ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE McCOMBE
LORD JUSTICE BEATSON
| THE QUEEN ON THE APPLICATION OF
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Hugh Southey QC and Philip Nathan (instructed by Duncan Lewis Solicitors) for the Appellants Brahane, Tesfaye, Ararso and Kiflemariam
Alan Payne and Stephen Kosmin (instructed by the Government Legal Department) for the Respondents
Hearing dates : Wednesday 16th & Thursday 17th March 2016
Crown Copyright ©
LORD JUSTICE LLOYD JONES :
(1) Semere Tesfay, Tariq Rahma and Abdo Tayyara appeal, by leave of Underhill L.J. against the order of Collins J. dated 3 December 2014 (Tesfay and others v. Secretary of State for the Home Department  EWHC 4048). These proceedings concern the return of the appellants to Italy under Regulation 343/2003 ("the Dublin II Regulation").
(2) Applications for costs by Adam Soulaiman and Ali Salih, in relation to which no decision has been made by the court, raise the same or very similar issues to those considered in the judgment of Collins J. These proceedings also concern the return of the applicants to Italy under the Dublin II Regulation. The first two groups are considered together. The individuals in these groups are referred to collectively as "the Italy applicants".
(3) Mesfin Brahane, Yonase Tesfaye, Gadiso Ararso and Teklehaymanot Kiflemariam make applications for costs in their proceedings which concern the return of the applicants to Malta under the Dublin II Regulation. The individuals in this third group are referred to collectively as "the Malta applicants".
The general approach to costs
"If the court decides to make an order about costs
(a) the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party; but
(b) the court may make a different order."
CPR r 44.2 (4) provides:
"In deciding what order (if any) to make about costs, the court will have regard to all the circumstances, including
(a) the conduct of all the parties;
(b) whether a party has succeeded on part of its case, even if that party has not been wholly successful; and
(c) any admissible offer to settle made by a party which is drawn to the court's attention, and which is not an offer to which costs consequences under Part 36 apply."
By virtue of CPR r 44.4(3) the conduct of the parties includes conduct before, as well as during, the proceedings, and the efforts made, if any, before and during the proceedings in order to try to resolve the dispute.
(i) The court has power to make a costs order when the substantive proceedings have been resolved without a trial but the parties have not agreed about costs.
(ii) It will ordinarily be irrelevant that the Claimant is legally aided;
(iii) The overriding objective is to do justice between the parties without incurring unnecessary court time and consequently additional cost;
(iv) At each end of the spectrum there will be cases where it is obvious which side would have won had the substantive issues been fought to a conclusion. In between, the position will, in differing degrees, be less clear. How far the court will be prepared to look into the previously unresolved substantive issues will depend on the circumstances of the particular case, not least the amount of costs at stake and the conduct of the parties.
(v) In the absence of a good reason to make any other order the fall back is to make no order as to costs.
(vi) The court should take care to ensure that it does not discourage parties from settling judicial review proceedings for example by a local authority making a concession at an early stage.
Central to these guidelines was the question whether the claimant would have succeeded at trial. In that case the judge held that in view of the local authority's failure to carry out a proper and timeous assessment of the claimant's needs, the claimant was entitled to his costs.
"63 I have serious misgivings about UKBA's claim to avoid costs when a claim is settled for "purely pragmatic reasons". My reservations are increased by the claim, on the facts of the present cases, that the right to work was granted for pragmatic reasons. I am unimpressed by suggestions made in the present cases that permission to work was granted for reasons other than that the law required permission to work to be granted. There may be cases in which relief may be granted for reasons entirely unconnected with the claim made. Given the Secretary of State's duty to act fairly as between applicants, and the duty to apply rules and discretions fairly, a clearly expressed reason would be required in such cases. The expression "purely pragmatic" covers a multitude of possibilities. A clear explanation is required, and can expect to be analysed, so that the expression is not used as a device for avoiding an order for costs that ought to be made.
