Dalbudak, Re Application for Permission

1. MR JUSTICE HOOPER: This is a continuation of the hearing of an application for permission to apply for judicial review of the decision to remove the claimant and his family on 25th February 2003 to Germany.

2. At the conclusion of the last hearing I gave my reasons for concluding, amongst other things, that the removal on that date was arguably unlawful. I then adjourned until today the issue of whether it was arguable that, even if the removal was unlawful, this court would, after a full hearing, declare the removal unlawful and order the Secretary of State to use his best endeavours to return the family to this country. I adjourned it to enable the claimant's solicitors to prepare a statement setting out the reasons why, in their view, failure to ensure the family's return to this country at this stage would involve a breach of Article 6. Mr Scott has prepared a statement dated 15th May, to which I turn shortly.

3. In answer to that statement, the Secretary of State has prepared a letter dated 21st May. In that letter, in the final paragraph, the Secretary of State stated that he was "wholly satisfied that your client's removal to Germany did not arguably breach his human rights under Article 6 and that any allegation to the contrary is clearly unfounded". That certificate, if a lawful certificate, has the effect, it is agreed, of preventing the claimant from enjoying the benefits of an in-country appeal against the conclusions contained in that letter. What the letter does not do, as Mr Patel stated, was in any way to validate retrospectively the removal if the removal was unlawful.

4. The issue which the Secretary of State has to address is whether "there is a reasonable requirement that in order for [the claimant] to be able to conduct his proposed civil proceedings with reasonable sufficiency he should be allowed to remain in the United Kingdom". I take that from paragraph 8 of the letter of 21st May.

5. My task is to decide whether it is arguable that the view now formed by the Secretary of State in this letter is arguably wrong; to put it another way, would an appeal against this decision be bound to fail? If I were to reach the conclusion that any appeal was not bound to fail, then I would grant permission in this case. If, on the other hand, I were to reach the conclusion that the Secretary of State is undoubtedly right in his conclusion, then, for the reasons I have explained, this court would not grant any relief even if the removal was unlawful.

6. Both counsel have sensibly, if I may say so, addressed me on this letter and on the witness statement prepared by the claimant's solicitors.

7. The witness statement of Mr Mark Scott, in paragraph 8, states that certificates of public funding have been issued and counsel has been instructed to advise. A positive advice has been given. It was given on the very day of removal. There are, in paragraph 8.5, four claims. Paragraph 8(a) refers to proceedings to be brought against the Home Office in respect of the treatment of the claimant and his wife during their arrest and detention on 16th and 17th July 2002. The fact that the family were detained at their home in Newcastle on 16th July was mentioned in the letter of 2nd September 2002, which set out the Article 6 claim. The paragraph from the letter reads that the family were "extremely distressed about the way in which they were treated by the arresting officers and about the conditions of their transport to and detention at Harmondsworth". Paragraph 8(b) refers to two alleged assaults on 15th August 2002. I said something about that in my previous judgment. It is sufficient to look at the letter of 2nd September to see the broad outlines of the claim. They are that the claimant's wife was assaulted by immigration officers, and when her husband became involved, he, the claimant, was also assaulted. It is said that during this incident the children were also hurt and that, whilst locked into a room, the claimant injured his hand. That was an incident which only took a matter of moments, albeit against the background of an attempt to remove the claimant and his family from the country, which was thwarted when the claimant told the pilot about a heart condition, or alleged heart condition.

8. Paragraph 8(c) refers to the lawfulness of the detention between 4th and 30th September 2002. Paragraph 6 refers to a claim in respect of an alleged denial of education to the two children of the claimant and his wife.

9. During the course of argument it became clear, and Miss Harrison accepted, that if she were to succeed it would be in relation to paragraph 8(b), namely the alleged assault on 15th August. Insofar as paragraph 8(a) is concerned, enquiries might need to be made. We are talking about a comparatively simple issue. Paragraph 8(c) raises issues primarily of law and paragraph 8(d) raises issues of law, at least until, in respect of both, liability was established, if it were to be.

10. In paragraph 10 Mr Scott described the litigation as complex. It is Miss Harrison's argument that what is said there and what is said thereafter in this paragraph is such that it must follow that it is arguable that the certificate is an unlawful certificate.

11. With all respect to Miss Harrison, I cannot agree with that. The task of this court is to scrutinise what Mr Scott has written.

