MB & Ors, R (on the application of) v Secretary of State for the Home Department

LORD JUSTICE AIKENS: Each of the four Applicants arrived in Malta, was detained, went through an asylum application process (including appeals) which in each case was rejected, then eventually left Malta and came to the United Kingdom.

Each of the four Applicants on arrival in the UK was found to have had his asylum claim rejected by Malta. In each case, the Secretary of State has certified the Applicants' asylum claim under the Dublin II Regulations and has certified that the human rights claim as clearly unfounded.

Mitting J rejected claims for judicial review of those decisions, in each case saying that the Applicant was in the position of a "failed asylum seeker". He said, therefore, that EU law in relation to the obligations of member states concerning asylum seekers such as Reception Directive 2003/9/EC did not apply. Mitting J's alternative conclusion, expressed at paragraph 28 of his judgment which was handed down on 1 February this year, was that even if the Applicants were asylum seekers, the threshold at which the Secretary of State should be prevented from returning the Applicants to Malta under Dublin II had not been reached.

The Applicants now renew their application for permission to appeal, which was refused on the paper by Beatson LJ on 12 July 2013. It is accepted by Mr Southey, QC on behalf of the Applicant that there was no express argument before Mitting J based on Article 18 of the Charter. He says, however, that this was originally part of the grounds and that the reason that it was not dealt with by Mitting J was that he took the course that he did in characterising the status of the Applicants as being that of "failed asylum seekers".

The Applicants' argument that they wish to raise in the Court of Appeal is essentially this: that Article 18 of the Charter grants rights in relation to refugee status and asylum which are fundamental and that in that sense, they are wider or deeper than those that are granted by the European Convention on Human Rights, particularly Article 3. In that way, Mr Southey seeks to argue that he can circumvent the view of the Court of Justice of the European Union expressed in R (NS Afghanistan) v Secretary of State for the Home Department [2013] QB 102.

Mr Payne on behalf of the Secretary of State submits that it would be quite wrong to allow this argument to be developed before the Court of Appeal. He submits that if this argument is to be developed at all, it must be by way of a new approach to the Secretary of State for a decision by her and then the matter can come through the courts by way of review, if that is appropriate. He also points out that in relation to the certificate on third country rights, there is an out of country right of appeal. He also points out that there is the possibility of a reference to Strasbourg insofar as the Convention might be concerned.

I have come to the conclusion that these are all issues which do need to be argued out properly in this Court. I am not prepared to grant permission to appeal because I am particularly concerned with the frank admission by Mr Southey that what is not now regarded as an important plank of the proposed appeal was not something that was specifically raised before the judge.

In fairness to the judge, therefore, it seems to me that the right approach now should be that the issue of whether or not there should be permission to appeal should be referred to the full court. If necessary and appropriate, the appeal will be argued at the same time. That is the course I intend to take.