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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 >> Tesfay, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 4048 (Admin) (10 November 2014) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/4048.html Cite as: [2014] EWHC 4048 (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
		10 November 2014

1. MR JUSTICE COLLINS: These three claims came before me pursuant to orders of Ouseley J made on 23 July 2014 directing that the issue, as it was put, of apportionment of costs should be determined. These claims sought to challenge decisions to remove the claimants to Italy pursuant to what is known as Dublin II because their asylums claims were first made in Italy and, since Italy has accepted that it should deal with the claims, they should be returned there. It has been asserted in these and in many other similar claims that there was and is a real risk that claimants would suffer treatment which breached their human rights, in particular Article 3 of the European Convention on Human Rights. This was said to result from the pressure of numbers on the Italian authorities which resulted in lack of support leading to destitution.
2. There is a presumption that member states of the European Union as signatories to the European Convention on Human Rights will comply with their obligations under the Convention. Consistently with that, section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 and paragraph 5(4) in Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 provide that claims relating to removals under Dublin II are to be certified as clearly unfounded unless the Secretary of State is satisfied that they are not. Kenneth Parker J in (R) Medhanye v Secretary of State for the Home Department [2011] EWHC 3012 decided that the presumption could only be rebutted if the claimant established through a reliable body of evidence that Italy systematically and on a significant scale failed to comply with its obligations under the Convention. It followed that the vast majority of these Italy claims were certified so that there was no in-country right of appeal.
3. Mr Tesfay, an Eritrean, entered the United Kingdom on 4 January 2012. On 6 February there was a decision to return him to Italy and to certify, and removal directions were to take effect on 16 February. The claim was issued on 15 February. There was an additional Article 8 ground in respect of a partner that he had here, but that was not pursued. Removal was not to take place having regard to the issue of the proceedings, and in due course amended grounds sought relief which was the quashing of the certification and a declaration that the Secretary of State could not reasonably certify.
4. Mr Rahma is from Sudan. He entered the United Kingdom via the Eurotunnel unlawfully on 15 March 2012. He was apprehended by the police. On 17 March he claimed asylum. There were problems with fingerprinting because there had been damage to his fingers, but eventually it was discovered that he had come from Italy and on 9 July 2012 his claim was certified. Directions were made on 11 July that he be removed to Italy on 19 July. The claim against removal was lodged on 11 July. The removal direction was in fact withdrawn on 18 July following a letter from his Member of Parliament. The grounds that he raised asserted that to return him to Italy would breach EU law because of the treatment of asylum seekers such as himself in Italy. The relief he sought was a mandatory order requiring the Secretary of State to consider his asylum and human rights applications in accordance with the law and quashing the 9 July decision which had certified the claim. In fact, on 28 August the Secretary of State confirmed the certification following consideration of the issues raised in his claim.
5. Mr Tayyara, from Syria, lodged his claim on 16 August 2012. He had in fact been arrested earlier on suspicion of illegal entry. On 1 August Italy accepted that it should deal with his claim. A decision was made pursuant to Dublin II on 6 August, and on 7 August removal directions were made for 16 August. On 13 August his solicitors wrote a letter attacking the certification on the ground that there would be a breach of Article 3 were he to be returned to Italy. That effectively was a pre-action protocol letter. On 15 August the Secretary of State responded refusing to change her mind and accordingly the claim was made essentially to prevent removal. The relief sought was to quash the decisions and the certification and a mandatory order was sought requiring the Secretary of State to consider his human rights and asylum application in this country.
6. These claims and others were stayed pending the decision of the Court of Appeal in Medhanye, the appeal against the decision of Kenneth Parker J.
7. It was believed at the time that the decision of the European Union Court of Justice In NS [2013] QB 102 required there to be shown to be a systemic failure in Italy as a member state, and that personal circumstances could not prevail. None of these claims could on that approach succeed. However, EM (as it was called in the Court of Appeal) was due to go to the Supreme Court, and so further stays were sought and obtained. However, in AB (Sudan) v Secretary of State for the Home Department [2013] EWCA Civ 921, in late 2013 the Court of Appeal decided that there was no need to maintain stays in all cases having regard in particular to recent European Court of Human Rights cases which, as Mr Knafler QC stated "somewhat surprisingly", refused to uphold claims that there was a real risk of breaches of the Convention in Italy.
8. Following AB, claimants were asked to identify or serve evidence as to conditions in Italy which they said gave rise to a real risk of treatment contrary to Article 3 as at late 2013. This led to amended claims which were rejected. However, before any hearings could take place, there came the Supreme Court decision in EM which allowed the appeals against the Court of Appeal decision and remitted the claims for reconsideration by the Administrative Court.