64 In addition to those general statements, what needs to be underlined is the starting point in the CPR that a successful claimant is entitled to his costs and the now recognised importance of complying with Pre-Action Protocols. These are intended to prevent litigation and facilitate and encourage parties to settle proceedings, including judicial review proceedings, if at all possible. That should be the stage at which the concessions contemplated in Boxall principle (vi) are normally made. It would be a distortion of the procedure for awarding costs if a defendant who has not complied with a Pre-Action Protocol can invoke Boxall principle (vi) in his favour when making a concession which should have been made at an earlier stage. If concessions are due, public authorities should not require the incentive contemplated by principle (vi) to make them.
65 When relief is granted, the defendant bears the burden of justifying a departure from the general rule that the unsuccessful party will be ordered to pay the costs of the successful party and that the burden is likely to be a heavy one if the claimant has, and the defendant has not, complied with the Pre-Action Protocol. I regard that approach as consistent with the recommendation in para. 4.13 of the Jackson Report."
Pill LJ declined to "tack on words to the Boxall guidelines" (at ) and warned against too readily adopting a default position. He considered that the circumstances of each case required analysis if injustice was to be avoided.
"58 Accordingly, I conclude that the position should be no different for litigation in the Administrative Court from what it is in general civil litigation. In that connection, at any rate at first sight, there may appear to be a degree of tension between this conclusion, which applies the 'general rule' in CPR 44.3(2)(a), and the fifth guideline in Boxall, at least in a case where the settlement involves the defendants effectively conceding that the claimant is entitled to the relief which he seeks. In such a case, the claimant is almost always the successful party, and should therefore, at least prima facie, be entitled to his costs, whereas the fifth guideline seems to suggest that the default position is that there should be no order for costs. Similarly, there could be said to be a degree of tension between what was said in paras 63-5, and the view expressed in para 66, of Bahta.
59 In my view, however, on closer analysis, there is no inconsistency in either case, essentially for reasons already discussed. Where, as happened in Bahta, a claimant obtains all the relief which he seeks, whether by consent or after a contested hearing, he is undoubtedly the successful party, who is entitled to all his costs, unless there is a good reason to the contrary. However, where the claimant obtains only some of the relief which he is seeking (either by consent or after a contested trial), as in Boxall and Scott, the position on costs is obviously more nuanced. Thus, as in those two cases, there may be an argument as to which party was more 'successful' (in the light of the relief which was sought and not obtained), or, even if the claimant is accepted to be the successful party, there may be an argument as to whether the importance of the issue, or costs relating to the issue, on which he failed."
Lord Neuberger MR, while observing that in every case the allocation of costs will depend on the specific facts, identified a "sharp difference" between three distinct situations. First, where a claimant has been wholly successful it is hard to see why he should not recover all his costs, unless there is some good reason to the contrary. Secondly, where he has only partially succeeded, the court would normally determine questions such as how reasonable the claimant was in pursuing the unsuccessful claim, how important it was compared with the successful claim and by how much the costs were increased as a result of pursuing the unsuccessful claim. Thirdly, in a case where there has been some compromise which did not actually reflect the claimant's claims, the court is often unable to gauge whether there is a successful party in any respect. In such cases there is an even more powerful argument that the default position should be no order for costs. However, in some such cases it might be sensible to look at the underlying claims and ask whether it was tolerably clear who would have won if the matter had not settled (at [58-63]).
The approach on appeal against a costs order
"44 There are three relevant general principles which appear to me to apply to awards of costs after a trial in ordinary civil litigation. The first is that any decision relating to costs is primarily a matter for the discretion of the trial judge, which means that an appellate court should normally be very slow indeed to interfere with any decision on costs. However, while wide, the discretion must be exercised rationally and in accordance with certain generally accepted principles. To a large extent, those principles are set out in CPR 44.3, and in particular, paras (2), (4), (5), and (6). If the trial judge departs from rationality or the correct principles then it is legitimate for an appellate court to interfere with his conclusion".
