England and Wales High Court (Administrative Court) Decisions

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

		Nottingham Combined Court Centre 60 Canal Street Nottingham NG1 7EL
		28h June 2013

1. MR JUSTICE HICKINBOTTOM:

Introduction

2. The Claimants, father and daughter, are citizens of Iran, and practising Muslims. They arrived in the United Kingdom via France, and they claimed asylum. Under European law, as between Member States there are criteria for ascertaining which State is responsible for determining an asylum application. On the basis of those criteria, in respect of the Claimants, that Member State was France, as the first country within the Union territories at which they arrived. France has accepted responsibility for determining any asylum claim. Consequently, the Secretary of State contends that she can simply return the Claimants to France, without considering the merits of their asylum claim, which will be decided in France.
3. However, the Claimants say that, by returning them to France, the United Kingdom would be in breach of its obligations under the European Convention on Human Rights ("the ECHR") because, as part of her religious observation, the Second Claimant at times wears the burka and, on arrival in France, both Claimants will be the subject of domestic French law which prohibits the wearing in public of clothes which cover the face, and makes the wearing of such clothing, and the forcing of another to wear such clothing, a criminal offences. As a result, the Claimants submit, they cannot be returned to France, and the United Kingdom must determine their asylum claim.

Background

4. The First Claimant ("the Claimant") was born on 22 July 1971 in Iran, where his father, mother, five siblings and former wife still live. The Claimant married in 2001, and the Second Claimant ("M") was born on 22 August 2002. The Claimant obtained a divorce in 2007, and his daughter has lived with him since. He says that, because of his political views and activity in Iran, he was forced to leave that country in February 2011 when, disguised, on false passports and with the help of others including his brother, an agent and a woman who travelled with him, he fled his home country with his daughter. They travelled by coach to Turkey, and then by air to France and thence to the United Kingdom, where, on 6 July 2011, they arrived at Luton Airport and claimed asylum.
5. The Claimant submitted a statement in support of his application for asylum, which focused exclusively on why he would be at risk on return to Iran. However, a Eurodac search revealed that the Claimant had been fingerprinted in France on 24 June 2011, and the United Kingdom made a formal request of France to accept responsibility for the Claimants' asylum claim. France formally did so on 5 December 2011; and, on that same day, the Secretary of State refused the asylum claim of both the Claimant and M on safe third country grounds, that is on the basis that they could safely be removed to France where their application for refugee status would be considered and determined. In that letter the Secretary of State certified that it was proposed to remove the Claimants to France and, in her opinion, they were not French nationals. Under paragraph 5(1) and (2) of Part 2 of schedule 3 to the Asylum and Immigration (Treatment of Claimants Etc) Act 2004 ("the 2004 Act"), that certificate meant that the Claimants were denied an appeal against the refusal of asylum here.
6. The following day both were served with decision letters, and also a notice of a family returns conference scheduled to be held on 31 January 2012 together with a questionnaire for the Claimant to complete before that meeting. On 4 January, the Claimant was sent a letter confirming the appointment, and encouraging any affected children to attend the meeting. Under the heading, "Presence of children", the letter said this:

"We hope to see all of your family at the Family Return Conference as the decisions being made will affect all of you. Though we recommend that all family members should be present at your Family Return Conference, if possible, we can conduct the conference without your child being present if you would prefer this.... If your children do not attend, it is important that you inform them of what is being discussed at the conference so that they fully understand the situation and can begin preparing themselves for return."

The Claimant received that letter on 6 January.

7. The meeting was indeed held on 31 January. M did not attend. The Claimant, at the meeting, provided the completed questionnaire, where, for the first time, there was reference to M's dress. In answer to a question designed to ensure that the Claimant understood that, if he did not voluntarily leave the United Kingdom, he and his daughter were liable to be removed, he responded, as follows:

"Yes understand but what about my daughter's school? She wears a cover but France won't except her at school. Mentally she will suffer a lot. France gave us a letter to leave in 8 days. Did not treat us well."

I should note that the Claimant did not apply for asylum whilst he had been in France.

