England and Wales Court of Appeal (Civil Division) Decisions

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
(MR OCKELTON, sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand, London, WC2A 2LL
		9th January 2013

Lord Justice Jackson:

1. This judgment is in seven parts, namely:

Part 1 Introduction;

Part 2 The facts;

Part 3 The present proceedings;

Part 4 The application for permission to appeal to the Court of Appeal;

Part 5 What did the Court of Appeal decide in EM?

Part 6 The judgment of Mr Ockleton sitting as a Deputy High Court Judge;

Part 7 Conclusion.

Part 1. Introduction

2. This is an application for leave to appeal against an order of the Administrative Court refusing to grant a stay of judicial review proceedings, pending a possible appeal to the Supreme Court in a related action.
3. This litigation concerns the operation of Council Regulation (EC) No. 343/2003, which is generally referred to as the "Dublin II Regulation". The Dublin II Regulation provides a regime for determining which Member State within the European Union will deal with each asylum seeker. The Regulation contains provisions for the removal of asylum seekers and refugees within the EU to the Member State which has responsibility for them.
4. In this judgment, I shall refer to the Court of Justice of the European Union as "CJEU". I shall refer to the European Convention on Human Rights as "ECHR". ECHR Article 3 provides:

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

5. Although I am only dealing with an application for permission to appeal against an interlocutory order, this application is of some importance. In the court below, both parties agreed and the judge recorded that the stay application was a "test case". A large number of other cases are affected by the court's order refusing to grant a stay. Likewise a large number of other cases will, in the short term, be affected by my decision on the present application for permission to appeal.
6. After these introductory remarks, I must now turn to the facts.

Part 2. The facts

7. The claimant is a Sudanese national. In August 2008 the claimant arrived in Italy and claimed asylum. That application was granted and the claimant obtained refugee status in Italy.
8. In June 2011 the claimant entered the United Kingdom illegally and made a claim for asylum in this country. The claimant also claimed an entitlement to remain here on human rights grounds. The claimant put forward those claims on a false basis. He omitted reference to the fact that he had previously sought and obtained asylum in Italy.
9. The Secretary of State established the true position on the basis of fingerprint evidence and other inquiries. She decided that, under the provisions of the Dublin II Regulation, Italy was the country responsible for dealing with the claimant's asylum claim. Therefore the claimant should be removed to Italy.
10. By letter dated 25 July 2011 the Secretary of State gave notice of that decision to the claimant and set removal directions. The Secretary of State also certified that the claimant's various claims to remain in this country were clearly unfounded. The effect of that certification was that the claimant had no right of appeal to the First-Tier Tribunal whilst he was still in this country.
11. The claimant was aggrieved by the Secretary of State's decision. Accordingly he commenced the present proceedings.

Part 3. The present proceedings

12. By a claim form issued in the Administrative Court on 2 August 2011 the claimant applied for an order to quash the Secretary of State's decision of 25 July and the accompanying removal directions. The grounds on which the claimant applied for judicial review were that he had suffered harm in Italy amounting to degrading treatment within Article 3 of ECHR. That comprised homelessness, destitution, humiliation, physical assault and discrimination. If the claimant were to be returned to Italy, he would live in similar conditions as a refugee in that country and that would amount to inhuman or degrading treatment contrary to Article 3 of the ECHR.
13. On 24 November 2011 Mr Justice Singh granted permission to the claimant to proceed with the judicial review claim. In due course this action was listed to be tried on 14 November 2012.
14. In the meantime other litigation was proceeding through the courts which may have a bearing on the claimant's claim. That was a group of cases known as EM, EH, AE and MA. In each of those cases, the Secretary of State proposed to return an individual to Italy under the Dublin II Regulation and the individual argued that such a step would entail a real risk of inhuman or degrading treatment contrary to ECHR Article 3. Those four cases came before the Court of Appeal in September 2012. Two of those cases were appeals against decisions of the Administrative Court rejecting the individuals' claims. The other two cases were substantive judicial review hearings in the Court of Appeal, permission to proceed having been refused below. Strictly speaking, therefore, two of the individuals were appellants and two were claimants. I shall refer to all four of them as "the individuals". The Court of Appeal found in favour of the Secretary of State in all four cases: see EM (Eritrea) v SSHD [2012] EWCA Civ 1336. The four individuals indicated their intention to appeal to the Supreme Court.
15. The issue then arose as to whether this present case should proceed or whether it should be stayed pending the possible appeal to the Supreme Court in EM. On 2 November 2012 Mr Justice Ouseley ordered that this case should remain listed for trial on 14 November 2012. He added the following direction:

"The question of whether the matter should be stayed is to be considered as a preliminary point, however the parties should be ready to proceed with a substantive hearing if the application is refused;"

16. The matter came on for hearing on 16 November 2012 before Mr CMG Ockelton, sitting as a deputy High Court judge. I shall refer to Mr Ockelton as "the judge". The judge heard lengthy submissions on the effect of the Court of Appeal's decision in EM. He then gave judgment limited to the preliminary point, namely whether the proceedings should be stayed. His decision was that there should be no stay. Therefore the claimant's judicial review claim should proceed to a full hearing.
17. The judge also rejected the claimant's application for a stay of the removal directions pending the resolution of the claimant's judicial review claim. That part of the judgment is not material for present purposes. Mr Alan Payne, counsel for the Secretary of State, has stated in open court that the Secretary of State will not attempt to remove the claimant to Italy before the conclusion of the judicial review proceedings.
18. The claimant is aggrieved by the judge's decision. Accordingly he applies for permission to appeal to the Court of Appeal.

Part 4. The application for permission to appeal to the Court of Appeal

19. By an appellant's notice filed on 3 December 2012 the claimant applied for permission to appeal the judge's decision of 16 November 2012 refusing to grant a stay. The essential grounds of the application and the proposed appeal were that the judge had misunderstood and misapplied the Court of Appeal's decision in EM. It is also part of the claimant's case that the four appellants in EM have good prospects of obtaining permission to appeal and of subsequently succeeding in their arguments before the Supreme Court. See paragraph 54 of the claimant's skeleton argument.
20. On 19 December 2012 Lord Justice Moses ordered that the claimant's application for permission to appeal be listed for hearing during the vacation with both parties represented. The oral hearing took place yesterday, which was Wednesday 9 January. The hearing lasted for three hours. Mr Raza Husain QC and Mr Greg Ó Ceallaigh appeared for the claimant. Mr Alan Payne appeared for the Secretary of State. I am grateful to all counsel for their assistance. I have had the opportunity to consider counsel's submissions overnight.
21. It may seem odd that an application for permission to appeal against a case management order should receive such elaborate treatment. On the other hand, as previously mentioned, the judge stated in his judgment that the application for a stay was a test case. It is also clear that both the judge's decision of 16 November 2012 and my decision this morning will have a substantial effect on other cases which are awaiting resolution.
22. The Court of Appeal's judgment in EM was central to the debate at yesterday's hearing. Counsel on both sides made detailed submissions as to how that decision should be interpreted and what in fact the Court of Appeal decided. I must, therefore, now turn to that question.

Part 5. What did the Court of Appeal decide in EM?

23. Despite the elaborate and beguiling submissions of counsel, I think that the decision of the Court of Appeal in EM is perfectly clear. Stripped to its essentials, what the Court of Appeal decided may be summarised as follows:

(i) The four individuals (two appellants and two claimants) were each contending that they should not be removed to Italy under the Dublin II Regulation because of the appalling conditions in which they would be forced to live in that country. In those circumstances, the Secretary of State ought not to have certified in each of the four cases that the individual's claim to remain in the UK was clearly unfounded. The reason why the Secretary of State should not have granted such certificates was that each individual had an arguable case that removal to Italy would expose them to inhuman or degrading treatment contrary to ECHR Article 3.

(ii) The Secretary of State relied upon the presumption that Italy, as a safe third country, would treat asylum seekers and refugees in accordance with its international obligations. Although that presumption was rebuttable, the evidence adduced by the four individuals was not sufficient to achieve a rebuttal.

(iii) Three of the individuals relied upon evidence of their own previous experience when living in Italy. All four individuals relied upon objective evidence and reports concerning conditions in Italy.

(iv) The Secretary of State relied upon evidence obtained by his officials concerning the accommodation and support provided for asylum seekers and refugees in Italy.

(v) On the basis of the law as it stood up to 20 December 2011 the Court of Appeal would have been bound to find in favour of all four individuals. The evidence was sufficient to establish "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". It would, therefore, follow that the Secretary of State's certificates were of no effect. See paragraph 32 of the judgment of the court.

(vi) The legal position has, however, been materially changed by the decision of the Grand Chamber of the CJEU in NS v SSHD [2011] EUECJ C-411/10 and C-493/10, handed down on 21 December 2011. The effect of that decision is that Member States and national courts must operate the Dublin II Regulation unless there is evidence of "systemic deficiency" in the receiving state's arrangements for the reception of asylum seekers and refugees. See paragraphs 61 to 63 of the judgment of the court in EM.

