England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
IMMIGRATION APPEAL TRIBUNAL

		Royal Courts of Justice Strand London, WC2
		13 April 2005

1. LORD JUSTICE MAURICE KAY: This is an appeal from a judgment and order of Mr Justice Wilson, who, on 18 November 2004, dismissed an application for judicial review of a certificate of the Secretary of State for the Home Department made under Section 93 of the Nationality, Immigration & Asylum Act 2002 that the claim of the appellant G to remain in this country on human rights grounds was clearly unfounded.
2. The case concerns the situation which arises when a person makes an application for asylum in a Member State of the European Union and then proceeds to make a similar application in a second Member State. In the present case the first application was made in Italy, the second in this country. Arrangements for managing such cases were dealt with by the Member States in the Dublin Convention which came into force on 1 September 1997. The provisions of the Dublin Convention have now been supplemented by Council Regulation 343/2003. The authorities in Italy and the United Kingdom take the view that G's application should be considered substantively not here but in Italy.
3. The case for G is that it would breach her rights under Article 8 of the European Convention on Human Rights, and Fundamental Freedoms, (ECHR), and/or contravene the Regulation if she were to be removed to Italy, and the Secretary of State was therefore wrong to certify her claim under Section 93. The effect of such a certificate is to deny the applicant access to an adjudicator and the Immigration Appeal Tribunal while remaining in this country.
4. It is necessary to set out the factual background in a little more detail. G is from Somalia. She applied for asylum in Italy on 7 July 2003. Later she made her way here. On 8 September 2003 she applied to the Secretary of State for asylum, falsely claiming that she had left Somalia only three days earlier. She gave her date of birth as 27 January 1984, and said, untruthfully, that she had married in Somalia. Normal investigations disclosed the earlier Italian application in respect of which she had given the same date of birth.
5. On 26 November 2003 the Secretary of State certified, pursuant to Section 11 (2) of the Immigration and Asylum Act 1999, that Italy had accepted that it was the responsible state to deal with her claim for asylum. By Section 93 of the 2002 Act, it is provided:

"(1) A person may not appeal under section 82 (1) while he is in the United Kingdom if a certificate has been issued in relation to him under Section 11 (2) ..... of the 1999 Act.

(2) But subsection (1) does not apply to an appeal if -

(a) the appellant has made a human rights claim, and

(b) the Secretary of State has not certified that in his opinion the human rights claim is clearly unfounded."

6. On 6 April 2004 the Secretary of State certified that G's human rights claim, which was advanced in a letter from her solicitors dated 18 March 2004 and relied upon Article 8 of the ECHR, is, in his opinion, clearly unfounded. On 16 February 2004 G was briefly detained pending her intended removal to Italy. For the first time she then maintained that her date of birth was 10 August 1988, and she was therefore 15 rather than 20. It was said on her behalf that she had originally given an earlier and false date of birth because she had been told to do so in order to obtain work.
7. Her human rights claim was first advanced by an organisation known as Bail for Immigration Detainees in a letter faxed on 27 February 2004. It referred not to Article 8 of the ECHR but to Article 15 of the Regulation. The letter advanced the later date of birth and stated:

"We have been instructed by the detainee's cousin, [Mrs S], that the latter is willing to accept responsibility for the detainee's well being. The cousin also points out that the detainee also has an uncle resident in the UK who is currently on the Haj pilgrimage.

Conversely, we have been instructed that the detainee has no relatives residing in Italy, and so would be separated from any family life if removal were carried out. When the detainee was originally smuggled into Italy she slept in [a] bus shelter in Rome. There is no one to care for her there."

Enclosed with the letter was a statutory declaration by the cousin, Mrs S, which stated:

"I ..... do solemnly declare that [G] ..... is a Somalian citizen born in Janallah, Somalia on 10.8.88 and confirm that she is the daughter of my auntie Mrs Y."

