AB (Sudan) v Secretary of State for the Home Department

This judgment is in seven parts, namely:

This is an appeal against an order of the Administrative Court refusing to grant a stay of judicial review proceedings, pending an 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 European Union as “CJEU”. I shall refer to the European Convention on Human Rights as “ECHR”. ECHR article 3 provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.

I shall refer to the Charter of Fundamental Rights of the European Union as “the Charter”. Article 4 of the Charter provides:

“No one shall be subjected to torture or to inhuman or degrading treatment or punishment.”

I shall refer to the Civil Procedure Rules 1998 (as amended) as “CPR”.

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^th 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^nd August 2011 the claimant applied for an order to quash the Secretary of State’s decision of 25^th 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^th 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^th November 2012. The issue then arose as to whether this case should proceed or whether it should be stayed pending the possible appeal to the Supreme Court in EM, a case which I will discuss in Part 6 below. On 2^nd November 2012, Mr Justice Ouseley ordered that this case should remain listed for trial on 14^th November 2012. He added the following direction:

“The question of whether the matter should be stayed is to be considered as a preliminary point, however the parties should be ready to proceed with a substantive hearing if the application is refused…”

This matter came on for hearing on 16^th 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 was aggrieved by the judge’s decision. Accordingly he appealed to the Court of Appeal.

By an appellant’s notice filed on 3^rd December 2012 the claimant applied for permission to appeal the judge’s decision of 16^th 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 was also part of the claimant’s case that the appellants in EM had good prospects of obtaining permission to appeal and of subsequently succeeding in their arguments before the Supreme Court.

On 19^th December 2012 Lord Justice Moses ordered that the claimant’s application for permission to appeal be listed for a hearing during the vacation with both parties represented. The oral hearing took place on 9^th January 2013 and lasted for three hours. On 10^th January I gave judgment granting permission to appeal. This judgment was more detailed than is usually the case on a permission application. This was because the permission decision would, in the short term, have a substantial effect on numerous other actions concerning removal to Italy. Taking matters shortly, I granted permission to appeal and explained why, in my view, it was arguable that the judge had erred in refusing to stay the proceedings.

The appeal came on for hearing on 2^nd July 2013. Mr Raza Husain QC and Mr Greg Ó Ceallaigh represented the claimant, as they had at the hearing on 9^th January 2013. Mr Alan Payne represented the Secretary of State, as he had at the hearing on 9^th January 2013.

Counsel’s submissions ranged principally over three areas: first, the principles upon which a stay should be granted; secondly, the correctness of the judge’s reasoning, including his analysis of EM; thirdly, developments since November 2012, when the judge gave his decision.

Although in form this appeal is concerned with the correctness of a case management decision, the issues arising are of some importance, because they will affect many other Dublin II cases concerning removal to Italy. Apparently there is now a substantial backlog of such cases awaiting resolution. Approximately twenty new cases in this category are being issued every month.

Against that background let me first review the rules governing the grant of a stay.

In relation to general proceedings at first instance, the court has power to grant a stay under CPR rule 3.1 (2) (f). In relation to judicial review proceedings, the court has power to grant a stay under CPR rule 54.10 (2) (a). In relation to appeals, the court has power under CPR rule 52.7 to stay enforcement of the order which is under appeal.

In relation to stays of proceedings, as opposed to stays of enforcement, the judge is making a case management decision. Such decisions will rarely be challenged and even more rarely be reversed on appeal.

The judge set out the principles governing the grant of a stay at paragraphs 27-28 of the judgment below as follows:

“27.

A stay on proceedings may be associated with the grant of interim relief, but it is essentially different. In determining whether proceedings should be stayed, the concerns of the court itself have to be taken into the balance. Decisions as to listing, and decisions as to which cases are to be heard at any particular time are matters for the court itself and no party to a claim can demand that it be heard before or after any other claim. The court will want to deal with claims before it as expeditiously as is consistent with justice. But, on the other hand, it is unlikely to want to waste time and other valuable resources on an exercise that may well be pointless if conducted too soon. If, therefore, the court is shown that there will be, or there is likely to be, some event in the foreseeable future that may have an impact on the way a claim is decided, it may decide to stay proceedings in the claim until after that event. It may be more inclined to grant a stay if there is agreement between the parties. It may not need to grant a stay if the pattern of work shows that the matter will not come on for trial before the event in question. The starting point must, however, be that a claimant seeks expeditious determination of his claim and that delay will be ordered only if good reason is shown.