(vii) The claimants in NS were all asylum-seekers rather than refugees. In EM, however, the Court of Appeal treated the reasoning in NS as equally applicable to both asylum seekers and refugees.

(viii) The evidence in the instant cases, although extremely troubling, did not establish an arguable case of systemic deficiency.

(ix) In those circumstances because, and only because, of the CJEU's decision in NS, the Court of Appeal was constrained to dismiss the claims of the four individuals and to find in favour of the Secretary of State in each case.

24. The Court of Appeal refused permission to appeal to the Supreme Court. That is unsurprising, since the Court of Appeal usually leaves it to the Supreme Court to decide which cases it will take. Nevertheless the court was troubled by the tension between MSS v Belgium and Greece [2011] ECHR 108 and NS. The order which the Court of Appeal made when refusing permission to appeal reads as follows:

"The appellants are refused permission to appeal to the Supreme Court [it should be for the Supreme Court to decide whether to grant permission to appeal, but this Court recognises it as problematical that NS and MSS may pull in different directions, and that, whilst NS binds the Court, so does the EU principle of not undercutting ECHR rights such as those articulated in MSS]."

25. Having set out what the Court of Appeal decided in EM, and part of the order of the court in that case, I must now turn to the judgment under appeal.

Part 6. The judgment of Mr Ockelton, sitting as a Deputy High Court Judge

26. The judgment delivered by the judge is clear, detailed and thorough. I intend no disrespect to the judge if I summarise his conclusions in the following five sub-paragraphs:

(i) In EM, the Court of Appeal held that the evidence adduced did not establish any systemic deficiency in the arrangements made by Italy for the reception of asylum seekers and refugees.

(ii) On the basis of the decision in EM, the Secretary of State will be entitled, unless the court orders a stay, to continue making removals to Italy under the Dublin II Regulation.

(iii) The decision in EM must be accepted as correct unless and until it is reversed or overruled by the Supreme Court.

(iv) At the time of Mr Ockelton's decision, no application for permission to appeal in EM had been made.

(v) On the law as it now stands, the claimant does not have a realistic prospect of success in his claim. Accordingly, the court refuses to order a stay of the judicial review proceedings or a stay of the removal direction.

27. As a result of that order the judicial review proceedings remained alive on the basis of the permission which had been granted by Mr Justice Singh on 24 November 2011. But those proceedings were heading towards a hearing in which, on the findings of the judge, the claimant had no realistic prospect of success.
28. Mr Husain criticises the judge for mis-reading the Court of Appeal's decision in EM. I reject that criticism. The judge correctly identified the ratio of the Court of Appeal's decision.
29. There is, however, a separate criticism made of the judge's decision which in my view has more force. This is that it does not follow from the Court of Appeal's decision in EM that the claimant's present claim has no realistic prospect of success. We are here dealing with a fast developing area of law, which is in part a response to the changing fortunes of the European Union. The Court of Appeal has expressed misgivings about the decision which it felt compelled to reach in EM. It expressed those misgivings both in its judgment and in its order refusing permission to appeal.
30. In those circumstances, although I would not presume to trespass into the territory of the Supreme Court, there must be a real possibility that that court will grant permission to appeal. If the Supreme Court does grant permission to appeal, I do not know what the outcome of the appeal will be.
31. Despite the detailed arguments which have been developed on both sides, I am simply concerned with the question whether the claimant should be granted permission to appeal against the judge's order refusing to grant a stay. In my view permission to appeal should be granted for two reasons:

(i) It is properly arguable that the judge erred in holding that the claimant does not have a realistic prospect in these proceedings.

(ii) It is wasteful of resources for a claimant to be pitched into a trial prematurely, when it may very well be that the Supreme Court is about to clarify this difficult area of law.

Part 7. Conclusion

32. Let me now draw the threads together. The claimant has satisfied the threshold test for obtaining permission to appeal to the Court of Appeal as set out in rule 52.3 (6) (a) of the Civil Procedure Rules. I therefore grant permission to appeal to the Court of Appeal. I do not, of course predict what the outcome of the appeal will be.
33. Because there has been full argument about important issues, this judgment may be cited on future occasions even though it arises out of a permission application.
34. Finally, I note that the Secretary of State has asked the Supreme Court to expedite consideration of the application for permission to appeal in EM. In case my views are of any assistance, I indicate that I see the force in this request for expedition.

Order: Application granted.