Hamad & Anor, R (On the Application Of) v The Secretary of State for the Home Department

These two judicial review claims were heard together before me. The claimant in the first claim, Mr Hamad, is a Libyan citizen. The claimant in the second claim, Mr Ararso, is an Ethiopian citizen. Both entered the United Kingdom, having previously entered the territory of the European Union by arriving on the island of Malta from Libya.

The defendant (“the Secretary of State”) proposes to return both claimants to Malta and has issued statutory certificates to that end. The claimants ask the court to quash the certificates in question. Mr Ararso also claims damages for alleged unlawful detention from 28 August to 7 November 2014, a period of 72 days.

Mr Hamad was born on 11 March 1988. He is a national of Libya. On 16 February 2013 he travelled lawfully to Malta by air, with a valid passport and a Schengen visa. From there he travelled to France and then to the United Kingdom, where he was arrested in Hertfordshire after being found concealed in a lorry. His passport and visa remained valid. He claimed asylum, saying he would be killed if returned to Libya.

He was detained and fingerprinted. He made an allegation of torture but this was not accepted. On 1 April 2013 the Maltese authorities accepted responsibility for dealing with his asylum claim. On 3 April 2013 the Secretary of State issued a certificate that the conditions mentioned in the relevant provisions of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (“the 2004 Act”) were met, and that she proposed to remove Mr Hamad to Malta.

The Secretary of State issued directions for Mr Hamad’s removal. The latter made submissions that his removal would lead to a breach of articles 3 and 5 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the European Convention”). The Secretary of State rejected these submissions and issued further directions for removal to Malta on 15 April 2013. On 12 April 2013 Mr Hamad issued his claim in these proceedings. The removal directions were therefore cancelled and he was subsequently released from detention.

Permission was initially refused on the papers by Stewart J on 26 July 2013. After further exchanges, the question of permission was eventually considered at an oral hearing on 22 May 2014 by Mr Charles George QC sitting as a deputy High Court judge. He granted permission but stayed the claim pending further developments. It is not necessary to recite all the detail of the procedural history.

In August 2014, the Secretary of State again considered Mr Hamad’s contention that his removal to Malta would result in a breach of article 3 of the European Convention. In doing so, she considered further written evidence submitted by Mr Hamad’s solicitors. In her decision letter dated 17 August 2014, the Secretary of State determined that the evidence and arguments submitted by Mr Hamad did not come close to rebutting the presumption that Malta would treat him in compliance with its international law obligations.

The Secretary of State therefore certified under the relevant provisions of the 2004 Act that Mr Hamad’s human rights claim (that to return him to Malta would lead to a breach of article 3 of the European Convention) was clearly unfounded, and that accordingly Mr Hamad could not appeal against the Secretary of State’s decision until after leaving the United Kingdom.

It was then agreed that Mr Hamad’s claim would be amended and further evidence filed. That was done, and the matter was listed for hearing starting on 20 July 2015. Six days before the hearing, during the preparation of skeleton arguments, the Secretary of State issued a fresh decision letter dated 14 July 2015. In that letter, the Secretary of State responded in detail to the evidence and arguments submitted on behalf of Mr Hamad, in the light of the up to date domestic and European case law, which had evolved since the claim had initially been brought in early 2013.

The Secretary of State again concluded that Mr Hamad’s evidence and claims came nowhere near rebutting the presumption that Malta would treat him in accordance with its international law obligations. She therefore did not accept that his removal to Malta would result in a real risk that he would suffer treatment contrary to article 3 (or article 5) of the European Convention.

She therefore again certified pursuant to the relevant previsions of the 2004 Act that his human rights claim was clearly unfounded, but confirmed that arrangements to remove him to Malta would not be made until the conclusion of the pending judicial review claim, or further order.

At the hearing before me, it was agreed that Mr Hamad should be granted permission to mount his challenge against the most recent decision of the Secretary of State.

Mr Ararso is a citizen of Ethiopia, born on 19 July 1988. It is common ground that the facts leading to his entry into this country may be taken from the judgment of Mitting J in MB and others v. SSHD [2013] EWHC 123 (Admin). In his judgment (at paragraphs 15-17) Mitting J stated:

GA [Mr Ararso] is a 24 year old Ethiopian national of Oromo decent. He arrived in the United Kingdom on or soon before 13 January 2012 and claimed asylum. A Eurodac check made on 13 January 2012 revealed that he had been fingerprinted in Malta on 11 September 2008. His screening interview took place on 16 January 2012. He said that he had left Ethiopia in September 2007, for Sudan, where he stayed for one month and three weeks. He left for Libya, where he stayed until 2008, when he left by boat for Malta. He said that he was detained in Malta “for a month or two”, was fingerprinted and claimed asylum. He was released “after a year in detention” and went to Italy by boat in November 2011. From there he left for France by train. He confirmed in response to specific questions, that he had been fingerprinted in Malta and had claimed asylum there. In a witness statement signed and dated 23 November 2012 (but headed “statement of 11 October 2012”), he said that he fled Ethiopia because of his support for the Oromo Liberation Front. He gives an account of events before his arrival in Malta consistent with his screening interview. He said that he travelled from Libya to Malta in a boat with about 79 other people in a voyage of three days. Before he got to Malta “the navy arrived and diverted the boat”. He and the others were given water, their fingerprints were taken and they were taken to prison, where he stayed for one year. He said that there were about 100 people in each room, about four metres by ten metres. They were fed three meals a day, of small amount. “Personal hygiene” was very bad and there were small toilets in the corner of the room. After a year, he was discharged to an overcrowded tented facility. He was given €130 per month to buy food. This payment ceased after a year and a half and he was told to leave the camp. He then stayed with Roma people for about six months and finally left for Italy. Contrary to what he had said in his screening interview, he said that he did not claim asylum: “I did not claim asylum, no-one came to ask me about my case and no-one came to offer any legal help”.

… I am satisfied that a claim for asylum was made by or in respect of GA and rejected. I am also satisfied that an appeal against that decision was made by him or in respect of him and also rejected. On that premise, but otherwise on the basis of his own account, he was a failed asylum seeker in Malta for about 2 years and 2 months before leaving for Italy in November 2011.

… On 31 January 2012 the Maltese authorities accepted that pursuant to Dublin II [Council Regulation (EC) 343/2003 of 18 February 2003] they were responsible for GA and would take him back. According to the immigration factual summary, the SSHD issued a third country certificate on 1 February 2012. For reasons which are not explained, a second third country certificate was issued on 14 March 2012. This anomaly is immaterial. On 3 February 2012, removal directions were set for 14 February 2012. That prompted these proceedings, claiming that removal to Malta would infringe GA’s rights under article 3 ECHR. On 16 January 2013 the SSHD refused to accept that claim and issued a clearly unfounded certificate.

Mitting J in his judgment rejected the claims of Mr Ararso (and others), finding that they were not “asylum seekers” for the purpose of that regulation (“Dublin II”). An attempt was made to appeal against that decision. The argument was modified at the stage of seeking permission to appeal. Following an oral hearing, Aikens LJ gave a short judgment in MB and others v. SSHD [2013] EWCA Civ 1701. Aikens LJ did not grant permission but indicated that it would be desirable for the court to hear argument on whether:

article 18 of the Charter [the Charter of Fundamental Rights of the European Union (2000/C364/01) (“the EU Charter”)] grants rights in relation to refugee status and asylum which are fundamental and… in that sense, they are wider or deeper than those that are granted by the European Convention… particularly article 3 … .

The Secretary of State then withdrew her certification of Mr Ararso’s human rights claim and, by consent, his proposed appeal was withdrawn, without prejudice to his right to challenge any further certification of his human rights claim and asylum claim. On 11 August 2014 the Secretary of State again certified Mr Ararso’s human rights claim as clearly unfounded. The decision letter stated that there was no evidence to suggest that the presumption that Malta would comply with its relevant international obligations was rebutted on the facts.

From 28 August 2014, Mr Ararso was detained on the basis that his removal from the United Kingdom was considered to be imminent. He was released on 7 November 2014, by which time (on 7 October 2014) the present proceedings had been issued, and it was clear that removal was no longer imminent.

Permission was initially refused on the papers in November 2014, but was granted on 15 January 2015 by His Honour Judge Mitchell sitting as a deputy High Court judge at an oral hearing. From 5 May 2015, Mr Ararso’s case became linked to that of Mr Hamad. Both claimants rely on the evidence filed in Mr Hamad’s claim relating to conditions in Malta facing entrants from countries such as Libya and Ethiopia who seek assistance on arrival.

During the phase of preparing and exchanging skeleton arguments, the Secretary of State issued a fresh decision letter in the case of Mr Ararso, dated14 July 2015. In that letter she responded in detail to the documentary evidence relied upon in support of Mr Ararso’s claim, in the light of the up to date domestic and European case law. She concluded that the evidence submitted did not come close to rebutting the presumption that Malta would treat Mr Ararso in compliance with the requirements of the EU Charter, the Geneva Convention and the European Convention.

Accordingly, she rejected the argument that his removal to Malta would result in a real risk of treatment contrary to article 3 (or article 5) of the European Convention and certified his human rights claim as clearly unfounded, with the consequence that he could not appeal against her decision until after leaving the United Kingdom. She confirmed, however, that arrangements for his removal to Malta would not be made until the conclusion of the current judicial review claim.

The claimants relied on two categories of documentary evidence relating to conditions for asylum seekers in Malta: publicly available reports prepared by international bodies, and witness statements from professionally concerned individuals with experience and expertise on the ground in Malta. I will mention these documents in the order of their creation.

The claimants rely, first, on an April 2009 report by Médecins Sans Frontières (“MSF”) entitled Not Criminals. It states that in 2008, MSF was providing health care in Maltese detention centres and noted that living conditions were appalling at three detention centres, Safi and Lyster barracks, and Ta’kandja. The report’s authors also stated that illegal entry to Malta is an administrative offence attracting automatic detention on arrival.

In a press release dated 6 April 2009, MSF explained that it had suspended its medical humanitarian activities in those three detention centres for undocumented migrants and asylum seekers in Malta, due to unacceptable living conditions. It called upon the Maltese and European authorities to take urgent measures to improve the situation.