"If a party who has been given leave to bring a judicial review claim succeeds in establishing after fully contested proceedings that the defendant acted unlawfully, some good reason would have to be shown why he should not recover his reasonable costs."
The legal background to these proceedings
"Article 4 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that the member states, including the national courts, may not transfer an asylum seeker to the "member state responsible" where they 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 that provision."
"… The central principle of such a union is that member states of the union have mutual trust and confidence in each other, particularly mutual trust and confidence that each state will faithfully comply with binding provisions of union law, including, most importantly, provisions of union law protecting fundamental human rights. In that context, it might be thought that it would be inconsistent with the principle of mutual trust and confidence to impose a legal duty on one member state in effect to monitor whether another member state was complying with its obligations under union law, including its obligation to respect fundamental human rights. …
… Nonetheless, with due regard to the "raison d'ętre" of the EU, the CJEU very carefully and with great precision delineated precisely the nature and scope of the legal duty of the transferring Member State. The nature and scope of the duty is set out in paragraph 86 of the judgment of the CJEU. In my view, given in particular this important constitutional issue at stake in NS, that duty simply excludes the independent operation of Article 1 of the Charter. …"
"In a case such as the present, it is to be assumed unless the contrary can be established that there are no significant differences in risk, security and the assurance of fundamental rights as between the UK and Italy. If it were so, the decision in EW would not have been as it was. There is no reason in the evidence before me that establishes a reason why the generality applicable to refugees in Italy should not hold good for the Claimant."
He continued (at ) that "it is well established that a sufficiency of state protection is not discounted merely because of incidents untypical of the whole, or "aberrations"." The claim was dismissed.
"Two things can be said of this jurisprudence, which for the present has placed Greece outside the Dublin II system. One is that the assessment of risk on return is seen by the Strasbourg court as depending on a combination of personal experience and systemic shortcomings which in total may suffice to rebut the presumption of compliance. The other is that in this exercise the UNHCR's judgment remains pre-eminent and possibly decisive."
He further stated (at ):
"It appears to us that what the CJEU has consciously done in NS is elevate the finding of the ECtHR that there was in effect, in Greece, a systemic deficiency in the system of refugee protection into a sine qua non of intervention. What in MSS was held to be a sufficient condition of intervention has been made by NS into a necessary one. Without it, proof of individual risk, however grave, and whether or not arising from operational problems in the state's system, cannot prevent return under Dublin II."
The court stated (at ) that it was unable to accept that the applicable test was whether the claimants would face a real risk of inhuman or degrading treatment if returned to Italy. Referring to NS it concluded instead (at ) that it is essential for the source of the risk to be a systemic deficiency:
"In other words, the sole ground on which a second state is required to exercise its power under article 3(2) Regulation 343/2003 to entertain a re-application for asylum or humanitarian protection, and to refrain from returning the applicant to the state of first arrival, is that the source of risk to the applicant is a systemic deficiency, known to the former, in the latter's asylum or reception procedures. Short of this, even powerful evidence of individual risk is of no avail."
"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."
There is a "significant evidential presumption" that listed states will comply with their Convention obligations and it is against this backdrop that any claim that there is a real risk of breach of Article 3 rights falls to be addressed (at ). Lord Kerr went on to observe at :
"Systematic" is defined as "arranged or conducted according to a system, plan, or organised method" whereas the definition of the word "systemic" is "of or pertaining to a system". Taken in context, I believe that Kenneth Parker J's statement that it had to be shown that there was a systematic and significant failure to comply with international obligations meant that the omissions were on a widespread and substantial scale. His approach is rather different that it needed to be shown that there were inherent deficiencies in the system, merely that there were substantial operational problems. This approximates (at least) to what I consider is the true import of the decision in the NS case."
He considered that
"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" (at ).
The Supreme Court remitted all four cases to the Administrative Court for an examination of the evidence to take place to determine whether in each case it is established that there is a real possibility that, if returned to Italy, the claimant would be subject to treatment in violation of the Convention (at ).