8. In addition to that questionnaire, the head teacher at the primary school where M had been studying for four months sent the UK Border Agency ("the UKBA") a letter saying that M was an industrious and settled pupil, and that the school would be concerned about the impact of a family move to France would have on M's well-being and future welfare.
9. The Claimant's first language is not English; it is Farsi. An appropriate interpreter was present at the 31 January meeting. At that meeting, the possibility of the Claimant's return to France or alternatively Iran was discussed. The Claimant was invited to make any further written representations if he wanted anything else to be taken into account as to why he wished to stay in the United Kingdom; and the meeting was adjourned to 20 February at the Claimants' home in Derby to enable him to do so. It was therefore made clear to the Claimant that the Secretary of State was willing to reconsider her December decision on the basis of any other representations the Claimant cared to make. Another letter (wrongly dated 16 January) was given to the Claimant at the 31 January meeting, confirming the arrangements for 20 February, and once more encouraging the attendance of any affected children at the second meeting.
10. Written representations were submitted by the Claimant's solicitors on 6 February, which, amongst other things, asked whether the Secretary of State was going to consider the merits of the asylum claim or whether it was intended to return the Claimants to France. That letter made no reference to M's dress, or to any problems her wish or religious obligation to wear a veil in France might cause.
11. On 14 February, the Secretary of State responded by confirming the December decision to refuse the asylum claim on safe third country grounds, and confirming that it was proposed to remove the Claimant and M to France. In the light of the representations which had been lodged about M, that letter also referred to the United Nations Convention on the Rights of the Child ("the UNCRC") and section 55 of the Borders, Citizenship and Immigration Act 2009, and the duty that they impose on the Secretary of State to give primary consideration to the best interests of any child affected by an immigration decision. The letter stated that those interests had to be balanced against the Secretary of State's duty to maintain effective immigration control. The decision-maker considered that the Claimants would have the same opportunities for development and the same level of support in France (including in relation to education), and that there was no evidence that they would not. Insofar as the claim was based on M's human rights and her best interests, it was consequently refused.
12. On 20 February, UKBA officers attended the Claimant's home, as had been arranged, but there was no one there. That same day, various documents were served on the Claimants by posting them through their home letter box: the documents included notices refusing leave to enter the United Kingdom, notices of removal directions to France set for 21 March 2012 and notification of temporary admission with self-check-in removal directions for that date.
13. The question of M's dress was not pursued further in correspondence, until, on 16 March 2012, this claim was issued, challenging the decision of 14 February to refuse the asylum claim on safe third country grounds, and the decision to set removal directions. Save for the oblique reference in the 31 January questionnaire to which I have referred, the summary grounds of claim raised for the first time the contention that removal of the Claimants to France would violate the Claimants' ECHR rights, because of the effect of domestic French law prohibiting face-covering clothing. The claim was focused exclusively on French Law No 2010-1192, to which I shall shortly come, which prohibits the wearing of face covering clothing in public.
14. In answer to the claim, the Secretary of State cancelled the removal directions and issued a new decision on 7 June 2012, which responded to that contention. That letter, however, confirmed the December 2011 decision to refuse the asylum claim; and it also refused the human rights claim made in the grounds of claim in this action, dealing at some length with the best interests of M in the light of the new contention. Under paragraph 5(4) of Part 2 of schedule 3 to the 2004 Act, the letter certified that that human rights claim was clearly unfounded which, whilst retaining a right of appeal for the Claimants out-of-country, denied them an in-country right of appeal. It is that decision letter, the letter of 7 June 2012, which is now in substance the target of the Claimants' challenge.
15. It is the Claimants' case that that decision to return them to France is unlawful on three grounds:

i) It is in breach of the Claimants' rights under the ECHR (Ground 1).

ii) In making the decision on the human rights claim, the Secretary of State failed to make any assessment of M's best interests; and consequently, in breach of her rights under Article 8 of the ECHR, the Secretary of State failed properly to treat those interests as a primary consideration as she is required to do by section 55 of the Borders, Citizenship and Immigration Act 2009 (Ground 2).

Iii) Even if not in breach of those obligations, the Secretary of State erred in law in exercising her discretion to return the Claimants to France, that discretion given to her by the relevant European instrument (Council Regulation (EC) No 343/2003), the decision being Wednesbury unreasonable, as one falling outside the ambit of the Secretary of State's proper discretion and hence a decision to which she could not reasonably have come (Ground 3). This ground has been raised for the first time at the hearing before me, and consequently the Claimants require permission from me to deal with it.

16. Otherwise, on 28 June 2012, His Honour Judge David Cooke (sitting as a judge of this court) gave permission to proceed, which I have heard over the last two days. I have had the benefit of not only the written and oral submissions of Sibghat Kadri QC, Rashid Ahmed and Aftab Rashid of Counsel for the Claimants and David Manknell of Counsel for the Secretary of State (for which, as ever, I am grateful), but also statements from a number of witnesses (including four statements from the Claimant) and an expert report dated 13 June 2013 on various aspects of French law raised in the claim prepared by Professor François Lichere (Professor of Law at the University of Aix-Marseilles). I must extend particular thanks to Professor Lichere for his diligence and industry because I know that he produced his report, which is comprehensive, clear and helpful, in a very short period of time. Professor Lichere is jointly appointed, and is patently a lawyer of very considerable experience and authority in the matters of French law upon which he was asked to opine.