On 18 January 2010, a working group on arbitrary detention set up by the Human Rights Council of the United Nations Assembly reported on a mission to Malta nearly a year earlier, from 19-23 January 2009. The authors of the report complained of the practice of mandatory detention for up to twelve months and poor living conditions in closed immigration detention centres.

In December 2010, Amnesty International produced a report entitled Seeking Safety, Finding Fear – Refugees, Asylum-Seekers and Migrants in Libya and Malta. The authors of the report noted concerns about the efficacy of the appeal system for failed asylum seekers, saying that negative decisions were “not sufficiently reasoned”; that asylum seekers and their lawyers were “not granted full access to the case file”; and that the Refugee Appeals Board (“RAB”) holds its sessions behind closed doors.

The report’s authors noted that the RAB had reportedly reversed decisions in only four cases between 2002 and 2008. In the same report, deplorable living conditions were noted in the Hal-Far detention centre, in which residents were living in metal containers or tents without direct access to running water or proper sanitation facilities.

The claimants relied, next, on a report dated 9 June 2011 by Thomas Hammarberg, Commissioner for Human Rights of the Council of Europe, following his visit to Malta in March 2011 (“the Hammarberg report”). He expressed similar concerns about living conditions in closed detention centres and open centres. He noted an improvement in the length of time taken to process asylum applications, but regretted the absence of legal aid for first instance proceedings before the Office of the Refugee Commissioner and stressed the need to improve access to case files for asylum seekers and their representatives.

I was shown statistics produced for the year 2011 by the United Nations High Commission for Refugees (“UNHCR”). These recorded, among other things, that four per cent of asylum decisions granted refugee status that year, while 48% granted “subsidiary protection”, 41% being rejected. Two decisions were overturned by the RAB from a total of 723 appeals that year.

In May 2012, the International Commission of Jurists (“ICJ”) reported on a visit to Malta the previous September, expressing similar concerns, in particular about detention conditions at the Safi barracks, which were regarded as “beyond on the threshold of degrading treatment, and therefore in violation of article 3 ECHR…” and other international instruments.

The ICJ also reported its concerns that unsatisfactory living conditions at the Hal-Far hangar Open Centre Accommodation (“OCA”) were such as to establish a breach of article 3 of the European Convention and other international human rights instruments.

In the same report, the ICJ criticised the limiting of free legal assistance to the appeals stage during the asylum determination process; the three day time limit for presenting an appeal; and the requirement that appeals must be on a point of law. It concluded that “there was a need for substantial reform of the system of immigration appeals…”.

In March 2013, the UNHCR’s Human Rights Liaison Unit produced a written submission on conditions in Malta. It noted some improvements in conditions, such as the taking of steps to address the poor conditions in OCAs, including the cessation of use of tents as accommodations at Hal-Far.

On the subject of determination of refugee status, the report’s authors noted that while around 60% of those applying for refugee status obtained some form of protection, only 3% were granted refugee status and that successful appeals to the RAB remained “remarkably low, even taking into account the initial high recognition rate”.

The report’s authors noted that access to legal assistance is a right granted throughout the procedure but that legal aid is only available without charge at the appeal stage. The UNHCR did not in that report make any suggestion that returns to Malta from other EU states should cease or be suspended.

In July 2013, the Council of Europe’s European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment prepared a report for the Maltese government, based on a visit in September 2011. Material improvements to conditions at the Lyster and Safi detention centres were noted though two of the warehouses at Safi barracks were still regarded as “appalling”.

In October 2013, the European Commission against Racism and Intolerance (“ECRI”) also produced a report on Malta, on which the claimants relied. The report’s authors noted that “the Maltese authorities have made remarkable efforts to improve the asylum determination procedure” (paragraph 115), but continued to have a concern that there was a “a tendency to grant humanitarian protection to applicants who, in some cases, may qualify for refugee status”; and that the recognition rate for refugee status “is stable at around 4%, notwithstanding the fact that most applications are lodged by nationals of Somalia and Eritrea, countries which, generally, generate a high number of refugees” (paragraph 117). In the same report (paragraph 132) the ECRI echoed concerns about the Hal-Far OCA, in particular the high temperatures in the summer months.

In its written response, the Maltese government included the following:

The Office of the Refugee Commissioner notes that all asylum claims are considered on their individual merit. All the asylum-seekers are given an opportunity for a personal interview during which they are given ample time to explain in detail the reasons for seeking asylum. The evidence presented by the asylum-seeker, including verbal as well as other documentary evidence, is examined thoroughly.

When assessing an asylum claim, the Office of the Refugee Commissioner starts by examining whether the applicant satisfies the criteria to be recognised as a refugee in terms of article 1(a) of the 1951 Geneva Convention. Failing this, the Office proceeds to examine whether the asylum seeker risks facing serious harm as defined in article 15 of the Council Directive 2005/85/EC, if s/he had to be returned to his/her home country.

The Office of the Refugee Commissioner has introduced a number of measures to ensure efficiency and to retain a high level of quality in the decision issued. In fact, it is to be noted that the recognition rate in Malta at the end of December 2012 stood at 86 per cent. The European average is 25 per cent. To this effect, Malta has the highest recognition rate in Europe.

In December 2013, the UNHCR’s Malta office produced a joint report with an organisation called Aditus, a local non-profit making body established in 2011 with the objective of securing human rights access in Malta. The report was entitled Refugee Integration Perspectives in Malta.

Under the heading “Refugee Challenges”, the report included the following passage to which the claimants drew attention:

Homelessness was repeatedly raised in a substantial number of sessions. This was linked to unsustainable departures from the protection offered by open centres (e.g. situations where refugees find themselves out of work following their entry into the community), termination of Open Centre Service Agreements and the policy of not authorising residents in open centres to asylum-seekers not reaching Malta by boat.

The next document I was asked by both parties to consider is a country report on Malta prepared by the Asylum Information Database (“AIDA”). It was jointly researched and written by the Aditus Foundation and the Jesuit Refugee Service (Malta). It was edited by the European Council on Refugees and Exiles, and forms part of the “AIDA project” which provides ongoing and periodically updated information on asylum practice in 14 EU member states.

The AIDA report before me was updated to February 2015. A previous version updated to May 2014, was considered by the Upper Tribunal in R (Binyan Hagos) v. Secretary of State for the Home Department [2015] UTIJR 6, a case to which I shall return later in this judgment.

The following main points emerged from the AIDA report:

(1)

It included at the start some statistics which were difficult to interpret. There was a debate before me about the proper approach to these and other statistics in the case, by reference to the decision of the Court of Appeal in R v. Secretary of State for the Home Department ex p. Gashi [1999] INLR 276 (which I did not find of much assistance in the present context).

(2)

To my mind, the statistics appear to indicate the following. Of the 2,203 asylum applicants in 2013 (of whom 16 were from Ethiopia and 108 from Libya), 3% were granted refugee status, while 79% were granted some sort of subsidiary or humanitarian protection. This latter form of protection could include the grant of leave to remain for a year. The proportion of Ethiopians granted refugee status from the 2013 applicants was higher than the norm, at 9 out of 16, though it is not clear why this is also recorded as “36%”.

(3)

In 2013 there were 2,224 asylum decisions at first instance. Of these, 53 resulted in the grant of refugee status and 1,664 in the grant of subsidiary protection, with a further 67 being granted humanitarian protection. On appeal, there were 154 decisions, of which one resulted in a grant of refugee status on appeal, and a further four resulted in grants of subsidiary protection.

(4)

There was a surge of new arrivals from Libya towards the end of 2014. According to the AIDA report, the Refugee Commissioner has been granting, as a minimum, temporary humanitarian protection to all Libyan applicants and refugee status has also been granted in some cases. And “[t]he Immigration Police have been conducting regular reviews of the detention of all detained persons.” (page 9 of the AIDA report).

(5)

An unsuccessful asylum seeker has two weeks in which to appeal against a decision of the Refugee Commissioner. The appeal is to the RAB. An appeal has suspensive effect, such that an asylum seeker may not be removed from Malta until a final decision has been taken on the appeal (page 12 of the AIDA report).

(6)

Appeals usually take the form of written submissions to the RAB, though oral hearings are sometimes held. The introduction of fresh evidence on appeal is restricted to new evidence that was previously unknown or could not have been produced earlier, at first instance. I was shown the relevant provision of Maltese law making provision to this effect.

(7)

There was a debate between the parties as to whether the restriction on introduction of fresh evidence on appeal was confined to appeals where an oral hearing is held, or whether the provision also applies to appeals determined on the papers. The provision seems to me capable of either interpretation, and I do not attempt to decide this point of Maltese law (see page 16 of the AIDA report).

(8)

In the month leading up to February 2015, there was a marked increase in the number of oral hearings held by the RAB on appeals, and a significant increase in the proportion of first instance decisions overturned on appeal. Hearings before the RAB are not held in public and decisions are communicated only to the applicant concerned, any known legal representative, the Refugee Commissioner, the Minister and UNHCR (pages 16-17 of the AIDA report).

(9)

There is no free legal aid available to pursue a first instance decision on an asylum application. On appeal, however, free legal aid is available. The only free legal assistance to asylum seekers at the first instance stage is provided by a limited number of lawyers working with non- governmental organisations (“NGOs”).

(10)

On appeal, where free legal aid is available, representing lawyers are not allowed to copy information from their client’s file but may manually copy its contents at the Refugee Commissioner’s office. There are also legal provisions restricting access on the basis of national security or public order considerations. The appeal process is usually quite simple and is conducted in writing, but requires legal assistance to be effective (pages 19-20 of the AIDA report).

(11)

The UNHCR has access under national legislation to asylum applicants including those in detention or in airport or port transit zones (page 30 of the AIDA report). The UNHCR and the Malta Red Cross visit detention centres weekly (page 52). NGOs do not have direct access but lawyers representing asylum seekers through those NGOs are allowed to visit their clients in detention (page 30).

(12)

An asylum seeker whose claim has been rejected may submit a fresh application to the Refugee Commissioner. It is treated as a fresh claim if it includes “elements or findings that were not presented before”. This requirement is strictly interpreted and would entail evidence of which the applicant was not aware and which could not reasonably have been submitted earlier (page 31 of the AIDA report).

(13)

Where a subsequent application is not accepted as a fresh claim, the asylum seeker may appeal to the RAB in the same way as in the regular procedure, subject to a time limit of 15 days. This appears to refer to a right of appeal against a decision to reject a fresh claim on the ground that it does not include new elements that could not have been submitted earlier, though the position is not entirely clear.

(14)

The start of the conflict in Syria led to a rise in the number of asylum applications from Syrians entering Malta and claiming protection, or overstaying in the case of those already in Malta when the conflict started. When the conflict intensified, the adequacy of “temporary humanitarian protection” for those Syrians claiming to be at risk of serious harm if they were returned to Syria, was questioned.

(15)

In 2013 the RAB overturned first instance decisions limiting the protection to temporary humanitarian protection in such cases. Instead, “subsidiary protection” was granted and some Syrians were recognised as refugees (pages 36-37 of the AIDA report).

(16)

At the end of 2014 there was a marked rise in the number of Libyan asylum seekers, both new arrivals and those who had been already living in Malta. All have received temporary humanitarian protection as a minimum, and some have been recognised as refugees (page 37 of the AIDA report).

(17)

Asylum seekers in detention are provided with accommodation, food and clothing. Asylum seekers in OCAs are provided with accommodation and a daily food and transport allowance. Limited free medical help is available to those in detention, while those living in OCAs have difficulty in securing an adequate standard of living. Those returned under the “Dublin” system receive €2.91 per day. Those living in OCAs are required to contribute €8 per week towards the cost of their upkeep (pages 39-40 of the AIDA report).

(18)

Living conditions in the OCAs varied from one to another, with overcrowding being a common problem. Residents are housed in containers with up to 24 people in one OCA per container, and up to eight in another (Hal-Far). There are corresponding hygiene and maintenance problems. Living conditions in the OCAs are, with a few exceptions, described as “extremely challenging”, to the point where there are occasional infestations of rats (page 41 of the AIDA report). Asylum seekers who leave an OCA are not, in practice, permitted to return, and lose their daily subsistence allowance (page 42).

The claimants relied on an expert report from Dr Jean-Pierre Gauci PhD (KCL), LLD (Melit). Dr Gauci is a visiting lecturer at the University of Malta and a lecturer at Kings College London. He is an academic lawyer well versed in immigration and asylum law and procedure on the island of Malta. Some of his written evidence mirrored the findings noted above from the AIDA report. He also made the following main additional points in his written report:

(1)

In 2014, 824 asylum applicants in Malta arrived by regular means; 51% of them were Libyan nationals and 30% were Syrian nationals.

(2)

The incidence of detention had diminished by the end of 2014, with around 30 individuals held in detention and 970 having passed through detention during that year, as compared with some 500 persons detained at the end of 2013 and some 1,900 having been through the system over the course of the year.

(3)

In 2013, the European Court of Human Rights twice decided that asylum seekers’ rights under the European Convention had been violated by Malta, in Aden Ahmed v. Malta (Application No. 55352/12) and Suso Musa v. Malta (Application No. 42337/12). The two judgments both related to Malta’s detention policies in the period from 2009 to 2013.

(4)

As at March 2015, about 760 asylum seekers, beneficiaries of international protection and migrants were living in the OCAs. This is a considerable reduction as compared with previous years.

(5)

There is still a policy of mandatory detention in respect of undocumented migrants, i.e. those who arrive irregularly without travel documents, including those who seek asylum.

(6)

Although there have been overcrowding problems in the OCAs in the past, there is now a sufficient amount of accommodation to house all those living in them.

(7)

All asylum seekers in Malta, including those whose applications have been rejected, have access to the labour market in Malta, although the latter category have no legal right to work in Malta.

(8)

Access to free healthcare for asylum seekers in Malta is in theory available but in practice difficult to obtain, due to cultural and language barriers.

(9)

The term of office for members of the RAB is three years and members are eligible for reappointment. In practice, they often serve on the RAB for significantly longer than three years.

(10)

Between 2004 and 2011, only six first instance decisions were overturned by the RAB (the source for this information is cited as paragraph 47 of the Hammarberg Report). In 2014, however, the success rate improved with 19 individuals, or around 11% of appellants, being granted international protection on appeal to the RAB.

(11)

There have not been reports of refoulement from Malta in the twelve months to 2015, though an attempt was made by the Maltese government in 2013 to send a group of 45 migrants back to Libya and this was stopped by an interim measure from the European Court of Human Rights.

(12)

In relation to Libyans, in 2014, 144 out of 453 decisions resulted in grant of refugee status and a further 178 were granted temporary humanitarian protection, while 64 obtained subsidiary protection. One application was rejected, 51 applications were abandoned and 13 were treated as inadmissible.

(13)

In the first few months of 2015, 55 Libyans were recognised as refugees while 226 were granted subsidiary protection, one was granted temporary humanitarian protection and none has been rejected or granted provisional protection. The source for these statistics is a publication of the UNHCR.

(14)

If the claimant Mr Hamad, who entered Malta lawfully, were returned to Malta it is unlikely that he would be prosecuted on his return and there is not a significant risk of refoulement in his case, provided he applies for asylum. In that event, he is likely to receive some form of protection from the Maltese authorities. He would have access to an OCA but his daily allowance would be only €2.91 which would not be adequate to guarantee an adequate living standard.

(15)

In the opinion of Dr Gauci, while asylum seekers have access to the labour market and Mr Hamad would therefore be permitted to work in Malta, “rampant racial discrimination means that finding employment might be difficult”.

The claimants also relied on a witness statement from Dr Neil Falzon, the director of the Aditus Foundation in Valletta, Malta. His main comments, in so far as they add to what has already been set out, were the following:

(1)

Mr Hamad would not be detained if returned to Malta and would have access to an OCA but would probably be sent to Hal-Far where he would face what would be “hard and challenging living conditions for anyone”, with no ventilation or heating and limited outside light.

(2)

As at March 2015, there were fewer people living in OCAs than previously; they were exceptionally empty due to fewer boats and refugees arriving in 2014 than previously.

(3)

Asylum seekers have access to the labour market, provided they do not seek to work in the public sector. In practice they frequently work in construction and refuse collection or, if fortunate, as a cleaner. They encounter “widespread racism and xenophobia”.

(4)

In relation to appeals to the RAB, oral hearings are very rare and there are concerns about the independence and the impartiality of the panel members. An appeal can only be brought on a “procedural point of law” and not on the merits of the decision appealed against. The percentage of successful appeals is very low. A subsequent human rights based claim is not ruled out by an unsuccessful prior appeal.

The claimants also relied on witness statements from two officers of “KOPIN” (which stands for the Maltese language version of what in English would be “International Cooperation Malta”). Their evidence was to similar effect to that already mentioned.

The Secretary of State, through her counsel Mr Payne, produced statistics published by the UNHCR and attached to Mr Payne’s skeleton argument. These statistics were up to date to 9 July 2015. The main points to emerge from them were as follows:

(1)

There has been a sharp drop in the number of asylum applications in Malta in the month to 9 July 2015. Applications reached a peak of between 700 and 800 at the end of June 2015, falling to zero in the first nine days of July.

(2)

As at the end of June 2015, 18.5% of asylum decisions had resulted in the grant of refugee status.

(3)

Libyan nationals were by far the most numerous group granted international protection as at the end of June 2015, comprising between 500 and 600 persons.

(4)

The UNHCR estimates that under 30% of approximately 19,000 people who have arrived by boat in Malta from Libya since 2002, are still in Malta. The remainder have left Malta, many on their own initiative. About 2,800 beneficiaries of protection have relocated to the USA or other EU member states.

(5)

The population living in OCAs has fallen from about 2,250 people in 2010 to about 600-700 as at 17 April 2015. The biggest drop in population was in the period 2013-2014, which saw a reduction from about 1,500 to about 750.

The relevant legal framework has been described in erudite and comprehensive detail in decisions of this court given in the last 16 months: see R (Tabrizagh and others) v. Secretary of State for the Home Department [2014] EWHC 1914 (Admin), per Elisabeth Laing J at paragraphs 100-164 and R (MS) v. Secretary of State for the Home Department [2015] EWHC 1095 (Admin), per Lewis J at paragraphs 55-97. I will not attempt the superfluous task of repeating these accounts, for which I am indebted to the two judges and on which I cannot improve.

I will therefore confine myself to the bare essentials necessary for the decisions in these applications. As explained in those two judgments, the three components of the legal framework are, first, the provisions of EU law governing asylum seekers and beneficiaries of international protection (“BIPs”), comprising the Common European Asylum System (“the CEAS”); secondly, the approach of the European Court of Human Rights to article 3 of the European Convention; and thirdly, relevant domestic law including the statutory scheme in this country and domestic case law on the legality of decisions to return persons to other EU member states.

As regards the CEAS, in the present proceedings part of the claimants’ case is founded directly on a past breach and apprehended further breach in the future of article 18 (read with articles 41 and 47) of the EU Charter. As pointed out by Elisabeth Laing J in Tabrizagh at paragraph 124:

These four instruments [i.e. Dublin II and the three directives underpinning the CEAS] are the machinery by which, at an institutional level, the right to asylum guaranteed by article 18 of the European Charter of Fundamental Rights and freedoms ... is protected. The machinery works by imposing on member states a framework of expressed, related obligations in the areas covered by the four instruments. There is no dispute about the obligations which the [CEAS] imposes… .

Article 18 of the EU Charter guarantees the right of asylum accorded to refugees under the Geneva Convention. The nature of the latter was explained by the Grand Chamber of the Court of Justice of the European Union (“CJEU”) in Abdullahi v. Bundesasylamt [2014] 1 WLR 1895, at paragraphs 3 and 4:

The Geneva Convention

3.

The Convention relating to the Status of Refugees, signed in Geneva on 28 July 1951 (Cmd 9171) (“the Geneva Convention”), entered into force on 22 April 1954. It was supplemented by the Protocol relating to the Status of Refugees of 31 January 1967 (Cmnd 3906) (“the 1967 Protocol”), which entered into force on 4 October 1967.

4.

All the member states of the European Union are contracting parties to the Geneva Convention and to the 1967 Protocol, as are the Republic of Iceland, the Kingdom of Norway, the Swiss Confederation and the Principality of Liechtenstein. The European Union is not a contracting party to the Geneva Convention or to the 1967 Protocol, but article 78 FEU of the FEU Treaty and article 18 of the Charter of Fundamental Rights of the European Union (“the Charter”) provide that the right of asylum is to be guaranteed with due respect for the Geneva Convention and the 1967 Protocol.

And in the same judgment, the Grand Chamber went on to explain in paragraph 5 that the process leading to the enactment of “Dublin II” i.e. Council Regulation number 343/2003, was the means by which that objective was achieved. Dublin II requires EU member states to determine which state is responsible for dealing with any asylum application lodged in the territory of that state. This is determined by reference to objective criteria in their order of priority as set out in articles 5-14 of Dublin II.

There is a residual discretion allowing a member state in whose territory an asylum application is made, to examine that asylum application even if that state would not be the “responsible” state identified by applying the objective criteria. This is known as the “sovereignty” clause. Where that power is invoked, the member state exercising “sovereignty” over the asylum claim becomes responsible for determining it. A more recent regulation, Council Regulation EU no. 604/2013 (“Dublin III”) entered into force on 1 January 2014, but it is common ground that it does not apply to the decisions under challenge in this case.

It is also common ground that, applying the hierarchy of objective criteria in Dublin II, Malta is the state responsible for examining the asylum applications made by these two claimants, unless (which has not occurred) the United Kingdom exercises sovereignty over those asylum claims. Accordingly, it is common ground that unless there is a legal impediment, which the claimants seek to establish in these proceedings, to their return to Malta, the Secretary of State would be entitled to return them to that country.

The international law instruments on which the claimants rely are the following. Article 3 of the European Convention provides:

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

And the EU Charter provides in material part as follows:

Article 1 - Human dignity

Human dignity is inviolable. It must be respected and protected.

…

Article 4 - Prohibition of torture and inhuman or degrading treatment or punishment

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

…

Article 6 - Right to liberty and security

Everyone has the right to liberty and security of person. …

Article 18 - Right to asylum

The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty establishing the European Community.

…

Article 19 - Protection in the event of removal, expulsion or extradition

1.

Collective expulsions are prohibited.

2.

No one may be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment.

…

Article 41 - Right to good administration

1.

Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions and bodies of the Union.

2.

This right includes:

-

the right of every person to be heard, before any individual measure which would affect him or her adversely is taken;

-

the right of every person to have access to his or her file, while respecting the legitimate interests of confidentiality and of professional and business secrecy;

-

the obligation of the administration to give reasons for its decisions.

3.

Every person has the right to have the Community make good any damage caused by its institutions or by its servants in the performance of their duties, in accordance with the general principles common to the laws of the Member States.

4.

Every person may write to the institutions of the Union in one of the languages of the Treaties and must have an answer in the same language.

…

Article 47 - Right to an effective remedy and to a fair trial.

Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this article. Everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law. Everyone shall have the possibility of being advised, defended and represented.

Legal aid shall be made available to those who lack sufficient resources in so far as such aid is necessary to ensure effective access to justice.

It is common ground that in determining whether the return of an asylum seeker to another member state would be unlawful by reason of exposure to a real risk of breach of the asylum seeker’s rights, there is a presumption that other member states will comply with their international law obligations. This so called “presumption of compliance” is clearly established in the case law of both the Strasbourg and Luxembourg courts.

Thus, in the Strasbourg court, it was stated in MSS v. Belgium and Greece (2011) 53 EHRR 2, at paragraph 343:

…the Court [in KRS v. the United Kingdom (application 32733/08)] considered that in the absence of proof to the contrary it must assume that Greece complied with the obligations imposed on it by the Community Directives laying down minimum standards for asylum procedures and the reception of asylum seekers, which had been transposed into Greek law and that it would comply with article 3 of the Convention. … .

The CJEU in Luxembourg has adopted the same approach when considering a challenge to the transfer of asylum seekers from the United Kingdom and Ireland to Greece, in which the asylum seekers relied on an apprehended breach of article 4 of the EU Charter, which is in the same terms as article 3 of the European Convention. The court held in R (NS (Afghanistan)) v. Secretary of State for the Home Department (Amnesty International Limited and others intervening) [2013] QB 102:

80.

In those circumstances, it must be assumed that the treatment of the asylum seekers in all member states complies with the requirements of the Charter, the Geneva Convention and the ECHR. It is not however inconceivable that that system may, in practice, experience major operational problems in a given member state, meaning that there is a substantial risk that asylum seekers may, when transferred to that member state, be treated in a manner incompatible with their fundamental rights.

….

83.

At issue here is the raison d’être of the European Union and the creation of an area of freedom, security and justice and, in particular, the Common European Asylum System, based on mutual confidence and a presumption of compliance, by other member states, with European Union law and, in particular, fundamental rights.

84.

In addition, it would not be compatible with the aims of [Dublin II] were the slightest infringement of Directives 2003/9, 2004/83 or 2005/85 to be sufficient to prevent the transfer of an asylum seeker to the member state primarily responsible. ….

….

86.

…[I]f 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 CJEU then went on to refer to the situation in Greece and to the decision of the Strasbourg court in MSS v Belgium and Greece, and went on to state as follows:

94.

It follows from the foregoing that in situations such as that at issue in the cases in the main proceedings, to ensure compliance by the European Union and its member states with their obligations concerning the protection of the fundamental rights of asylum seekers, the member states, including the national courts, may not transfer an asylum seeker to the “member state responsible” within the meaning of [Dublin II] where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that member state amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning or article 4 of the Charter.

Thus, the CJEU held:

104.

In those circumstances, the presumption underlying the relevant legislation, stated in para 80 above, that asylum seekers will be treated in a way which complies with fundamental rights, must be regarded as rebuttable.

105.

In the light of those factors the answer to the questions referred is that European Union law precludes the application of a conclusive presumption that the member state which article 3(1) of [Dublin II] indicates as responsible observes the fundamental rights of the European Union.

106.

Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the member states, including the national courts, may not transfer an asylum seeker to the “member state responsible” within the meaning of [Dublin II] where they cannot be unaware that systemic deficiencies in the asylum procedure and in the reception conditions of asylum seekers in that member state amount to substantial grounds for believing that the asylum seeker would face a real risk of being subjected to inhuman or degrading treatment within the meaning of that provision.

In MSS v Belgium and Greece, the European Court of Human Rights in Strasbourg held that the presumption of compliance was rebutted on the facts, because of conditions in Greece facing asylum seekers. Greece had acted in violation of the applicant’s rights under article 3 of the European Convention (see paragraphs 249-264 of the court’s judgment); and Belgium had acted in violation of his rights under the same article by returning the claimant from Belgium to Greece while sufficiently on notice of the severity of the unacceptable adverse conditions in Greece (see paragraphs 345-360).

Turning to the domestic sphere, it was common ground before me that the governing authority in this country is EM (Eritrea) v The Secretary of State for the Home Department [2014] AC 1321. In four appeals heard together, the Supreme Court considered what tests should be applied in judicial review claims in which it was asserted that the return of two refugees and two asylum seekers to Italy would lead to a real risk of them being subjected to inhuman or degrading treatment in violation of article 3 of the European Convention.

Lord Kerr, giving the judgment of the court, rejected the Court of Appeal’s conclusion “that only systemic deficiencies in the listed country’s asylum procedures and reception conditions would constitute a basis for resisting transfer to the listed country” (paragraph 58 of his judgment). He went on to state, also in paragraph 58:

The critical test remains that articulated in Soering v United Kingdom 11 EHRR 439. The removal of a person from the member state of the Council of Europe to another country is forbidden if it is shown that there is a real risk that the person transferred will suffer treatment contrary to article 3 of ECHR.

The four cases were therefore remitted to the Administrative Court to enable it to determine the cases applying that test. Lord Kerr said this at paragraphs 61- 64:

61.

Articles 26–29 of the Qualification Directive requires member states to provide refugees with equivalent access to that enjoyed by nationals of the member state in areas such as employment, education, social welfare and medical treatment. Article 31 requires that they be given equivalent rights as regards accommodation and article 33 calls for member states to provide appropriate integration programmes.

62.

These duties coalesce with the positive obligations on members of the Council of Europe who are also member states of the European Union. Under the EU Charter of Fundamental Rights, article 4 contains a human rights protection in equivalent language to article 3 of ECHR. The UK, as an EU member state, is obliged to observe and promote the application of the Charter whenever implementing an instrument of EU law: see article 51 of the Charter. It is common case that the positive obligations under article 3 ECHR include the duty to protect asylum seekers from deliberate harm by being exposed to living conditions (for which the state bears responsibility) which cause ill treatment: see MSS v. Belgium and Greece 53 EHRR 28, para 221. And in R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66, [2006] 1 AC 396, the House of Lords held that article 3 could be engaged where asylum seekers were “by the deliberate action of the state, denied shelter, food or the most basic necessities of life”: per Lord Bingham of Cornhill at para 7.

63.

Where, therefore, it can be shown that the conditions in which an asylum seeker will be required to live if returned under Dublin II are such that there is a real risk that he will be subjected to inhuman or degrading treatment, his removal to that state is forbidden. When one is in the realm of positive obligations (which is what is involved in the claim that the state has not ensured that satisfactory living conditions are available to the asylum seeker) the evidence is more likely to partake of systemic failings but the search for such failings is by way of a route to establish that there is a real risk of article 3 breach, rather than a hurdle to be surmounted. There is, however, what Sales J described in R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin), at [42(i)] as “a significant evidential presumption” that listed states will comply with their Convention obligations in relation to asylum procedures and reception conditions for asylum seekers within their territory. It is against the backdrop of that presumption that any claim that there is a real risk of breach of article 3 rights falls to be addressed.

The domestic statutory machinery for operating the Dublin II system in this country is found in the 2004 Act and, in particular section 33 and Schedule 3. The effect of the statutory provisions is helpfully summarised in the judgment of Elisabeth Laing J in Tabrizagh, at paragraph 158, thus:

(i)

When any person, court or Tribunal decides whether a person may be removed from the United Kingdom, a member state, such as Italy [in this case, Malta], is to be treated as a country from which a person will not be sent elsewhere in breach of his rights under the Refugee Convention or under the ECHR (“the deeming provision”).