28.

In cases where a request for a stay on proceedings is coupled, expressly or by necessary implication, with a request for interim relief, the court will need to take into account the factors relevant to both types of decision, and may need to take into account a third: that by securing interim relief and a stay, the applicant may be asking the court to use its powers to give him, for as long as he can secure it, a benefit that he may not obtain at the trial.”

I agree with what is set out in those paragraphs, but wish to add some further comments in relation to immigration cases.

Immigration law has a tendency to develop rapidly, indeed sometimes at bewildering speed. The constant flow of developments arises from the industry of legislators, rule-makers, judges and practitioners. Not only does the law in this area change fast. So also do the political, military, social and economic circumstances in the numerous countries from which asylum seekers or other migrants may come.

Both the tribunals and the courts have to keep pace with these constant changes. When a new appellate decision is awaited it is not unusual for parties in pending similar cases to seek a stay of their proceedings.

Sometimes it is obviously necessary to grant such a stay, because the anticipated appellate decision will have a critical impact upon the proceedings in hand. There is also, however, a need for realism. In the world of immigration it is a fact of life that the law which the judge applies is liable to change in the future, quite possibly in the near future. This cannot usually be a reason for staying proceedings. I started dealing with immigration cases some fourteen years ago. I cannot remember any occasion during that period when important decisions on one or more aspects of immigration law were not eagerly awaited from the appellate courts.

As Pill LJ observed in R (Bahta) v SSHD [2011] EWCA Civ 895 at [70], what the Court of Appeal says is the law, is the law, unless and until overruled by a superior court or by Parliament. Likewise country guidance decisions should generally be applied unless and until they are reversed or superseded.

In my view the power to stay immigration cases pending a future appellate decision in other litigation is a power which must be exercised cautiously and only when, in the interests of justice, it is necessary to do so. It may be necessary to grant a stay if the impending appellate decision is likely to have a critical impact on the current litigation. If courts or tribunals exercise their power to stay cases too freely, the immigration system (which is already overloaded with work) will become even more clogged up.

After these general observations, I must now turn to the area of immigration law which is in issue in the present case. This is the law governing removals under the Dublin II Regulation.

Article 3 of the Dublin II Regulation provides, so far as material, as follows:

“1.

Member States shall examine the application of any third-country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.

2.

By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility.”

In KRS v UK [2008] ECHR 1781 Greece was the Member State responsible for determining the applicant’s claim to asylum under the provisions of the Dublin II Regulation. Accordingly the Secretary of State ordered that the applicant be removed to Greece. The applicant contended that such removal would (among other things) constitute a breach of article 3 of ECHR because of the conditions under which he would be detained in Greece. The Fourth Section of the Strasbourg Court held that the applicant’s claim was inadmissible. The court noted that Greece had undertaken to abide by its obligations under ECHR. In the absence of proof to the contrary, it must be presumed that Greece would comply with its obligations. The court then reasoned as follows:

“Finally, in the Court’s view, the objective information before it on conditions of detention in Greece is of some concern, not least given Greece’s obligations under Council Directive 2003/9/EC and Article 3 of the Convention. However, for substantially the same reasons, the Court finds that were any claims under the Convention to arise from these conditions, it should also be pursued first with the Greek domestic authorities and thereafter in an application to this Court.”

Over the next of couple of years conditions in Greece deteriorated. This was due both to Greece’s economic problems and also to the large influx of asylum seekers who were arriving. In MSS v Belgium and Greece [2011] ECHR 108 the Grand Chamber of the Strasbourg Court considered claims by an Afghan asylum seeker whom Belgium had removed to Greece pursuant to the Dublin II Regulation. The Grand Chamber held that Belgium was in breach of article 3 of ECHR in two respects. First, the machinery in Greece for dealing with asylum applications had broken down and the Belgian authorities knew or ought to have known this (paragraphs 352-360). Secondly, the Belgian authorities knew or ought to have known that conditions of detention and living conditions for asylum seekers in Greece were degrading (paragraphs 362-368).