8. G's solicitors then came on the scene. In a letter dated 18 March 2004 the case was put by reference to both Article 8 of the ECHR and Article 15 of the Regulation. They enclosed a report dated 15 March 2004 from a consultant paediatrician, Dr Michie, who had examined G on that day and concluded that what was revealed was consistent with a chronological age of 16 plus or minus two years, and that his findings were consistent with a date of birth in August 1988. In other words, the doctor considered a likely age range of up to 18 plus, but not as high as 20, which would have been G's chronological age if she had been born on the date she had first given to the Italian and British authorities.
9. All this led to the Secretary of State's letter of 6 April 2004 in which he rejected the claim that to remove G to Italy would infringe her rights under Article 8. He did not consider that the letter from the doctor conclusively established that she was a minor. Moreover he concluded that any interference with G's family and private life resulting from her removal to Italy would be proportionate and justified by reference to Article 8.2 of the ECHR. He issued directions for her removal but they have been on hold since the application for permission to apply for judical reivew was issued on 22 April 2004. Such permission was eventually obtained on a renewed application on 14 July 2004, but the substantive application was dismissed by Mr Justice Wilson on 18 November 2004.
10. The factual basis upon which G's case was sought to be put before Mr Justice Wilson was set out in paragraph 16 of his judgment in this way:

"(a) that she was born on 10 August 1988 so was and is a minor;

(b) that she has never been married;

(c) that since 6 April she has been living with her first cousin, Mrs S; has been cared for by her and has been dependent upon her; and

(d) that the circumstances set out at (c) give rise to her enjoyment of family life with Mrs S within the meaning of meaning of Article 8 of the human rights Convention."

11. The structure of Mr Justice Wilson's judgment was that he first considered the provisions of the Regulation - Articles 6, 7 and 15 - which, it was submitted, demonstrated that G's application should be considered here rather than in Italy. Mr Justice Wilson rejected that submission. He then returned to the factual basis of the application and came to these conclusions in paragraphs 39 and 40 of his judgment:

"39 ..... On balance I agree ..... that, in the absence of any different professional opinion, the defendant cannot rationally proceed on the basis that the claimant was, as she had initially alleged, born on 27 January 1984. But, after careful thought, I consider that the defendant is entitled to approach the question, as he now does, more broadly: namely that the claimant initially alleged that she was an adult; that Dr Michie does not exclude the possibility of her being an adult; and that accordingly it is open to him, the defendant, not to accept her subsequent application that she was a minor. In my view the context in which the subsequent allegation was made, namely the spectre of her imminent removal to Italy, and the inconsistent explanations subsequently offered on her behalf for the alleged falsity of the initial allegation, confirm his entitlement to adopt that approach. In relation to the less important issue of whether she is married, the claimant has offered no logical explanation as to why it was purportedly necessary to lie about being married as well as about her age; and in my view it is open to the defendant to decline to accept that such was a lie.

40 Was it open to the defendant to decline to accept that the claimant was living with Mrs S, was cared for by her and was dependent upon her, in circumstances giving rise to family life? The case presented to him in that regard was flimsy in the extreme. In her statutory declaration, made on 24 February 2004, Mrs S said that she lived at one address and that the claimant lived at another address. In the letter on the claimant's behalf faxed on 27 February it was stated only that Mrs S was 'willing' to accept responsibility for the claimant's well-being, not that she had done so. But in a letter sent on the claimant's behalf less than three weeks later it was said that she and Mrs S were living together, but at a third address; and, at around the same time, Dr Michie recorded that, in giving him her history, the claimant alleged that she was currently being cared for by a relative. Such was the total material placed before the defendant in relation to life together, care or dependency. I hold that, upon it, he was entitled to proceed on the basis that, even if it could be said that the claimant enjoyed family life with Mrs S, it was so exiguous as to render interference with it in furtherance of the provisions of the Regulation clearly proportionate and justified."

12. On this appeal it is accepted, on behalf of the Secretary of State, that the judgment of Mr Justice Wilson took on the style of a primary substantive evaluation of the human rights claim and review of the certificate of the Secretary of State rather than the approach which is to be adopted where the fundamental issue arises out of a challenge to "a clearly unfounded certificate". It is a predictive approach. In the context of Article 8 of the ECHR, it was described as follows by Lord Bingham of Cornhill in R (Razgar) v Secretary of State for the Home Department [2004] UKHL 27, [2004] 3 WLR 58 in the following passage (paragraph 17):

"In considering whether a challenge to the Secretary of State's decision to remove a person must clearly fail the reviewing court must, it seems to me, consider how an appeal would be likely to fair before an adjudicator as the tribunal responsible for deciding the appeal if there were an appeal. This means that the reviewing court must ask itself essentially the questions which would have to be answered by an adjudicator. In a case where removal is resisted in reliance on Article 8 these questions are likely to be (1) will the proposed removal be an interference by a public authority with the exercise of the applicant's right to respect in his private or, as the case may be, family life; (2) if so, will such interference have consequences of such gravity as potentially to engage the operation of Article 8; (3) if so, is such interference in accordance with the law; (4) if so, is such interference necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others; (5) if so, is such interference proportionate to the legitimate public end sought to be achieved."

