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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Al-Ali, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 3638 (Admin) (04 December 2012) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2012/3638.html Cite as: [2012] EWHC 3638 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		4 December 2012

MR JUSTICE HOLMAN:

Overview and the issue

1. In November 2010 the claimant, who originates from Kuwait, claimed asylum in the Netherlands. Before his asylum claim was adjudicated upon or otherwise determined, a sergeant on behalf of the Commander of the Royal Military Police ordered him to leave the Netherlands within 24 hours. The claimant went into hiding but about three weeks later did travel from the Netherlands back to Kuwait. He says that he was then ill-treated there. In April 2011 the claimant arrived in the United Kingdom and made a further claim to asylum here. Under the hierarchy of criteria in Chapter III of Council Regulation (EC) Number 343/2003 (Dublin II) the Netherlands is the state responsible for determining the claim. The Netherlands have agreed to take the claimant back pursuant to the regulation, and applying article 3(1) of the regulation the Secretary of State for the Home Department wishes to remove the claimant there.
2. The claimant resists removal to the Netherlands and argues that the Secretary of State should exercise her discretion under article 3(2) of the regulation and examine his application for asylum here. The claimant and his legal representatives do not argue or suggest that there is any "systemic" flaw or deficiency in the asylum procedure or in the reception conditions of asylum seekers in the Netherlands. But they argue that the judgment of the Grand Chamber of the Court of Justice of the European Union in NS v Secretary of State for the Home Department [2011] EUECJ C-411/10 and C-493/10, 21 December 2011, and the later judgment of the Court of Appeal in EM (Eritrea) and others v Secretary of State for the Home Department [2012] EWCA Civ 1336, 17 October 2012, are distinguishable from, and do not apply to, this case. They argue that in this case the claimant was actually refouled by the Netherlands back to Kuwait in November 2010; and that, therefore, his own individual history and circumstances require exercising the discretion under article 3(2) of the regulation without any need to demonstrate or rely upon any systemic flaw or deficiency.
3. The essential issue is whether the Secretary of State can lawfully remove the claimant to the Netherlands in application of the provisions of the Dublin II regulation.
4. Repeatedly during her sustained and powerful submissions on behalf of the claimant, Ms Shivani Jegarajah, leading Miss Claire Physsas, stressed that the facts and circumstances of the present claim are, they submit, "unique". If that be right, the case is highly fact specific and it is to a more detailed account of the facts that I next turn.

The facts

5. It is important to stress that there has not yet been any independent examination of any of the facts alleged by the claimant. His account is largely gleaned from short answers in a single screening interview, supplemented by two short written statements he has made during the course of the present hearing on one point. For the purposes of this judgment and my decision I treat what he says as true, but the following account does not represent any adjudication as to any of the facts which are not objectively verified.
6. The claimant is now aged 35. He is a Sunni Muslim of Kuwaiti Bidoon ethnicity and appears always to have lived in Kuwait, although he claims to be stateless. In October 2010 he travelled to Greece, and in November 2010 travelled onwards from there to the Netherlands. On 9 November 2010 he was detained in the Netherlands as an illegal alien.
7. On or about 15 November 2010, while in the Netherlands, he made his first claim to asylum. He was fingerprinted on or about 15 November 2010. On 24 November 2010 he was released from detention by order of a judge: see now the document at bundle page B35 and the translation at B32.
8. Also on 24 November 2010 he was handed the document now at bundle page B36, of which a translation (not given to him at the time) is now at bundle page B33. This document is headed "Royal Military Police" and is entitled "Notification to leave the Netherlands". It states that the Commander of the Royal Military Police ordered the claimant, whose identifying details are then recorded, "on 24/11/2010 to leave the Netherlands before 26/11/2010". It is then signed by a named Sergeant 1st rank on behalf of the Commander of the Royal Military Police.
9. The claimant said in his later screening interview at Croydon on 4 May 2011 that the police officer was either Moroccan or Algerian (the inference being that he and the claimant could communicate in the same language). The officer said that the paper said that the claimant must leave Holland within 24 hours. In fact, he stayed about 20 days with an Arab person whom he had met on the street. I was told by counsel that this was in hiding. After 20 days he travelled to Kuwait using a false Kuwaiti passport. It was around December 2010. When he was later asked at the screening interview why did he return to Kuwait he replied:

"I had no other place to go. Wherever I go to a country they put me in prison. In Greece they torture you when they catch you."