In NS v SSHD [2011] EUECJ C-411/10, [2012] 2 CMLR 9 an Afghan asylum seeker was resisting removal from the UK to Greece under the Dublin II Regulation on the ground that asylum seekers in Greece suffered inhuman or degrading treatment. The Court of Appeal stayed the proceedings and referred a number of questions to the CJEU. The CJEU held that Member States must exercise their powers under the Dublin II Regulation in a manner which is compatible with Article 4 of the Charter. The court went on to explain that not every infringement of fundamental rights by the responsible state would be a ground for withholding transfers to that state. At paragraph 86 the court stated:

“By contrast, if there are substantial grounds for believing that there are systemic flaws in the asylum procedure and reception conditions for asylum applicants in the Member State responsible, resulting in inhuman or degrading treatment, within the meaning of Article 4 of the Charter, of asylum seekers transferred to the territory of that Member State, the transfer would be incompatible with that provision.”

The court went on to say that the extent of the infringement of fundamental rights which existed in Greece constituted a systemic deficiency in the asylum procedures and reception conditions. Accordingly NS could not be removed to Greece under the Dublin II Regulation because that would involve a breach of article 4 of the Charter. In the result, therefore, the UK was required to exercise its power under article 3 (2) of the Dublin II Regulation and assume responsibility for dealing with NS’ asylum claim.

In EM(Eritrea) v the Secretary of State for the Home Department [2012] EWCA Civ 1336 the Secretary of State proposed to remove four individuals to Italy pursuant to the Dublin II Regulation. They comprised two asylum seekers and two refugees. The Secretary of State certified their claims to remain in the UK on human rights grounds as clearly unfounded. Each of the four commenced judicial review proceedings challenging the Secretary of State’s certificate. In two cases the Administrative Court judge rejected their claims and the individuals appealed to the Court of Appeal. The other two cases were substantive judicial review hearings before the Court of Appeal, permission to proceed having been refused in the court below. Thus there were before the Court of Appeal two appellants and two 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. The court held that the evidence adduced by the four individuals was not sufficient to rebut the presumption that Italy, as a safe third country, would treat asylum seekers and refugees in accordance with its international obligations.

Sir Stephen Sedley delivered the judgment of the court. In the course of its judgment the court expressed misgivings about the conclusion which it had reached. The court considered that there was a tension between the Strasbourg Court’s decision in MSS and the CJEU’s decision in NS. The court held that it was bound to follow NS. At paragraphs 61-64 the court stated:

“61.

This material gives a great deal of support to the accounts given by three of the claimants of their own experiences of seeking asylum in Italy. If the question were, as Ms Carss-Frisk submits it is, whether each of the four claimant faces a real risk of inhuman or degrading if returned to Italy, their claims would plainly be arguable and unable to be certified. But we are unable to accept that this is now that law. The decision of the CJEU in NS v United Kingdom has set a threshold in Dublin II and cognate return cases which exists nowhere else in refugee law. It requires the claimant to establish that there are in country of first arrival “systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers… [which] amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment… .”

62.

In other words, the sole ground on which a second state is required to exercise its power under article 3(2) Regulation 343/2003 to entertain a re-application for asylum or humanitarian protection, and to refrain from returning the applicant to the state of first arrival, is that the source of risk to the applicant is a systemic deficiency, known to the former, in the latter’s asylum or reception procedures. Short of this, even powerful evidence of individual risk is of no avail.

63.

The totality of the evidence about Italy, although it is extremely troubling and far from uncritical, does not in our judgment come up to this mark. While undoubtedly at a number of points it either overtly alleges or powerfully suggests systemic failure, it is neither unanimously not compellingly directed to such a conclusion. At least equal, if not greater, weight has to be accorded to the far more sanguine – and more recent – UNCHR report, echoed as it is, albeit more faintly, by the Hammarberg report. While what amounts to a systemic deficiency must to a considerable degree be a matter of judgment, perhaps even of vocabulary, the evidence does not demonstrate that Italy’s system for the reception of asylum seekers and refugees, despite its many shortcomings and casualties, is itself dysfunctional or deficient. This is so whether one focuses on the body of available reports on Italy or the comparative findings in MSS about Greece.

64.

It has to follow that the four claims before the court, despite their supporting testimony of individual risk, are incapable of succeeding under article 3 on the present evidence, and that the Home Secretary is therefore justified in that respect in certifying them. The same necessarily applies to any distinct argument raised by AE and EH under article 8 by reference to the effect of conditions in Italy on their mental health.”