(ii)

The deeming provision and paragraph 5 prevent a person from appealing to the FTT on the grounds that he faces a real risk of being refouled by the receiving state in breach of his rights under the Refugee Convention or under the ECHR.

(iii)

If the Secretary of State certifies as “clearly unfounded” a claim by an applicant that his human rights will be breached within a member state such as Italy [here, Malta], the applicant has no statutory right of appeal to the FTT against the Secretary of State’s decision that there is no real risk of article 3 being breached.

(iv)

The Secretary of State will certify as “clearly unfounded” a claim alleging a real risk of breach of human rights in Italy [Malta], or in any other member state unless she is satisfied that it is not clearly unfounded.

As noted earlier in this judgment, the claimants’ challenges are to the Secretary of State’s decisions to certify their human rights claims as clearly unfounded. A claim is clearly unfounded if it is “so clearly without substance that the appeal would be bound to fail”: R v Secretary of State for the Home Department ex parte Yogathas [2003] 1 AC 920, per Lord Bingham at paragraph 34.

In applying the correct standard of review, the court must necessarily itself consider whether the claimants’ human rights based claims are clearly unfounded and, that, in doing so, it will bring to bear “the anxious scrutiny that is required where human rights are in issue” per Lord Phillips in ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348, paragraph 21.

Conceptually, the court is required not to substitute its own view for that of the Secretary of State on the question, but in practice the court must undertake “the same mental process” as that undertaken by the Secretary of State (ibid). I also bear in mind what was said by Lord Phillips at paragraph 23 of his judgment in the same case (also cited by Lewis J in MS at paragraph 96 of his judgment):

Where, as here, there is no disputed primary fact, the question of whether or not a claim is clearly unfounded is only susceptible to one rational answer. If any reasonable doubt exists as to whether the claim may succeed or not then it is not clearly unfounded. It follows that a challenge to the Secretary of State’s conclusion that a claim is clearly unfounded is a rationality challenge. There is no way that the court can consider whether her conclusion was rational other than by asking itself the same question that she has considered. If the court concludes that a claim has a realistic prospect of success when the Secretary of State has reached a contrary view, the court will necessarily conclude that the Secretary of State’s view was irrational.

The issues arising before me in the present case have already been considered on the evidence that was before the Upper Tribunal in R (Binyan Hagos)v Secretary of State for the Home Department [2015] UTIJR 6. The judgment was given by McCloskey J, President of the Upper Tribunal, and Upper Tribunal Judge O’Connor, on 23 April 2015. Some, though not all the written evidence mentioned above in this judgment was before the Upper Tribunal in that case.

The present case could have been transferred to the Upper Tribunal for determination, but for the fact that the claimants sought declarations of incompatibility under Section 4 of the Human Rights Act 1998. They no longer seek those declarations.

The summary of the Upper Tribunal decision, so far as material here, reads as follows:

1.

While the Maltese system for the reception, processing and treatment of asylum seekers has certain frailties and shortcomings, these fall measurably short of fundamental failings or near collapse, particularly in circumstances where the consistent trend is one of progressive improvement and fortification. It suffers from no systemic deficiency.

2.

The transfer of a young male adult in good physical health, though suffering from mental health problems and asserting a risk of suicide, from the United Kingdom to Malta under the Dublin Regulation will not necessarily violate article 3 ECHR, articles 18 or 47 of the EU Charter of Fundamental Rights, article 33 of the Refugee Convention or the Qualification Directive.

In Hagos, the Tribunal considered the case of a 27 year old national of Eritrea in good physical health but suffering from severe depression and at very high risk of suicide if detained unsupervised in Malta, though at low risk of suicide if not detained there. The Tribunal considered evidence of general conditions in Malta, overlapping with that considered by me in this case. It spanned the period from 2009 to 2014.

The Tribunal rejected the claim for the reasons reflected in the summary which I have quoted above, commenting that “time has not stood still on the Island of Malta” and the “notional graph has been one of gradual improvement in the conditions and processes for the reception, accommodation and general treatment of asylum applicants and the processing of their protection claims” (paragraph 36) and that the risk of refoulement is “highly unlikely” (paragraph 60).

Mr Southey QC, for the claimants, also referred me to Swiss and German case law in which a different conclusion was reached by courts in those countries at an earlier stage, in 2012.

In June 2012, the Administrative Court of Magdeburg considered the case or a Somali national who had applied for asylum in Germany in July 2010. Germany proposed to return him to Malta where he had first entered EU territory. The court decided, based on information supplied to it about conditions in Malta at the time, that the claimant would probably be accommodated at an OCA, and in unacceptable conditions.

The court also found that a “further systemic deficiency of significance exists”, namely defects in the system for the processing of asylum applications at first instance and on appeal. The court therefore quashed the decision to remove the claimant to Malta: see X v. Federal Republic of Germany, transcribed under case reference number 5A328/11MD.

Later that year in October 2012, the Federal Administrative Court in Switzerland decided the case of (in English translation) AV Federal Office of Migration, a transcript of which was before me. A Libyan National claimed asylum in Switzerland after entering Malta lawfully by air. The Swiss authorities proposed to return him to Malta, but the court quashed the order for his return, finding “decisive” the proposition that “Malta intends to deport the appellant to his country of origin, Libya, after the expiry of his Schengen visa…” (paragraph 7.5.2).

The court had earlier noted, at paragraph 7.4 of its judgment, according to the English translation provided to me by the claimants:

In the light of the presented information on the general situation of asylum seeking persons in Malta, it has to be asserted that the presumption, this country would respect the basic rights of respective people in the Common European Asylum System in an appropriate manner, cannot be sustained. Although, on the basis of today’s findings it cannot be said that the asserted deficiencies for asylum seekers in Malta are a general threat leading to inhumane or degrading treatment, the questions whether the person under concern belongs to a category of people who, in the case of the transfer to Malta, face the danger of a violation of their basic rights due to the prevailing deficiencies in the asylum system and of reception conditions has to be asked in all individual cases.

In broad terms, the main issue I have to decide is whether it is arguable that there is a real risk of a violation of the claimants’ fundamental rights if they are returned to Malta. I must address that question by applying to the facts the specific tests set out in the body of law referred to above, by reference to the evidence of conditions on the ground in Malta and the specific matters that would arise in the individual cases of, respectively, Mr Hamad and Mr Ararso, were they to be returned to Malta.

In order to achieve a more precise definition of the issues that divide the parties, they helpfully produced, at the request of the court, an agreed list of issues. The following propositions are derived from that list.

It is agreed that in respect of Mr Hamad’s challenges to the human rights certificates of 17 August 2014 and 14 July 2015, he must establish that he has an arguable claim, which would not be bound to fail before an immigration judge, that his removal to Malta would expose him to reception conditions that give rise to a real risk of a violation of article 3 of the European Convention, given that his claim has been certified as clearly unfounded under Schedule 3, Part 2, paragraph 5(4) of the 2004 Act.

It is agreed that the claimant must establish this risk by reference to the tests identified in MSS, NS (Afghanistan) and EM (Eritrea). If he succeeds in doing so, the human rights certificates would be quashed and in consequence Mr Hamad would have a right of appeal in this country before the First-tier Tribunal (“FTT”) under section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002.

In respect of both claimants’ challenges to the certificates (dated 3 April 2013 in the case of Mr Hamad and dated 14 March 2012 in the case of Mr Ararso), proposing the removal of both to Malta as the responsible state under Dublin II, it is agreed that the claimants must establish that their return there would result in a breach of the right to asylum under article 18 of the EU Charter (read with articles at 41 and 47).

In respect of Mr Hamad, the issue is whether there is a risk of a future breach on return. In respect of Mr Ararso, it is submitted on his behalf that there was a historic breach of article 18 (read with articles 41 and 47) of the EU Charter while he was in Malta which, if made out, would mean there was a real risk of a further such breach on his return there.

The claimants invite the court to find, on this issue, that the situation alluded to in paragraph 81 of the judgment of the CJEU in the NS (Afghanistan) case obtains in Malta, namely that:

[t]hat system may, in practice, experience major operational problems in a given member state, meaning that there is a substantial risk that asylum seekers may, when transferred to that member state, be treated in a manner incompatible with their fundamental rights.

Accordingly, the claimants submit that the presumption of compliance is rebutted in this case. The Secretary of State, by contrast, maintains in respect of the challenge to the asylum certificates, that the question whether there is a real risk of a breach of article 18 of the EU charter (which does not also give rise to a real risk of breach of article 4 thereof) is determined by reference to ordinary judicial review principles, and requires the claimants to establish a real risk of a flagrant breach of their rights under article 18.

Moreover, the Secretary of State maintains that even a real risk of breach of the right under article 18 of the EU charter does not render unlawful the claimants’ transfer to Malta unless it gives rise also to a real risk of breach of article 4 of the EU charter (corresponding to article 3 of the European Convention), since otherwise any complaint could properly be brought against Malta.

The Secretary of State’s position is that if that is correct, removal to Malta would only be unlawful in the event that there is a real risk of refoulement contrary to articles 4 and 19 of the EU Charter, and that there is no evidence of any such risk in the present cases.

Finally, it is agreed that if the claimants were to succeed in their challenges to the asylum certificates, the appropriate relief would be for those certificates to be quashed with the consequence that the United Kingdom would have to assume responsibility for determining their asylum claims under article 3(2) of Dublin II.

Mr Southey QC developed the claimants’ arguments as follows. He emphasised that, as regards Mr Hamad’s challenge to the human rights certificates, he had only to show that his claim would have a realistic prospect of success before an immigration judge, and not that it would necessarily succeed. He stressed the requirement for the court to bring anxious scrutiny to bear on that issue.

He submitted that the Hagos case was of little assistance because, unlike Mr Hamad, Mr Hagos had unsuccessfully claimed asylum in Malta before coming to this country and, in consequence, could expect to be prosecuted and imprisoned on return to Malta. Thus, the issue in Hagos was about detention conditions in Malta whereas Mr Hamad would not expect to be detained but, rather, to be accommodated in an OCA.

Mr Southey reminded me that Mr Hamad had never had an asylum claim considered or determined in Malta or any other country. He criticised the process for determining asylum applications in Malta at first instance on appeal, submitting that there would be a real risk of refoulement of Mr Hamad to Libya if he were returned to Malta. He said the procedural flaws in the asylum process in Malta were such that they failed to guarantee effective judicial protection and an effective remedy, in breach of articles 3 and 13 of the European Convention and of articles 1, 4, 18, 19 and 47 of the EU Charter.