10. On 20 April 2011 the claimant attended at the Asylum Screening Unit in Croydon and claimed asylum. He said that he had left Kuwait on 19 April and travelled on an unknown airline which had arrived in the United Kingdom on 20 April at an unknown airport, having briefly transited via the Emirates or Qatar. His fingerprints were taken and found to match those of the person who had claimed asylum in the Netherlands on 15 November 2010. He was told to attend a screening interview at Croydon on 4 May 2011.
11. At that screening interview the claimant was asked:

"What was your reason for coming to the UK?"

12. He replied:

"I want to apply for asylum because in Kuwait we do not have any human rights and we can have human rights in Britain. In Kuwait they do not recognise us, or give us any form of ID or documents. I am Kuwaiti Bidoon."

13. He was then asked:

"Can you briefly explain why you cannot return to your home country?"

14. (At the outset of the interview he had been told that he would not be asked at this stage to go into detail about the substantive details of his asylum claim as, if appropriate, that would be done at a later interview.)
15. He replied:

"... I left Kuwait illegally. Also I participated in the uprising in recent events and an arrest warrant has been issued because of this. I was arrested on 25.02.2011 and kept for about one week."

16. After the screening interview the claimant was detained at Tinsley House Removal Centre at Gatwick. Tinsley House recorded and reported on 6 May that:

"He claims that the army soldiers beat him up and tortured [him] in Feb 2011/25th. He was in captivity for seven days. No scars on body."

17. The United Kingdom Border Agency wrote to the claimant, now at bundle page E42, that as it was their intention to return him to the Netherlands and not to Kuwait he should raise his issues and concerns of torture with the Dutch authorities on arrival there.
18. By a letter dated 12 May 2011, now at bundle page E43, the Minister of Immigration and Asylum in the Netherlands accepted the formal request of the Secretary of State to take back the claimant pursuant to the Dublin II regulation. That letter quoted the Netherlands reference number as 1011-09-1200.
19. On the same date, 12 May 2011, the UKBA wrote to the claimant the formal letter, now bundle page E44, which informed him that he would be removed to the Netherlands under the provisions of the Dublin II regulation, and certified pursuant to paragraphs 4 and 5 of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc Act 2004 so as to preclude any in-country right of appeal.
20. This decision and certification were challenged by solicitors on behalf of the claimant. The UKBA responded by a more detailed letter dated 1 June 2011, now at bundle page E55, which summarised the history, referred to the certification on safe third country grounds, and continued:

"The Dutch authorities are properly responsible for considering your client's asylum claim. That your client's asylum claim in the Netherlands may have been refused is not a point of issue. The Dutch authorities have agreed to take back your client for the specific purpose of considering his asylum claim and it is open to your client to make an asylum claim upon arrival in the Netherlands and this will be properly considered."

21. Removal Directions to the Netherlands were set for 9 June, but on 8 June 2011 the claimant issued his present claim for judicial review. In the upshot, the claimant has never yet been removed to the Netherlands, although at all times between then and now the Netherlands have remained willing to take him back and the Secretary of State has maintained her desire and intention (subject to any orders of the court) to remove him there.
22. It is not necessary to make detailed reference to the subsequent procedural history, which was clearly influenced by awaiting the decision of the CJEU in NS v SSHD.
23. After refusal below, the claimant made a renewed written application to the Court of Appeal for permission to apply for judicial review. Eliding now some of the observations of Sullivan LJ in two written decisions dated 6 December 2011 and 23 February 2012 (being one before and one after the judgment of the CJEU in NS v SSHD), Sullivan LJ observed that it was arguable that the decision letters of 12 May and 1 June 2011 had applied an irrebutable presumption that the Netherlands would observe the claimant's right as an asylum seeker and that this was unlawful in the light of the decision of the CJEU in NS. Sullivan LJ briefly summarised the facts that the claimant claimed to be a stateless Bidoon from Kuwait who had applied for asylum in the Netherlands on 15 November 2010 but had been ordered on 24 November to leave before 26 November 2010 by the police. Sullivan LJ then observed that:

"... there is no attempt in the defendant's summary grounds of defence to deal with the implications of [those] facts ...

In the absence of any explanation from the authorities in the Netherlands as to why the applicant was ordered to leave the Netherlands notwithstanding his asylum claim, it is at least arguable that there is a serious risk that if returned to the Netherlands he will, once again, be ordered to leave." [My emphasis]

24. Sullivan LJ granted permission to apply for judicial review.
25. It was presumably in the light of the observations of Sullivan LJ which I have emphasised above, that the UKBA wrote the letter, now at bundle page B10, to the Ministry of Immigration Integration and Asylum in the Netherlands on 9 March 2012. That letter did not actually ask the direct question posed by Sullivan LJ, namely for:

"Any explanation ... as to why the applicant was ordered to leave the Netherlands ..."

but it did ask whether his asylum claim was refused and the basis for refusal; whether he exercised his right of appeal; and whether he would be allowed to make a fresh claim if returned there.