Ground 1

The Applicable Law

17. As recently emphasised by the Court of Justice of the European Union in NS v Secretary of State for the Home Department (2011) Case No C-411/10 and C-493/10; [2012] 2 CMLR 9 ("NS") at [83] and, at home, by Kenneth Parker J in R (Mehanye) v Secretary of State for the Home Department (No 2) [2012] EWHC 1799 (Admin) ("Medhanye (No 2)") at [14]-[15], mutual trust and confidence between Member States is at the very heart of the European Union. It is its raison d'être.
18. It is in furtherance of that principle that the European Union has as an objective the establishment of a Common European Asylum System, to achieve "an orderly system for dealing with asylum cases in the ... Union" (R (Thangarasa and Yogathas) v Secretary of State for the Home Department [2002] UKHL 36; [2003] AC 290 at [35] per Lord Bingham). The aim is a scheme, valid throughout the Union, which is fully compliant with the Geneva Convention relating to the Status of Refugees of 28 July 1951, and which has a common procedure for determining claims and uniformity for those granted refugee status.
19. To further that aim, several European Directives have been issued with a view to ensuring greater uniformity in relation to the treatment and status of asylum seekers, notably Council Directive 2003/9/EC (which concerns the reception of asylum seekers), Council Directive 2004/83/EC (which sets minimum standards for the qualification and status of asylum applicants), and Council Directive 2005/85/EC (which sets minimum standards for procedures for granting and withdrawing refugee status).
20. As part of this package of measures, Member States developed a scheme for ensuring that any application for asylum is dealt with by one Member State and for identifying which that State is, with a view to rationalising the asylum system across the Union; avoiding migration between the Union territories for the purpose of forum-shopping; avoiding multiple claims in different Member States; and ensuring prompt determination of asylum claims wherever made in the Union (see, e.g., NS at [79]). The Dublin Convention of 15 June 1990 (superseded in 2003 by Council Regulation (EC) No 343/2003, "the Dublin II Regulation") established criteria and mechanisms for determining the single responsible state. It provides a hierarchy of criteria for determining which Member State should deal with an asylum claim; but it is a key provision that the first Member State which an asylum seeker enters is generally responsible for consideration and determination of his application. Article 10 of the Regulation provides that, where an asylum seeker has irregularly crossed the border into a Member State from a third (i.e. non-Regulation) country, the Member State thus entered "shall be responsible for examining the application for asylum". That is an obligation imposed upon that State by international law. Chapter V of the Regulation provides that, if the relevant individual moves on to another Member State, he may be sent back by the second or any subsequent Member State without substantive consideration of his application: although, by Article 3(2), any such Member State has a discretion substantively to examine the application and, and if it does so, it (and not the first Member State) becomes responsible for the application. The Eurodac fingerprinting system assists authorities in detecting multiple applications.
21. The Dublin II Regulation is of course subject to the overriding provisions of the ECHR, to which all signatories of the Regulation have also contracted. The relationship between Member States' rights and obligations under the Dublin II Regulation, and their rights and obligations under the ECHR, has recently been considered in a significant number of European and national cases, most notably, so far as European cases are concerned, KRS v United Kingdom [2008] ECHR 1871; (2009) 48 EHRR SE8, MSS v Belgium and Greece (2011) 53 EHRR 2 ("MSS"), and NS; and, so far as domestic cases are concerned, R (Ullah) v Special Adjudicator [2004] UKHL 26 ("Ullah"), R (Medhanye) v Secretary of State for the Home Department (No 1) [2011] EWHC 3012 (Admin), Medhanye (No 2), EM (Eritrea) v Secretary of State for the Home Department [2012] EWCA Civ 1336 and R (Toufighy and Duran) v Secretary of State for the Home Department [2012] EWHC 3004 (Admin) ("Toufighy").
22. For the purposes of this claim, it is unnecessary for me to set out lengthy extracts from those various authorities because, now, the principles established by them are, in my judgment, well-settled, as follows.
23. i) It is a norm of European law, set out starkly in Article 1 of the Charter of Fundamental Rights of the European Union, that: "Human dignity is inviolable. It must be respected and protected."
24. ii) As I have already indicated, and as the authorities to which I have referred emphasise, mutual trust and confidence between Member States is also a fundamental principle of the European Union.
25. iii) There is consequently a presumption that contracting states to the Dublin Regulation will comply with their obligations under European and international law, and in particular will comply with their obligations in relation to the protection of fundamental human rights including the right to dignity. Specifically, there is a presumption that a State to which an asylum seeker is returned under the Dublin II Regulation will not breach its ECHR obligations to that individual.
26. iv) That presumption is rebuttable; but the threshold for rebutting the presumption is high, compelling evidence being required to rebut it because the court will not accept that a State will or may breach its obligations in respect of fundamental human rights without such evidence. Great weight will be accorded to evidence from recognised and reputable international agencies with special responsibilities for asylum seekers (such as the United Nations Human Rights Committee).
27. v) Even where there is sufficient evidence to show that the asylum seeker will or may suffer treatment in the destination country that breaches or may breach the provisions of the ECHR, not every actual or potential infraction will mean that that individual cannot be transferred to that country.
28. vi) However, where there are substantial grounds for believing that there are systemic flaws in the manner in which the destination Member State treats asylum seekers, resulting in a real risk of a serious violation of the dignity of an asylum seeker amounting to at least degrading treatment within the meaning of Article 3 of the ECHR (which is repeated verbatim in Article 4 of the Charter of Fundamental Rights), then another Member State may be in violation of its obligations under the ECHR, if it seeks to remove an asylum seeker to that Member State. In those circumstances that other Member State cannot exercise its power to transfer an asylum seeker to such a State. However, substantial grounds require a reliable body of evidence demonstrating that a Member State systemically fails to comply with its obligations under the relevant Directives or ECHR. Without a systemic deficiency, the courts cannot intervene, no matter how serious of grave an individual risk can be proved following NS.
29. vii) The only basis upon which a transfer under the Dublin II Regulation can be resisted on human rights grounds is where there is or may be degrading treatment within the meaning of Article 3, otherwise outside Dublin II Regulation removals, there can be reliance on Articles of the ECHR other than Article 3 as a ground for resisting removal, but even then any such case has to be "very strong", and there must be a gross violation or flagrant denial of a right or freedom such that "the right will be completely denied or nullified in the destination country" (Devaseelan v Secretary of State for the Home Department [2002] IAT 702; [2003] Imm AR 1 at [111], approved by the House of Lords in Ullah, see [24] and [69]).
30. viii) There does not, in any event, appear to have been any case in which reliance on Article 9 has been found to be sufficient. Although conceptually possible, given the flagrancy principle, the courts have found it difficult to conceive of an Article 9 case which does not also come within Article 3 that would be sufficient (see, e.g. Ullah at [21] per Lord Bingham, and at [69] per Lord Carswell).
31. ix) Otherwise, an individual may be removed to the destination country, and any potential affront that an asylum seeker may suffer to his dignity at the hands of the State to which he is removed, falling short of degrading treatment, may properly be left to be addressed exclusively by the public authorities (including the judicial authorities) of that receiving State; unless, of course, it can be shown that those authorities themselves are systemically unable or unwilling to address, determine and remedy the alleged breach. The relevant judicial authorities of a Member State include, not only first instance and appellate courts of that State, but also the relevant European Court, the European Court of Human Rights and the Court of Justice of the European Union. In the former, where appropriate, an individual who contends that he or she is the subject of a violation of his or her human rights is able to seek interim relief from the court pending the final determination of the claim, under rule 39 of the Court Rules. Reliance upon these measures available in and through the destination State is "the most normal course of action under the [ECHR] system…" (MSS at [357]).
32. Many signatories to the Dublin II Regulation have transposed its provisions into domestic legislation. So far as the United Kingdom is concerned, Part 2 of schedule 3 to the 2004 Act establishes a list of "safe countries" set out in paragraph 1 of that part of that schedule which includes France. Paragraph 3 provides:

"(1) This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made an asylum claim or a human rights claim may be removed

33. (a) from the United Kingdom, and
34. (b) to a State of which he is not a citizen.

(2) A state to which this Part applies shall be treated, insofar as relevant to the question mentioned in subparagraph (1), as a place

(a) where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion

(b) from which a person will not be sent to another State in contravention of his Convention rights, and

(c) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention."

35. The countries listed in paragraph 1 are therefore "safe" in that they are deemed to be countries in which an applicant will not suffer persecution or threat by reason of his or her religion etc, and from which an applicant will not be refouled. There is no particular deeming provision that "safe countries" are countries in which an asylum seeker will not suffer any breach of the ECHR. However, as I have explained, there is a presumption that contracting states will adhere to their obligations under international treaties, including the ECHR.
36. Under section 92 of the Nationality, Immigration and Asylum Act 2002, there is generally a right of appeal from an immigration decision by the Secretary of State to the First-tier Tribunal (Immigration and Asylum Chamber). However, by paragraph 5(1) and (2) of Part 2 of schedule 3 to the 2004 Act, there is no right of appeal against a decision on an asylum claim to remove an individual to another State under the Dublin II Convention, where the Secretary of State certifies that that other State is subject to that part of that schedule and the individual is not a citizen of that State. As I have indicated, the 5 December 2011 decision in this case was so certified.
37. Furthermore, by paragraph 5(4), there is no in-country right of appeal against a human rights claim made in the context of a Dublin II Regulation case, if the Secretary of State certifies the claim as clearly unfounded; and, by that same paragraph, the Secretary of State is required to certify such a claim where the destination country is deemed to be "safe". The 7 June 2012 decision was so certified. In terms of Grounds 1 and 2, it is the Secretary of State's certification in this case that has denied the Claimants an in-country right of appeal to the tribunal on the Claimant's human rights claim, and it is that decision which is now essentially challenged in this claim.

Terminology

38. The terminology for garments that may be worn by Muslim women is helpfully set out in the 2001 report of Open Society Foundations, "Unveiling the Truth: Why 32 Muslim Women Wear the Full-face Veil in France".
39. The hijab is a piece of cloth covering the hair, ears and neck, leaving the face uncovered. The jilbab has the appearance of a loose-fitting coat that covers the whole body except the face. The niqab is a veil that covers a woman's head, including the face, leaving only the eyes visible, which can be worn with other garments that might cover other parts of the body, but not the face. The burka is a loose garment that covers the entire body, including the face and eyes, having a mesh screen which veils the eyes but enables the wearer to see.
40. On the evidence before me, there are approximately 6 million Muslims in France, of which about half are women. Of those, the official French Government estimate is that 1,900 wear a full-face veil, in the form of the niqab or burka. The official figures suggest that the number who wear a burka is very small indeed, and possibly nil.

The Relevant French Law

41. Article 1 of the French Constitution provides:

"France shall be an indivisible, secular, democratic and social Republic. It shall ensure the equality of all citizens before the law, without distinction of origin, race or religion. It shall respect all beliefs..."