The Italy cases
The history of the Semere Tesfay Proceedings
"Not applicable to this type of matter as the defendant's policy states that removals under Dublin Convention would only be cancelled on receipt of a Judicial Review application. As removal was imminent we did not have time to send the letter before action."
The claim form does not identify the remedy sought beyond the statement at paragraph 40 of the grounds that the claimant contends that his case should be reconsidered in the Grounds for Judicial Review. Mr. Semere Tesfay referred to the fact that he had suffered a significant period of street homelessness in Italy and maintained that his experiences were relevant to the challenge that the Secretary of State's decisions.
"The Court of Appeal has dismissed the appellants' claims and refused them leave to appeal to the Supreme Court. In a clear and comprehensive judgment, the Court concluded that removals to Italy under the Dublin Regulation are lawful and that the evidence available does not rebut, by some margin, the presumption that Italy will comply with its international obligations (including the ECHR).
In summary, the Court determined that in the absence of evidence of a risk to the applicant deriving from a systemic deficiency in a State's asylum or reception procedures, removals to that State under the Dublin Convention are lawful. The Court went on to find that the evidence in relation to Italy does not meet this threshold.
The Court went on to state evidence of individual risk (deriving from an applicant's previous experiences or from his particular circumstances) was irrelevant to this analysis. The Court concluded that claims are "incapable of succeeding under Article 3 on the present evidence"
For the avoidance of doubt, the Court made clear that this analysis relates to all categories of Dublin returnees: that is, to asylum seekers, to those who have been recognised as refugees, and to those whose asylum claims have been refused."
Against that background the Treasury Solicitor invited Mr. Semere Tesfay to withdraw his Judicial Review proceedings and, where appropriate, to consent to any injunction against removal being lifted. The Treasury Solicitor enclosed a form of consent. The letter also stated that in the event that Mr. Semere Tesfay was not minded to withdraw these proceedings he was invited to amend his grounds within seven days specifically pleading how it was said that his claim could be arguable notwithstanding the Court of Appeal's decision in EM. The letter continued:
"I wish to emphasise that, given the broad nature of the Court of Appeal's conclusions, it is considered the challenges based on the alleged situation in Italy have no merits. Consequently, should you choose to amend your client's grounds, insofar as the Court subsequently concludes that these amendments do not distinguish your client's case from EM we will be seeking an appropriate costs order (including indemnity costs in relevant cases).
In the event that neither a signed consent order nor an amended grounds raising issues in addition to those determined in the case are submitted within 7 days the Secretary of State would invite the Court to dismiss the claim, and proceed immediately to set removal directions."
"In light of:
i) The Supreme Court's decision in EM (Eritrea)… and
ii) The additional material that you client has submitted since the decision under challenge in these proceedings;
My client has now withdrawn her decisions dated 7 March 2012 and 6 January 2014 in relation to your client's Human Rights claim.
The application for Judicial Review is now therefore academic and you are invited to withdraw these proceedings on the terms set out in the attached consent order.
My client will now consider the materials submitted in support of your client's Human Rights claim, including the materials submitted in the course of these proceedings, and will issue a new decision in due course. Should your client wish to rely on any further material in support of his Human Rights claim, he is invited to submit any such material within 14 days of signature of the attached consent order. My client will not consider any material submitted after that date in her consideration of your client's Human Rights claim.
This position is consistent with the recent Court of Appeal decision in R (A) v Chief Constable of Kent… and the observations of Mr. Justice Ouseley in the hearing in the case of B v SSHD on 21 February 2014."
The letter went on to explain that in B Ouseley J. had made clear that in challenges to the certification of human rights claims on third country grounds the lawfulness of a decision could not be challenged by reference to subsequent documents that were not before the decision maker at the time. He had criticised the practice that had developed whereby claimants submitted additional material whilst judicial proceedings were ongoing which triggered further decisions by the Secretary of State which were then challenged by way of amendments to the existing proceedings.
