Case No: CO 3468-02
Neutral Citation: [2003] EWHC 569 (Admin) 
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Friday 21st March 2003
Before :

THE HONOURABLE MR JUSTICE HOOPER

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Between :

	The Queen on the application of Yurdurgal Ay	Claimant	
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	Secretary of State for the Home Department	Defendant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Andrew Nicol QC and Hugh Southey (instructed by Wilson & Co) for the Claimant
Ashley Underwood QC (instructed by The Treasury Solicitors) for the Defendant

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Judgment

Mr Justice Hooper: 
1.	This is an application for judicial review, permission having been granted by the Court of Appeal (Keene LJ).  The challenge is now to the continued maintenance of the defendant’s certificate under section 72(2)(a) of the Immigration and Asylum Act 1999 (“the Act”).  
2.	The claimant, an asylum seeker of Turkish nationality and of Kurdish origin, makes the allegation that her removal to Germany by the defendant pursuant to the provisions of section 11 of the Act and of the Dublin Convention would be a breach of Article 8 of the ECHR.  The defendant certified and continues to certify that this allegation is manifestly unfounded. 
3.	Section 11 authorises the removal to a member state which has accepted it is the responsible state in relation to a person’s claim for asylum, of a person “who has made a claim for asylum. 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 of the Act against the decision to remove him.  Any appeal must be brought from outside the United Kingdom.  
4.	Section 65 entitles a person to appeal to an adjudicator a decision by the defendant under the Immigration Acts “relating to that person’s entitlement to enter or remain in the United Kingdom” on the grounds that the defendant, in taking the decision, has acted in breach of that person’s human rights, by acting in a way which is made unlawful by section 6(1) of the Human Rights Act 1998.  It was agreed at the outset of the hearing that the defendant may only decide that an allegation is manifestly unfounded if it is not arguable  that an appeal to an adjudicator would succeed.  That test assumes, of course, that an adjudicator reaches a conclusion which he is entitled to reach and not one which would be reversed on appeal or quashed on judicial review.   
5.	What test does this court then apply when reviewing a decision to certify as manifestly unfounded?  Mr Underwood Q.C. helpfully agreed that, on the facts of this case (and without creating any precedent), I should ask myself the same question: “Is it arguable that an appeal to an adjudicator would succeed?” If so, the claimant succeeds but not otherwise.  (For the authorities see The Queen (on the application of Ismet Ali) v. SSHD [2003] EWHC 521 Admin, paragraphs 30-31, to which I return shortly.) 
6.	The thrust of the claimant’s case relates to the psychiatric and psychological damage which she claims her children would suffer if removed to Germany.  It was agreed that, to avoid any further claims by the children, I should examine the consequences to the children of removal rather than merely (and artificially) the consequences to the claimant of the alleged damage to the children on removal.  
7.	It is not argued, and could not be argued, that Germany would return the claimant and her children to Turkey in breach of Article 8.  Nor is there any evidence that in Germany the family would not be provided with any necessary psychiatric help. 
8.	After the midday adjournment on the day of the hearing, I asked counsel whether the adjudicator is entitled to substitute his own decision as to proportionality for that of the defendant or whether he merely asks whether the defendant’s decision on proportionality is within the range of rational responses to the question where a fair balance lies in the particular case between the conflicting interests (respect for family life and the need for immigration control), having regard to the anxious scrutiny which must be deployed where it is alleged that a claimant’s rights under Article 8 have been infringed.  It seemed to me that, although the question had not by then been raised in argument, it was vital to know the answer. If the adjudicator was permitted to substitute his own view on proportionality, then it would obviously be more difficult to conclude that an appeal to an adjudicator would not succeed.  I was told that the only authority on the point were two decisions of the Immigration Appeal tribunal, one of which, so it was agreed, was not easy to follow.   Following the hearing, I learnt that the same issue arose in a case heard by Moses J (albeit after this case), Ismet Ali. I have now had an opportunity to read his judgment.    Moses J reached the following conclusion (paragraph 47):
“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 [2002] UK IAT 05998 at paragraph 39, chaired by the same deputy President, that the IAT’s conclusion was the same as my own.”
9.	I agree and do not propose to rehearse the arguments further. 
10.	I turn to the prolonged history of the claimant’s attempts to obtain asylum both here and in Germany, as well as those of her husband.  There is a detailed chronology contained in the acknowledgment of service.   I give only a brief resume of that chronology.  
11.	The claimant and her husband entered Germany from Turkey in 1988 and claimed asylum.  In 1989 they left Germany and entered Greece unlawfully, staying there for some two years.  Two of their children were born in Athens.  In June 1990 the husband’s appeal against refusal of his asylum claim was refused. On their return to Germany, the first of five repeat applications for asylum was made. In November 1993 the claimant’s husband was returned to Turkey.  The claimant and children were not removed having “gone to ground”.  The claimant’s husband returned to Germany and they made the second repeat application in 1994. In 1995 the second repeat application was rejected and the appeal from that decision was dismissed in 1998. In the same year the third repeat application was made.  In June 1999 the claimant, her husband and now four children arrived in this country as clandestine illegal immigrants concealed in a lorry.  They were detained and the claimant’s husband applied for asylum, with his wife and four children as dependents.  They told lies about how they had come to this country and concealed their stay in Germany and the applications made there. By October 1999, the truth had been discovered and in December Germany accepted responsibility.  In January 2000 removal directions were set and the husband detained.  The husband commenced judicial review proceedings in January 2000 and was released. Following the issue of a certificate under section 11, the application for judicial review was withdrawn in February 2002.  In March 2002 the husband was detained prior to an anticipated removal with his family in March.  In the same month the claimant’s husband’s solicitors alleged that removal would breach Articles 2, 3 and 8 and the defendant certified these allegations as manifestly unfounded, a decision which was not challenged.  On 26 March 2002 the husband was returned to Germany.  The claimant and the children should have returned with him but she failed to report and absconded from the address at which the family were staying.  In April the claimant made an application for asylum, which was refused under the provisions of section 11 of the Act.  On 23 May the claimant failed to report as required.  In June the husband was repatriated to Turkey following the failure of his fifth repeat application for asylum.  In July 2002 the claimant made an allegation that she would be at risk in Turkey of torture, cruel and inhumane treatment if returned to Germany (the unsuccessful Thangarasa argument).  Directions for the claimant’s return with her children to Germany were set for August, following their detention.   On July 20, the claimant’s solicitors alleged first that the Article 2 and 3 human rights of the claimant would be breached if she and her children were returned to Germany.  This was extended to Article 8 on July 22, now the only relevant Article.  These allegations were certified as manifestly unfounded (see pages 84 and 85 of the bundle).  Following refusal of permission on paper, a further medical report was served just before the oral renewal. After the decision by Keene LJ on 17 December 2002 granting permission the defendant wrote a further latter dated 9 January maintaining the certificate.  Following receipt of a further medical report, the defendant, on 21 January 2003, wrote another letter maintaining the certificate.  That letter contains all or substantially all of the reasons upon which the defendant relies in support of the certificate that the allegations are manifestly unfounded. 
12.	 Having acknowledged receipt of a report from Professor Zeitlin which “expands upon the opinions expressed by Dr Boyle in his earlier report” handed to the defendant shortly before the oral hearing in this court of the renewed application, the defendant in the letter of 21 January continues: 
 “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.”
 
13.	The statement in paragraph 8 that those who seek to evade immigration control should not be allowed to rely on the consequences of that evasion save in the most exceptional circumstances is repeated in paragraph 15 of the 9 January letter. Paragraph 14 of the 9 January letter reads:
“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.”
14.	I turn now to the reports on the four children: Berivan (born 27 August 1988, aged 14), Newroz (born 6 April 1990, aged 12), Dilovan (born 22 April 1991 aged 11) and Medya (born 24 February 1995, aged 8).  I have given the ages as at the date of the hearing. 
15.	All four children will suffer considerable stress should they be removed from this country to Germany.   In the words of the defendant in the letter of 21 January: “It is natural that the family members, particularly the children, will suffer unhappiness, anxiety and distress”.  It became clear during the hearing that a breach of Article 8 is only arguable in the case of two of the children, Dilovan and Newroz.   Given what I have set out in paragraph 5 above, this case can only be concerned with the alleged consequences to these two children of the act of removal, that is, requiring them to leave this country.  Some of the medical and other evidence refers to the children’s concerns about being returned to Turkey- that is, however, a matter for the German courts (see e.g. 3rd paragraph of letter of 19 July 2002, page 69 of the bundle). 
16.	Counsel assisted me by preparing an agreed and helpful summary in note form of the medical evidence regarding the children, to which I have made a few minor alterations.   The facts are not materially in dispute. This distinguishes this case from other cases cited to me, such as The Queen on the application of Ahmadi v. SSHD [2002] EWHC 1897 Admin.  Mr Nicol relied on the last sentence of paragraph 49 and the reference to an issue which the Adjudicator would be in a much better position to resolve having heard oral evidence.  I agree with Mr Underwood that that is not the case here.  
17.	I shall concentrate on the evidence in so far as it concerns Dilovan and Newroz although some of it refers to the other children. 
“CONDITION AS AT END 2002-EARLY 2003 
NEWROZ
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).
DILOVAN
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). 
PROGNOSIS
NEWROZ
Newroz will not adjust to living in Germany and her psychological problems are likely to be exacerbated (Boyle, p. 47).
DILOVAN
The two younger children will find the adjustment extremely difficult in particular Dilovan (Boyle, p.47).
PROGNOSIS CHILDREN GENERALLY
BOYLE
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).”
18.	There was evidence made available to the defendant about the educational achievements and community ties of the family.  That evidence is well summarised in a letter to the Immigration Office dated 19 July 2002 from the claimant’s solicitors:
“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.”

19.	Article 8 provides:
“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”.
20.	There is no doubt that:
“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 [2002] EWHC 1897 Admin per Scott Baker J. summarising the effects of Bensaid v United Kingdom (2001) 33 EHRR 10)
21.	To show a breach of the rights protected by Article 8(1), it must be established in this case, as the defendant correctly observed in the letter of 21 January, that the moral and physical integrity of any of the family members would be substantially affected by removal.   It is for the claimant to show on the evidence before the defendant that, in the words of Mr Nicol,  there is a real risk of serious damage flowing from the act of removal.    
22.	The letter of 21 January does not concede that the removal would constitute  an interference with the Article 8.1 rights. 
23.	I summarise the arguments of Mr Underwood QC in support of his contention that there would be no arguable breach of Article 8.1 by removing the family.  There was no evidence that the children would necessarily get any better if they remained here.  He refers to the issue raised by the psychologist of possible brain damage and submits, on the evidence, that the risk is only a general risk, falling within the speculative category of the kind in Bensaid.  The uncertainty is likely to continue in any event given the precarious position of the family in this country.  There can be no guarantee that any appeal would succeed and there remains the problem with the father being in Turkey.  Professor Zeitlin (unlike Dr Boyle) addresses only what would happen on return to Germany and the effect of his evidence is that the children will settle down in about six months. There is insufficient evidence on which to base the conclusion that their Article 8.1 rights would be substantially affected.  There is no clear prognosis of what will happen to the children if they go back to Germany.  In the absence of any evidence that psychiatric support would be available to them in Germany, the evidence of depression, so he said, has to be treated with considerable caution.  The reports showed only that the children were at risk of developing psychiatric difficulties, including depression.  On the evidence, it is not known whether the risk will eventuate, if it does eventuate how severe the depression would be and what effect, if any, treatment in Germany would have on both the severity and duration of any depression.  There was no evidence to “juxtapose” the evidence of what might happen to the children if removed against what would happen if they stayed in England.  He submitted that the question that must be asked is whether or not removal will arguably increase the risk (Bensaid paragraph 38).  He argued that if the removal to Algeria of Bensaid who suffered from severe and long-term schizophrenia with delusions and hallucinations himself, did not fall within Article 8.1 (in the judgment of the ECHR), then these children certainly did not.
24.	In his skeleton argument, Mr Nicol put it this way:
“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.”
25.	Mr Nicol submitted that it is the prospect of imminent removal which has brought about the stress.  He submits that it is quite clear from the evidence of Professor Zeitlin that it would be far better for the children if they remained here.  Dealing with the argument that there would be continued insecurity, he says that an appeal to an Adjudicator, if successful, would permit them to remain in this country certainly for a number of years.  That would be good enough to remove the current stress.  As to the point taken by Mr Underwood that the children would settle down in about six months, he pointed out that “the children’s anxiety could be expected to continue for at least six months and probably longer”  and that “six months in the life of a child is a long period”.  He submitted that the difference between Bensaid and this case was that, for Bensaid, with access to treatment and drugs there would not be a real risk of relapse in Algeria.  In Bensaid (paragraph 39) the court had found that the risk that the applicant would suffer deterioration in his condition if returned to Algeria and would not there receive adequate support “is to a large extent speculative”.  This case he submits is not speculative.  He submitted that Keene LJ was right when he said granting permission: “We are here dealing with children’s mental health and with their mental development, and that seems to me to be a relevant consideration.”  
26.	I turn now to my conclusions.  
27.	In my judgment Mr Underwood is right about the speculative nature of Dr Boyle’s comments about brain damage.  Contrary to his submissions, it seems to me to be clearly arguable that Newroz now suffers from clinical depression and it is just arguable that Dilovan does also, albeit neither in an advanced state.  In so far as Newroz is concerned, Dr Boyle said she showed “obvious signs of clinical depression” and Professor Zeitlin says that there is possible evidence of underlying mild depression. In the case of Dilovan he also showed “signs of depression”. Both needed psychiatric help.   
28.	It is certainly arguable that taking into account the medical evidence and the evidence from the local community that it would be in their best interests to remain in this country.  Indeed the Secretary of State accepts that the children will suffer unhappiness, anxiety and distress upon their removal to Germany. 
29.	Given that the cause of the depression is the threat of being removed from the United Kingdom, it is arguable that the depression will continue for a longer period following removal than it would if removal was put off indefinitely or was delayed for some considerable period of time.  It is arguable, in the case of the two children with whom I am principally concerned, that, absent any treatment in Germany, a return there would make their depression worse and that the depression would continue for six months or probably longer.  I accept Mr Underwood’s argument, however, that we do not know what effect, if any, treatment in Germany would have on both the severity and duration of any depression.  In the absence of that evidence, the duration and severity of any depression must be necessarily speculative.   I take into account that one must be particularly careful when dealing with children and their mental health. Nonetheless the defendant’s conclusion  that: “The children are of an age to adapt readily to circumstances and will do so once the family’s future is settled”, is one which he was entitled to reach. 
30.	In my judgment having considered all of these factors it is not arguable that the claimants have shown a real risk of serious damage to the mental health of the two children such that their removal constitutes an interference with their right under Article 8.1.
31.	If I am wrong about this, it is in my judgment not arguable that the defendant’s conclusion that any interference with the family’s rights under Article 8 as a consequence of their removal to Germany would be justified under the second paragraph of Article 8, is a conclusion which is “outwith the range of reasonable responses”.
32.	It is not arguable that the policy described in paragraph 8 of the 21 January letter is one that the defendant is not entitled to apply when striking a fair balance between the need for effective immigration control and the rights under Article 8 of persons in the position of the claimant and her children.   It is not arguably irrational to conclude that the circumstances in this case are not exceptional. The rights of children are very important but, as agreed in argument, the fact that staying in this country will be in the best interests of a child is an important but not decisive factor.  
33.	For these reasons this application for judicial review fails.  
34.	To the claimant and her children and to those who have given the family so much support over the last years, this decision will inevitably appear very harsh.  The progress made at school and in the community by the children is remarkable as the evidence shows.  My task is merely to assess the lawfulness of the defendant’s decision.  I have concluded that it is lawful and therefore the application fails. 
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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.