12. To the extent to which the litigation is complex, I have already indicated that this court, as indeed the adjudicator, would and must concentrate on the 15th August for the reasons I have given. The first bulleted paragraph refers to detailed instructions being necessary from the claimant's wife about the medical records obtained relating to the alleged assault on her on 15th August. The claimant's solicitors have obtained records from the detention centre. These are medical records which, although I have not seen them, no doubt refer to her physical condition at this time, and I shall so assume. Miss Harrison told me they were some four or five pages long. I, for my part, find it inconceivable that detailed instructions would be necessary about those medical records. Instructions would be needed, but to describe them as detailed, in my view, with all respect to Mr Scott, just cannot be right.

13. The next bulleted point refers to detailed instructions about the statement that the claimant's wife gave to the police investigating the alleged assaults. She made a lengthy statement to the police at the time of these events or shortly thereafter. Again, to talk about detailed instructions seems, with all respect again to Mr Scott, to be exaggerating what is necessary. Her comments on the statement will be needed, but given that the statement was made close to the events in question, it is difficult to see why detailed instructions will be necessary, given that the whole incident was over very quickly.

14. The next bulleted point, as the Secretary of State points out in paragraph 7, is not relevant until after further stages of these proceedings.

15. There is then a reference to "our preliminary statements will need to be updated to take account of events subsequent to 28th August 2002". Apparently, although the claimants were on bail through much of the period from September through to shortly before their removal, those statements were not taken. Nonetheless, they do not relate, of course, to the assault, but could be valuable with reference to the other bulleted points.

16. Finally, it is said that a statement will be needed to be taken from the boy, who is twelve years old. It is said that the family are traumatised, have difficulties in giving instructions and speak and read very limited English. It is said that it is practically impossible to obtain instructions from them unless in person and in this country. It is said that a number of lengthy appointments will be necessary to complete this process. Whether that is true at some later stage I know not, but to say that at this stage of proceedings a number of lengthy appointments is necessary is, I am afraid, in my view quite unfounded.

17. The next paragraph is reference to psychiatric assessment of the adults and children. Insofar as that is concerned, it is suggested in paragraph 11(c) that consultant psychiatrists would have to travel either to Germany or to Turkey, to which they may be sent. Again, with all respect to Mr Scott, it proceeds on the assumption that Germany and Turkey are countries where one cannot find psychiatrists. It proceeds on a basis where the only people who could give that kind of evidence are psychiatrists in this country. Reference is made in 11(a) and (b) to teleconferencing and the solicitors travelling to visit the family as well as (d), using overseas solicitors as agents. As to that, rightly in my view, the Secretary of State reaches the conclusion set out in paragraph 6 that overseas lawyers can properly be used.

18. I have to remind myself that what we are concerned with is return at this early stage of the proceedings before the matter has been considered for allocation. It may be, I know not, that the issue of the assault is split off to be looked at quite separately. If that was the case, one would imagine that would occupy the time of a district judge in a small claim or a circuit judge in a fast-track case for not very long. Again, I find it surprising, if not depressing, that the solicitor envisages these proceedings not being over until the summer of 2005. I take that from the lengthy schedule which was attached to a letter sent to the claimant and his wife prior to the removal, setting out the history of the litigation.

19. Whilst not in any way suggesting that it will be unnecessary for the claimant and his wife to return to this country at some future stage once the nature and timing of the civil litigation has been established, it seems to me that the Secretary of State is right to say that at this stage it cannot be said arguably that there would be any breach of Article 6 by not ensuring their return at this stage.

20. In my judgment, the Secretary of State was right to reach the conclusion that there was no reasonable requirement that, in order for the claimant and his family to be able to conduct the proposed civil proceedings with reasonable efficiency, they should be allowed to remain in the United Kingdom. I reach that conclusion ignoring the contents of paragraphs 9 and 10 of the letter, which set out allegations against the claimant, and I do not feel it necessary to enter into any balancing exercise as set out in paragraph 12.

21. In my judgment, this is a simple issue, and for the reasons I have given this renewed application for permission fails.

22. Thank you both very much.

23. MISS HARRISON: My Lord, the only matter we raise is that the claimant is legally aided.

24. MR JUSTICE HOOPER: Yes, of course.

25. MISS HARRISON: And we would request a detailed assessment.

26. MR JUSTICE HOOPER: Yes, it is a proper case to bring -- once you get your certificate.

27. MISS HARRISON: Right.

28. MR JUSTICE HOOPER: Seven days.

29. MISS HARRISON: I am grateful.