26. Very unfortunately that letter from the UKBA gave as the Netherlands reference number a completely different number (viz 0911-10-1324) from that which the Netherlands authorities had given as their reference number (viz 1011-09-1200) in their take-back acceptance letter of 12 May 2011. This may have some bearing on why the subsequent correspondence became confused.
27. Considerable stress is placed by Ms Jegarajah and Miss Physsas upon the fact that an early reply by the Netherlands Ministry dated 26 March 2012, now at bundle page B11, contains errors. It gives the wrong date of birth (15 instead of, correctly, 25 October). It quotes the date of the application for asylum as 17 November, whereas other evidence tends to support that it was 15 November 2010. It states:

"No decision has been taken due to the fact that the person concerned absconded on or about 24 November 2010."

but makes no reference to the fact, as was later established, that on 24 November he had been told to leave the country.

28. These errors do no credit to either the British or Dutch authorities, and have heightened a lack of confidence on the part of the claimant and/or his advisers that he would now be fairly and properly treated in the Netherlands.
29. However, in due course the claimant's solicitors provided to the UKBA the document dated 24 November 2010 which had required him to leave the Netherlands. This was forwarded by the UKBA to the Netherlands Ministry of Immigration with a letter dated 4 May 2012, now at bundle page B30, which enlarged and elaborated upon the earlier questions and included the following:

"...

(e) please explain why an order was made by the Commander of the Royal Military Police to the claimant to leave the Netherlands before 26/11/2010 in circumstances where his asylum claim had not been considered ...

(f) please confirm whether a similar order or orders would be made upon the claimant being returned to the Netherlands pursuant to Dublin II in order for his asylum claim to be considered substantively. ..."

30. The Ministry of Immigration replied in a critical letter dated 11 May 2012, now at bundle page B37, which reads, so far as material, as follows:

"I confirm that the orders made by the Royal Military Police dated 24 November 2010 are genuine.

The person concerned was halted and placed in alien's detention in the Netherlands on grounds of article 59 of the Dutch Aliens Act 2010, due to illegal stay in the Netherlands on 9 November 2010. An appeal was lodged against this detention order on 11 November 2010. This appeal was declared founded on 24 November 2010 and the detention order from 9 November 2010 was abolished and the person concerned was released (model M113). He applied for asylum on 17 November 2010. The person concerned has signed a 'declaration of abolition of the detention' during his first hearing, in which he was informed that he had to report himself to the Dutch authorities at the application centre at Schiphol airport.

Normally, in a situation like this, an asylum seeker is referred to an asylum seekers' residence centre after his release, because asylum seekers are entitled to reception during their asylum procedure. However, in this case the person concerned was, according to the Royal Military Police, told to leave the territory of the Netherlands because of a miscommunication.

...

When the person concerned is transferred to the Netherlands he will not receive similar orders, but he will be placed in an asylum seekers' residence centre until his asylum application is decided. If, by then, the asylum procedure is closed, he will be given the opportunity to submit a new application for asylum."

31. Pausing there, Ms Jegarajah and Miss Physsas argue that that letter does not adequately provide the "explanation" that Sullivan LJ referred to in the part of his observations that I have emphasised above. Mr John Paul Waite, on behalf of the Secretary of State, argues that it does.
32. The letter of 11 May 2012 refers to the claimant having:

"signed a 'declaration of abolition of the detention' during his first hearing, in which he was informed that he had to report himself to the Dutch authorities at the application centre at Schiphol airport."

33. There is, unfortunately, an ambiguity in that sentence. Do the words "in which" refer to the declaration document which he signed, or to the first hearing? So was the requirement to report to the application centre something which was stated in writing in the document which he signed, or something which he was (perhaps) told orally at the hearing?
34. The declaration which he signed had not, unfortunately, been produced at any time prior to the end of the hearing and oral argument last week. The claimant did, however, make a short statement, dated 29 November 2012, at the end of that hearing in which he says:

"I went to the court with interpreter. I was asked questions about Kuwait and how I left the country. After the hearing they took me to the detention centre. The next day I was asked to leave the Netherlands whilst I was at the detention centre. I was made to sign a document in detention which was not translated to me. I signed with my Arabic signature. I was not given a copy of this document. I was only given the letter which asked me to leave the Netherlands. I was told to go to the airport. I did not go because I had no documents."

35. Since the oral hearing last week the document which the claimant did sign with his Arabic signature and which is referred to in the letter of 11 May 2012 has now finally been produced from the Netherlands, and was circulated to the parties and to myself electronically yesterday. The original bearing the signature of the claimant is in the Dutch language. A translation reads as follows:

"Statement Re Lifting of Detention

The above mentioned alien was informed of the following during the first interview of 17 November 2010:

If at any time, for whatever reason, detention under section 59 of the [Aliens Act] is lifted, and a decision has not yet been made with regard to your asylum application at the time of your release, you must report immediately to the Application Centre at Schiphol to enable your asylum application to be processed further.

Address: [an address at Schiphol is then given]

The undersigned herewith states that he was informed of the above in the Arabic language.

Place: Schiphol.

Date: 17 November 2010.

Alien's signature.

[There is in the original a signature in the Arabic which the claimant expressly confirms as his own.]"

36. This appears, therefore, finally to resolve the ambiguity in the letter of 11 May 2012 to which I referred above. The claimant was actually handed a document (in Dutch) on 17 November 2010 which made express that if he was released from detention he must report immediately to the application centre at a stated address at Schiphol to enable the asylum application to be processed further. He was released on 24 November 2010 but did not report at the application centre.
37. The claimant has now made a yet further statement, dated 3 December 2012, in response to that document from the Netherlands. In this statement he agrees that he did sign that document, but says that the contents were not explained to him in Arabic. He says that during his detention he was asked to sign several documents and does not remember how many he signed. He says that the contents of that particular document were not explained to him.
38. The position of the Secretary of State following the letter of 11 May 2012 is contained in a further decision letter from the UKBA dated 23 August 2012, now at bundle page B41. That letter includes the following:

" ...

3. ... you will be aware that, since the grant of permission by the Court of Appeal, this agency has sought and received a specific explanation and assurance from the Netherlands authorities in relation to your client's case.

...

9. Having regard to the legal position as set out in the authorities [previously quoted at some length in the letter], we do not consider that you have even arguably demonstrated that there are any systemic deficiencies in the asylum procedures and reception conditions in the Netherlands, let alone deficiencies which create substantial grounds for believing that your client's rights under the Refugee Convention or ECHR would not be respected.

In particular your client has failed to adduce any evidence from the UNHCR or the European Commission or indeed 'regular and unanimous reports of international non-governmental organisations' as referred to by the CJEU in NS. There is a complete absence of objective evidence in support of your case.

10. You have provided evidence that your client was ordered to leave the Netherlands by court order. However, the Dutch authorities have now confirmed that this was a miscommunication and your client will have the opportunity to submit a new application for asylum and will be placed in an asylum seekers' residence centre on his return. The fact that your client was mistakenly informed to leave the Netherlands does not prove there are systematic [sic] deficiencies in their asylum procedure. It just highlights a mistake made in one particular case. As stated above (and in contrast to MSS or NS), you have failed to adduce any objective evidence which suggests that such deficiencies exist. This stands in marked to contrast to the position in NS and MSS.

11. In light of all the circumstances above, the UK Border Agency has concluded that the evidence and claims advanced by your client do not come close to rebutting the presumption that the Netherlands will treat him in compliance with the requirements of the EU Charter, the Geneva Convention and the ECHR. Therefore your client's claim under article 3 is hereby refused."

39. The claimant has now amended his grounds of claim so as to challenge the decisions and the certification in the letters of 12 May and 1 June 2011 and 23 August 2012.
40. In essence, the argument of Ms Jegarajah and Miss Physsas is as follows. The claimant has been refouled once by the Netherlands. Even if they did not directly or indirectly refoule him, at the very least the Netherlands failed to apply a whole series of minimal procedural standards and safeguards for asylum applicants in Council Directive 2005/85/EC of 1 December 2005 (the Procedures Directive) because they peremptorily ordered him to leave the Netherlands before he could avail himself of any of those safeguards.
41. In these circumstances, they argue, the explanations in the letter of 11 May 2012 are insufficiently full, and the assurance insufficiently strong and reliable. The Secretary of State, and now the court, cannot rely on the rebuttable presumption in Dublin II that the Netherlands is a safe third country from which the claimant will not be refouled, so the discretion under article 3(2) of the regulation should be exercised.
42. At paragraphs 19 and 20 of their written amended grounds and skeleton argument, dated 22 November 2012, Ms Jegarajah and Miss Physsas made reference to "restorative justice" and delay, but these particular points were not further developed at the oral hearing.
43. The long delay in determining the asylum claim is, of course, very regrettable, but it has been a consequence of the present proceedings, and there is no evidence to suggest that if the claimant is now transferred to the Netherlands pursuant to Dublin II his claim will now be resolved more slowly there than here.

