 2 November 2012 Mr Justice Ouseley ordered that this case should remain listed for trial on 14 November 2012. He added the following direction:

The matter came on for hearing on 16 November 2012 before Mr CMG Ockelton, sitting as a deputy High Court judge. I shall refer to Mr Ockelton as “the judge”. The judge heard lengthy submissions on the effect of the Court of Appeal’s decision in EM. He then gave judgment limited to the preliminary point, namely whether the proceedings should be stayed. His decision was that there should be no stay. Therefore the claimant’s judicial review claim should proceed to a full hearing.

The judge also rejected the claimant’s application for a stay of the removal directions pending the resolution of the claimant’s judicial review claim. That part of the judgment is not material for present purposes. Mr Alan Payne, counsel for the Secretary of State, has stated in open court that the Secretary of State will not attempt to remove the claimant to Italy before the conclusion of the judicial review proceedings.

The claimant is aggrieved by the judge’s decision. Accordingly he applies for permission to appeal to the Court of Appeal.

By an appellant’s notice filed on 3 December 2012 the claimant applied for permission to appeal the judge’s decision of 16 November 2012 refusing to grant a stay. The essential grounds of the application and the proposed appeal were that the judge had misunderstood and misapplied the Court of Appeal’s decision in EM. It is also part of the claimant’s case that the four appellants in EM have good prospects of obtaining permission to appeal and of subsequently succeeding in their arguments before the Supreme Court. See paragraph 54 of the claimant’s skeleton argument.

On 19 December 2012 Lord Justice Moses ordered that the claimant’s application for permission to appeal be listed for hearing during the vacation with both parties represented. The oral hearing took place yesterday, which was Wednesday 9 January. The hearing lasted for three hours. Mr Raza Husain QC and Mr Greg Ó Ceallaigh appeared for the claimant. Mr Alan Payne appeared for the Secretary of State. I am grateful to all counsel for their assistance. I have had the opportunity to consider counsel’s submissions overnight.

It may seem odd that an application for permission to appeal against a case management order should receive such elaborate treatment. On the other hand, as previously mentioned, the judge stated in his judgment that the application for a stay was a test case. It is also clear that both the judge’s decision of 16 November 2012 and my decision this morning will have a substantial effect on other cases which are awaiting resolution.

The Court of Appeal’s judgment in EM was central to the debate at yesterday’s hearing. Counsel on both sides made detailed submissions as to how that decision should be interpreted and what in fact the Court of Appeal decided. I must, therefore, now turn to that question.

Despite the elaborate and beguiling submissions of counsel, I think that the decision of the Court of Appeal in EM is perfectly clear. Stripped to its essentials, what the Court of Appeal decided may be summarised as follows:

The Court of Appeal refused permission to appeal to the Supreme Court. That is unsurprising, since the Court of Appeal usually leaves it to the Supreme Court to decide which cases it will take. Nevertheless the court was troubled by the tension between MSS v Belgium and Greece [2011] ECHR 108 and NS. The order which the Court of Appeal made when refusing permission to appeal reads as follows:

Having set out what the Court of Appeal decided in EM, and part of the order of the court in that case, I must now turn to the judgment under appeal.

The judgment delivered by the judge is clear, detailed and thorough. I intend no disrespect to the judge if I summarise his conclusions in the following five sub-paragraphs:

As a result of that order the judicial review proceedings remained alive on the basis of the permission which had been granted by Mr Justice Singh on 24 November 2011. But those proceedings were heading towards a hearing in which, on the findings of the judge, the claimant had no realistic prospect of success.

Mr Husain criticises the judge for mis-reading the Court of Appeal’s decision in EM. I reject that criticism. The judge correctly identified the ratio of the Court of Appeal’s decision.

There is, however, a separate criticism made of the judge’s decision which in my view has more force. This is that it does not follow from the Court of Appeal’s decision in EM that the claimant’s present claim has no realistic prospect of success. We are here dealing with a fast developing area of law, which is in part a response to the changing fortunes of the European Union. The Court of Appeal has expressed misgivings about the decision which it felt compelled to reach in EM. It expressed those misgivings both in its judgment and in its order refusing permission to appeal.

In those circumstances, although I would not presume to trespass into the territory of the Supreme Court, there must be a real possibility that that court will grant permission to appeal. If the Supreme Court does grant permission to appeal, I do not know what the outcome of the appeal will be.

Despite the detailed arguments which have been developed on both sides, I am simply concerned with the question whether the claimant should be granted permission to appeal against the judge’s order refusing to grant a stay. In my view permission to appeal should be granted for two reasons:

Let me now draw the threads together. The claimant has satisfied the threshold test for obtaining permission to appeal to the Court of Appeal as set out in rule 52.3 (6) (a) of the Civil Procedure Rules. I therefore grant permission to appeal to the Court of Appeal. I do not, of course predict what the outcome of the appeal will be.

Because there has been full argument about important issues, this judgment may be cited on future occasions even though it arises out of a permission application.

Finally, I note that the Secretary of State has asked the Supreme Court to expedite consideration of the application for permission to appeal in EM. In case my views are of any assistance, I indicate that I see the force in this request for expedition.