13. On behalf of the Secretary of State, Mr Otty submits that if, in the present case, Mr Justice Wilson had adopted this approach his conclusion would have inevitably been the same. Adopting the approach set out in Razgar, the submissions advanced by Miss Rogers on behalf of G relating to the Regulation fall for consideration under the third question, namely whether the interference would be "in accordance with the law".
14. I now propose to deal with this appeal by reference to the questions posed in Razgar. The first question - would removal to Italy interfere with G's right to respect for her family life? - is one which Mr Justice Wilson did not answer directly. Plainly he was unimpressed by the evidence on which G relies. He described it as "flimsy in the extreme". Rather than decide that an adjudicator would inevitably answer it in the negative, he proceeded to the fifth question and concluded that -

" ..... even if it could be said that the claimant enjoyed family life with Mrs S, it was so exiguous as to render interference with it ..... clearly proportionate and justified."

15. Mr Otty submits that, in reality, there is only one possible answer to the first question even now. In fact G has continued to live with Mrs S and has now been doing so for slightly more than a year, apart from two short periods. Without deciding that we are obliged to do so, I am prepared to approach the Razgar questions on the basis that the hypothetical adjudicator would be considering the case on the basis of all the material now available, not just that which existed at the date of the certificate or the hearing in the Administrative Court. Concentrating, as one must, on what an adjudicator would, or might, reasonably make of this first question, I take the view that he might reasonably accept the evidence of Dr Michie and conclude that it is reasonably likely that G is still a minor. He might also reasonably conclude that the evidence now, and even on 4 April 2004, establishes an existing family relationship between G and Mrs S. I do not disagree with Mr Justice Wilson's assessment of the evidence at that time as "flimsy in the extreme", but I accept that a hypothetical adjudicator could be satisfied on the first question.
16. The second question was not expressly considered by Mr Justice Wilson. But it is clear from the authorities that for Article 8 to be engaged the interference must attain a minimal level of severity. (See Razgar paragraph 18, referring to Costello-Roberts v United Kingdom (1993) 19 EHRR 112). Mr Otty submits that on any basis a hypothetical adjudicator would be bound to find that the level of severity is not reached in the present case. He observes that the proposed removal would be to Italy, not Somalia. G has some familiarity with Italy, having spent about two months there in the summer of 2003. She would be able to continue contact with Mrs S from Italy, and if her asylum application were to be successful there she would be able to apply for her refugee status to be transferred to the United Kingdom. Moreover an adjudicator would be bound to assume that as Italy is a signatory to both the Refugee Convention and the ECHR she would receive the same evaluation of her claim to international protection there as she would receive in this country. These are persuasive submissions. But, perhaps generously, I am prepared to accept that a reasonable adjudicator could just about find that the interference with respect to family life reaches the requisite level of severity.
17. I bear in mind the current duration of the relationship and the fact that it may be found that G is still a minor.
18. I therefore turn to the third, fourth and fifth of the Razgar questions. This is where, in my judgment, G faces insuperable problems. For an otherwise actionable interference to be lawful, in the context of Article 8.2, it must be "in accordance with the law". The case for G is that it would be contrary to the provisions of the Regulation for her to be removed to Italy. Before Mr Justice Wilson reliance was sought to be placed on Articles 6, 7 and 15 of the Regulation. Today Miss Rogers, who did not appear below, has abandoned reliance on Articles 6 and 7. She puts her case solely on Article 15.
19. The structure of the Regulation is as follows. Chapter I - headed Subject-Matter and Definitions - comprises Articles 1 and 2, the former of which states:

"This Regulation lays down the criteria and mechanisms for determining the Member State responsible for examining an application for asylum lodged in one of the Member States by a third- country national."

Chapter II - headed General Principles - comprises Articles 3 and 4. For present purposes I refer simply to Articles 3.1 and 4.1. Article 3.1 provides:

"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."

Article 4.1 provides:

"The process of determining the Member State responsible under this Regulation shall start as soon as an application for asylum is first lodged with a Member State."

Chapter III lists the Hierarchy of Criteria in Articles 5 to 12, before adding Article 13 which is in these terms:

"Where no Member State responsible for examining the application for asylum can be designated on the basis of the criteria listed in this Regulation, the first Member State with which the application for asylum was lodged shall be responsible for examining it."