The legal framework

44. A series of international and European instruments which are binding on both the United Kingdom and the Netherlands makes absolute the prohibition on refoulement.
45. Ms Jegarajah helpfully took me step by step from article 33 of the 1951 Geneva Convention relating to the status of refugees, through article 78 of the Consolidated version of the Treaty on the functioning of the European Union, and articles 18 and 19 of the Charter of Fundamental Rights of the European Union (2000/C364/01), to preambles (2), (4) and (15) to the Dublin II regulation. These provisions and others all guarantee the right of refugees not to be refouled. I do not need to quote them, since they are set out in, and underpin the relevant jurisprudence, and Mr Waite on behalf of the Secretary of State does not for one moment doubt or question the right or the cardinal importance of it.
46. The breadth of the principle of non-refoulement is clear from paragraph 56 of the judgment of the Grand Chamber of the European Court of Human Rights in MSS v Belgium and Greece (application number 30696/09), given on 21 January 2011, where that court quoted from a note by the UNHCR as follows:

"... The duty not to refoule is also recognised as applying to refugees irrespective of their formal recognition, thus obviously including asylum seekers whose status has not yet been determined. It encompasses any measure attributable to a State which could have the effect of returning an asylum seeker or refugee to the frontiers of territories where his or her life or freedom would be threatened, or where he or she would risk persecution. This includes rejection at the frontier, interception and indirect refoulement, whether of an individual seeking asylum or in situations of mass influx."

47. At paragraph 75 of their judgment in NS the CJEU were to say:

"The Common European Asylum System is based on the full and inclusive application of the Geneva Convention and the guarantee that nobody will be sent back to a place where they again risk being persecuted."

48. At paragraph 78 the court said:

"Consideration of the texts which constitute the Common European Asylum System shows that it was conceived in a context making it possible to assume that all participating states, whether member states or third states, observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol and on the ECHR, and that member states can have confidence in each other in that regard."

49. Integral to the CEAS is the Dublin II regulation. Article 3 provides that:

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

2. By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. ..."

50. At issue in NS, as in this case, was the interrelation between the seemingly mandatory language of article 3(1) and discretionary derogation under article 3(2).
51. The court held at paragraph 68 that the discretionary power under article 3(2) of the regulation:

"Forms part of the mechanisms for determining the member state responsible for an asylum application."

52. At paragraph 80 the court held that it must be assumed that the treatment of asylum seekers in all member states complies with the requirements of the charter, the Geneva Convention and the ECHR. However, as that court also held at paragraph 2 of their final ruling:

"European Union law precludes the application of a conclusive presumption that the member state which article 3(1) of regulation number 343/2003 indicates as responsible observes the fundamental rights of the European Union."

53. Accordingly:

"... Member States, including the national courts, may not transfer an asylum seeker to the Member State responsible within the meaning of [the Dublin II regulation] 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 [viz article 4 of the Charter of Fundamental Rights of the European Union]."

54. At paragraphs 82 to 85 of their judgment the court explained, by reference to the raison d'etre of the European Union, why an infringement falling short of systemic flaws in the procedure should not preclude transfer under article 3(1), but Ms Jegarajah stresses the references in those paragraphs to "any infringement" (paragraph 82), "the slightest infringement" (paragraph 84), and "minor infringement" (paragraph 85). She submits that the use by the court of the language of "minor" or "the slightest" infringement patently indicates that they could not have had in mind at all a situation in which the state concerned had, as she submits, already actually refouled the person concerned. NS was essentially concerned with the reception conditions for, and treatment of, asylum seekers within Greece, and in relation to case C-493/10 Ms Jegarajah emphasises paragraph 52 of the judgment which indicates that it had not been argued that there was a risk of refoulement.
55. The judgment in NS has now very recently been considered and analysed by our own Court of Appeal in EM (Eritrea) and others v SSHD [2012] EWCA Civ 1336 in which the judgment of the court was handed down on 17 October 2012. That judgment concerned the cases of four individual appellants who claimed that they actually had been, or would be, ill-treated in Italy if transferred there pursuant to article 3(1) of the Dublin II regulation. In paragraph 32 the court observed:

"If the matter stopped here, we would be bound, on the evidence we have summarised, to conclude that there was a triable issue in all four cases as to whether return to Italy entailed a real risk of exposing each claimant to inhuman or degrading treatment contrary to article 3 of the ECHR."

