England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Birmingham Civil Justice Centre Priory Courts 33 Bull Street Birmingham B4 6DS
		18th May 2012

Mr Justice Singh:

Introduction

1. This was originally a challenge to the decisions of the Secretary of State dated 25 May 2010 to set removal directions to Germany for 1 June and the decision dated 28 July 2009 to certify the claimant's human rights claim as clearly unfounded. As will become apparent, those decisions have become to some extent superseded and the challenge now is to decisions dated 17 May 2011 and 2 December 2011 to maintain the earlier decisions and, in particular, the certificate that the claimant's human rights claim is clearly unfounded.
2. Permission to bring this claim for judicial review was granted after an oral hearing by Bean J on 19 January 2012.

Factual Background

3. The claimant is a national of Zimbabwe and was born on 3 July 1986. On 17 January 2009 the claimant left Zimbabwe and travelled to Germany on her own passport with a "Schengen visa", which had been issued on 12 January 2009 and, it is common ground, was valid. On 13 March 2009 the claimant left Germany and travelled to the United Kingdom via France with a false German identity card. On 16 March 2009 the claimant claimed asylum in the UK. She was served with "illegal entry" papers by the Secretary of State and was referred to the Third Country Unit. On 22 April 2009 the Secretary of State refused the claimant's asylum claim and certified it on safe third country grounds on the basis that Germany was deemed responsible for the claimant under what is known as Dublin II, in other words the regulation which governs asylum claims of this sort within the European Union.
4. On 11 May 2009 the Secretary of State made a transfer request to Germany under Article 16.1 of Dublin II. On 15 May 2009 Germany accepted responsibility for the claimant's asylum claim. On 29 May 2009 there were removal directions made for Germany but these were cancelled. On 8 June 2009 a claim for judicial review was lodged by the claimant's previous solicitors. On 13 July 2009 the claimant was released on temporary admission. On 28 July 2009, as I have indicated, the Secretary of State certified that the claimant's human rights claim under Article 8 of the European Convention on Human Rights was clearly unfounded. On 31 July 2009 permission was refused on the papers by HHJ Oliver-Jones QC, sitting as a judge of the High Court, the claimant was then redetained. On 5 August 2009 the Secretary of State certified the claimant's asylum claim on third-country grounds, and the claimant was released from detention to live with her aunt and uncle.
5. On 27 October 2009 a report was submitted by the claimant's representatives by a consultant psychiatrist, Professor Katona. At paragraph 7c of that report Professor Katona observed that the claimant's symptoms, including her disassociative symptoms, suggest that she has "complex PTSD" (that is, post-traumatic stress disorder). The report also noted that she was currently receiving considerable support from her "aunts" in the UK, who are her only remaining close family.
6. Under the heading "Plausibility" at paragraph 8a the report noted that the claimant's descriptions of her symptoms were:

"...vivid, consistent and convincing and I think it particularly unlikely that the disassociative phenomena she displayed during her interview with me could be feigned."

In similar vein at paragraph 8d Professor Katona said:

"In the light of this, I think it very unlikely that Ms Mujaranji was either feigning or exaggerating and that in fact she was hiding a considerable part of her overwhelming distress, hopelessness and despair."

7. At paragraph 10, under the heading "The possible effect on Ms Mujaranji's mental health if she were forced to return to Germany", Professor Katona said:

"Ms Mujaranji has experienced extreme trauma and bereavement. She is having great difficulty in functioning on a day-to-day basis despite the support of her aunt Christine. She appears extremely fragile, despairing and at the end of her tether and has frequent and intrusive thoughts of ending her life. In my opinion her risk of (potentially successful) self-harm would be increased substantially were she to lose the support of 'aunts' Christine Mujaranjii and Tendae Mature

b. In addition I think that any threats of forced removal from the UK would significantly worsen Ms Mujaranji's already severe PTSD symptoms. I agree with Caroline Kitcatt that Ms Mujaranji 'first and foremost must feel safe and secure in a settled environment' and that 'to detain and deport her would be a certain trigger for reactivating her trauma'. In the longer term her worsening PTSD symptoms would also hamper her capacity to work and support herself "

That is all I need quote for present purposes from the report of 27 October 2009.