9. Thus the Secretary of State had to consider in the light of this decision what should be done. She could either withdraw the earlier decisions, bearing in mind that because of human rights claims the court would be bound by section 6 of the Human Rights Act 1998 not to breach the claimants' Convention rights, and so the position as at 2014 would have to be considered. She decided the sensible course was to withdraw and to reconsider. The rationale is referred to in the defendant's skeleton argument. Without reading the whole of the reasoning, she took the view first of all of course one had to consider the up-to-date position, and it might have changed since the original decisions were made. There was judicial concern (to which I will refer shortly) at the system that seemed to be in vogue that there would be further consideration in the course of judicial review proceedings by the Secretary of State which led to amendments and changes of approach. This was unsatisfactory. There were a considerable number of stayed cases and there would be a need for yet further stays when further consideration was given to any update material. Accordingly, it was more sensible in all the circumstances in her view to withdraw and allow the applicants in question to add anything they wished to add to their claims.
10. In paragraph 52 of the Supreme Court decision in EM, Lord Kerr, giving the judgment of the court, stated that the Court of Justice of the European Union in NS recognised that "any system, however free from inherent deficiency, might experience operational difficulties." He construed "systemic" narrowly, and sought to distinguish operational problems. But such problems could produce in effect a systemic (which, according to dictionary definition, means the same as systematic) failure so long as they were not remedied. Temporary problems which were being dealt with should not justify a conclusion that there was a real risk. The Soering v United Kingdom test [1989] 11 EHRR 439 simply applied real risk. Further, the Supreme Court unfortunately failed to consider a decision of the European Court of Justice in Abdullahi v Bundesasylamt [2014] 1 WLR 1895. That decision was promulgated, it seems, between the hearing before the Supreme Court and the delivery of judgment. In any event, it was not drawn to the attention of the Supreme Court, and is inconsistent with the decision of the Supreme Court in EM in as much as Abdullahi confirms the narrow approach which the Court of Appeal believed NS had identified.
11. Thus it seems to me, so far as the European Union law is concerned, subject only to a rare case in which an individual might show special circumstances where he faced a personal risk (because, for example, there was a real risk that he would be ill-treated by non-state agents and no protection could be afforded), the Court of Appeal otherwise correctly understood NS. Technically the European Court's decision is binding even on the Supreme Court. But I recognise that in domestic law terms I should follow the Supreme Court decision and leave it to that court to reconsider its decision in the light of the European Court's jurisprudence. The situation is, to say the least, somewhat unfortunate.
12. Mr Knafler submits that, since the decisions which they were seeking to impugn have been withdrawn, the claimants have succeeded in obtaining what he accepts was the only relief that practically could have been obtained. Therefore, in principle, they should be entitled to their costs. He accepts that where the Secretary of State agrees to reconsider a decision only because fresh evidence has been produced which was not put before her, whether or not it was then available, it would not generally be possible to obtain costs. It is not an error of law to fail to have regard to material not put before the decision maker. That does create a problem in claims based on alleged breaches of human rights since the court has to consider the position on whatever evidence is available as at the date of the hearing. This led Ouseley J to express concerns in an unreported hearing R (B) v Secretary of State for the Home Department CO/7357/2011 in February 2014 deprecating the practice of fresh evidence leading to amendments of claims then challenges to the fresh decisions and maintenance of the adverse decision. I echo these concerns. It seems to me that the better course is (unless of course the new material is insignificant) for the decision maker to withdraw the original decision and to reconsider. If the claimant believes he can make a fresh claim he can do so, but he will need permission. Further, it seems to me that the defendant should not be penalised in costs. It will be for the court, if a costs application is made, to consider whether as the claim stood the claimant would have been likely to succeed in whole or in part. That approach is supported by the decision of the Court of Appeal in R (A) v Chief Constable of Kent [2013] EWCA Civ 1706 paragraph 84.
13. The distinction relied on here from a straightforward fresh evidence approach is that the decisions are based on an error of law as to the correct approach. So much was made clear in the decision-making process since reliance was placed on the law as it was understood to be before the decision of the Supreme Court in EM. Thus the decisions to withdraw resulted from the Supreme Court decision in EM and did not, it was submitted, depend on fresh evidence alone. It was made clear that the withdrawals resulted from the decision in EM and the additional material submitted since the original decisions, and a request was made for service of all material now relied on.