42. The relevant particular French law with which this claim is especially concerned is found in a Law passed on 14 September 2010 as No 161 Senat and promulgated on 11 October 2010 as La Loi No 2010-1192 ("the 2010 Law"), and a number of published French Government Circulars (circulaires). The English translation of the French provisions is agreed, and therefore I need not be concerned with the original French version.
43. Article 1 of the Law provides:

"No person is allowed, in public, to wear clothing intended to conceal his/her face."

44. Article 2 defines "public space" for these purposes, as consisting of "public roads and places open to the public and used for public service": but the definition excludes from the prohibition circumstances in which covering the face in public is required or permitted by law, and "justified on health or professional grounds, or if it falls within the context of sporting, festive, artistic or traditional manifestation".
45. Article 3 provides that a breach of Article 1 is an offence.
46. Article 4 creates a second offence, namely "forcing another person… to conceal their face by threat, violence, constraint, abuse of authority or abuse of power, due to their gender..."
47. Of the 2010 Law, Professor Lichere explains and opines, as follows.
48. i) It came into effect on 12 March 2011.
49. ii) The 2 March 2011 Circular confirms that the ban extends to a veil which covers the face with the exception of the eyes so that the concealment "makes it impossible to identify a person" (e.g. the niqab and burka), but not clothing which leaves the face shown (e.g. the hijab).
50. iii) The ban extends to all public spaces, including state schools but (probably) not private schools, and the driver of a vehicle but (probably) not passengers.
51. iv) The offence created by Article 1 is a petty offence (contravention), the sanction for which is a maximum fine of €150 or, in the alternative and with the consent of the relevant individual, completion of a citizenship programme. However, although there is no minimum age of criminal responsibility in France, for a child under 13 years of age, a fine cannot be imposed. Although Mr Kadri sought to persuade me otherwise, paragraph 44 of the report makes clear that, for a child of under 13, only an admonition (admonition) can be pronounced for this offence. Professor Lichere says that there is no way of knowing how many prosecutions under Article 1 have been brought, but between May 2011 and November 2012 it seems that 305 individuals were the subject of 506 police controls resulting in 460 police reports and 46 warnings. Prof Lichere says that there is a "relatively low rate of prosecution", and estimates that perhaps 50-75% of police reports have resulted in prosecution (that would be about 230-350 in that 18-month period). Virtually all reports have been against women. Although Professor Lichere does not deal with this expressly, there does not appear to be any positive evidence of any child ever having been prosecuted under the provision.
52. v) In addition to those criminal sanctions, access to public services may be refused to anyone breaching Article 1.
53. vi) The maximum sanction for an Article 4 offence, which is not a petty offence but a misdemeanour (délit), is €30,000, or €60,000 if the offence is committed against a minor. However, the 3 December 2010 Circular confirms that an Article 4 offence is only committed if force is used, and not merely encouragement. To Professor Lichere's knowledge, there has not been a single prosecution under Article 4.
54. vii) The 2010 Law, prior to its enactment, was the subject of challenge before the French Constitutional Court (Conseil constitutionnel). As I understand it, it was referred to that court by the President of the National Assembly and the President of the Senate, after the French Parliament had voted to adopt the measure, to ensure that constitutional questions could not be taken by individuals after enactment. The Court declared the Law constitutional, with the exception of the requirement not to conceal the face in places of worship open to the public which was, accordingly, excepted. Otherwise, the court, having referred to a number of provisions of the French Declaration of the Rights of Man and Citizen of 1789 (including Article 1):

"No one shall be harassed on account of his opinions and beliefs, even religious, on condition that the same do not disturb public order as determined by law"), the court continued as follows:

"[Articles] 1 and 2 of the [2010 Law] referred for review are intended to respond to practices, which until recently were of an exceptional nature, consisting in concealing the face in the public space. Parliament has felt that such practices are dangerous for public safety and security and fail to comply with the minimum requirements of life in society. It also felt that those women who conceal their face, voluntarily or otherwise, are placed in a situation of exclusion and inferiority patently incompatible with constitutional principles of liberty and equality. When enacting the provisions referred for review Parliament has completed and generalised rules which previously were reserved for ad hoc situations for the purpose of protecting public order. In view of the purposes which it is sought to achieve and taking into account the penalty introduced for non-compliance with the rule laid down by law, Parliament has enacted provisions which ensure conciliation which is not disproportionate between safeguarding public order and guaranteeing constitutionally protected rights."

55. In other words, the court identified two legitimate public interest grounds for the prohibition of face covering clothing to which the law was directed, namely (i) public safety and security, and (ii) the protection of vulnerable women. The court found that, given those aims and public interest, in the context of the French Constitution, the restriction on the protected rights of the affected individuals was proportionate.
56. viii) In addition, the Cour de cassation (the highest criminal and civil court in France) has held that a claimant could not argue that the 2010 Law was incompatible with Article 9 of the ECHR, because Article 9(2) provides that the freedom of religion may be restricted in certain circumstances; and, given the aim of the Law to protect public order and public security, the prohibition on concealment of the face in public meets the relevant requirements of that proviso (Case No 12-80.891, 5 March 2013).
57. ix) On the other hand, the Conseil d'Etat in its role not as the highest French administrative court (which it is) but in an advisory capacity to the French Government (which is a second role it performs), at the request of the French Prime Minister and after due consideration, has issued a document, "Study of possible legal grounds for banning the full veil" (25 March 2010), which indicated that "a general ban would raise serious doubts about its compatibility with both constitutional and the [ECHR]".
58. x) Furthermore, several academic authors in France have also raised concerns about the compatibility of the 2010 Law with the ECHR, the relevant papers being listed in footnote 11 of Professor Lichere's report.
59. xi) A challenge to the 2010 Law on human rights grounds is currently before the European Court of Human Rights, in SAS v France (Application No 43835/11), which by its number appears to have been issued in 2011. It appears to have been accepted by the court as an admissible claim, and is due for hearing before the Grand Chamber on 27 November 2013.

The Impact of the Prohibition on the Claimant.

60. As I have already indicated, the first time that the Claimant referred to M's dress was in the questionnaire he completed for the Family Return Conference on 31 January 2011, after the decision to return the Claimants to France had been made and notified to them. The Claimant said in that questionnaire: "She wears a cover but France won't except (sic) her at school". Nothing else was said until this claim was issued on 16 March 2012. In the grounds of claim, it was said (at paragraphs 9 and 10):

"9. [M] loves to wear the burka. [She] already wears a burka during the weekdays, in the evenings and during the weekends. [She] wears the burka because of her religious, cultural and personal faith and conviction and this is also in keeping with her Islamic faith. The… Claimant does not force his daughter … to wear the burka. It is also [M's] wish that as she gets older (after puberty) she would want to wear the burka whenever she steps out of the house.

10. There are also times (such as fasting periods or other religious events) when [M] believes that she ought to wear the burka in public in order to express her religious, personal and cultural faith for her own satisfaction."

61. The supporting statement of the Claimant, however, does not refer to the burka at all: it refers only to the hijab. He says, apparently of the 31 January meeting:

"I also told [the Immigration Officer] that as my daughter wears the hijab as far as I know this is not permitted in France. I told the Immigration Officer that my daughter wears a scarf at school, and this is not permitted in France. I tried to explain that my daughter would not be permitted to cover herself in France and certainly not be permitted to attend school with a hijab..."

62. But, in his statement of October 2013 - it has no more precise date - he says (at paragraph 9):

"[M] loves to wear burka and is very dedicated in following the Islamic dress code and religious practices and values. If we are deported to France she would not be able to follow her religious values and practices."

63. . In response to the report of Professor Lichere, the Claimant produced another statement, dated 17 June 2013. In that he says:
64. i) M "loves to wear our religious and cultural clothing" (paragraph 6), by which I take the Claimant to include the hijab, the niqab and the burka.
65. ii) The Claimant firmly believes that wearing the burka is, for Muslim women and girls, an essential part of their religion as well as culture; and he believes Sharia law requires them to dress in that way (paragraphs 4 and 5).
66. iii) The Claimant's mother and wife wore a burka from "a very early age", and his daughter has started to wear the burka (paragraphs 5 and 6). If he were granted refugee status in France for 5 years, "during that period [his] daughter would definitely wear the burka" (paragraph 12). His daughter, he says, "will wear the burka on arrival in France" (paragraph 13).
67. iv) Although he does not believe in violence, coercion or threats to make his daughter wear religious dress, he believes it is his duty as a Muslim to "demand from her to follow the laws of Allah" to wear the burka (paragraph 6).
68. v) He therefore fears that, if they are removed to France, both he and his daughter will be prosecuted, fined and imprisoned (paragraph 12).
69. There are also statements from two solicitors in the firm which the Claimant has instructed in these proceedings, saying that dress code is encouraged by Islamic law and wearing the hijab is a religious obligation for Muslims (Mohammed Abdul Jalil Ahmed Statement dated 21 June 2013, paragraphs 12 and 15), and that the Quran "advocates" the covering of bodies, faces, neck and bosoms by women (Harjot Singh Statement dated 21 June 2013, paragraph 7). However, neither suggests that it is a religious obligation to wear a full-face veil, and, more importantly, neither is an expert in such matters. There is no expert evidence, and no evidence from M herself as to what she wears and what her wishes and perceived religious obligations in respect of dress might be. The photographs of M at school, which are in evidence, show her wearing a hijab. There are no photographs of her wearing a full-face veil.
70. Therefore, the evidence is not entirely consistent. However, for the purposes of this claim, I shall proceed on the following basis, making some assumptions, where necessary, in the Claimants' favour.
71. i) Many Muslims do not regard wearing face veils as a religious obligation, but a minority do.
72. ii) M has a sincere religious belief that Muslim women should wear clothing that covers the body when in public places. She does not, as yet, wear a full-face veil at all times when in public, but, as others have done and do at about her age, she has started to wear the burka at home and occasionally in public. As she matures, she wishes to increase its use over the next few years, until she wears it whenever she is in public. She, and her father the Claimant, believe that that is a religious obligation.
73. iii) If and when she were to be removed to France, as her father says in his statement, she will wear a full-face veil in public but, as I have explained, initially only occasionally and not at all times.
74. iv) M is 10 years old. It is very unlikely that she will face prosecution in France for wearing a burka in public; but, I accept, there is a risk. If she were prosecuted, then she would not face any criminal sanction, until the age of 13 years at the very soonest. Until then she would face, at worst, an admonition.
75. v) Her father will encourage, but not force, her to wear a burka. As such, he will not be at risk of prosecution under Article 4.

The Parties' Contentions

76. Mr Kadri for the Claimant submitted that, in forbidding the wearing of full-face veils which some Muslim women and girls (including M) believe they are obliged by their religion to wear, the 2010 Law breaches Articles 3, 8, 9, 10, 11 and 14 of the ECHR. France is in breach of its ECHR obligations by enacting the Law, and enforcing it; and the United Kingdom would be in breach of its obligations under the Convention by removing the Claimants to France, where they would be subject to such a law.
77. Mr Manknell for the Secretary of State does not accept that the 2010 Law is capable of interfering with the human rights of the Claimant or his daughter; but, he submits, even if it were, if they were removed to France neither the Claimant nor his daughter would face any risk of being subject to any insult to their dignity that would come remotely close to degrading treatment, in Convention terms; and so, if the Claimants consider their human rights are infringed in France then the appropriate course is for them to take up that matter with the French State authorities, including the French courts, utilising the French appeal courts and the European Court of Human Rights for relief, if necessary. This is a matter for those courts, and it is inappropriate - and he submitted legally wrong - for the courts of England and Wales to engage upon an enquiry into and adjudicate upon compliance by France with its obligations under the ECHR.

Analysis

78. The case of R (Begum) v Denbigh High School [2006] UKHL 15, concerned whether the Article 9 rights of a 13-year old girl who had a religious conviction that she should wear a jilbab at school were breached by the school's decision not to allow her to wear such a garment. The school allowed pupils to wear a head scarf. Reading the opinions of the five Law Lords underscores the complex and difficult interrelated issues raised by such cases, both for the individual (in that case the young girl and indeed her family) and the decision maker (in that case the school). In the event, the House of Lords allowed the school's appeal and, although there are differences in the reasoning of each of their Lordships, each appears to have concluded that the prohibition of the jilbab by the school, in the particular circumstances of that case, was justified.
79. However, the facts of that case were very different from the facts of this; and I refer to the case not for its result. I refer to it because of its wisdom in relation to two particular related matters.
80. First, the House of Lords' cautious approach to the issues raised is worthy of note. Lord Bingham said (at [34]):

"It would in my opinion be irresponsible of any

court, lacking the experience, background and detailed knowledge of the head teacher, staff and governors, to overrule their judgment on a matter

as sensitive as this. The power of decision has been given to them for the compelling reason that they are best placed to exercise it..."

81. In the case before me, Mr Kadri has invited me to consider whether the 2010 Law breaches the ECHR, in circumstances in which the Law applies not to the United Kingdom but to France; the democratically elected French Government have enacted it; and the Conseil constitutionnel and Cour de cassation have held it to be proportionate and lawful. If the House of Lords were reluctant to second-guess the decision of a school in Luton that pupils should not wear the jilbab, in my view this court should accept Mr Kadri's invitation only with extreme caution.
82. Second, Mr Manknell submitted that it was entirely inappropriate for this court or any court in this jurisdiction to make or attempt to make an assessment of whether, in France, the 2010 Law is proportionate to its aims which I have identified and in accordance with the solemn international law obligations of the State of France. That is a powerful point. In Begum, the House emphasised that they were not being, and could not be, asked to rule on whether Islamic dress, or any feature of it, should or should not be permitted in the schools of England and Wales. That would be, said Lord Bingham (at [2]), "a most inappropriate question for the House in its judicial capacity...". The House was concerned simply with whether the particular school's action in the particular case was lawful and in particular justified under Article 9(2).
83. I too stress that the case before me is not about whether Islamic dress, or any feature of it, should be permitted in public places throughout or in any part of the European Union. This case concerns a different and limited question, namely whether the United Kingdom, in the form of the Secretary of State would breach its human rights obligations by returning the Claimant and M to France, whence they came. For reasons to which I shall shortly come, it is not only inappropriate but unnecessary for me to determine wider questions.
84. With those caveats, I come to deal with the merits of the Claimant's first ground. Mr Kadri's submissions were powerful and attractive; but, for the following reasons, I am unpersuaded by them.
85. The Claimant relies upon several provisions of the ECHR, but of course in particular Article 9, "Freedom of thought, conscience and religion". It provides:

"1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others."