"24 In M v Croydon  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."
"(1) Subject to the provisions of this or any other enactment and to rules of court, the costs of and incidental to all proceedings in
(a) the civil division of the court of Appeal; …
shall be in the discretion of the court."
Costs incurred in applying for permission to appeal are, in my view, incidental to proceedings in this court.
"(3) For all purposes of or incidental to –
(a) the hearing and determination of any appeal to the civil division of the court of Appeal: …
the Court of Appeal shall have all the authority and jurisdiction of the court or tribunal from which the appeal was brought."
This provision is widely drawn. I consider that adjudication on the costs below is incidental to the hearing and determination of an appeal to this court, notwithstanding that the applications for permission were withdrawn (subject to the determination of costs by the court) before permission was granted.
Ground 1: The judge adopted an unlawful test, reverting to the approach in Boxall.
Ground 2: In any event, the judge erred because
(a) The reasoning justifying the award of the costs of issuing the judicial review proceedings also applied to the costs of continuing the proceedings;
(b) Even if the judge was correct to ask whether the appellants would have secured orders quashing the certification of their human rights claims, he was wrong to conclude that they would not have succeeded.
Ground 1: The judge adopted an unlawful test, reverting to the approach in Boxall.
"I would accept the argument that, where the parties have settled the claimant's substantive claims on the basis that he succeeds in part, but only in part, there is often much to be said for concluding that there is no order for costs. … However, where there is not a clear winner, so much would depend on the particular facts. In some such cases it may help to consider who would have won if the matter had proceeded to trial as, if it is tolerably clear, it may for instance support or undermine the contention that one of the two claims was stronger than the other."
Mr. Payne submits that these are, indeed, cases where the claimant has succeeded in part and that it was therefore legitimate for Collins J. to consider whether the outcome would have been favourable to the claimants.
How successful were the appellants?
(1) In his grounds for renewal dated 29 March 2012 Mr. Semere Tesfay submitted that whether the presumption of compliance with international obligations is overcome is simply a question of fact to be resolved on the evidence and that the references in NS to forms of evidence were no more than summaries of the evidence that was sufficient, but not of itself necessary, to satisfy the test. In his further submissions dated 17 August 2013 he maintained, inter alia, that the test of systemic deficiency had been wrongly applied in EM (Eritera) and that in considering whether the return of an individual asylum seeker or refugee to Italy would lead to a breach of Article 3 ECHR it was necessary to analyse both the individual circumstances of that person including his particular vulnerabilities and experiences in Italy, and the objective evidence and the question of whether or not the Italian system was in a state of systemic collapse.
(2) Mr. Soulaiman's grounds of claim accompanying his claim form issued on 13 September 2011 indicated that he raised the same issues as were decided in EM (Eritrea).
(3) In Mr. Salih's case Duncan Lewis wrote a letter before action dated 19 July 2012 requesting a stay pending the outcome of the appeal in EM (Eritrea). The claim form issued on 20 July 2012 made clear that he sought a stay in order to have his case determined in accordance with the test cases.
(4) In his claim form dated 11 July 2012 Mr. Rahma sought a stay of removal and relied upon the stays ordered in proceedings in related matters. He submitted, inter alia, that the approach of the High Court in R (Medhanye) v SSHD was flawed in law in that it relied upon an exclusionary rule of evidence and treated decisions of the higher European Courts as requiring unequivocal evidence of a systemic breach of Article 3 rights.
(5) In Mr. Tayyara's case the grounds relied on in the claim form dated 16 August 2012 included a submission that the presumption of compliance operates to create no more than an evidential burden upon an applicant and that, once that burden is satisfied, it is for the decision maker to decide whether the claimant has proved, on the evidence, a real risk of treatment in breach of Article 3. It was also submitted that the existence of systemic deficiency in asylum procedures and reception conditions can be demonstrated by evidence of treatment contrary to Article 4 of the EU Charter and that there was no particular kind of evidence necessary to demonstrate a systemic failure.