8. On 16 May 2010 the claimant took an overdose of tablets and was admitted to a mental health assessment unit.
9. On 25 May 2010, as I have already indicated, the Secretary of State set removal directions to Germany for 1 June 2010. On 26 May 2010 there was a letter from the Secretary of State responding to the medical report which had been submitted, but which maintained her decision to remove the claimant on 1 June. Her removal was in fact cancelled, as fewer than five days notice had been given, and was reset for 8 June. Those removal directions were cancelled as judicial review proceedings were issued on 27 May 2010. On 28 May 2010 permission was refused on the papers by HHJ Davis QC, sitting as a judge of the High Court. The claimant was granted temporary admission on 4 June. On 29 June 2010 there was a further psychiatric report from Professor Katona. Under the heading "Plausibility" at paragraph 7a, Professor Katona again said:

"I have again considered the possibility that Ms Mujaranji might have been feigning or exaggerating her symptoms. Ms Mujaranji presented as one of the most grossly traumatised people I have ever assessed. Her descriptions of her symptoms were vivid, consistent and convincing and I think it particularly unlikely that the disassociative phenomena she displayed during both her interviews with me could be feigned. …"

10. At paragraph 10 under the heading "The possible effect on Ms Mujaranji's mental health if she were forced to return to Germany" Professor Katona said:

"a. Ms Mujaranji has experienced extreme trauma and bereavement. She receives very considerable support from her family in the UK -- her aunt Christine and her family (with whom she lives) and from her aunt Tendai and her husband in Cambridge. She is also well supported by her GP, her counsellor and her network of friends in Norwich. Despite this support she has great difficulty in functioning on a day-to-day basis and is near to complete despair. She has increasingly frequent and intrusive thoughts of ending her life.

b. Ms Mujaranji explained to me that her aunt Christine 'is my mum now' and that Christine and her husband and children are ' the only family I have now. I don't want to be parted from them'

c. Ms Mujaranji's already very fragile mental stability would be under great jeopardy if she lost these supports -- as would inevitably be the case if she were forced to leave Norwich (which she regards as her sanctuary and her home) and to go to Germany where she has no support at all

d. In my opinion, any further threat of forced removal from the UK would significantly worsen Ms Mujaranji's already very disabling PTSD and depressive symptoms -- she has already deteriorated considerably in response to re-detention and the threat of such removal while at Yarl's Wood.

e. Ms Mujaranji is much more preoccupied with thoughts of suicide than when I first saw her. When I asked her how she would cope if she was forced to go to Germany she simply said ' I wouldn't go. I would try to kill myself before I go'. In view of her previous suicide attempts, her belief that she would die as a result of her recent overdose and her clear disappointment at having failed to do so, I think Ms Mujaranji would be at extremely high risk of suicide if she were forced to leave the UK. The risk would be extremely high prior to removal once she lost hope of being allowed to remain -- and would be increased further were she once again detained. The risk would remain extremely high during the legal process itself and once she had arrived in Germany. Close observation might reduce the risk to some extent but, sadly, people sufficiently determined to die all too often find ways of ending their lives despite all reasonable precautions being taken."

11. On 6 July 2010 an oral permission hearing in this case was adjourned by consent, and on 17 July there was a consent order by which the Secretary of State agreed to reconsider the claimant's case. Eventually on 17 May 2011, as I have already indicated, a further decision was made by the Secretary of State in which she maintained her earlier decision. In particular at paragraphs 17 to 19 under the heading "conclusion" the Secretary of State said:

"17. Your client's human rights claim is one to which paragraph 5(4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 applies. This requires the Secretary of State to certify your client's human rights claim as being clearly unfounded unless she is satisfied that it is not clearly unfounded.

18. Having carefully considered all of the evidence available to her, the Secretary of State has decided that she is not satisfied that your client's human rights claim is not clearly unfounded. Therefore, she hereby certifies under the provisions of paragraph 5(4) of Schedule 3 … that your client's human rights claim is clearly unfounded.

19. As the Secretary of State has certified your client's human rights claim is clearly unfounded your client may not appeal until after she has left the United Kingdom."

It is common ground before me that in that passage the Secretary of State accurately summarised the effect of the material legislation.

12. On 3 August 2011 the claimant filed her amended grounds in support of this claim for judicial review. On 6 October 2011 another further representation was made on behalf of the claimant, which enclosed a report by Renee Cohen dated 1 June 2011. In the opinion section of that report the relationship which the claimant had developed with her aunt's two children was noted, they being two little boys. It was Renee Cohen's opinion that if the claimant were to be forced to leave the UK, being separated from those two children would almost certainly have a profound impact on her with the likely worsening of her mental state. She thought that being with the two young children and so closely involved with their day-to-day care had a positive effect on the claimant and was "a healing experience". She described the relationship which the claimant had with her aunt Christine and uncle Ignatius as being "exceptionally close" as if they were her mother and father. She expressed the opinion that these go beyond the ordinary dependency one might see in other adult relatives and that there is a cultural aspect of this in that, in the Shona culture, if a mother dies then her sister takes on the role of mother and indeed an aunt is then often addressed as "mother".
13. In respect of the question of what would happen if the claimant were forced to leave the UK Renee Cohen's opinion was :

"...that it is almost certain to have a profoundly damaging impact on her mental health. Indeed there is a strong possibility that she will succeed in killing herself as she has said. ... She cannot cope without the close support and comfort and nurturing of her family. She has no family at all in Germany. Although as the UKBA [that is the United Kingdom Border Agency] have stated, there are mental health services available in Germany, it is my opinion that even if [the claimant] reached Germany, she would not be able to access any such services or help because she would be in a collapsed state. It is my opinion that [the claimant] is only able to function as she does, attending counselling sessions and participating in various community and church activities, because she is encouraged and emotionally supported and comforted by her family here in the UK."

14. In her concluding remarks she said in the final bullet point:

"It is my opinion that if the claimant were forced to leave the UK thus separating her from her family she would almost certainly collapse completely and there is likely to be a completed suicide. [The claimant] is only able to function at all because of the nurturing, encouragement and emotional support and comfort provided by the family. There is no such support available in Germany."

15. On 2 December 2011 the Secretary of State issued a further decision with her Amended Summary Grounds of Defence in which she maintained her earlier decisions. At paragraph 1 of that decision letter the Secretary of State noted that she had been provided with a copy of the report by Renee Cohen to which I have referred and that the basis of the representations were that she should not be returned "due to her medical condition and due to the attachment formed with her aunt, uncle and her two cousins in the United Kingdom".

The Secretary of State's decision letter said at paragraphs 11 and 12:

"11. The SSHD has considered the fact that your client has formed an attachment with an aunt and uncle and their children. The Secretary of State accepts that your client may have established a bond with her aunt, uncle and cousins which may amount to some degree of a family or private life.

12. However it is not considered that your client's situation is so compelling as to warrant departure from the usual practice of returning third country cases to the relevant Member State responsible for considering their asylum claim under the Dublin Regulation or to render her removal a disproportionate interference with her Article 8 rights."

16. Before I quote further from the Secretary of State's decision letter it should be observed that a feature of the claimant's submissions before me was that in that passage the Secretary of State demonstrated an error of law in that she misdirected herself. In particular, it was submitted that the Secretary of State's responsibility under the legislation which governs clearly unfounded cases is not to express her own consideration of an applicant's situation. It is rather to express a view predicting what might be considered by an independent Immigration Judge.
17. Returning to the decision letter itself, at paragraph 13 the Secretary of State said amongst other things that:

"Any relationship with them could be continued by means of other communication methods."

18. In relation to that aspect of the Secretary of State's reasoning it has been submitted, on behalf of the claimant, that this misses the fundamental point which was being made to the Secretary of State. It was submitted that this case is not like many which will be familiar to the court in which what is said is that a family unit ought not to be disrupted because of interference with Article 8.1 rights. To that sort of assertion it can often be said that modern means of communication mean that family life is not necessarily as disrupted as it might have been in the past. However, the claimant submits that in the present case that is not really the thrust of her complaint. It is rather, as I have sought to indicate by reference to the medical and other reports which I have quoted, that the claimant requires as a fundamental prop to her mental well-being, the support in particular of her family which she has developed in the United Kingdom. Even modern communication methods, it is submitted, would not enable a claimant to have that level of support in Germany.
19. Returning to the Secretary of State's decision letter, at paragraph 14 she said :

"Article 8 of the ECHR is a qualified right and as such the Secretary of State is entitled to consider whether any interference to your client's Article 8 rights would be justified and proportionate given that her removal would be in pursuit of a permissible aim, ie the effect of maintenance of the immigration system. In addition, the fact that your client may have a family life in the United Kingdom does not give her any right to remain here under the Immigration Rules, nor does it mean that she can expect that her asylum application will be given substantive consideration in this country."

20. At paragraph 15 a similar point was made about the interference, if any, being considered both proportionate and justified when balanced with the legitimate aim of immigration control. It was observed that the claimant had established a family life in the full knowledge that she was in the United Kingdom illegally and that her status was precarious, especially in the light of the fact that she had been in Germany and had not claimed asylum there.
21. In relation to those passages in the Secretary of State's decision letter, the claimant has submitted before me that they too demonstrate an erroneous approach in law. In particular, for reasons that I will mention when referring to relevant authorities in due course, the claimant submits that in the context of this kind of removal to another Dublin II state like Germany, the relevant legitimate aim is not, as it would be in substantive cases, "the effective maintenance of the immigration system" or "the legitimate aim of immigration control". Rather, the claimant submits the underlying purpose of the Dublin II regime is to allocate responsibility to respective European states and, as we shall see in due course, to avoid the phenomenon of "forum shopping".
22. The relevant principle governing certification of clearly unfounded claims of this sort and the court's approach to them by way of judicial review were not, as I understood it from the hearing, controversial between the parties. The parties drew my attention to several authorities to which I will now turn.

Relevant Case-law

23. First I was referred to R(Razgar) v SSHD  [2004] 2 AC 368 and in particular the opinion of Lord Bingham of Cornhill. At paragraph 1 Lord Bingham outlined the facts and issue in that case as follows:

"Mr Razgar is an asylum seeker from Iraq whom the Secretary of State proposes to remove to Germany under the provisions of the Dublin Convention. Mr Razgar resists such removal on the ground that it would violate his rights under article 8 of the European Convention on Human Rights. The Secretary of State does not accept that removal would violate Mr Razgar's rights under article 8, and has certified under section 72(2)(a) of the Immigration and Asylum Act 1999 that the claim is manifestly unfounded. The consequence of that certification, if it stands, is to preclude any appeal by Mr Razgar against his removal from within this country.…

The question of principle is agreed to be:

'Can the rights protected by article 8 be engaged by the foreseeable consequences for health or welfare of removal from the United Kingdom pursuant to an immigration decision, where such removal does not violate article 3?'"

At paragraphs 9 and 10 Lord Bingham said as follows:

"9. This judgment establishes, in my opinion quite clearly, that reliance may in principle be placed on article 8 to resist an expulsion decision, even where the main emphasis is not on the severance of family and social ties which the applicant has enjoyed in the expelling country but on the consequences for his mental health of removal to the receiving country. The threshold of successful reliance is high, but if the facts are strong enough article 8 may in principle be invoked. It is plain that 'private life' is a broad term, and the Court has wisely eschewed any attempt to define it comprehensively. It is relevant for present purposes that the Court saw mental stability as an indispensable precondition to effective enjoyment of the right to respect for private life. In Pretty v United Kingdom (2002) 35 EHRR 1, paragraph 61, the Court held the expression to cover 'the physical and psychological integrity of a person' and went on to observe that

'Article 8 also protects a right to personal development, and the right to establish and develop relationships with other human beings and the outside world.'

Elusive though the concept is, I think one must understand 'private life' in article 8 as extending to those features which are integral to a person's identity or ability to function socially as a person. Professor Feldman, writing in 1997 before the most recent decisions, helpfully observed ('The Developing Scope of Article 8 of the European Convention on Human Rights', [1997] EHRLR 265, 270):

'Moral integrity in this sense demands that we treat the person holistically as morally worthy of respect, organising the state and society in ways which respect people's moral worth by taking account of their need for security.'

10.  I would answer the question of principle in paragraph 1 above by holding that the rights protected by article 8 can be engaged by the foreseeable consequences for health of removal from the United Kingdom pursuant to an immigration decision, even where such removal does not violate article 3, if the facts relied on by the applicant are sufficiently strong."

24. In relation to the court's role by way of review Lord Bingham said as follows at paragraph 16:

"The parties to this appeal accepted that manifestly unfounded bore the meaning given to it by the House in R (Yogathas) v Secretary of State for the Home Department... [2003] 1 AC 920, paragraphs 14, 34 and 72 and accepted the Court of Appeal's opinion (in paragraph 30 of its judgment) that those paragraphs called for no gloss or amplification. It was also, inevitably, accepted that on an application for judicial review of the Secretary of State's decision to certify, the court is exercising a supervisory jurisdiction, although one involving such careful scrutiny as is called for where an irrevocable step, potentially involving a breach of fundamental human rights, is in contemplation."

25. At paragraph 20 Lord Bingham returned to this theme in relation to the court's approach to what he called question 5, that is the question: is an interference with Article 8 rights proportionate to the legitimate public end sought to be achieved by it? He said:

"The answering of question (5), where that question is reached, must always involve the striking of a fair balance between the rights of the individual and the interests of the community which is inherent in the whole of the Convention. The severity and consequences of the interference will call for careful assessment at this stage. The Secretary of State must exercise his judgment in the first instance. On appeal the adjudicator must exercise his or her own judgment, taking account of any material which may not have been before the Secretary of State."

I note in passing of course in the present context there was no such appeal from within this country available. Lord Bingham continued :

"A reviewing court must assess the judgment which would or might be made by an adjudicator on appeal. … "

26. The approach which the court should adopt in such cases was succinctly put by Moses LJ, with whom the other members of the Court of Appeal agreed, in R(Ahmadi) v SSHD  [2005] EWCA Civ 1721 at paragraph 19 where he said :

"In those circumstances it seems to me that it is not possible to say that an immigration judge, properly directing himself, would be bound to conclude that the support of the elder brother for his very sick younger brother was not such as to amount to an exceptional circumstance compelling the conclusion that family life be respected over and above the normal regulation of immigration control.  It is not possible to say what an immigration judge might conclude. ..."

27. It was common ground before me that, as is implicit in that passage, the test to be applied is whether it is possible to say that an Immigration Judge properly directing himself would be bound to conclude that a claimant's human rights claim must fail. If it is not possible to say that because for example an Immigration Judge might conclude otherwise in spite of the strongly held opinion of the Secretary of State, then the case is not one which can reasonably and lawfully be certified as being clearly unfounded.
28. The mainstay of the Secretary of State's submissions before me was provided by two authorities of the Court of Appeal. The first is J v SSHD  [2005] EWCA Civ 629 at paragraphs 26, 30 and 31. In those passages, as the Secretary of State submitted, the Court of Appeal made it clear that, in relation to cases in which it is argued that removal will pose a suicide risk on the part of a claimant, an assessment needs to be made of the severity of the treatment which it is said that the applicant will suffer if removed. This must attain a minimum level of severity, though the assessment of that severity depends on all the circumstances of the case, but the ill-treatment must necessarily be serious such that it is an affront to fundamental humanitarian principles to remove an individual to a country where he is at risk of serious ill-treatment. The Court of Appeal also said that, in deciding that there is a real risk of a breach of Article 3 in a suicide case, a question of importance is whether the applicant's fear of ill-treatment in a receiving state upon which the risk of suicide is said to be based is objectively well-founded. If the fear is not well-founded, that will tend to weigh against there being a real risk that the removal will be in breach of Article 3.
29. Finally the Court of Appeal said that a further question of considerable relevance is whether the removing and/or receiving state has effective mechanisms to reduce the risk of suicide. If there are effective mechanisms, that too will weigh heavily against an applicant's claim that that removal would violate his or her Article 3 rights.
30. The second main authority upon which the Secretary of State placed reliance was R(Tozlukaya) v SSHD  [2006] EWCA Civ 379, which it was submitted "is on all fours with the present matter " See paragraph 25 of the Secretary of State's skeleton argument. Richards LJ, giving the main judgment for the Court of Appeal, said:

"In my judgment it is plain in these circumstances that an increase in the risk of suicide as a result of the removal is not sufficient to bring the case near the high article 3 threshold, even if the risk is regarded as severe and likely to continue.  I do not see how it could be said to be an affront to fundamental humanitarian principles to return this respondent and his family to Germany."

31. However, as the claimant submitted before me, there are important points of distinction from those cases and in particular the decision in Tozlukaya, which is said by the Secretary of State to be on all fours with the present case. First the passages to which I have drawn attention are concerned with Article 3 whereas the claimant in the present case has founded her submissions more fundamentally on Article 8, although Article 3 is also in play.
32. At paragraph 75 of Richards LJ's judgment in Tozlukaya, it is recorded that counsel for the claimants in that case conceded that it is highly unlikely that the claim under Article 8 could succeed on mental health grounds if the mental health claim had failed under Article 3. The claimant before me makes no such concession. Secondly, it was observed by the claimant that in Tozlukaya there was no question, on the facts, of the family unit concerned being disrupted because it could be maintained in Germany. It was therefore a more "conventional" case in which the argument was along the lines that the family unit should not have to move to another country rather than the United Kingdom. In contrast, as the claimant submits before me, the present case involves on the medical evidence which is currently before the court, a situation in which experts have said to the Secretary of State that the claimant needs the support which she has in the United Kingdom and which will not be available to her by way of family security and support in Germany. They have also advised that without such support there are likely to be dramatic consequences in the impact on the claimant's mental health to the extent of a real risk of suicide. It is that combined effect of continued family life and the impact on private life, as understood in the Razgar sense, namely psychological integrity or mental well-being, that the claimant invokes in particular in the present case before me.
33. Finally, as has been observed by the claimant, there is a point of distinction from the facts of Tozlukaya in that, as was recorded at paragraph 8 of the judgment in that case, the respondent had already been refused asylum in Germany. In my judgment the claimant's submissions are well-founded. In my judgment the claimant is entitled to invoke successfully a closer analogy which can be made with the decision of the Court of Appeal in the case of R (AM (Somalia)) v SSHD [2009] EWCA Civ 114.
34. In that case the principal judgment for the Court of Appeal was given by Sedley LJ, with whom the other members of the court agreed. At paragraph 19 of his judgment, Sedley LJ observed that counsel for the Secretary of State in that case accepted that Article 8 was engaged. Sedley LJ continued :

"It is engaged because removal is not only likely to provoke a psychological breakdown but would also sever him from his present family life, which is all he has."

Sedley LJ continued at 20:

"The question for the court is not whether in all the circumstances removal is nevertheless proportionate: it is whether the Home Secretary can properly decide that the contrary argument is bound to fail. While the decision to certify is for the Home Secretary alone to make, she acts in doing so as judge in her own cause, since the practical effect of a certificate is that any appeal against her decision to remove, if it can be prosecuted at all, is highly likely to fail. There would otherwise be little point in having a certification system. The courts are at least as well placed as a departmental official to appraise the tenability of a human rights claim. It follows, as Mr Clarke properly accepts, that on judicial review the courts can be expected to give close scrutiny to a decision to certify a claim and, if the claim appears to them viable, to be prepared to overset the Home Secretary's view that it is not. (Since this appeal was argued, the decision of the House of Lords in ZT (Kosovo) [2009] UKHL 6 has confirmed the correctness of this approach.)"

From paragraph 22 Sedley LJ said :

"22. The Dublin system has nothing to do with the merits of individual cases: it is designed simply to prevent forum-shopping  while ensuring that every asylum claim is properly processed. By itself it does not address the problem of removals which may violate Convention rights. That is catered for by the  separate obligation of the Home Secretary not to act inconsistently with such rights.

23. Thus the question in the present case is whether an independent adjudication could find substance in the contention that to follow the Dublin procedure in this appellant's case would be disproportionate. In my judgment it undoubtedly could.

24. One has first to bear in mind that in Dublin cases the sole purpose of removal is to enable another state to entertain the same claim as has been made in the United Kingdom. It is not, as it is in the case of other removals, to return to their country of origin someone who has failed to establish any right to be here. The imperative of effective immigration control therefore has little bearing: that lies in the future.

25. Next, it is necessary to consider the availability of medical services in Italy in relation to the appellant's own needs. There is no evidence that he speaks a word of Italian."

35. I should interpose there that in the present case there is some evidence before the court, as the Secretary of State submitted, that the claimant does speak some German. I continue with the quotation :

"But, more importantly, there are strong grounds for thinking that, parted from what remains of his family, the very support which has enabled him to make a moderate degree of recovery will be absent. And, if, as is distinctly possible in the light of his brothers' successful claims, he is given asylum in Italy, all that will lie ahead there is a life of isolation and probable relapse. In other words, this is a case in which, on appeal, an immigration judge might well hold that the lawful purpose of the Dublin Regulation was not sufficient to justify the damaging effect on this appellant of disrupting what is now his private and family life by compelling him to present his asylum claim in Italy rather than here."

36. In my judgment, an analogy can properly be drawn with that case on behalf of the claimant in the present case. I too would conclude, adapting the words of Sedley LJ from paragraph 25 of his judgment in that case, that this is a case in which on appeal an Immigration Judge might well hold that the lawful purpose of the Dublin Regulation was not sufficient to justify the damaging effect on this claimant of disrupting what is now her private and family life by compelling her to present her asylum claim in Germany rather than in the UK.
37. I accept in substance the criticisms which have been made in particular of the Secretary of State's decision letter of 2 December 2011. In substance the Secretary of State appears to have fallen into the error of expressing her own considered views as to whether the interference with the claimant's Article 8 rights is proportionate and justified. Furthermore, the Secretary of State appears to have done so by reference to the "legitimate aim of immigration control", which as Sedley LJ said at the end of paragraph 24 of his judgment in the AM (Somalia) case has "little bearing: that lies in the future".
38. In any event, as I have already said, I am satisfied by the claimant's submissions that this is a case in which it is possible that an immigration judge might well hold in favour of the claimant. It is not possible to say that the Immigration Judge would be bound to dismiss the claimant's arguments under Article 8. In those circumstances the principles which govern a lawful certification of a claim as being clearly unfounded apply.

Conclusion

39. For the reasons which I have given this claim for judicial review succeeds and, subject to counsel's submissions on remedies, I would propose to quash the Secretary of State's decision, in particular the certification that this human rights claim was clearly unfounded.

MR JUSTICE SINGH: Yes?

MR HALIM : Thank you my Lord. I am content with that remedy. With regards to our costs I will wait to see if my learned friend has anything to say.

MR ADKINSON : My main observation is in relation to the remedy.

MR JUSTICE SINGH : So a quashing order …

MR ADKINSON : A quashing order, yes

MR JUSTICE SINGH : Very well.

MR ADKINSON : As for costs I cannot really argue with the principle that the Secretary of State should pay the costs.

MR JUSTICE SINGH : I will make a quashing order in respect of the Secretary of State's decision of 2 December 2011. Do I need to quash any other decisions or does that supersede --

MR HALIM : My understanding my Lord is that it does supersede the … you have outlined the chronology.

MR JUSTICE SINGH : Exactly. I think that is manifest from the judgment, but for clarity I will also quash the certification that the claimant's human rights claim was clearly unfounded and I will order that the Secretary of State shall pay the claimant's costs to be the subject of detail assessment if not agreed. Is there anything else?

MR HALIM : No, thank you, my Lord.

MR ADKINSON : There are two matters. The first is an application for permission to appeal the decision.

MR JUSTICE SINGH : Yes.

MR ADKINSON : The second is there is a costs order outstanding for an application to adjourn this case when my Lord ruled against the Secretary of State and ordered that the Secretary of State pay the costs.

MR JUSTICE SINGH : Yes.

MR ADKINSON : Which order would the court prefer me to go in?

MR JUSTICE SINGH : We will deal with that last point first.

MR ADKINSON : The costs application first?

MR JUSTICE SINGH : Yes

MR HALIM : My understanding is there was an application that was made before your Lordship to adjourn this case by the Secretary of State. That failed. It lasted approximately half an hour and an order was made that the Secretary of State pay the costs

MR JUSTICE SINGH : Is that sort of superseded by the decision I made about costs overall?

MR HALIM : It probably is and if that could then, if I could ask your Lord to clarify that.

MR JUSTICE SINGH : Yes. I will make it clear, and perhaps this can be reflected in the order, that the order for costs generally includes the costs of the application for an adjournment. I cannot remember the date of that

MR ADKINSON : No, neither can I.

MR HALIM : My Lord, I was in attendance on that day but I think it was two or three weeks ago.

MR ADKINSON : Sounds about right from the papers, yes. We can check that

MR HALIM : I am content with that approach. It seems eminently sensible

MR ADKINSON : The second application then is the court will consider granting the Secretary of State permission to appeal. I advance it on the basis of some other compelling reason to why the matter should be appealed to the Court of Appeal. The case has raised an issue of the interaction establishing a family life in this country and the support that that provides and how that might interact with the Dublin II convention, which from my understanding from reading the skeleton arguments is a rather novel point and it might be appropriate for the benefit of both claimants, lower courts and the Secretary of State if the higher court could give thought and give a definitive ruling.

MR JUSTICE SINGH : So you don't contend that there is a real prospect of success?

MR ADKINSON : Well if there is some other compelling one I suppose it is implied in that some real prospect of success but it is a compelling reason is the main thrust of my application

MR JUSTICE SINGH : Yes, I see. Well, I am going to refuse permission to appeal because I take the view that in essence I have applied what are well established principles and, as I understood them, were to a large extent common ground and have applied those principles very much to the facts of the particular case before me, but of course if the Secretary of State wishes to pursue her application for permission then she can do so elsewhere.

MR ADKINSON : Yes, thank you.

MR JUSTICE SINGH : Is there anything else?

MR ADKINSON : No, my Lord.

MR JUSTICE SINGH : Can I thank you both for your assistance and also through you may I thank counsel who appeared at the main hearing yesterday?

MR ADKINSON : I will pass those comments on.