56. However, after a review of NS and other authorities, the Court of Appeal said at paragraph 47:

"It appears to us that what the CJEU has consciously done in NS is elevate the finding of the European Court of Human Rights that there was in effect, in Greece, a systemic deficiency in the system of refugee protection into a sine qua non of intervention. What in MSS was held to be a sufficient condition of intervention has been made by NS into a necessary one. Without it, proof of individual risk, however grave, and whether or not arising from operational problems in the state's system, cannot prevent return under Dublin II.

We have no choice but to approach the present claims on the same footing. ..."

57. Mr Waite fastens in particular on the words "without it [viz, systemic deficiency] proof of individual risk, however grave ... cannot prevent return under Dublin II".
58. At paragraph 61 the Court of Appeal were clear that the individual accounts of three of the four claimants in that case were such that:

"If the question were ... whether each of the four claimants faces a real risk of inhuman or degrading treatment if returned to Italy, their claims would plainly be arguable and unable to be certified."

59. Nevertheless, the decision of the CJEU in NS had "set a threshold" in Dublin II and cognate return cases such that:

"... the sole ground on which a second state is required to exercise its power under article 3(2) ... is that the source of risk to the applicant is a systemic deficiency ... Short of this, even powerful evidence of individual risk is of no avail."

60. Mr Waite submits that these passages preclude consideration of individual risk even of refoulement as a bar to transfer under article 3(1). Refoulement is, of course, of the utmost gravity. Yet at paragraph 47 the Court of Appeal (constrained by the terms of the judgment of the CJEU) had said that without systemic deficiency:

"... proof of individual risk, however grave ... cannot prevent return ..."

61. And at paragraph 62, short of systemic deficiency:

"... even powerful evidence of individual risk is of no avail."

Discussion and outcome

62. Despite the force of the language of the Court of Appeal in EM (Eritrea) I am prepared to assume, without so holding, that the facts and circumstances of the present case do distinguish it from those of any claimant in the EM (Eritrea) case and from any claimant in the NS case. It is certainly a factual distinction that the present claimant was actually refouled within the statement of the principle adopted by the ECHR in paragraph 56 of the judgment in MSS. Refoulement "includes rejection at the frontier", and by peremptorily requiring the claimant to leave when he had nowhere else to go the Netherlands did effectively refoule him. Since the overarching guarantee, in support of which the CEAS and Dublin II are a mechanism and machinery, is not to be refouled, I am prepared to assume (without so holding) that neither the CJEU nor the Court of Appeal were contemplating a (claimed) history of actual refoulement when they used the language that they did.
63. In any event, the history of this case necessarily calls for some investigation and explanation,as Sullivan LJ observed. For unless and until it is investigated and explained, it would not be possible to discern whether the experiences of the claimant were individual, or whether they evidenced systemic deficiency. Was he required to leave because of some error? or might it have been because, for example, of some systemic bias in the Netherlands against Kuwaiti Bidoons? I am prepared to assume in favour of the claimant that, as he has once been refouled by the Netherlands, he cannot be transferred there again under article 3(1) of Dublin II unless there is a sufficient explanation of why he was refouled, and a sufficient assurance that it will not happen a second time, such that the Secretary of State and ultimately the court can be confident that it will not happen again.
64. But having made that assumption in favour of the claimant as to the law, I have to say that his claim for judicial review must fail on the facts as they now are. The letter from the UKBA dated 23 August 2012 certainly stresses the absence of any evidence of systemic or "systematic" deficiency, but it considers also and refers to the specific circumstances of this claimant. At paragraph 3 of the letter the UKBA say:

"... this agency has sought and received a specific explanation and assurance from the Netherlands authorities in relation to your client's case."

65. The words "specific assurance ... in relation to your client's case" do not refer to system. They are case specific.
66. At paragraphs 10 and 11 the UKBA said:

"... the Dutch authorities have now confirmed that this was a miscommunication and your client will have the opportunity to submit a new application for asylum and will be placed in an asylum seekers' residence centre on his return ... The UKBA has concluded that the evidence and claims advanced by your client do not come close to rebutting the presumption that the Netherlands will treat him in compliance with the requirements of the EU Charter, the Geneva Convention, and the ECHR."

