ON APPEAL FROM HIGH COURT QUEEN'S BENCH DIVISION
MR JUSTICE CRANSTON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE SULLIVAN
| THE QUEEN ON THE APPLICATION OF NS
|- and -
THE SECRETARY OF STATE FOR THE HOME
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Elizabeth Laing QC, Simon Cox, Raza Hussein QC, Deok Joo Rhee, Samantha Knights, Shahram Taghavi and Mr Alan Payne (instructed by Treasury Solicitors and Simons Muirhead and Burton Baker and McKenzie LLP) appeared on behalf of the Respondent.
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Lord Neuberger, MR:
"155. Recital 15 of the Dublin Regulation records that it respects the fundamental rights and principles recognised in particular by the Charter of Fundamental Rights. Given the Polish and United Kingdom Protocol, the Charter cannot be directly relied on as against the United Kingdom although it is an indirect influence as an aid to interpretation. It will be recalled that Article 1 of the Charter makes human dignity inviolable. Article 18 provides that the right to asylum shall be guaranteed, and Article 19(2) provides that "no one may be removed to a State where there is a serious risk that he or she would be subjected to inhuman or degrading treatment". None of these rights are directly enforceable against the Secretary of State. A transfer under the Dublin Regulation cannot be challenged on the basis that it is not compatible with the right to human dignity or the right to asylum, or will be in breach of Article 19(2)."
"8. Contrary to the Judge's holding, the Secretary of State accepts, in principle, that fundamental rights set out in the Charter can be relied on as against the United Kingdom, and submits that the Judge erred in holding otherwise (judgment, paragraphs 155 and 157, first sentence). The purpose of the Charter Protocol is not to prevent the Charter from applying to the United Kingdom, but to explain its effect."
Mr Robertson QC, who appears for the EHRC, makes the point that, in the absence of something being said in this court, what Cranston J held in paragraph 155 may be cited in other cases. As my Lord, Laws LJ pointed out, another High Court judge is not obliged to follow what one of his colleagues has held, but comity and consistency normally represent strong arguments to support the contention that he should do so. Accordingly, it is only right that there is a record of the fact that Cranston J's conclusion on this point is not supported by the respondent in whose favour it has been made.
Order: Adjourned for ECJ referral