14. It is submitted by Mr Payne that the claimants have not got all the relief they sought which extended to an in-country appeal right. Reliance is placed on the need for total success. But had the claims proceeded to a hearing and the claimants had succeeded in obtaining the only relief that the court could grant, namely reconsideration, I do not doubt that costs would have been likely to follow the event.
15. Thus the question is whether withdrawal in the circumstances produces the same result. The defendant in particular in immigration cases is frequently faced with claims which require a reconsideration of decisions because of human rights issues. This will be because it is said the decision was wrong in law independently of fresh evidence. Thus if there is a withdrawal, which will be likely to be sensible where fresh evidence is submitted which could affect the decision, the court will in a contested costs application, such as have been made here, have to consider whether the outcome would have been favourable to the claimant.
16. Mr Knafler relies on the view expressed in the Court of Appeal in EM that, but for the need for systemic breaches, there was material which could show that there was a real risk of relevant ill-treatment in Italy. That, he submits, applied when these claims were lodged, and so it cannot be said that the claims would have been likely to fail. Mr Payne relied on the recent decision of this court in Tabrizagh v Secretary of State for the Home Department [2014] EWHC 1914, in which certificates were upheld because the court was satisfied that there was no real risk of breaches of Article 3 in Italy. In fact last week the Court of Appeal upheld the decision in question. This was, it seemed, consistent with the jurisprudence from the European Court of Human Rights and that from the European Court of Justice.
17. Since the conclusion of the hearing, my attention has been drawn to a decision of the Grand Chamber of the European Court of Human Rights given on 4 November 2014. The case in question is Tarakhel v Switzerland 29217/12 [2014] ECHR 1185. It concerns a Swiss decision to return a family consisting of husband, wife and six children (five children at the time of the decision) to Italy. The children now range in ages from 16 to two. In Italy they were accommodated in what they described as poor conditions resulting from lack of appropriate sanitation facilities, lack of privacy and a climate of violence. The court accepted evidence which showed that the reception facilitates available for asylum seekers were inadequate due to the numbers, but this was particularly problematical for families where children were concerned. There were also long delays in accessing whatever facilities were available and in making decisions on claims.
18. The court noted two decisions of the German Administrative Courts that there were systemic deficiencies. It also referred to the decision of the Supreme Court in EM. The court also referred to MSS v Greece and other decisions which dealt with the systemic approach which the court had seemed to indicate was the correct approach in the past.
19. MSS v Greece was a decision which decided that the situation in Greece was such that there was indeed a systemic breach. That was largely because the facilities available were grossly inadequate. The figures given were that there were spaces for about 1,000 applicants at most, and that was supposed to meet some 10,000 who were making applications. It is obvious that the circumstances were such that it was impossible to deal with the matters properly, and Greece as effectively a front-line state in respect of asylum seekers (all the more so perhaps as a result of what is going on in the Middle East) faced tremendous problems. But in paragraph 99, the court in the recent decision stated that it was important to bear in mind that a child's extreme vulnerability was a decisive factor, and that took precedence over considerations relating to the status of illegal entrants.
20. The presumption of compliance with the Convention is not irrebuttable, but there must be shown to be substantial grounds for believing that the person to be returned faces a real risk of being subjected to treatment contrary to the European Convention on Human Rights in the receiving state. In paragraph 114, the court considered evidence that was put before it and indicated that the situation in Italy could in no way be compared to that in Greece when MSS was decided when, as I have already indicated, the facilities were grossly inadequate. But it indicated in paragraph 115 that there were serious doubts about the current capacity of the system. Thus, as it put it, "the possibility that a significant number of asylum seekers may be left without accommodation or accommodated in overcrowded facilities without any privacy, or even in insalubrious or violent conditions, cannot be dismissed as unfounded." It pointed out in paragraph 118-119 that there must be a minimum level of severity in order that Article 3 could be engaged, and that the assessment depended on all the circumstances such as the duration of the treatment, its physical and mental effects, the sex, age and state of health of the victim, and it had to be recognised that asylum seekers did need some special protection, and that was particularly important when persons concerned in the application were children. However, as I have said, it was not comparable with the situation in Greece, and the court decided that in the circumstances of that case the Swiss authorities needed to obtain assurances that "the applicants will be received in facilities and in conditions adapted to the age of the children, and that the family will be kept together."
21. This case undoubtedly, as the minority pointed out, is not entirely consistent with previous decisions which clearly required a systemic failure. Nonetheless, it is in my view clear that the court was particularly influenced by the effect on the children and family. I do not think that a possibility can necessarily be translated to show establishment of a real risk of treatment contrary to Article 3, and certainly that is the case where one is concerned with single applicants, and there is no question of any child or family being involved.
