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

MR JUSTICE CRANSTON: This is a renewed application for permission to apply for judicial review. Permission was refused initially on the papers by Owen J on 16 June. A month later in July on an application for an interim order to delay removal of the claimant, Foskett J ordered that the claimant should not be removed before the end of that month, the Secretary of State to file a response and papers then to be submitted to a judge. The matter came to me on 29 July on an application, again for interim relief, and I refused the application. On 4 August on an application for expedition, Ouseley J directed that the renewal hearing be listed in open court on 17 August, but he observed that there was to be no bar to removal meanwhile and if it would otherwise take place, the expediting of the hearing not to prevent removal.

The background, in very brief summary, is that the claimant is from the Sudan. He is detained. The Secretary of State seeks to return him to Italy pursuant to the Dublin Regulation. He has come to this country on three occasions. On his account when he was returned to Italy on a previous occasion the circumstances were so bad that he returned to Sudan, where he was tortured. The Secretary of State rejects that account on the basis that the claimant's credibility is low. The application now is to seek permission to challenge the decisions to refuse his asylum claim, to certify his claim and to set directions for his removal.

Before me Mr Chirico renews the application on what are in many ways new grounds. In his submission, the position has moved on considerably since the initial refusal of permission by Owen J and has even moved on since the order that I made at the end of July. There are three strings to Mr Chirico's bow: first, he refers to the new evidence which he says casts doubt on the findings of Hickinbottom J in R(EW) v SSHD [2009] EWHC 2957. Secondly, he contends that the position in relation to the application of the European Convention on Human Rights has changed as a result in particular of a test case, MSS v Belgium and Greece, the hearing of which is imminent, that throwing doubt on both EW and my decision in R(NS) v SSHD [2010] EWHC 705 Admin. Thirdly, Mr Chirico submits, perhaps most significantly, that the legal situation has changed since earlier decisions, such as the ones I have mentioned, as a result of the approved text of the Court of Appeal's reference to the Court of Justice to the European Union in the NS decision, which has only just become available.

The first submission, going to the evidence of the situation in Italy, rests on the reports of Gianluca Vitale, an expert in Italian law. In his excellent speaking note for this hearing Mr Chirico has highlighted a range of matters where he submits the Vitale reports throw new light on the situation on the ground in Italy. In particular, he highlights the issue of the lack of access to legal assistance within the asylum process and the lack of protection during it, which the Vitale reports identify. One aspect of that is the introduction of non-suspensive appeals in the Italian system.

The findings Hickinbottom J in the EW decision cover a range of matters. At paragraphs 31 to 46 of the report, his Lordship deals with the nature of the Italian immigration system. Then, in relation to what were said to be in that case failures of the Italian system relating to applications for asylum, Hickinbottom J addresses the issue in various ways. For example at paragraph 67 of his detailed judgment he refers to the high success rate of applications for asylum in Italy, namely 50 per cent of applicants. That success rate, says his Lordship, belies the simple suggestion that the Italian authorities are institutionally xenophobic, or do not otherwise strive to comply with their obligation to take legitimate refugees under the Refugee Convention.

At paragraph 73 his Lordship deals with the issue of delay and concludes that the evidence does not support the challenge that unreasonable time has been taken to determine claims. His Lordship then goes on to deal with the issue of accommodation and the general support available to asylum seekers in Italy. At paragraph 81 he concludes that, on the basis of the evidence before him, it was likely that the claimant's application in that case for asylum would be identified, he would be given information about it or if the application had lapsed because it had been determined in his absence, he would be given information as to renewing the application. Professor Vitale accepts that summary.

In concluding his judgment Hickinbottom J says, at paragraph 118, that he had found that the Italian authorities were not in breach of their obligations under Article 3 ECHR nor were they in breach of the relevant European Union Directives, in particular of article 13(2) of the Reception Directive. Moreover, at paragraph 120 his Lordship says:

In my view the evidence in the Vitale reports is not sufficiently persuasive, given Hickinbottom J's very detailed findings, so as to render arguable the contention that he was wrong in relation to the conclusions he reached regarding Italy. It may be that the Vitale reports introduce a number of nuances, and provide additional information, but given the thrust of the EW decision and the very firm conclusions which his Lordship made, in my view it is not arguable that this new evidence casts doubt on the findings of EW so as to justify a grant of permission in this case.

The second head of submissions advanced by Mr Chirico relates to the jurisprudence of the Strasbourg court. In both EW and NS the court relied on the admissibility decision of KRS v the United Kingdom application 32733, 2008. That decision also played an important part in the House of Lords decision of Nasseri [2009] UKHL 23; [2010] AC 1. In KRS that case the Strasbourg Court set aside a rule 39 indication preventing the removal of the claimant in that case from the United Kingdom to Greece. On that basis the law seemed to be that allegations of breaches of reception conditions and procedures in a third country, such as Greece, should be resolved after removal to that country.

In Mr Chirico's submission the situation has changed radically. The European Court of Human Rights has granted interim measures prohibiting returns to Greece in over 600 cases. That indicates plainly that the court no longer regards KRS as determinative. Moreover, as I indicated, there is now the test case MSS v Belgium and Greece, which will be heard by the Grand Chamber of the Strasbourg Court on 1 September 2010. Since KRS is fundamental to decisions such as EW and NS, Mr Chirico contends, it is now arguable that the approach of the Secretary of State in this case can no longer be supported, based as it is on that jurisprudence. But in my view the answer is that although MSS may produce a variation in principle, it is clear that in both EW and NS this court did not find any breaches of Article 3 of the Convention. Article 3 of the Convention has purchase in particular factual contexts, and importantly for Italy, Hickinbottom J in EW found that it had none. On that basis I do not regard this head as arguable.

Perhaps the most significant of Mr Chirico's points is the third. That relates to the reference by the Court of Appeal of the NS decision to the Court of Justice of the European Union. Given that reference, in his submission, the approach of the Secretary of State in this case is arguably wrong. The reference raises the issue of the discretion which the Secretary of State has under Article 3(2) of the Dublin Regulation not to transfer where that would expose a claimant to a risk of violation of his or her fundamental rights. That, in Mr Chirico's submission, implicitly raises the question of whether and in what circumstances allegations of potential breaches of European Charter of Fundamental Rights must be examined before removal from this country.

Moreover, the CJEU reference raises in stark terms the application of Articles 1, 18 and 47 of the charter, namely the articles which relate to dignity, the right of asylum and the right to an effective remedy and fair trial. In particular do they have a wider scope than Article 3 of the European Convention. If they do, then it becomes arguable that the findings in EW, and for that matter my findings in NS, are not extensive enough to cover all of the legal rights which a person such as this claimant has when the Secretary of State seeks to return a person like this claimant under the Dublin Regulation.

Moreover, Mr Chirico contends that the wording of the Court of Appeal reference is such that any decision of the court will have relevance not only for those being returned to Greece, but to all those who are returned to any jurisdiction under the Dublin Regulation where there is a serious issue about whether the fundamental rights of that person will be breached. On that basis the order that I made in late July, and the order which Ouseley J earlier this month, made cannot be accurate, given that we both said that NS was a case that simply dealt with the situation in Greece. Thus, Mr Chirico contends, it is arguable, for example, that the Secretary of State has not properly considered exercising her power under Article 3(2), sometimes called the Sovereignty Clause, of the Dublin Regulation.

In my view NS is a case relating to returns to Greece; in my view EW is determinative as to the factual situation in Italy. Unless the evidential position in Italy has undergone a material change -- and for reasons I have given I do not regard that as arguable -- the question raised in NS as to the potential reach of Articles 1, 18 and 47 of the charter do not have any purchase in this case. In NS I explored the scope of the charter and found that in a situation such as the present, where there is a relatively young man who has demonstrated enterprise in crossing continents, the right to dignity, as set out in the charter would have no application. Given the factual findings in EW nor do the rights in Articles 18 and 47. For all these reasons I refuse permission.

Mr Chirico I am prepared to order that there is a transcript expedited at public expense so that you can go elsewhere.

MR CHIRICO: I would also make an application for a stay of removal pending, because present removal directions are set for I believe 23 August. I would request they are stayed for 14 days, and to be quite frank I was expecting a different decision on permission today, so I have not thought through what I would ask. In terms of permission being refused I would not, in terms of permission being made elsewhere--

MR JUSTICE CRANSTON: No, you just go elsewhere, I don't give you permission.

MR CHIRICO: On the basis that my instructing solicitors will need to take instructions on what the claimant proposes to do, I would seek a stay of any removal for 14 days.

MR JUSTICE CRANSTON: I am not prepared to order that, I am not prepared to order a stay. Both Ouseley J and I have considered the matter.

MR CHIRICO: My Lord I would simply indicate, as you have indicated, whatever your view of permission at this stage, both your Lordship and Ouseley J relied upon views which understandably were not correct as to the scope of the ECJ reference. My Lord, I have nothing more to say.

MR JUSTICE CRANSTON: No.

MR CHIRICO: My Lord, I think also, can I ask for a detailed assessment of our publically funded costs?

MR JUSTICE CRANSTON: Yes. Anything else?

MR ARWAL: I am instructed to ask for our costs, the Secretary of State's costs, in some £480 which would cover the costs of preparing the acknowledgment of service.

MR JUSTICE CRANSTON: That is standard.

MR CHIRICO: My Lord, yes, it is standard. There is nothing I can say.