In particular, Mr Southey pointed to the absence of free legal aid at first instance; the difficulty in obtaining representation by NGO lawyers; the language barriers; the legitimate concerns about whether members of the RAB were independent and impartial; the rarity of oral hearings on appeal; the absence of sufficient information about asylum seekers’ rights and the procedures applicable to determine them; the difficulty in obtaining access to documents; and the low success rate on appeal to the RAB.

He invited the court to infer that Mr Hamad would be unable effectively to exercise any legal rights he might have, under the European Convention or the EU Charter, against Malta. He would probably be living in an OCA in conditions which, despite some improvement in recent years, remain, he submitted, unacceptable. He said there was evidence that Mr Hamad may have been a victim of torture, making him abnormally vulnerable.

In all the circumstances, Mr Southey submitted that Mr Hamad would face inhuman or degrading treatment if returned to Malta. He would be likely to be sent to Hal-Far which, even if no longer overcrowded, still poses serious hygiene problems and extremes of temperature. His remedies against Malta would take several years to obtain, even if his rights could be effectively exercised there. If he were to take his chances in the labour market by leaving the OCA, he would be unable to return and would be extremely vulnerable.

As regards Mr Ararso’s claim, Mr Southey submitted that if returned to Malta he was likely to be prosecuted for having left the country illegally. He is regarded as a failed asylum seeker in Malta and would be likely to face detention following conviction for illegal departure. He reiterated his criticisms of the judicial process in Malta, adding that in the case of Mr Ararso, conditions in detention would expose him to a real risk of inhuman and degrading treatment.

It would be unlikely, said Mr Southey, that Mr Ararso would be permitted to mount a fresh claim for asylum in Malta. Such claims are only treated as admissible where there is new material available to the applicant, which could not have been deployed by him in his previous application. Accordingly, he suggested that Mr Ararso would effectively have been denied his right to asylum under article 18 of the EU Charter and his ancillary rights under articles 41 and 47, and under the directives underpinning the article 18 right and guaranteeing effective judicial protection for the purpose of enabling it to be exercised.

In consequence, it was submitted, Mr Ararso was at real risk of refoulement i.e. being sent back to Ethiopia. He accepted that there is no evidence of a current practice of frequent deportations but attributed that to Malta’s lack of resources to carry out mass deportations, and submitted that the situation might change in the near future. Refoulement would be a breach of the right under article 19(2) of the EU Charter, as well as, in all probability, article 4.

Mr Southey argued that where the article 18 right under the EU Charter was illusory in the EU member state responsible under Dublin II, the Secretary of State was obliged to assume responsibility for the asylum claim to prevent an otherwise inevitable breach of that right. He noted use of the words “fundamental rights” in the NS (Afghanistan) case at paragraph 105 (“European Union law precludes the application of a conclusive presumption that the member state which article 3(1) of [Dublin II] indicates as responsible observes the fundamental rights of the European Union” [emphasis added]).

He referred to the fifth question asked of the CJEU in NS (Afghanistan), which concerns the width of the right under article 18 as compared with the right under article 3 of the European Convention. The CJEU responded thus:

113.

As follows from para 106 above, a member state would infringe article 4 of the Charter if it transferred an asylum seeker to the member state responsible within the meaning of [Dublin II] in the circumstances described in para 94 of the present judgment.

114.

Articles 1, 18 and 47 of the Charter do not lead to a different answer than that given to the second to fourth questions…

115.

Consequently, the answer to the fifth question… is that articles 1, 18 and 47 of the charter do not lead to a different answer than that given to the second to fourth questions… .

Consequently, submitted Mr Southey, the Secretary of State would act unlawfully if she returned an asylum seeker to another Dublin II state which was incapable of guaranteeing the returnee’s rights under article 18 of the Charter, and it was not necessary to show in addition that there would be a likely breach of article 4 of the EU Charter, corresponding to article 3 of the European Convention.

Mr Payne countered with the following arguments. There was no proper basis for the claimants’ assertion of a free standing claim, as against the United Kingdom, to enforce the right to asylum guaranteed by article 18 of the EU Charter, in the absence of a breach of article 4 of the EU Charter, prohibiting torture or inhuman or degrading treatment or punishment. He made the following further points in support of that position.

First, the Divisional court had decided in Dudaev and others v. Secretary of State for the Home Department [2015] EWHC 1641 (Admin) that the irrebuttable presumption provided for in domestic law (see paragraph 3(2) of Schedule 3 to the 2004 Act) that a member state would not refoule a person in breach of the Geneva Convention or the European Convention, does not apply to rights guaranteed by EU law.

A person can therefore resist return to another EU member state in reliance on a likely consequential breach of article 4, as the CJEU had decided in Abdullahi v. Bundesasylamt, Case C-394/12, [2014] 1WLR 1895, at para 60, arising from a risk of refoulement in breach of articles 18 and 19(2); for which purposes, article 4 of the EU charter has the same reach as article 3 of the European Convention: see paragraphs 55 and 56 in Dudaev.

Secondly, the observations of the CJEU at paragraphs 114-115 in NS (Afghanistan) that the EU Charter provisions “do not lead to a different answer” than that given by the same court earlier in its judgment (when rejecting the notion of a conclusive presumption against violation of fundamental rights by a state to which a person is returned under Dublin II), are consistent with that analysis and inconsistent with the existence of a wider free standing claim under article 18 of the EU Charter.

Third, Mr Payne said that if there were, for whatever reason, a real risk of refoulement by a receiving state in a particular case, even a state whose judicial system normally complied with European Convention and EU Charter standards, the individual victim at risk of refoulement would be able to obtain an urgent interim order in the Strasbourg court (using the “rule 39” procedure) to prevent the refoulement.

He emphasised the importance and strength of the presumption of compliance as part of the Dublin II regime, embodying as it does the principle of mutual confidence between the EU member states and the desirability of avoiding forum shopping, also an important feature of the regime. He referred in this connection to R (B and another) v. Secretary of State for the Home Department [2014] 1 WLR 4188, CA.

In that case, an Iranian father and daughter claimed that their return to France under Dublin II would breach their European Convention rights under articles 8 and 9 because French law prohibited the wearing of a burka or niqab in public. Lord Dyson MR said at paragraph 18 that the court should be:

very slow to decide that the legislation of a democratically-elected legislature of a member state of the European Union is incompatible with the Convention. But I do not consider that our courts are powerless to assess the compatibility with the Convention of legislation enacted by a foreign legislature. There might be exceptional circumstances in which it would be appropriate for such an assessment to be made. But I am not persuaded that such circumstances exist here… .

And at paragraphs 23 and 24, Lord Dyson MR accepted the submission it would be:

inconsistent with the policy of the Dublin II Regulation if a non- responsible state (the UK in this case) were required to assess Convention challenges to the legislation of a responsible state (in this case France) …. .

Mr Payne submitted that it would be wrong for the court in this country, other than in a most exceptional case, to act as the arbiter of the laws and legal systems of another Dublin II state. To do so would be contrary to the principle of mutual trust and confidence underpinning the Dublin II regime. He submitted that the situation in Greece as it was found to be in MSS, was wholly exceptional and that the court in this case should simply apply the tests derived from that case, and from NS (Afghanistan) and EM (Eritrea).

Turning to the facts, Mr Payne submitted that the outcome of that exercise was that the present conditions in Malta come nowhere near rebutting the presumption of compliance. He reminded me of the considerable improvements shown by the UNHCR’s statistics appended to his skeleton argument, which represented the most up to date assessment. He pointed out that the UNHCR had made no adverse comment on reception conditions for asylum seekers, unlike in the case of Greece.

Specifically, he pointed to the steady increase in the success rate of those granted refugee status on appeal, which has climbed to 18% from 4% in 2013. These improvements had been recognised by Dr Gauci and in the Hagos case. He submitted that Libyan and Ethiopian nationals had fared particularly well in attaining refugee status in Malta this year. He took issue with some of the criticisms of the Maltese judicial procedures for determining asylum applications and in particular challenged the assertion that new evidence cannot be adduced on appeal in cases determined without an oral hearing.

Mr Payne submitted that the UNHCR had regular access to detention centres in Malta and had not levelled any criticism of them in 2014 or 2015. The OCAs were, on the evidence, improving fast with far fewer people occupying them than in previous years. He said the evidence does not show that those residing in OCAs are in receipt of treatment approaching the threshold of severity required to establish a breach of article 3 of the European Convention. The UNHCR also has access to OCAs and has made no complaint about them.

Mr Payne pointed out it was not known, on Mr Ararso’s evidence, where he had been detained before leaving Malta, nor whether he had been in detention when his asylum application was processed. Mr Ararso had not alleged that he had been prevented from claiming asylum and there was no evidential basis for the assertion that his past experience of determination of his claim was sufficient to rebut the presumption of compliance or establish a breach of article 18 of the EU Charter.

The Secretary of State did not accept that Mr Ararso would be unable to bring a fresh claim. Mr Payne submitted that if there was no new material that he could submit, that must mean that his first claim had been fairly processed; while, conversely, if it had not been fairly processed, there was no reason to doubt that he would be permitted to mount a fresh claim and the court should not second guess the result of any application by him to do so after being returned to Malta.

I have applied careful and anxious scrutiny to the evidence of conditions on the ground in Malta. It is clear from the evidence from both sides that those entering Malta, whether lawfully or by irregular means, face a tough environment and, unless they have money, significant hardships.

I found the earliest dated reports relied upon by the claimants, from 2009 to 2013, of limited assistance. They provide a historical account of conditions for the reception of asylum seekers in Malta, against which the more recent material can be considered; but they do not themselves tell the court what asylum seekers can now expect when entering the country.

The AIDA report, updated to February 2015, was of greater significance to my task. It presents a picture of a system that is functioning effectively, though that does not mean that it is easy for asylum seekers to navigate it or that they necessarily have a high expectation of an outcome they regard as satisfactory. There is nothing in that report which compares to the wholesale breakdown of the system for processing asylum seekers in Greece in recent years.