The order which the Court of Appeal made so as to give effect to its decision highlighted the court’s concerns. It reads as follows:

“The appellants are refused permission to appeal to the Supreme Court [it should be for the Supreme Court to decide whether to grant permission to appeal, but this Court recognises it as problematic that NS and MSS may pull in different directions and that, whilst NS binds the Court, so does the EU principle of not undercutting ECHR rights such as those articulated in MSS].”

In those circumstances, perhaps unsurprisingly, the Supreme Court granted permission to appeal. The Supreme Court has fixed hearing dates in November 2013. Realistically, it is unlikely that the Supreme Court will deliver its judgment before early 2014.

Meanwhile the law in this area has not stood still. In Mohammed Hussein v Netherlands (Application no. 27725/10) (2^nd April 2013) the Netherlands authorities proposed to remove a Somali asylum seeker to Italy pursuant to the Dublin II Regulation. The asylum seeker brought proceedings in Strasbourg alleging that such removal would constitute a breach of ECHR article 3.

The Third Section of the Strasbourg Court reviewed the up to date evidence concerning arrangements for asylum seekers in Italy. The court also reviewed the relevant case law both from the Strasbourg Court and from the CJEU without referring to any inconsistency between those two streams of authority. The court concluded that the applicant’s claims under article 3 of ECHR against both the Netherlands and Italy were manifestly unfounded. Accordingly the court held that the applicant’s claims were inadmissible. The core of the court’s reasoning was set out in paragraph 78 of its judgment as follows:

“78.

Taking into account the reports drawn up by both governmental and non-governmental institutions and organisations on the reception schemes for asylum seekers in Italy, the Court considers that, while the general situation and living conditions in Italy of asylum seekers, accepted refugees and aliens who have been granted a residence permit for international protection or humanitarian purposes may disclose some shortcomings, it has not been shown to disclose a systemic failure to provide support or facilities catering for asylum seekers as members of a particularly vulnerable group of people, as was the case in M.S.S. v. Belgium and Greece (cited above). The reports drawn up by the UNCHR and the Commission for Human Rights refer to recent improvements intended to remedy some of the failings and all reports are unanimous in depicting a detailed structure of facilities and care to provide for the needs of asylum seekers 9 see paragraphs 43-49 above). The Court would also note the manner in which the applicant was treated upon her arrival in Italy in August 2007, in particular that her request for protection was processed within a matter of months and accommodation was made available to the applicant along with access to health care and other facilities. Against this background, the Court considers that the applicant has not shown that her future prospects if returned to Italy, whether taken from a material, physical or psychological perspective, disclose a sufficiently real and imminent risk of hardship severe enough to fall within the scope of Article 3 (see, inter alia, Ireland v United Kingdom, 18 January 1978 § 162, Series A no. 25; Jalloh v. Germany [GC], no. 54810/00, § 67, ECHR 2006 – IX; Haidn v Germany, no. 6587/04, § 105, 13 January 2011; and M.S.S, cited about, § 219). There is no basis on which it can be assumed that the applicant will not be able to benefit from the available resources in Italy or that, if she encountered difficulties, the Italian authorities would not respond in an appropriate manner to any request for further assistance.”

Similar issues arose for consideration in the more recent case Daytbegova v Austria (Application no: 6198/12) (4^th June 2013). The applicants were seeking to resist removal from Austria to Italy pursuant to the Dublin II Regulation. They contended that such removal would constitute a breach of article 3 of ECHR. The First Section of the Strasbourg Court held that this claim was manifestly ill-founded and therefore inadmissible. The court withdrew its previous direction under rule 39, which had prohibited removal to Italy.

The core of the court’s reasoning is at paragraphs 66-69 of its judgment, which read as follows:

“66.