These grounds were eventually vindicated before the Supreme Court in EM (Eritrea).
Is there a good reason for departing from the default position in M v. Croydon?
(1) Non-compliance with the pre-action protocol.
(2) The extent to which the respondent relied upon a test requiring systemic failure
(3) The particular nature of this litigation
"Moreover, in a sense, the court can be said to step outside its primary role. It will not only be adjudicating on the dispute between the parties as to the legality of the original decision made. It will become part of a rolling administrative decision–making process, in which a decision by the Secretary of State is followed by challenge, which is followed by new material which in turn is followed by a further decision, with the possible interposition of the court at any or all of these stages. Such "rolling judicial review" appears unprincipled. It is also liable to lead to confusion and to sideline the administrative process laid down by the legislature." (at )
"In R (A) the Court of Appeal held that when assessing whether the disclosure by the police in an enhanced criminal records certificate of allegations made against a nurse of neglect and ill-treatment was unlawful and in breach of Article 8 of the ECJR, a judge had been wrong to take account of fresh material that had not been available when the certificate was compiled because that sidelined the decision-maker and truncated the regulatory process. She should have remitted the case or encouraged the individual to submit a fresh application for a new certificate.
Similarly, in the hearing in B v. SSHD, Mr Justice Ouseley made clear that in challenges to the certification of human rights claims on third country grounds the lawfulness of a decision cannot be challenged be reference to subsequent documents that were not before the decision maker at the time. He criticised the practice that had developed whereby Claimants submitted additional material whilst judicial proceedings were ongoing which triggered further decisions by the Secretary of State which were then challenged by way of amendments to the existing proceedings. He expressed the view that greater procedural rigour ought to be applied to judicial reviews with public law decisions being challenged on the basis of the material that was before the decision maker at the time the decision wat ken. Those views echo the comments made by Mr Justice Ouseley in the earlier case of R (Rathakrishnan) v. SSHD  EWHC 1406 (Admin)."
(4) The respondent would ultimately have succeeded
Ground 2(a): In any event, the reasoning justifying the award of the costs of issuing the judicial review proceedings also applied to the costs of continuing the proceedings.
Ground 2(b): In any event, the judge erred in law because even if he was correct to ask whether the appellants would have secured orders quashing the certification of their human rights claims, he was wrong to conclude that they would not have succeeded.
Conclusion on the appeals and the applications of Soulaiman and Salih
The respondent's notice: cross application for permission to appeal out of time.
The Malta applicants
The course of the Yonase Tesfaye proceedings
(1) The judge rejected the denials by the applicants that they had claimed asylum or had had their claims refused or appeals dismissed in Malta. He was satisfied that all four claimants had made asylum claims on arrival in Malta and that they had been rejected at first instance and on appeal.
(2) Accordingly, the claimants were not asylum seekers but were failed asylum seekers. Neither the United Kingdom nor Malta owed to them any duty imposed by EU legislation further to consider their asylum claims and, on return to Malta, they would not be entitled to benefit from the Reception Directive.
(3) The judge referred to the contention on behalf of the claimants that to remove them to Malta would expose them to inhuman and degrading treatment and/or to unlawful detention contrary to Articles 3 and 5 ECHR."They contend that the SSHD was not entitled to certify their claims as clearly unfounded and that, applying my own judgment to their prospects of success in an appeal to First-tier Tribunal, I should conclude that their claim is not so clearly without substance that an appeal is bound to fail." (at )The Judge noted that in principle this raised the question addressed by the Strasbourg Court in KRS v UK  ECHR 1781 and in MSS v Belgium & Greece  ECHR 108 and by the Luxembourg Court in NS v SSHD  3 WLR 1374.
(4) However, he considered that in practice it did not raise these issues. He held that the claim relating to the risk of potential destitution had to be determined by reference to the test of "wholly exceptional circumstances" (D v UK 30240/96; 15 October 1996). In his view the situation of these claimants was plainly not exceptional. They were all fit, young single men and they would not be prohibited from working in Malta.