22. Bearing in mind the approach of previous decisions of the European Court of Human Rights and the approach which the court in Luxembourg has indicated to be correct, it seems to me that the decision in question, the Switzerland case, is one which depends largely upon its own facts. The court, as I say, was at pains to indicate that the situation in Italy in no way equated with that in Greece; that is to say, the court did not indicate that there was a systemic failure in Italy. It did perhaps open the door a little more to the possibility of individual cases being able to show a real risk, but it seems to me that, particularly bearing in mind the European Court of Justice jurisprudence, that would not be likely to result in domestic decisions in this country reaching a decision in favour of single applicants.
23. It is important that if possible a pre-action protocol letter is sent to enable a decision to be reconsidered. That did happen in the case of Tayyara, but not in the other cases. Clearly it was appropriate to prevent removal in the light of the concerns about Italy which were by 2012 to be considered by the Court of Appeal. The court is in a difficult situation when considering whether a claim would or was likely to succeed.
24. In M v Croydon [2012] 1 WLR 2607, the Court of Appeal considered the approach to costs in judicial review claims which were settled. The court made clear that where a claimant obtained all the relief he sought, he should normally receive his costs unless there was a good reason for a different decision. It is thus necessary to consider what is claimed and, if too much, that can affect costs if less is granted following a consent order. Here there can be no doubt that the main relief was the quashing of the decisions, but that would be limited to a reconsideration. Any further mandatory order or declaration would have been refused. Thus there would not have been total success, but it would have been substantial.
25. However, no relief could have been obtained unless the court was persuaded that the decision under attack was unlawful. The defendant has never conceded unlawfulness. The withdrawal was made partly because of the lapse of time with a view to dealing with the up-to-date position. Thus in considering an appropriate order it is necessary to consider whether the claimants would have established that the decisions were unlawful.
26. I have no doubt that the claimants could not and cannot show that they would have been likely to succeed. But the law was unclear and there were real concerns about Italy. It was necessary to prevent removal. As I have said, ideally pre-action protocol letters should have been lodged, but as appears from the response in Tayyara, they would not have been likely to have succeeded. Of course, there is a problem facing all such as the claimants because they need to obtain advice and assistance, and there is a short time normally between the decision to remove and the date of removal. Thus I am persuaded that it was reasonable, if only to stop removal, to lodge these claims.
27. However, since I am satisfied that success was improbable (and I note that there were initial refusals of leave in Tesfay and Rahma), I do not think that the claimants should be entitled to costs thereafter. This may seem harsh on those who represented them, but the disadvantageous amounts between legal aid costs and costs awarded to successful parties who are legally aided cannot influence my approach.
28. Thus I shall direct that these claimants (and I suspect many others whose claims are dependent on these) should have their costs of preparing and lodging the claims. That, of course, will include the drafting of grounds and, where appropriate, payment of counsel's fees in relation to the drafting of grounds. But thereafter, there should be no order for costs.
29. The reason why no order is appropriate is because one cannot be certain that the claims would have failed, although in my judgment that is the overwhelming probability, and if they had failed the Secretary of State would have been entitled to her costs, subject obviously to the question of enforcement. In the circumstances, where the situation is that the court is persuaded that the probability lies in failure, the appropriate order is, as I have said, no order for costs.
30. That, therefore, is the decision I reach on these claims.
31. MR PAYNE: My Lord, there is a short application for the Secretary of State in relation to the costs of the hearing of the costs, because again, without putting my case too strongly, we say that we substantially won the application.
32. MR JUSTICE COLLINS: I have I hope assumed correctly you are legally aided?
33. MR Ó CEALLAIGH: We were, my Lord.
34. MR JUSTICE COLLINS: So really it is a question of which part of the Ministry of Justice picks up the bill, is it not?
35. MR Ó CEALLAIGH: My Lord, I was going to make the same submission in precisely the same words as my learned friend. We apply for costs and we would say that we have substantially succeeded.
36. MR JUSTICE COLLINS: I think we will maintain no order.
37. MR Ó CEALLAIGH: I am grateful.
38. MR PAYNE: My Lord.
39. MR JUSTICE COLLINS: I do not think there is any great problem in the order. Incidentally, just to avoid any further applications, I would refuse leave to appeal. I think it is probably sensible to include that as part of the order. Not that you have made an application, I appreciate, but it is sensible I think simply to deal with it.
40. MR Ó CEALLAIGH: Can I ask for a detailed assessment for legal aid purposes of today's hearing as well?
41. MR JUSTICE COLLINS: Of course. You can have the usual order that you are entitled to.