ON APPEAL FROM THE HIGH COURT, QUEEN'S BENCH DIVISION, THE ADMINISTRATIVE COURT
MR JUSTICE HICKINBOTTOM
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOSES
LORD JUSTICE PATTEN
| THE QUEEN ON THE APPLICATION OF B & ANR
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
- and –
SIKH COUNCIL HAMPSHIRE
DAVID MANKNELL (instructed by Treasury Solicitors) for the Respondent
SATVINDER JUSS (instructed by HSBS Law Solicitors) for written submissions only for the Intervener
Hearing date: 13 May 2014
Crown Copyright ©
Master of the Rolls:
"Yes, understand but what about my daughter's school? She wears a cover but France won't accept her at school. Mentally she will suffer a lot. France gave us a letter to leave in 8 days. Did not treat us well."
The report of Professor Lichere dated 8 April 2014
The Dublin II Regulation
"establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third country national."
"make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum applications"
The grounds of appeal to this court
Ground 1: breach of articles 8, 9 and 14 of the Convention
"On the agreed facts, the school was in my opinion fully justified in acting as it did. It had taken immense pains to devise a uniform policy which respected Muslim beliefs but did so in an inclusive, unthreatening and uncompetitive way. The rules laid down were as far from being mindless as uniform rules could ever be. The school had enjoyed a period of harmony and success to which the uniform policy was thought to contribute. On further enquiry it still appeared that the rules were acceptable to mainstream Muslim opinion. It was feared that acceding to the respondent's request would or might have significant adverse repercussions. It would in my opinion be irresponsible of any court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter as sensitive as this. The power of decision has been given to them for the compelling reason that they are best placed to exercise it, and I see no reason to disturb their decision."
"While the Strasbourg jurisprudence does not preclude reliance on articles other than article 3 as a ground for resisting extradition or expulsion, it makes it quite clear that successful reliance demands presentation of a very strong case. In relation to article 3, it is necessary to show strong grounds for believing that the person, if returned, faces a real risk of being subjected to torture or to inhuman or degrading treatment or punishment: Soering, para 91; Cruz Varas, para 69; Vilvarajah, para 103. In Dehwari, para 61 (see para 15 above) the Commission doubted whether a real risk was enough to resist removal under article 2, suggesting that the loss of life must be shown to be a "near-certainty". Where reliance is placed on article 6 it must be shown that a person has suffered or risks suffering a flagrant denial of a fair trial in the receiving state: Soering, para 113 (see para 10 above); Drodz, para 110; Einhorn, para 32; Razaghi v Sweden; Tomic v United Kingdom. Successful reliance on article 5 would have to meet no less exacting a test. The lack of success of applicants relying on articles 2, 5 and 6 before the Strasbourg court highlights the difficulty of meeting the stringent test which that court imposes. This difficulty will not be less where reliance is placed on articles such as 8 or 9, which provide for the striking of a balance between the right of the individual and the wider interests of the community even in a case where a serious interference is shown. This is not a balance which the Strasbourg court ought ordinarily to strike in the first instance, nor is it a balance which that court is well placed to assess in the absence of representations by the receiving state whose laws, institutions or practices are the subject of criticism. On the other hand, the removing state will always have what will usually be strong grounds for justifying its own conduct: the great importance of operating firm and orderly immigration control in an expulsion case; the great desirability of honouring extradition treaties made with other states. The correct approach in cases involving qualified rights such as those under articles 8 and 9 is in my opinion that indicated by the Immigration Appeal Tribunal (Mr C M G Ockelton, deputy president, Mr Allen and Mr Moulden) in Devaseelan v Secretary of State for the Home Department  Imm AR 1, para 111:
"The reason why flagrant denial or gross violation is to be taken into account is that it is only in such a case—where the right will be completely denied or nullified in the destination country—that it can be said that removal will breach the treaty obligations of the signatory state however those obligations might be interpreted or whatever might be said by or on behalf of the destination state.""