67. In my view the UKBA and the Secretary of State were entitled to reach that conclusion. Furthermore, it is one with which I personally (acting judicially) agree.
68. I accept the submission of Ms Jegarajah and Miss Physsas that the letter from the Minister of Immigration of 11 May 2012 could have been fuller. It could have actually produced or attached the declaration document which the claimant himself signed, so that the language and contents of that document could now be read. That omission has at last, yesterday, been rectified. It could have given a fuller account of how the "miscommunication" came about. But the letter satisfies the Secretary of State, and it satisfies me, that there was simply a mistake, however grave its consequences. There is not the slightest reason to suppose that a similar mistake will be made a second time in relation to the same individual, and indeed good positive reason to suppose that it will not be. When he returns to the Netherlands the claimant can have the letter of 11 May 2012 in his pocket. It makes clear and express on its face that he will not next time be told to leave, but will be placed in an asylum seekers' residence centre until his application is decided. There is clearly a file upon him which clearly indicates the intense focus of the Secretary of State and of this court upon the past mistake and its consequences. The claimant himself knows now, even if he did not know then, that he cannot simply be ordered to leave by the police unless there has been proper independent determination of his claim.
69. This claim for judicial review was clearly fully justified at the time it was first issued and, indeed, remained justified until receipt by the claimant of the letter from the Netherlands authorities of 11 May 2012 and the considered reaction to it by the Secretary of State by the letter from the UKBA of 23 August 2012. But I am quite satisfied that it must now fail and that there can be no further impediment to the transfer of the claimant to the Netherlands pursuant to the provisions of the Dublin II regulation.
70. MR JUSTICE HOLMAN: So where do we go from there?
71. MR WAITE: My Lord, just an application for costs on behalf of the Secretary of State.
72. MR JUSTICE HOLMAN: Well, let me just think. First of all the substantive decision is that the claim for judicial review is dismissed.
73. MR WAITE: My Lord, yes.
74. MR JUSTICE HOLMAN: That is really a one liner.
75. MR WAITE: Exactly.
76. MR JUSTICE HOLMAN: Then you have an application for costs. We have had some discussion about that.
77. MR WAITE: Subject to the usual order in legally aided cases.
78. MR JUSTICE HOLMAN: But from what date? Did we discuss this the other day? Probably not.
79. MR WAITE: I think the preliminary view was that costs follow the event. That is how we left it.
80. MR JUSTICE HOLMAN: As I just said, for a period this was obviously a very justified claim. When it was very first issued Sullivan LJ said this calls for an explanation and assurance. Eventually that came and the Secretary of State considered it.
81. MR WAITE: My Lord, I don't know what the claimant is going to say about that aspect of it.
82. MR JUSTICE HOLMAN: Your application is that he should pay your costs, subject to the usual protection of a publicly funded claimant, from the beginning to end.
83. MR WAITE: My Lord, yes.
84. MR JUSTICE HOLMAN: What do you say?
85. MISS AKTHER: My Lord, as you know I am in slight difficulties.
86. MR JUSTICE HOLMAN: I know you are but you have a solicitor who knows this case inside out and upside down.
87. MISS AKTHER: I am told by the solicitor in the light of the fact that the claim brought was justified that there be no order -- that the claimant's costs be reasonably paid because the claimant was justified --
88. MR JUSTICE HOLMAN: No, I said it was justified up to August.
89. MISS AKTHER: And we only got the letter yesterday.
90. MR JUSTICE HOLMAN: No, but you had the -- that letter just ties up a loose end.
91. MISS AKTHER: Yes, my Lord.
92. MR JUSTICE HOLMAN: I had already drafted this judgment on the assumption that we didn't get that letter. To me, I am glad we pressed for it because it clarifies things and it is more satisfying to have the full account, but even absent that letter I am afraid I had already made up my mind and drafted this because I didn't know I was going to get that letter. I only saw it last night.
93. Well, you are asking to have all your costs or are you saying there should be no order as to costs?
94. MISS AKTHER: Forgive me, my Lord. One moment. (Pause). My Lord, just checking the position with my solicitor. We have our order until August. My Lord, that is when the change --
95. MR JUSTICE HOLMAN: But the Secretary of State has to have her order from August and I am wondering whether one will more or less cancel out the other.
96. MISS AKTHER: My Lord, in that case legal submissions --
97. MR JUSTICE HOLMAN: No. I am going to have legal submissions. I am going to deal with it.
98. MR WAITE: My Lord, very briefly, my submission is --
99. MR JUSTICE HOLMAN: Let me just think. I have just said -- let us go back to it. This claim was fully justified at the time it was issued and indeed until receipt of the letter, not only the May letter, but the further one by the Secretary of State of 23 August.
100. So there could be an argument for saying that you should pay their costs up to some time very shortly after 23 August but they should then pay your costs since that date. Now the only question is as a matter of apportionment would the one cancel the other one out?
101. MR WAITE: Probably, but could I briefly deal with that first letter. There is a distinction in my submission between justified and would have succeeded, only for this reason, that your Lordship decided it was not necessary to hold -- to give judgment on the systemic submission. So whilst you had concluded it was justified, it does not mean that it would have succeeded in my submission in the absence of evidence of systemic fault and in the absence of knowing what your Lord's ruling is on that particular aspect.
102. MR JUSTICE HOLMAN: I couldn't agree more, with the utmost respect, with what Sullivan LJ said. There had to be an explanation and assurance in this case. Whatever the CJEU or anyone else says, once you had the events that occurred there had to be an explanation and assurance. As I said, until you know why he was told to leave you can't know whether that was because of some systemic bias, for instance, against Kuwaiti Bidoons. I am not suggesting that. But why was he told to leave?
103. MR WAITE: I fully respect that that was your ruling. My Lord, in that case what I would submit is that rather than an order which is going to incur more costs in working out what costs were incurred a more sensible order is no order for costs otherwise more public funds will be engaged in finding out --
104. MR JUSTICE HOLMAN: Exactly. I don't think you would disagree with that?
105. MISS AKTHER: My Lord, no.
106. MR JUSTICE HOLMAN: But I think I would want -- could the costs paragraph say "No order as to the costs of either party of or incidental to the claim for judicial review". Have there already been any costs orders? There was an oral hearing in front of Cranston J. They are not any? Right.
107. I will say "including any costs reserved. (The court makes this order on the basis that, strictly, the defendant should pay the costs of the claimant up to shortly after 23 August 2012 and the claimant should pay the costs of the defendant after that date; but both parties agree that such costs are likely roughly to cancel out and accordingly any further assessment --"
108. MISS AKTHER: My Lord, forgive me for interrupting at this point. My instructing solicitor has just said that this case has been ongoing, so, my Lord, I think the suggestion is that the costs would cancel each other out but our costs have been a lot more given the long span of time --
109. MR JUSTICE HOLMAN: I am sure you have had a lot of costs beforehand but you have had the big costs of Ms Jegarajah and Miss Physsas and your solicitor last week and you today. I am not going back on it now. You have just agreed that order.
110. MISS AKTHER: Forgive me. It was without conferring with my instructing solicitor. It was just pointing out that given the longevity of this case, the fact that it has gone on --
111. MR JUSTICE HOLMAN: I am afraid I am not going back. But if you don't agree they roughly cancel out I will take all that out. There is no order for costs including any costs reserved.
112. Any other points on the substantive order?
113. MR WAITE: No, my Lord.
114. MR JUSTICE HOLMAN: Do you wish to make any application, Miss Akther? Permission to appeal I am talking about.
115. MISS AKTHER: My Lord, without conferring with either counsel on the case at this stage I can't give an indication.
116. MR JUSTICE HOLMAN: I beg your pardon?
117. MISS AKTHER: Without conferring with either counsel I cannot make a submission at this stage.
118. MR JUSTICE HOLMAN: No application is being made at this stage so I don't rule on it. Anything else?
119. MR WAITE: My Lord, no. I am grateful.
120. MR JUSTICE HOLMAN: Who will draw up the order for the associate?
121. MR WAITE: I will.
122. MR JUSTICE HOLMAN: If you could take responsibility, it is fair for you to do it Mr Waite since Miss Akther is only here this morning, but have it agreed by the other side before submitting it to the associate. Anything else, Mr Waite?
123. MR WAITE: No, my Lord.
124. MR JUSTICE HOLMAN: Miss Akther?
125. MISS AKTHER: No, my Lord.
126. MR JUSTICE HOLMAN: Sir, I am afraid what that means is that I have considered this fully and at great length, that my position is that the British authorities intend to send you back to the Netherlands and I think they are entitled to do that. I do believe that your claim this time will be properly dealt with there. I have no idea what they will decide. I have the utmost compassion for you personally, because I do understand that the way asylum seekers seem to be moved from country to country must sometimes seem to lack dignity, but that is what these European states have decided is the way in which these claims will be dealt with, for understandable reasons of orderly treatment, and I am afraid you must just go back to the Netherlands and sort it out there. But you know that the next time you can't just be told by a policeman you have got to leave.
127. Thank you all very much indeed. I am immensely grateful to your solicitor for all that she did in this case.