(5) There were no grounds, let alone substantial grounds, for believing that any of these claimants would be expelled by Malta in breach of Article 3.
(6) So far as Article 5 was concerned there was no reason to believe that they would be detained administratively and, if they were, their detention before trial and imprisonment after conviction would be lawful under Article 5.1(a) or (c). There would be no risk, let alone a real risk, of unlawful detention.
(7) For these reasons both the third country certificates and the human rights certificates were lawfully made and there was nothing to prevent the removal of any of the claimants to Malta.
"The learned judge erred in failing to address the appellants' submissions that their right to asylum had been severely compromised in Malta, such that it was unlawful to return from there."
"I am particularly concerned with the frank admission by Mr. Southey that what is now regarded as an important plank of the proposed appeal was not something that was specifically raised before the judge." (at )
Accordingly he referred the issue of permission to appeal to the full court with a direction that, if granted, the appeal be heard at the same time.
"This is one of a large number of claims challenging Third Country action on the grounds of an alleged risk of a breach of Article 3 ECHR on return to the receiving State. As you will be aware, substantial volumes of additional material have been filed in this and other cases, including most recently in the first cases which are listed for a substantive hearing in May. In order to adopt a consistent approach regarding the general issues being raised in such cases, the Secretary of State has decided to review all Human Rights decisions and will issue new decisions in response to individuals' Human Rights claims.
My client has now therefore withdrawn her decisions in relation to your clients' Human Rights claims.
My client will now consider the material submitted in support of your clients' Human Rights claims (including the material submitted in the course of these proceedings) in light of the Supreme Court's decision in EM (Eritrea) & Ors v SSHD  UKSC 12, and will issue new decisions in due course. Should your clients wish to rely on any further material in support of their Human Rights claims, they are invited to submit any such material within 21 days of signature of the attached consent order. My clients would not consider any material submitted after that date in her consideration of your clients' Human Rights claims.
The application for permission to appeal to the Court of Appeal is now therefore academic and you are invited to withdraw these proceedings on the terms set out in the attached consent order."
The letter went on to state that the position was consistent with the recent decision of the Court of Appeal in R(A) v Chief Constable of Kent and the observations of Ouseley J. in B v SSHD.
"(b) The appellants appealed against the judgment of Mitting J. In doing so the appellants continued to rely on the failings of the Maltese asylum determination system and submitted that "while it is acknowledged that there was no express reliance upon Article 18 below, it is submitted that there is nothing objectionable in seeking to rely on additional sources of law to advance an argument that has always formed part of the appellants' claim" (para 44 appellants' Skeleton). The respondent has always understood it to be common ground that the appellants were relying on new legal arguments that had not been raised before Mitting J. The respondent does not accept the appellants' attempt to distinguish between new legal arguments and "additional sources of law"."
It referred to the letter of 30 May 2014 and continued
"(e) By reason of this decision these appeals are virtually academic. …. It is hoped, however, that the consent order amounts to a suitable compromise whereby this Court is not burdened further with these appeals, while the respondent carries out her reconsideration…"
The submissions of the applicants
(1) He submits that no significant new material had been adduced since the hearing before Mitting J. in January 2013 and that, accordingly, the reasoning in the letter of 13 May 2014 which refers to further material can have no application in these cases.
(2) He submits that the withdrawal of the certification necessarily accepted that Mitting J. had been wrong in concluding that no duty was owed to the applicants.
(3) He submits that EM (Eritrea) in the Court of Appeal was at the heart of Mitting J's judgment.
(4) He draws attention to the fact that following the consent order the respondent re-certified Mr. Yonase Tesfaye's human rights claim stating that the Article 3 claim had been reconsidered in the light of the judgment of the Supreme Court in EM (Eritrea).
The submissions of the respondent
LORD JUSTICE McCOMBE :
LORD JUSTICE BEATSON :