The Court firstly notes that the applicants never applied for asylum in Italy. They therefore do not have any first-hand experience of being hindered in lodging an asylum request or of finding any other obstacles to access thorough asylum proceedings on the merits of their claims. The Court therefore turns to the general information available to it on the legal and practical situation of the asylum procedure in Italy, and refers first and foremost to the Italian Government’s observation that the applicants will be able to lodge formal asylum applications with the competent authorities in Italy on their return there (see paragraph 51 and additional information on the Italian asylum procedure in paragraphs 33 and 34 above). While not disregarding the criticism raised in various reports concerning factual obstacles to the lodging of asylum applications in Italy (see paragraph 35 above), the Court finds that the information available does not point to the conclusion that those singular incidents amount to such a systemic failure as was the case in M.S.S. v Belgium and Greece (cited above, § 300). The same applies as regards the reports concerning the shortcomings of the general situation and living conditions for asylum seekers in Italy (see for the reports Mohammed Hussein, cited above, §§ 43-44, 46 and 49). Therefore, the Court establishes that there is no indication in the applicants’ submissions or deriving from the general information available that the applicants would not be able to access sufficiently thorough asylum proceedings upon their arrival in Italy or that the reception schemes failed in such a way to provide support or facilities for asylum seekers as members of a particularly vulnerable group of people (see also ibid., § 78).

67.

Turning to the undoubtedly severe psychological health issues of the second applicant, the Court notes that a particularly well planned reception might be necessary upon the second applicant’s return to Italy, including access to adequate housing and medical and psychological care.

68.

The Court observes that in general the Italian reception system provides access to health care, including psychological care, for all aliens, whether they have leave to remain or not (see paragraphs 37 and 38 above). The Italian Government’s observations also indicate that the Italian authorities are aware of the second applicant’s considerable mental health problems. The Court therefore concludes that the Italian authorities consider that the applicants, as a group of vulnerable persons within the meaning of Article 8 of Legislative Decree no. 140/2005 (see paragraph 37 above), will be eligible for special consideration as regards access to housing and psychological and medical care. Furthermore, the Italian authorities emphasised in their comments on the report of the Council of Europe Commissioner for Human Rights that, when the transferring country reported a particular vulnerability of a Dublin-returner, appropriate medical measures were taken. Special attention was paid to aliens with physical and psychological trauma, who were entrusted to the medical stations of the reception centres or at local level to receive treatment and support in a professional and appropriate way (ibid.).

69.

The Court thus considers that the Italian authorities are already aware of the applicants’ particular vulnerability and need for special assistance. It further trusts that the Austrian authorities will, in the event the applicants are removed to Italy, provide the Italian authorities with all the most recent medical and psychological documentation available to them, to ensure that the applicants are adequately and appropriately received there. Under these circumstances, the Court finds that there is no basis on which it can be assumed that the applicants will not be able to benefit from the available resources in Italy or that, if they encounter difficulties, the Italian authorities will not respond in an appropriate manner to any request for further assistance (see for comparison Mohammed Hussein, cited above, § 78).”

Fortified by this review of the law, I must now reach a decision on the present appeal.

The judge in his judgment of 12^th November 2012 carefully reviewed the authorities to date, including those of the CJEU and the Strasbourg Court. He came to the conclusion that he should treat the Court of Appeal’s decision in EM as authoritative, despite this court’s expressed misgivings about its judgment and the prospect of an appeal to the Supreme Court. He concluded that it was inappropriate to stay the present proceedings or indeed to suspend removals to Italy generally until the conclusion of the anticipated appeal in EM.

When this case came before me on the permission application in January I thought that arguably (indeed, to be candid, more than just arguably) the judge had fallen into error. The anticipated appeal in EM was, I thought, likely to have a critical impact upon the outcome of the present litigation. Accordingly this appeared to be one of those relatively rare cases where considerations of both justice and expediency demanded that proceedings be stayed until the outcome of the appeal in other litigation was known.

Nevertheless, the comment in paragraph 29 of my judgment granting permission to appeal still holds good. 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. In the last six months, there have been significant developments favourable to the Secretary of State’s case. We now have two significant and directly relevant Strasbourg decisions. These are the decision of the Third Section in Hussein and the decision of the First Section in Daytbegova.

Undoubtedly the Supreme Court’s decision in EM will provide helpful clarification of the law in this area. In my view, however, it is now unlikely that this clarification will have a critical impact upon the outcome of the present litigation. In those circumstances it is not appropriate that the present judicial review proceedings should continue to be stayed. These proceedings should now move forward to their final hearing. The Administrative Court judge at that hearing will have the benefit not only of the decisions in MSS, NS and EM (Court of Appeal), but also the more recent decisions in Hussein and Daytbegova. These authorities should provide sufficient guidance for the resolution of AB’s claim.

If my Lords agree, AB’s appeal against the order of the judge dated 16^th November 2012 will be dismissed.