"The need for a workable system to implement Dublin II is obvious. To allow asylum seekers the opportunity to move about various member states, applying successively in each of them for refugee status, in the hope of finding a more benevolent approach to their claims, could not be countenanced. This is the essential underpinning of Dublin II. Therefore, that the first state in which asylum is claimed should normally be required to deal with the application and, where the application is successful, to cater for the refugee's needs is not only obvious, it is fundamental to an effective and comprehensive system of refugee protection. Asylum seeking is now a world-wide phenomenon. It must be tackled on a co-operative, international basis. The recognition of a presumption that members of an alliance of states such as those which comprise the European Union will comply with their international obligations reflects not only principle but pragmatic considerations. A system whereby a state which is asked to confer refugee status on someone who has already applied for that elsewhere should be obliged, in every instance, to conduct an intense examination of avowed failings on the first state would lead to disarray".
"[it] 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 article 4 of the Charter"
"It is entirely right, however, that a presumption that the first state will comply with its obligations should not extinguish the need to examine whether in fact those obligations will be fulfilled when evidence is presented that it is unlikely that they will be. There can be little doubt that the existence of a presumption is necessary to produce a workable system but it is the nature of a presumption that it can, in appropriate circumstances, be displaced. The debate must centre, therefore, on how the presumption should operate. Its essential purpose must be kept clearly in mind. It is to set the context for consideration of whether an individual applicant will be subject to violation of his fundamental rights if he is returned to the listed country. The presumption should not operate to stifle the presentation and consideration of evidence that this will be the consequence of enforced return. Nor should it be required that, in order to rebut it, it must be shown, as a first and indispensable requirement, that there is a systemic deficiency in the procedure and reception conditions provided for the asylum seeker.
"I consider that the Court of Appeal's conclusion that only systemic deficiencies in the listed country's asylum procedures and reception conditions will constitute a basis for resisting transfer to the listed country cannot be upheld. The critical test remains that articulated in Soering v United Kingdom (1989) 11 EHRR 439. The removal of a person from a member state of the Council of Europe to another country is forbidden if it is shown that there is a real risk that the person transferred will suffer treatment contrary to article 3 of ECHR."
"Although one starts with a significant evidential presumption that listed states will comply with their international obligations, a claim that such a risk is present is not to be halted in limine solely because it does not constitute a systemic or systematic breach of the rights of refugees or asylum seekers. Moreover, practical realities lie at the heart of the inquiry; evidence of what happens on the ground must be capable of rebutting the presumption if it shows sufficiently clearly that there is a real risk of article 3 ill-treatment if there is an enforced return."
Ground 2: breach of section 55 of BCIA
"13. The best interests of your client's daughter have also been considered in light of the findings in the case of ZH (Tanzania) v SSHD  UKSC 4 (referred to hereafter as ZH). While the best interests of children are a primary consideration when considering Article 8 ECHR, they are not the only issue of relevance when considering whether the removal of a parent is proportionate to need to maintain an effective immigration control. In the case of ZH the importance of the British children remaining with their primary carer in a country where they had spent all their lives and had established ties in the community was highlighted. However in your client's case his daughter is an Iranian citizen, who has only recently arrived in the United Kingdom, having spent the significant majority of her life living in other countries. In view of this your client's child, unlike those in ZH, is not being denied the inherent advantages of growing up in her country of nationality.
14. Whilst it is accepted that your client and his daughter's preference may be to remain in the United Kingdom, it is not accepted that this reflects the child's best interests. It is suggested that an important issue in relation to a child's best interests is stability and permanence of status. This will be best achieved by your client returning to France for a relatively short period for the consideration of his asylum claim. Then, depending on the outcome of his asylum application, he and his daughter can continue their family life lawfully in France or Iran. This in turn will remove the uncertainty as to their future which has arisen due to your client and daughter living illegally in the United Kingdom.
15. Furthermore, your client's daughter is considered to be young enough to adapt to life abroad with the support of her father while your client's asylum claim is considered in France. Nevertheless, even if the child's best interests may be adversely affected by your client's removal to France it is considered that any adverse affect will be limited by the fact that she is remaining with her father, her primary carer. Any limited adverse affect your client's removal may have on his daughter is considered to be proportionate to the need to maintain an effective immigration control and an efficient implementation of the Dublin Regulation."
