England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		11th June 2008

1. MR JUSTICE SULLIVAN: This is a renewed application for permission to apply for judicial review of the defendant's decision on 11th December 2007 to remove the claimant, who comes from Somalia, to Greece under the provisions of the Dublin Convention.
2. The claimant was interviewed on 12th November 2007 and contended that she had left Somalia two weeks earlier and travelled to Ethiopia and never claimed asylum. Investigations were carried out and in due course it became clear that the claimant had in fact been in Greece and she flew to the United Kingdom from Athens, so the defendant made a formal request to Greece to take responsibility.
3. To cut a long factual and procedural history very short indeed, it is the claimant's own case that her case is on all fours with that of R (Nasseri) v Secretary of State for the Home Department. All was well while Mr Nasseri could rely on the favourable judgment of McCombe J ([2008] 2 WLR 523, [2007] EWHC 1548 (Admin)). However, as the claimant recognises, that position changed when the Court of Appeal reversed the decision of McCombe J ([2008] EWCA Civ 464) in a judgment dated 14th May 2008. Thus, Mrs Benitez very frankly acknowledges that the only basis for the claim now is the proposition that it is unreasonable for the defendant to refuse to accede to a stay of this claim pending the presentation of a petition to the House of Lords for permission to appeal from the Court of Appeal's decision. The Court of Appeal refused permission to Mr Nasseri to appeal, but was told that a petition would be presented to the House of Lords and stayed removal of Mr Nasseri pending the outcome of that petition. I have been told by Mrs Benitez that public funding has been sought for the presentation of the petition and indeed that a petition is in draft, although as I understand it it has not yet been presented to the House of Lords.
4. It seems to me that the mere fact that it is intended to present a petition to the House of Lords cannot be a proper basis for a stay of these proceedings. The law is as stated by the Court of Appeal in Nasseri. The claimant accepts that her case is on all fours with Nasseri. Therefore, it seems to me there is no justification for granting a stay. The position might be different if a request was made for permission to appeal against this decision. I bear in mind that the Court of Appeal, although it dismissed Mr Nasseri's claim, did stay matters pending the outcome of his petition to the House of Lords.
5. What I propose to do, since Mrs Benitez has made it quite plain that she will apply for permission to appeal to the Court of Appeal against my decision, is dismiss this renewed application for the reasons that I have given. I also refuse the application for permission to appeal to the Court of Appeal, but I will grant a stay to enable the claimant, if so advised, to present an application for permission to appeal to the Court of Appeal. The stay will operate until such time as that application is determined, but that is on the basis that permission to appeal to the Court of Appeal is made within the time prescribed under the Civil Procedure Rules. If an application is not made within time, then the stay will lapse. If it is, the stay continues until such time as the Court of Appeal deals with the matter.
6. Thank you.
7. MR GREATOREX: My Lord, so far as costs are concerned --
8. MR JUSTICE SULLIVAN: Yes.
9. MR GREATOREX: -- I have just noticed that there was no application in the acknowledgement of service and that is why it was not dealt with by the deputy judge. It will be the standard amount, my Lord.
10. MR JUSTICE SULLIVAN: Treasury Solicitors, 3 hours.
11. MR GREATOREX: 3 hours, £480. My Lord, there is also an application for today because plenty of cases have been withdrawn, without even an oral hearing, pending Nasseri and so we say that course that has been adopted by very many other claimants and their representatives was the sensible course and pursuit is not, and on that basis I ask for the costs of today as well.
12. MR JUSTICE SULLIVAN: What are they?
13. MR GREATOREX: £350, my Lord.
14. MR JUSTICE SULLIVAN: What do you want to say about that, Mrs Benitez? Not much you can say about the acknowledgement of service, I would have thought.
15. MRS BENITEZ: No, my Lord, I cannot. Only to say that we do not know the facts behind those cases that have been withdrawn and as I have stated, I do know that Mark Henderson, the same counsel for Nasseri, has lodged judicial review (inaudible), so at least one other barrister has taken a similar view to that which was taken in this case.
16. MR JUSTICE SULLIVAN: Yes. In the circumstances I think the right thing to do is to give the Secretary of State the costs of the acknowledgement of service, but not the costs of today. I simply do not know enough about the other cases to decide whether or not that would have been the right course in this case. So £480 summarily assessed costs to be paid by the claimant to the defendant.
17. Thank you very much. Thank you both.