20. It is now accepted on behalf of G that she cannot establish that any of Articles 5 to 12 required her application to be dealt with in this country.
21. This brings me to Article 15 on which Miss Rogers relies. It is important to see it in the context of the structure of the Regulation. It was an innovation, there being no equivalent provision in the Dublin Convention. It falls within, and indeed is the entirety of, Chapter IV headed Humanitarian Clause. The material parts of it read as follows:

"1 Any Member State, even where it is not responsible under the criteria set out in this Regulation, may bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. In this case that Member State shall, at the request of another Member State, examine the application for asylum of the person concerned. The persons concerned must consent.

2 .....

3 If the asylum seeker is an unaccompanied minor who has a relative or relatives in another Member State who can take care of him or her, Member States shall if possible unite the minor with his or her relative or relatives, unless this is not in the best interests of the minor.

4 Where the Member State thus approached accedes to the request, responsibility for examining the application shall be transferred to it."

22. Miss Rogers submits that these provisions give rise to something akin to a freestanding legal requirement upon which G can rely. She suggests that this is consistent with the purpose and policy of the Regulation. She refers to Recital 6 to the Regulation which states:

"Family unity should be preserved insofar as this is compatible with the other objectives pursued by the establishing criteria and mechanisms for determining the Member State responsible for examining asylum application."

23. Moreover the explanatory memorandum which accompanied the original Commission proposal, which later gave rise to the Regulation, stated in paragraph 3.1:

"This proposal adds a criterion for the purpose of uniting an unaccompanied minor whatever the circumstances with an adult member of his family who is already present in a Member State and is able to take charge of him."

24. Putting all this together, Miss Rogers submits that the certificate that the claim by reference to Article 8 of the ECHR is clearly unfounded is defective, because there is an interference with G's family life which is not "in accordance with the law" because is flies in the face of Article 15 of the Regulation.
25. I do not accept this submission. It is based on a misreading of Article 15. The effect of Article 15 is not to confer a freestanding substantive right on individual applicants. Rather, it is to regulate the relationship between two or more Member States.
26. In the context of the present case, Article 15 gives the authorities in this country discretion to deal with the matter following the request from the Italian authorities. What has in fact happened is that the two Member States are in agreement that G's application should be processed in Italy. It would have been possible, no doubt, for G's advisers to have made representations to the Italian authorities inviting them to request the British authorities to process the application, but they did not do so. However the text of the Article contains nothing that would have empowered G or her advisers to do anything more.
27. In my judgment, G is wholly unable to point to any contravention of Article 15 and, consequently, any interference would be bound to be held by an adjudicator to be "in accordance with the law".
28. When one turns to the fourth and fifth of the Razgar questions, in respect of the legitimate aim and proportionality, it is immediately apparent that any applicant has a very high mountain to climb. In his speech Lord Bingham said (paragraphs 19 and 20):

"19 Where removal is proposed in pursuance of a lawful immigration policy, question (4) will almost always fall to be answered affirmatively. This is because the right of sovereign states, subject to treaty obligations, to regulate the entry and expulsion of aliens is recognised in the Strasbourg jurisprudence (see Ullah [2004] 3 WLR 23, 29, para 6) and implementation of a firm immigration policy is an important function of government in a modern democratic state. In the absence of bad faith, ulterior motive or deliberate abuse of power it is hard to imagine an adjudicator answering this question other than affirmatively.

20 The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage ..... Decisions taken pursuant to the lawful operation of immigration control will be proportionate in all save a small minority of exceptional cases, identifiable only on a case by case basis."

It is true that Razgar was a health case rather than a family life case, but nevertheless the same principles apply. What has to be considered is whether this might reasonably be found to be such an exceptional case by an adjudicator.

29. I am entirely satisfied that there could be no such finding. The factors that drive me to this conclusion are the ones I mentioned earlier. What is in contemplation is the return of a minor, who, on the most favourable view, is almost 17, not to Somalia but to Italy where her claim to international protection will be considered in a jurisdiction which gives effect to the Refugee Convention and the ECHR. The family life, which will be the subject of interference, is of comparatively short duration and, apart from G's expiring minority, there are no compelling features which could lead an adjudicator reasonably to conclude that to return her to Italy would not be in furtherance of the legitimate aim of a firm and orderly immigration policy or would not be a proportionate decision. It follows from what I have said that, while differing from the approach of Mr Justice Wilson, I have reached precisely the same conclusion, namely that the challenge to the clearly unfounded certificate must fail and accordingly I would dismiss this appeal.
30. LORD JUSTICE NEUBERGER: I agree.
31. LORD JUSTICE BUXTON: I also agree. The appeal is therefore dismissed.

Order: Appeal dismissed