"10. Furthermore, your client's daughter is considered to be young enough to adapt to life abroad with the support of her father while your client's asylum claim is considered in France. Nevertheless, even if the child's best interests may be adversely affected by your client's removal to France it is considered that any adverse affect will be limited by the fact that she is remaining with her father, her primary carer. It is noted that your client's daughter will not be able to attend public school if she chooses to wear a religious garment but it will be open to her to be educated elsewhere (either at home or at a private school). Any limited adverse affect your client's removal may have on his daughter is considered to be proportionate to the need to maintain an effective immigration control and an efficient implementation of the Dublin Regulation.
11. Overall, the Secretary of State has made "a balanced judgement of what cab reasonable be expected in the light of all the material facts" (AB (Somalia) and VW (Uganda)  EWCA Civ 5) ). The duties set out in section 55 of the 2009 Act do not override the existing functions of the Secretary of State to maintain a secure border; therefore, while account must be taken of the child's best interests as a primary consideration, this must be balanced against the Secretary of State's duty to maintain effective immigration controls. In this regard, the Secretary of State does not consider that it would be appropriate to allow a person such as your client, who has no leave to enter or remain in the United Kingdom, and whose asylum claim is the responsibility of the French authorities, to remain in the United Kingdom."
"115. iv) The rights and best interests of relevant children in a Dublin II Regulation return case have been considered in two recent cases, namely EM and Toufighy especially in the latter  and following. In EM, Sir Stephen Sedley, giving the judgment of the Court of Appeal, having set out the relevant passages from ZH, found in this context the best interests of the child — to remain in the United Kingdom — came up against:
"…the formidable fact that the children's position in this country, albeit through no fault of theirs, is both fortuitous and highly precarious, with no element whatever of entitlement …
[The claimant's] son, now 14, is settled in school; but he is only here because his mother has been able for four years to resist removal."
116. Given that the destination country in that case was deemed to comply with its international obligations, he said:
"… the case against the removal of MA, albeit with her son, is too exiguous to stand up in any legal forum when set against the history of her entry and stay here and the legal and policy imperatives for returning her to the destination country."
117. Of course, every case will turn on its facts, but the case before me, if anything, is weaker than that, so far as the Claimants are concerned, because, amongst other things, the Claimants in this case have not been in the United Kingdom as long and the claimants in EM, prior to their clandestine flight to the United Kingdom from Italy, had suffered for three months on the streets in that country as described in  of Sir Stephen Sedley's judgment. Adapting his words of, given my firm conclusion that France will be compliant with its international law obligations (including its obligations under the ECHR ), as the removal of the Claimants would be pursuant to the Dublin II Regulation, the case against their removal is "too exiguous" to stand up in any legal forum when set against the history of their entry and stay here, and the legal imperatives for removing them to France. In this context, it is noteworthy that the European Court of Human Rights in the recent reference of Hussein v Netherlands and Italy  57 EHRR SE1, after referring to NS and EM, found a claim on its face similar to this claim not only inadmissible, but "wholly unsubstantiated" and "manifestly ill-founded" (see )."
"There is no irrationality in the conclusion that it was in the children's best interests to go with their parents to the Republic of Congo. No doubt it would have been possible to have stated that, other things being equal, it was in the best interests of the children that they and their parents stayed in the United Kingdom so that they could obtain such benefits as health care and education which the decision-maker recognised might be of a higher standard than would be available in the Congo. But other things were not equal. They were not British citizens. They had no right to future education and health care in this country. They were part of a close-knit family with highly educated parents and were of an age when their emotional needs could only be fully met within the immediate family unit. Such integration as had occurred into United Kingdom society would have been predominantly in the context of that family unit. Most significantly, the decision-maker concluded that they could be removed to the Republic of Congo in the care of their parents without serious detriment to their well-being. We agree with Lady Dorrian's succinct summary of the position in para 18 of the Inner House's opinion."
Lord Justice Moses:
Lord Justice Patten: