QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
| The Queen on the application of Yurdurgal Ay
|- and -
|Secretary of State for the Home Department
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Ashley Underwood QC (instructed by The Treasury Solicitors) for the Defendant
Crown Copyright ©
Mr Justice Hooper:
"Accordingly I conclude that an Adjudicator, on an appeal based upon Article 8, where there is no issue of fact, is concerned only with the question whether … the Secretary of State has struck a fair balance between the need for effective immigration control and the claimant's rights under Article 8. In order to answer that question he is concerned only with the issue whether the decision of the Secretary of State is outwith the range of reasonable responses. This conclusion has the merit of support from a starred decision of the Immigration Appeal Tribunal in Noruwa (OOTH 2345 3 July 2001). There was much debate before me as to what appeared to be two conflicting paragraphs within that decision in paragraphs 47 and 54. But it is plain from another decision, not cited before me in Baah  UK IAT 05998 at paragraph 39, chaired by the same deputy President, that the IAT's conclusion was the same as my own."
"3. Again, the question for the Secretary of State is whether it has been established that the moral and physical integrity of any of the family members would be substantially affected to a degree falling within the scope of Article 8. Having fully and carefully considered this later report, it remains the Secretary of State's view that any interference with the family's rights under Article 8 as a consequence of their removal to Germany, would be so clearly justified as to make the allegation of breach of Article 8 manifestly unfounded.
4. The Secretary of State accepts that his action to return this family to Germany will have an impact upon them. It is natural that the family members, particularly the children, will suffer unhappiness, anxiety and distress (Para 7.).
5. The Secretary of State accepts that the children's present environment may well be potentially damaging for the children (para 31). However, the family was initially detained with a view to their imminent return to Germany. Their stay in Dungavel had been prolonged by the pursuit of further litigation. Once this present litigation is at an end, irrespective of the outcome, the children and their mother will no longer be in their present situation. The Secretary of State is sympathetic to the need for the children to achieve stability, consistency and security in their lives but, as Professor Zeitlin rightly observes at paragraph 39, their present situation is a culmination of the results of the actions of their parents.
6. Even if the Secretary of State accepted that the risk to the children's development could interfere with the Article 8 rights of any of the family, the justification for such an interference is so plain, in his view, that he is entitled to treat the allegation of any infringement as manifestly unfounded.
7. He remains of the view that the stresses to which the children have been subjected are attributable for the most part to the actions of the parents. The children are of an age to adapt readily to circumstances and will do so once the family's future is settled. This remains properly a matter for the authorities in Germany to decide.
8. It would be inimical to a firm and consistent application of immigration control, and particularly the Dublin Convention, if families of those who seek to evade that control are allowed to rely on the consequences of that evasion, save in the most exceptional cases.
9. The Secretary of State has, again, considered whether to maintain his "manifestly unfounded" certificate in the light of these most recent representations. Having fully and carefully considered all the material now before him, the Secretary of State remains confident that he may maintain his certificate in your client's particular case."
"The stresses to which the children have been subjected are attributable to their separation from their father, and also partly to the uncertainty over their future. In so far as relocation in Germany, and perhaps Turkey poses a risk that the stresses will be exacerbated, that risk has plainly been created or at least promoted by their lengthy and unlawful stay in England and it is attributable directly to the actions of the parents. The children are of an age to adapt readily to circumstances and will do so once the family's future is settled. That future is, however, a matter for the authorities in Germany to decide."
"CONDITION AS AT END 2002-EARLY 2003
Consulted GP in May 2002 regarding loss of hair. His (Dr Shank's) view was that this was likely to be due to stress (his letter of 12.07.02, Bundle p.68). She had become very tearful and eating irregularly over the 6 months to end of September 2002. She has had difficulty processing language. She has night fears and has developed a hand tremor. Mood state fluctuates considerably. In the view of Dr Boyle she shows obvious signs of clinical depression and possible anxiety (Bundle, p. 40). She will need psychiatric input (p.46). In Dr Zeitlin's view there is possible evidence of an underlying mild depression but this would require more detailed assessment (Zeitlin, para. 14).
Scared of being deported, mother reported deterioration of behaviour in September 2002. By then he had become confrontational and had night fears. Afraid to go to the toilet on his own. Relationship with his peers had declined significantly over the few months before September 2002. He nervously and frequently touches various parts of his face (Boyle, bundle p. 40). He shows signs of anxiety and depression (Boyle, p. 41 and regression p.46). He will require input from psychological or psychiatric services (bundle, p. 46). Zeitlin had the clinical impression that he was extremely unhappy boy who had a considerable amount of underlying anger (Zeitlin, para. 16).
Newroz will not adjust to living in Germany and her psychological problems are likely to be exacerbated (Boyle, p. 47).
The two younger children will find the adjustment extremely difficult in particular Dilovan (Boyle, p.47).
PROGNOSIS CHILDREN GENERALLY
Adjusting to an uncertain future in Germany would be extremely stressful for all children (Boyle, p. 47). This is particularly so because of the lack of a supportive peer group (ditto).
The possibility of a forced relocation to Germany and the possible transfer to Turkey serious enough to adversely affect the children physically and emotionally. It would make them more prone to anxieties and depression – particularly Newroz and Dilovan (Boyle, p.48).
The physical effect of stress on children can be extremely serious and can have a permanent and irreversible effect on brain tissue. It may be unduly optimistic to assume that children can recover from stressful events. Such children are more prone to anxiety and depression and in the long-term can develop other psychological problems. (Boyle pp. 43-44).
ZEITLIN (Who did not interview Medya, the youngest child)
There is evidence of considerable distress and unhappiness and of lowered mood state. They are at very high risk of depressive disorder in the near future (Zeitlin, para.24)
The contribution of change, in security and sustained anxiety puts children at high risk of future disturbance (Zeitlin. Para 27).
The children have an overriding need for stability and consistency in a predictable environment.
Of the 3 possible options (stay in England; move to Germany and stay there; move to Germany and then on Turkey), the best option for the children is the first. Either of the other two would involve at least one move and this would be harmful because it would involve the children in a further prolonged period of change and uncertainty and distress.
While it is possible for children (generally) to cope with the experience of a change of cultural environment, in this case it must be taken with other risks. The present children's experience of change so far and anxiety and uncertainly would increase their defensiveness and reduced the resilience of the children to cope with this adaptation (Zeitlin, paras. 33-38).
The children are at increased risks of emotional disturbance in the near medium and long term future (para. 39) and have a very urgent need for stability, consistency and security (para. 40).
If removed to Germany and even assuming that they were allowed to remain there, the children's anxiety could be expected to continue for at least 6 months and probably longer – 6 months is a long time in the life of a child. (Zeitlin supplement, para. 5).
Further it is best to secure stability in the most immediate available environment using resources that are known rather than permanent further changes and rely on resources that are unknown. A move to Germany even with reassurance (about no further move) would not give as good a prognosis in securing their safety without further moves from this country. (ibid, para 7)."
"We attach a number of letters from staff of the schools attended by the Ay children. They demonstrated a great deal of support and affection for the family. The letters speak of the positive impact the family has made on staff, pupils and their community.
The children have found stability and friends in the UK. The enclosed letters are clear of evidence that the community in which they live has accepted and welcomed them."
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There should be no interference by public authority with the exercise of this right except such as it in accordance with the law and is necessary in a democratic society in the interest of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedoms of others".
"Article 8 includes the protection of the right to identity and personal development, which includes the development of relationships with other human beings in the outside world. Preservation of mental health is a corner stone for achieving this. Thus, significant damage to a person's mental health is capable of amounting to a breach of Article 8." (The Queen on the Application of Ahmadi v SSHD  EWHC 1897 Admin per Scott Baker J. summarising the effects of Bensaid v United Kingdom (2001) 33 EHRR 10)
"2.4 It is also clear that the Claimant's children have strong community ties in the United Kingdom. Those ties are demonstrated by the letters of support form the schools that the children have attended and from a neighbour. These letters also suggest that damage will be caused to the children's development by their removal from school. That is not surprising given the ages of the children. Dr Boyle comments "A return to Germany would remove the children from their supportive peer groups. The challenge of coping with a new group at this stage will be difficult for all the children. A second source of stress is that this would be accomplished without any real level of social support."
MR JUSTICE HOOPER: Mr Underwood, try as hard as I can, I do not understand your suggested corrections.
MR UNDERWOOD: My Lord, I think I may have gone too far. My Lord, it is simply this; section 11 allows the Secretary of State to issue a certificate, and he can, theoretically, then remove the claimant, notwithstanding that there is an asylum claim outstanding. The trouble is that if the claimant then makes a human rights claim, he cannot remove him. Then you go a step further and issue the section 72 certificate, which makes him removable again. So if one were to put the full stop in on the third line, paragraph 3, after, "...who has made the claim for asylum," one then makes the first sentence deal with the power of section 11. Then the next sentence would be, "If a certificate under section 72(2)(a) has been issued in relation to that person, such a person may be removed even though he has an appeal under section 65..."
MR JUSTICE HOOPER: I have it.
MR UNDERWOOD: I am sorry to have made it rather less than clear.
MR JUSTICE HOOPER: No, no, you have made it very clear, I just could not follow you, it is my fault.
MR UNDERWOOD: It is a complex, to say the least, interplay.
MR JUSTICE HOOPER: Mr Henderson, you follow that correction?
MR HENDERSON: I think so, my Lord.
MR JUSTICE HOOPER: There is nothing else?
MR UNDERWOOD: No thank you.
MR JUSTICE HOOPER: Subject to that correction this judgment is handed down and I refuse the application.
MR UNDERWOOD: Thank you very much, my Lord. There is no application for costs.
MR JUSTICE HOOPER: No, but if everyone takes a copy we will get this put right at this stage. Anyone who wants a copy take one. The correction is, if everyone has a copy, in the third paragraph, third line after the word "... asylum" put a full stop. Then, "if a certificate," is capital I. Then after the word "person" in the next line put a comma, and capital "S", "such" becomes small "s", "such".
Yes, Mr Henderson?
MR HENDERSON: My Lord, I have an application for detailed assessment in respect of my public funding certificate.
MR JUSTICE HOOPER: Yes, you can have that.
MR HENDERSON: I am grateful. And an application for permission to appeal.
MR JUSTICE HOOPER: Yes.
MR HENDERSON: My Lord, the test which the claimant must meet at this stage is, of course, the low objective threshold test of whether it would be open to an adjudicator to allow an appeal on this evidence. Without revisiting the submissions on this matter which your Lordship will have heard, we would respectfully submit that there is a realistic prospect that the Court of Appeal might reach a different decision applying exactly the same test as your Lordship has applied.
My Lord, secondly --
MR JUSTICE HOOPER: So, the test; I have the right test, but I have, arguably, the wrong result?
MR HENDERSON: My Lord, yes.
MR JUSTICE HOOPER: Right.
MR HENDERSON: Secondly, we would submit that your Lordship's judgment raises an important issue in respect of the approach that adjudicators and the Immigration Appeal Tribunal should take to the Article 8(2) assessment. As your Lordship noted, and indeed Mr Justice Moses appears to have noted in the judgment which your Lordship quotes, the binding starred authority on this question in the Immigration Appeal Tribunal is, I think, in your Lordship's words, "not easy to follow." There is another tribunal --
MR JUSTICE HOOPER: I adopted those words from Mr Underwood, I think.
MR HENDERSON: I am sorry, my Lord. There is another tribunal determination which, of course, is not starred. It is a question of considerable legal and practical importance, not only in these third country cases, but in many other appeals. My Lord, these third country cases raise important and difficult issues which is reflected by the fact that at least five have been granted permission to go to the Court of Appeal in recent months. Three of these are presently listed for full hearing before the Court of Appeal in May; one being the Secretary of State's appeal, and the other two being appeals by claimants.
MR JUSTICE HOOPER: Are those the ones I learnt about during the hearing, Mr Justice Richards' decision and Mr Justice Crane?
MR UNDERWOOD: My Lord, they are.
MR HENDERSON: Yes, they are.
MR JUSTICE HOOPER: Which are?
MR HENDERSON: Razgar, which is the Secretary of State's appeal, and Nadarajah and Soumahoro, which are appeals by the claimants.
MR JUSTICE HOOPER: Yes.
MR HENDERSON: These cases were originally going to be joined by Ahmadi in which the Secretary of State was granted leave to appeal, but subsequently withdrew his appeal and Changuizi in which the Secretary of State also got leave to appeal, but that also is not now going ahead.
MR JUSTICE HOOPER: Yes.
MR HENDERSON: If your Lordship granted permission we would seek to have this matter joined with these cases in May and we would submit that it may well bring added value in that it raises, in a way which perhaps the other cases do not, this important question about the approach on an appeal, rather than a judicial review, to the 8(2) assessment.
Those are my submissions.
MR JUSTICE HOOPER: Yes. Insofar as the second point is concerned, as interesting as it is, it turns out, ultimately, to be obiter, does it not, on the basis of my decision, because I base it on 8(1)?
MR HENDERSON: My Lord --
MR JUSTICE HOOPER: Is that not right?
MR HENDERSON: Yes, it is, my Lord, but, of course, if the Court of Appeal came to a different conclusion on the evidence, applying the objective threshold test on 8(1), then your Lordship's view on the 8(2) assessment would, as I think your Lordship points out in the judgment, be very important to how the threshold test should then be applied.
MR JUSTICE HOOPER: Yes, thank you Mr Henderson. Mr Underwood, do you want to say anything?
MR UNDERWOOD: My Lord, what we would urge you to do is leave this to the Court of Appeal, if my friend wants to renew there, for a number of reasons, which I think I will set out, to be fair.
The first is that the Treasury Solicitor learned today, that, in a case that I will not trouble you with the name of, the Court of Appeal has granted permission to appeal to itself, from what we think must be the Immigration Appeal Tribunal, to consider the very first point that your Lordship considered here. It is a case in which Lord Justice Latham granted the permission on paper saying:(Quote unchecked)
"It seems to me that this court should take the opportunity to consider the starred appeal of Noruwa and the way in which adjudicators and the tribunal should approach appeals in which proportionality is in issue."
So, I cannot pretend that the Court of Appeal is unexcited by the point, but what I do suggest is that it is a matter for the Court of Appeal, whether it wants to hear it in two cases.
The second point, my Lord, is that we would say, so far as the Article 8 and section 72 certificate point is concerned, that these are very much questions of fact on a case by case basis, and your Lordship ought to know this: that the Court of Appeal has taken an unusual approach to the hearing of the appeals in May of the three cases that are left. In Nadarajah there are a number of issues, only one of which have they decided to take.
There is leave to appeal, on first instance, on all the issues; what is left unresolved is who is going to hear the rest of the issues. So, if my friend were to seek to take this case to the Court of Appeal, both on the issue of proportionality and on the question of the section 72 certificate, if he could persuade the Court of Appeal to join it to the other cases on the section 72 certificate point, it would end up being partheard in some way in the Court of Appeal in May.
That takes me then to my final point: this is a case where this lady and her children are in detention for what are perfectly good reasons, and that detention has been the subject of repeated bail applications, including one in the Court of Appeal, we have just heard. And, my Lord, I will apprehend that they will stay in detention if an appeal is launched, and if the Court of Appeal is not even going to look at one of the issues in the case until the middle of May, they are going to remain in detention for a very good deal longer.
MR JUSTICE HOOPER: So it should be for the Court of Appeal?
MR UNDERWOOD: Exactly.
MR JUSTICE HOOPER: But meanwhile part of the order would be, would it, that you would not remove them until such time...
MR UNDERWOOD: My Lord, what we would do is give good notice of removal directions, so the Court of Appeal could be applied to by my learned friend. We do not want to just leave it in the air with these people in detention.
MR JUSTICE HOOPER: No, well, let me make my decision first -- then I will come back to you on that. Anything more you want to say, Mr Henderson?
MR HENDERSON: Briefly, my Lord. This case raises specifically the interaction between the low threshold test and any margin of discretion which would be allowed on appeal to the Secretary of State on the 8(2) test, which I assume that any appeal from the IAT to the Court of Appeal will not raise.
Secondly, as Mr Underwood said, these cases are to be determined on the low objective threshold test, on a case by case basis on the evidence. It is not, of course, necessary for us to show any particular issue of public importance in order to obtain permission, simply that one cannot (inaudible) a realistic prospect that the Court of Appeal come to a different conclusion.
Those are my submissions.
MR JUSTICE HOOPER: Thank you Mr Henderson. No, I refuse permission to appeal, but I am anxious about two things. One, I am anxious that the Court of Appeal would consider any application for permission quickly for two reasons; one, because of the current status of the claimant and her family, and secondly, so that if they wanted to they could add it to the other cases. You would not disagree with that Mr Underwood?
MR UNDERWOOD: No, of course not, my Lord.
MR JUSTICE HOOPER: How would we achieve that without -- I could invite them?
MR UNDERWOOD: Your Lordship could start, I suppose, by ordering an expedited transcript of what your Lordship has just said.
MR JUSTICE HOOPER: Yes.
MR UNDERWOOD: Can I just take instructions for a moment, my Lord. If we undertook to give seven days' notice of removal when we fix the removal directions, then that gives my friend that clear period in which to ask the Court of Appeal for relief.
MR JUSTICE HOOPER: Yes, a bit tight.
MR HENDERSON: My Lord, what one would usually expect would be that the Secretary of State would undertake not to remove until the Court of Appeal had reached its decision on the application for permission, unless the claimants were not acting expeditiously. Mr Underwood's proposed undertaking appears to leave open the suggestion that removal directions will be set for a date before the Court of Appeal were planning to consider permission, resulting in the need for urgent applications for a stay and the like, which cannot be in anyone's interest.
MR JUSTICE HOOPER: Mr Underwood's concern, I presume, is that the appeal is not processed expeditiously.
MR UNDERWOOD: My Lord, the difficulty, candidly, is that I do not think that you have any powers to order my friend to make an expeditious application. If he did then I could perhaps give undertakings in respect of --
MR JUSTICE HOOPER: Can I say 14 days, rather than 7?
MR UNDERWOOD: Yes.
MR JUSTICE HOOPER: I mean otherwise you really would be -- huge pressure could be getting it in front of the court, particularly if it was in Easter time, for example.
MR UNDERWOOD: It is true. My Lord, what I have in mind is that this case has attracted some unfortunate press publicity for a start, in respect of the detention. The Secretary of State does not want to be a party to the prolongation of the detention unnecessarily.
MR JUSTICE HOOPER: No.
MR UNDERWOOD: So I am keen that if anything further is to be done, it is to be done by the claimants, and done very quickly.
MR JUSTICE HOOPER: Yes, all right.
MR UNDERWOOD: My Lord, the Secretary of State will, of course, act as reasonably as possible in assisting that.
MR JUSTICE HOOPER: Now just remind me, how many days to put in an application for permission to the Court of Appeal?
MR UNDERWOOD: I think it is 28.
MR JUSTICE HOOPER: 14?
MR HENDERSON: My Lord, I thought it was 14.
MR UNDERWOOD: It is 14. It is 14 from today, my Lord, yes.
MR JUSTICE HOOPER: So if at the expiry of that 14 days nothing had happened, then it would probably trigger the notice, would it not?
MR UNDERWOOD: My Lord, if we were to undertake not to remove within 14 days, that would certainly give the claimant plenty of time to get before the Court of Appeal. The Court of Appeal does generally, of course, hear these cases, or at least take on board these cases, very quickly. My Lord, the claimant can then negotiate with the Treasury Solicitor once the application has been made, about any further extension before removal. Yes, which, of course, has happened continually in this case.
MR JUSTICE HOOPER: I am anxious that you get on and do it, if you are going to do it, within 14 days.
MR HENDERSON: Certainly, my Lord.
MR JUSTICE HOOPER: I am anxious that the Secretary of State is not put in a position where things drift.
MR HENDERSON: Sir, that certainly would not be our intention. There are, of course, stages that must be gone through, for example the application to the Legal Services Commission for funding, but nevertheless we would expect to be in a position to make an expeditious application.
Your Lordship suggested to Mr Underwood, which I understood Mr Underwood to accept, that the best course would be that any removal directions which the Secretary of State chooses to set, presumably because he thinks matters are not proceeding expeditiously, should allow 14 days' notice for the Court of Appeal to reach a decision. We would be content with that, I think, in the circumstances.
MR JUSTICE HOOPER: Yes.
MR UNDERWOOD: That is not quite what I was saying. What I was saying was, we would not remove within 14 days from today, my Lord, so that my friend could get his application in in time while his clients remain in the country, and what happens then would be a matter for negotiation with the Treasury Solicitor. It may be that the Treasury Solicitor, on instructions, would take the view that he will remove, unless the court grants a stay. It may be that the Treasury Solicitor will say, so be it, the application has been made and we will not remove until the Court of Appeal has reached a decision.
My Lord, I am not in a position to say what outcome there would be. It certainly gives my friend plentiful time to get the matter before the Court of Appeal.
MR JUSTICE HOOPER: I think I prefer your first offer, which was: you undertake not to remove within 14 days of giving the notice.
MR UNDERWOOD: I am so sorry, my Lord?
MR JUSTICE HOOPER: The first way we put it; that you undertake not to remove -- how did you put it? You put it 7 and I extended it to 14.
MR UNDERWOOD: What I said was, we would give 7 days' notice.
MR JUSTICE HOOPER: Yes, that is right, and I am saying you should give 14 days' notice of an intention to remove.
MR UNDERWOOD: May I take instructions on that?
MR JUSTICE HOOPER: That was your first offer.
MR UNDERWOOD: My Lord, so be it. I undertake to give 14 days' notice.
MR JUSTICE HOOPER: Would you, Mr Henderson, just draft the order now, and would you include in it the words to the effect that I am inviting the Court of Appeal to give consideration to any application as soon as possible, or soon as reasonably possible. Some words to that effect, do not suggest I am directing it. Then we do not need the transcript of this, we can just do it in the order.
MR UNDERWOOD: That is very kind, yes.
MR JUSTICE HOOPER: If you want to add the two reasons on, do the invitation and give us the reasons; one, in custody, and two, it may be that the court may feel it is an appropriate case to join with the others.
MR UNDERWOOD: Thank you very much indeed.
MR JUSTICE HOOPER: Thank you very much. Thank you, Mr Henderson.