I remind myself that, as Lord Kerr pointed out in EM (Eritrea), it is unnecessary for a claimant to show that there are systemic failings in the system, if he or she succeeds in showing that the real risk of violation of fundamental rights is present without the system itself being broken. A systemic failure is but a likely route to that destination, not the destination itself.

Thus (though nothing of the kind is suggested in this case), it would suffice to show that the returning state could not be unaware that the responsible state under Dublin II would violate the individual’s rights under article 3 of the European Convention or article 4 of the EU Charter, for example because of a grudge against him harboured by the authorities of that state, even if its system for receiving asylum seekers and processing applications were otherwise functioning optimally.

The evidence of Dr Gauci and Mr Falzon does not point to the conclusion that the Maltese authorities are acting in breach of their international law obligations, so as to rebut the presumption of compliance. They fairly point to improvements in recent years, including a reduction in the number of residents living in OCAs and in the incidence of detention and an increase in the success rate on appeals to the RAB. They do not suggest there is a policy or practice of frequent refoulement.

The statistics to July 2015 provided by the UNHCR and produced to the court by the Secretary of State, corroborate that general picture and indicate that the situation in Malta is not in any way comparable to that found to pertain in Greece in recent years. If there were any validity in such a comparison, I would have expected the UNHCR to have drawn attention to it. That has not happened; the UNHCR appears to be relatively sanguine about conditions in Malta.

I reject Mr Southey’s submission that there is a real risk that Mr Hamad would be refouled from Malta to Libya, or would suffer inhuman or degrading treatment, if he is returned to Malta. I see no adequate evidential basis for that submission. If Mr Hamad is sent to live in an OCA and decides to stay there rather than take his chances elsewhere, he will in my judgment be able to exercise his rights effectively and, if Malta were to deny him any of his obligations under the directives underpinning the CEAS, the evidence does not indicate he would be unable to seek effective redress.

I also reject the claimants’ proposition that the adjudication of asylum applications at first instance and on appeal is functioning so unfairly that there is a failure to guarantee effective judicial protection and an effective remedy, in breach of articles 3 and 13 of the European Convention and of articles 1, 4, 18, 19 and 47 of the EU Charter. The system of adjudication is not perfect, on the evidence. It does not have to be. It is, in my judgment, adequate to provide judicial protection and an effective remedy in the generality of cases.

As for Mr Ararso, I accept that he will be regarded as a failed asylum seeker in Malta and may well be prosecuted and imprisoned for having illegally left Malta. I accept that he may be unable to persuade the Maltese authorities that he should be allowed to mount a fresh asylum claim. I do not know, and do not need to decide, whether he would be able to deploy fresh evidence of changed circumstances, and I do not see why it would necessarily be unfair to him if he were unable to do so.

It does not follow that if these things happen, Mr Ararso is at any risk of inhuman or degrading treatment, nor that he would have been denied effective judicial protection and an effective remedy, in breach of articles 3 and 13 of the European Convention and of articles 1, 4, 18, 19 and 47 of the EU Charter. Still less does it follow that there is any real risk of his refoulement to Ethiopia in breach of article 19(2) and, probably, article 4 of the EU Charter.

In view of the above conclusions, I do not need to decide whether article 18 of the EU Charter (as Aikens LJ posed the question) “grants rights in relation to refugee status and asylum which are fundamental and … wider or deeper than those that are granted by the European Convention…”. I reserve my opinion on that point, but would have taken considerable persuading that it is correct in view of the way in which the matter was dealt with by the CJEU in NS (Afghanistan).

For those reasons, I reach the same conclusion in relation to conditions in Malta as that reached by the Upper Tribunal in the Hagos case: the evidence does not rebut the presumption that Malta will comply with its relevant international law obligations. Nor are there any circumstances present in the cases of these two individual claimants which lead to a different conclusion.

It follows that the claims for judicial review are not made out on the evidence. I am satisfied that no reasonable immigration judge, properly directing himself or herself, could decide that the presumption of compliance is rebutted on the facts in the case of Malta. The claims would be bound to fail in the FTT. The Secretary of State acted lawfully in issuing the certificates under challenge. The applications for judicial review must therefore be dismissed.

In the parties’ agreed list of issues, the last of the issues I am required to determine is whether Mr Ararso’s detention in this country in 2014 was unlawful and, if so, for what period of time. I am not asked to determine the quantum of damages, if any.

Mr Ararso entered the UK on 13 January 2012 and applied for asylum. He was initially detained as an illegal entrant. He applied for permission to bring judicial review proceedings on 11 February 2012. At some stage after that he must have been released, though I do not know exactly when. I am told he was not in detention when his case came before Mitting J in January and February 2013. There is no suggestion that he has failed to comply with the conditions of his temporary admission.

After Mitting J had given his judgment, it was agreed that the Secretary of State would consider the position afresh, on the basis of any new material submitted by Mr Ararso, through his lawyers. On the basis of that agreement a pending application for permission to appeal against Mitting J’s decision was withdrawn by consent. The consent order was dated 23 June 2014.

The recitals in that consent order recorded, amongst other things, the following:

AND UPON the Respondent agreeing, before taking any further decisions to detain and remove, to take into account that Patten and Aikens LJJ previously saw sufficient merit in the appeals to order stays of removal pending final determination of these applications… .

On 21 July 2014 Mr Ararso’s solicitors wrote to UK Visas and Immigration requesting that Mr Ararso’s reporting frequency should be reduced to monthly, as he had been reporting weekly for a period of more than two years. On 11 August 2014 UK Visas and Immigration replied to that letter setting out detailed reasons why the Secretary of State had certified that his human rights claim was clearly unfounded and confirming the intention to return him to Malta.

The specific request for reduced reporting frequency was refused on the basis that:

there appeared to be no exceptional circumstances in your client’s case to vary his reporting to monthly. However this can be reviewed in the light of any further evidence submitted in support of this application.

As already noted above, the Secretary of State was aware at that stage, from the short judgment of Aikens LJ referred to above, that Mr Ararso, or others in the proceedings before Mitting J, wished to argue that article 18 of the EU Charter “grants rights in relation to refugee status and asylum which are fundamental and … wider or deeper than those that are granted by the European Convention… .”

After receiving that negative response, Mr Ararso’s lawyers received instructions to write a pre-action protocol letter challenging the certification of his human rights claim as “clearly unfounded”, as set out in the main part of the 11 August letter. By 28 August 2014, they had not yet written that pre- action protocol letter.

On 28 August, Mr Ararso was detained. He was described on that date by the Secretary of State’s agent as a person in respect of whom “there are reasonable grounds to suspect that directions may be given for his/her removal from the UK”. The power to detain in such circumstances is conferred by paragraph 16(2) of Schedule 2 to the Immigration Act 1971.

The recorded reason for detention was that “your removal from the United Kingdom is imminent”. It was also recorded that he had “failed to give satisfactory or reliable answers to an immigration officer’s enquiries” and had “not produced satisfactory evidence of … identity, nationality or lawful basis to be in the UK”. Another possible ground that the person is “likely to abscond if given temporary admission” was not relied upon to support his detention. That box remained unticked.

The next day, 29 August 2014, Mr Ararso’s solicitors wrote a pre-action protocol letter indicating an intention to challenge the substantive decision relating to him, and asking that he be “released from detention”, so as to ensure “compliance with the consent order of 23 June 2014”. It was made clear in that letter that his detention was, in the solicitors’ submission, “unlawful”. The Secretary of State did not reply to the letter until a month later.

Meanwhile, possibly in ignorance of that letter, but with awareness that permission to appeal had been “withdrawn on 23 June 2014”, a decision to maintain detention was made on the ground that “removal can be set as soon as possible”. A week later, detention was maintained on the grounds that Mr Ararso had shown “disregard for EU Immigration Laws and risk of absconding is significant”. This was the first reference to any risk of absconding.

On 2 and 3 September 2014, Mr Ararso’s solicitors wrote again to UK Visas and Immigration. I infer that the latter were aware that proceedings were being prepared. In the letter of 3 September, the solicitors sought full disclosure of documents concerning the detention of Mr Ararso.

The request for disclosure was recorded in a detention review on 15 September 2014. The decision was to maintain detention “due to disregard shown for EU Immigration Laws and risk of absconding is significant”. A week later, on 22 September, a further detention review recorded that Mr Ararso had been passed as fit to fly “and RD’s [removal directions] now to be set”; and detention was maintained on the same basis.

On 29 September 2014, UK Visas and Immigration wrote to Mr Ararso’s solicitors, responding to the letters before claim and request for release. The request was refused on the basis that Mr Ararso had “been detained for the purpose of removal”. The letter continued that his detention would be reviewed at regular intervals and he could be considered for release if circumstances changed.

On the same day, a further detention review recorded that removal directions had been set for 8 October 2014. A monthly progress report to Mr Ararso dated the same day recorded that:

It has been decided that you will remain in detention:

•

Because there is reason to believe that you will fail to comply with any conditions attached to the grant of temporary admission or release.

•

To effect your removal from the United Kingdom.

The same reasons as previously recorded in detention reviews were cited in support of that decision. The letter stated that Mr Ararso’s solicitors had not been sent a copy of the letter.

On 6 October 2014 a further detention review recorded that detention would be maintained as “removal is imminent” and on the basis of disregard for UK Immigration Law and “a significant absconder risk”. At that stage, the Secretary of State’s agents were aware that removal was to take effect two days later on 8 October 2014. However, on 7 October, Mr Ararso’s claim for judicial review was filed.

The next day his solicitors wrote to UK Visas and Immigration so informing them, and asking for his release on the ground that removal was no longer imminent and he had complied with reporting conditions in the past. Thereafter, detention was maintained on the grounds that an expedited hearing of the judicial review was expected and that “removal therefore remained a near future prospect”, as well as on the previously indicated grounds (see the email of 10 October 2014 from David Underwood of UK Visas and Immigration).

That position was maintained through the rest of October, with detention reviews on 13 and 20 October expressing the view that “removal remains a realistic prospect in the near future”. Mr Ararso’s solicitors continued to maintain pressure for his release in a letter of 23 October. A reply the next day was in the negative, citing previously stated reasons and in addition the new point that “your client currently has a judicial review application pending and awaiting further notice”. I was invited by Mr Payne to interpret that statement as referring to the perceived likelihood of an expedited hearing of the judicial review.

On 28 October 2014 the Secretary of State missed the deadline for filing her acknowledgement of service in response to the application for permission to seek a judicial review. This news reached those conducting a detention review on 3 November 2014. That review recorded that the judicial review “cannot be expedited”. A manuscript note on the document recorded that release would be a serious possibility if progress were not made soon with the judicial review.

Mr Ararso’s solicitors made a bail application on 3 November 2014, supported by detailed reasons and challenging the suggestion that there was any risk of absconding. Mr Ararso was then released four days later, on 7 November 2014.

Those, then, are the facts. Mr Southey made the following main submissions in support of his client’s claim for damages for unlawful detention:

(1)

The starting point was that every imprisonment is prima facie unlawful, and is thus unlawful unless justified by the gaoler: R v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74 per Lord Scarman at page 110.

(2)

The current policy guidance from the Secretary of State (chapter 55 of Enforcement Instructions Guidance) includes at paragraph 55.3 a “presumption in favour of temporary admission or temporary release - there must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified.”

(3)

A departure from the executive’s published policy could lead to the conclusion that there was an absence of lawful authority for an executive power of detention (Kambadzi [2011] UKSC 23, per Lord Hope at paragraph 40).

(4)

On the facts, there was no basis for the perceived risk of absconding, which was absent from the first detention review and was only invoked later, at the time when judicial review proceedings were expected.

(5)

There is no history of reporting failures, and imminent removal became unrealistic, if not from 11 August 2014 when Mr Ararso was detained, at any rate from 29 August when the pre-action protocol letter was sent.

(6)

Application of orthodox Hardial Singh principles leads to the same conclusion (see R v Governor of Durham prison ex p. Hardial Singh) [1984] 1 WLR 704 per Woolf J at 706 D-G, as restated in the judgment of Lord Dyson in R (Lumba) v the Home Secretary [2011] UKSC 12, [2012] 1 AC 245).

(7)

At the time of detention on 28 August 2014, the Secretary of State was well aware of Mr Ararso’s intention to found a claim on article 18 of the EU Charter.

(8)

Having expressly agreed to take into account that two Court of Appeal judges had “seen sufficient merit in the appeal to order stays of removal” on the basis of that argument, the Secretary of State failed to take that matter into account at all.

(9)

All those considerations led inexorably to the conclusion that there were no justifiable grounds for Mr Ararso’s detention and that it was unlawful.

Mr Payne, for the Secretary of State, made the following main points in opposition to those arguments:-

(1)

He referred me to the useful list of eleven material factors found in the judgment of Ms Bobbie Cheema QC (sitting as a deputy judge of the High Court), at paragraph 89, in Ganesharajah v Secretary of State for the Home Department [2014] EWHC 3497 (QB).

(2)

He submitted that the stance of the immigration authorities had been reasonable. It was not correct that there was no realistic prospect of removal. Had proceedings not been issued on 7 October 2014, Mr Ararso would have been removed from the United Kingdom the next day.

(3)

Mr Ararso’s immigration history included having lied about his circumstances in Malta, as found by Mr Justice Mitting, and the Secretary of State was reasonably entitled to consider that he posed an absconding risk once he became aware that steps were being take to return him to Malta.

(4)

The threat of absconding was reinforced by threats of suicide if attempts were made to remove him. Those threats were made while he was in detention in September and October 2014.

(5)

Those factors pointed in the direction of a likely attempt to frustrate his removal to Malta and provided a justification for the decision to detain him until it became obvious that removal could not be said to be imminent.

(6)

The Secretary of State was not bound to assume that a challenge would be brought, even after the pre-action protocol letter had been written. It was not for the Secretary of State to second guess what Mr Ararso’s instructions to his lawyers might ultimately be.

(7)

As for the recital in the Court of Appeal’s consent order of 23 June 2014, this indicated no more than that there might be merit in the argument based on article 18 of the EU Charter, but that argument had not been raised until 7 October 2014 and, even then, the fact that it had been raised did not mean that it would necessarily succeed.

(8)

In the circumstances there was ample justification for the decision to detain Mr Ararso until it became apparent that expedition of the judicial review claim was not a realistic prospect, at which point Mr Ararso’s detention was stopped and he was released.

I have carefully considered these rival contentions. I turn to my reasoning and conclusions on this issue. The correct starting point, it seems to me, is that Mr Ararso had been present in the United Kingdom since early 2012, having entered the country unlawfully. He was, however, released and required to report regularly instead of being detained. There is no evidence of any attempt to abscond or of any failure to report correctly; rather, he pinned his hopes on exercise of his rights under the laws of this country.

Despite that, I do not think the Secretary of State acted unlawfully by detaining him on 28 August 2014, in anticipation of his removal to Malta. A decision letter had been issued over two weeks earlier, providing a legitimate basis for his removal to Malta, and no challenge to that letter had come from Mr Ararso by 28 August, despite mention of a possible basis for such a challenge in the recital to the 23 June consent order. Thus, as at 28 August, reasonable grounds existed for supposing that his removal could be imminent.

However, Mr Ararso’s pre-action protocol letter of 29 August 2014 put a different complexion on the matter. From the point of receiving that letter, the Secretary of State was (through her agents) put on notice that the substantive decision to remove him to Malta was likely to be challenged and that his release from detention was specifically requested for that reason among others. That was a material change of circumstances which ought to have led the Secretary of State to reconsider the position, taking account of all material factors.

In particular, the pre-action protocol letter made specific reference to the terms of the consent order of 23 June 2014, the recital to which required the Secretary of State, before taking any further decisions to detain and remove Mr Ararso, to take account of the fact that two Court of Appeal judges had seen sufficient merit in the (withdrawn) appeals to order stays of removal pending final determination of the applications.

There is clear evidence that the Secretary of State’s agents were aware of the withdrawal of the appeal, but no evidence that they took account of the point referred to in the recital, which the Secretary of State had expressly agreed to take into account. It was not fair or rational simply to assume, without asking Mr Ararso or his lawyers, that the judicial review permission application foreshadowed in the pre-action protocol would not materialise.

The reaction of the Secretary of State to receipt of the pre-action protocol letter was to maintain efforts to remove Mr Ararso as quickly as possible, and to invoke, for the first time, a risk of him absconding. This was the stance maintained through September 2014. The risk of absconding was artificial. None had been perceived, on the evidence before me, during the period of satisfactory reporting both before and after the proceedings before Mitting J.

I reject Mr Payne’s submission that to apprehend a risk of absconding was reasonable given Mr Ararso’s initial irregular means of entry to this country, his subsequent untrue denial of having (as Mitting J found), claimed asylum in Malta, and his threat of suicide. The first two of those matters would, if significant, have resonated with the Secretary of State in 2012 or, at the latest, 2013, when Mr Ararso was trusted to report regularly and did so. The added threat of suicide could not reasonably alter that position and was not relied on as a distinct point at the time.

The review of Mr Ararso’s detention on 15 September 2014 did not include any reference to the consent order of 23 June. This was a plain failure to take account of a relevant consideration. I agree with the proposition advanced by Ms Bobbie Cheema QC (sitting as a deputy High Court judge) that “breach of a principle of public law will render the detention unlawful”, provided the breach is “material” (see item (10) in her list of propositions derived from the leading cases, in Ganesharajah v. Secretary of State for the Home Department [2014] EWHC 3497 (Admin), at paragraph 89).

In the present case, I am in no doubt that the breach was material. I do not accept that Mr Ararso’s threat of suicide while in detention renders it immaterial. If account had been taken of the matter recorded in the recital to the consent order of 23 June 2014, a reasonable Secretary of State would have found continued detention difficult to justify. The maximum three month time limit for a judicial review permission application, was not due to expire until 10 November 2014. A pre-action protocol letter had been written. Mr Ararso had requested reporting with reduced frequency.

It seems to me that if the matter had been properly addressed, Mr Ararso would probably have been released in the middle of September 2014, following the detention review which took place on 15 September. I therefore find that continued detention became unlawful from 16 September onwards. Taking account of the factual context I have mentioned, I reject the proposition that it was reasonable and lawful to await any proceedings that might be issued, and proceed with all despatch towards removal meanwhile.

After the proceedings were served on 7 October, and removal of Mr Ararso the next day thereby thwarted, still the Secretary of State did not release him. Instead, her agents invoked the hope of an expedited hearing of the judicial review. This was unrealistic; the nature of the arguments concerning the scope of article 18 of the EU Charter, and its interaction with rights under the European Convention, were sophisticated and would take time to resolve.

Indeed, the Secretary of State did not even meet the normal deadline for service of her acknowledgment of service and summary grounds of resistance. If expedition of the claim and removal of Mr Ararso in short order had remained a realistic hope after service of his claim, I would have expected the acknowledgment of service to have been served ahead of the deadline, coupled with an urgent request for expedition of the permission application. That did not happen.

I therefore decide that the detention of Mr Ararso was lawful from 28 August 2014 to 15 September 2014 but unlawful from 16 September 2014 to 7 November 2014. I have not been asked to determine the amount of compensation that should be awarded to Mr Ararso and I hope the parties will be able to agree a figure. If not, there will be liberty to apply.

By way of postscript, since preparing the initial draft of this judgment, I have seen the decision of the Court of Appeal given on 25 August 2015 in R Fardous v. Secretary of State for the Home Department [2015] EWCA Civ 931, in which Lord Thomas CJ emphasised at paragraphs 40 and 41 that there are no tariffs or yardsticks for measuring the length of a reasonable period of detention, and that the Hardial Singh principles are the sole guidelines.

I record here that consideration of that very recent new authority, postdating the hearing and argument before me, and postdating my preparation of the initial draft of this judgment, does not alter my reasoning and conclusion on the issue of the legality of Mr Ararso’s detention. The parties were given the opportunity to make brief written submissions about that case before this judgment was handed down in final form.

For those reasons I will dismiss both applications for judicial review, save that in the case of Mr Ararso, I propose to declare that he was unlawfully detained from 16 September to 7 November 2014, and to give liberty to apply in the event that the amount of compensation due to him is not agreed.

I am grateful to all four counsel for their considerable assistance in this case, and for their respective instructing solicitors for their very helpful contributions. The parties are invited to agree and provide to the court, if possible, the form of the court’s order.