86. There are consequently in effect two limbs to this article: an absolute right to hold beliefs, and a qualified right to manifest them. Of course, Mr Kadri on the Claimants behalf had stressed the latter: the freedom to manifest religion, in observing a dress code including, for females, a full covering of the face.
87. Mr Kadri also contends that the 2010 Law also engages Article 8 (right to respect for private life and family life), Article 10 (freedom of expression) and, because the law may lead to a woman or girl in France being restricted or unable to go out, for fear of prosecution because of their clothing they consider themselves bound to wear, Article 11 (freedom of assembly and association). It was also submitted that the Law was discriminatory in terms of Article 14, associated as it must be with one or more of the other substantive provisions of the Convention. I shall return to Article 8 when considering Ground 2; but, in relation to this first, main ground, in my judgment these other provisions of the ECHR add relatively little, if anything, to Article 9. Nor do I consider that the other international instruments referred to by Mr Kadri (such as the Charter of the United Nations, the Universal Declaration of Human Rights, the Framework Convention for the Protection of national Minorities and the International Covenant on Civil and Political Rights), which again emphasise the importance of human dignity and respect for religious and other beliefs, add to the substance of the Claimants' case. These are merely further references to well-established normative rights, which are fully recognised in the ECHR. Of these qualified rights, Article 9 of the ECHR is the crucial focus in this claim.
88. More importantly for the purposes of this claim, perhaps, Mr Kadri submitted that the 2010 Law was in breach of Article 3 of the ECHR. Article 3, headed "Prohibition of Torture", provides:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

89. Unlike the other provisions to which I have referred (other than Article 9(1), in respect of which there is no suggestion of any potential breach), this is an absolute right in the sense that a State may not derogate from it. In this case, the Claimants do not suggest that their treatment in France would be even potentially either torture or inhuman; but Mr Kadri submitted that it would be "degrading treatment" within Article 3.
90. However, for the following reasons, I am wholly unpersuaded by that proposition.
91. i) Mr Kadri relied upon the fact that the United Kingdom has indicated it has no intention of prohibiting full-face veils in this country, one politician saying that to prescribe clothing in that way would be "very un-British". However, that adds no weight to the Claimants' argument. It is well-settled that States have a margin of appreciation in the manner in which they comply with their qualified obligations under the ECHR. In any event and more fundamentally, the fact that the Convention sets international norms does not of course prevent States from providing nationally more generous rights to those living within its jurisdiction. Indeed, it is only to be expected that that will occur, given that the ECHR reflects the minimum standards required by basic human need and dignity. However, it is vital that such national standards are not confused or elided with Convention standards; because purporting to interpret Convention rights more generously than Strasbourg would undermine the whole international nature of the Convention. As Lord Bingham put it in Ullah at [20]:

"...It is of course open to member states to provide for rights more generous than those guaranteed by the Convention, but such provision should not be the product of interpretation of the Convention by national courts, since the meaning of the Convention should be uniform throughout the states party to it. The duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less."

92. ii) "Degrading treatment" has been defined in many ways in the Strasbourg jurisprudence, for example in terms of "an assault on... a person's dignity and physical integrity", which Article 3 is specifically designed to protect (see Tyrer v UK (1978) 2 EHRR 1 at paragraph 33). There is no suggestion that either the Claimant or his daughter in France will be the subject of any physical assault by the State, or, despite the apparent concerns of the Claimant for his daughter's mental wellbeing if removed to France, there is no evidence at all that the psychological or psychiatric condition of either would be at risk. If anything, it is their dignity that would be at risk of insult.
93. iii) It is well-recognised that respect for human dignity and freedom is "the very essence of the Convention" (Pretty v United Kingdom (2002) 35 EHRR 1 ("Pretty") at paragraph 65). But the threshold to engage Article 3 is high. "Degrading treatment" means treatment "such as to arouse in their victims feelings of fear, anguish and inferiority capable of humiliating and debasing them and possibly breaking their physical and moral resistance" (Republic of Ireland v United Kingdom (1978) EHRR 25 at paragraph 167). It is important to note from this that "degrading treatment" is defined in terms of its effects on the victim.
94. iv) Therefore, the treatment to amount to a breach of Article 3, it requires a "minimum level of severity" (see, e.g., Pretty at paragraph 52). A high level of suffering is usually required, variously put in terms of (e.g) "...intense suffering..." (Iovchev v Bulgaria (2006) Application No 41211/98, at paragraph 133, "...serious suffering..." (R (Limbuela) v Secretary of State for the Home Department [2005] UKHL 66 at [8] per Lord Bingham, and "...intense physical or mental suffering" (Pretty, at paragraph 52). In other cases, the court has asked whether the treatment "adversely affected his or her personality in a manner incompatible with Article 3" (Kalashnikov v Russia [2003] 36 EHRR 34 at paragraph 95). Generally, the Strasbourg court looks for positive evidence of such suffering, e.g. evidence that a medical, psychiatric or psychological condition has resulted or may in the future result from the treatment.
95. v) Mr Kadri frankly concedes that there are no authorities in which the threshold for degrading treatment has been as low as the treatment which, on the Claimants' highest case, they will suffer in France. However, boldly, he submitted that I should find the threshold reached in this case. Whether this threshold has been reached, of course, as he powerfully submitted will depend on all the circumstances of a particular case, including (a) the intention or object of the treatment, and (b) the degree of suffering or humiliation caused to the victim by the treatment.
96. vi) In this case, as to (a), there is no evidence that the State, whether that be France or the United Kingdom, intends to degrade the Claimant or his daughter. In reply Mr Kadri properly conceded that although an intention to degrade is not a prerequisite for a finding of a violation of Article 3, whether there is or is not such an intention is an important factor to be taken into account (Peers v Greece (2001) 33 EHRR 51 at paragraph 74, and Kalashnikov at paragraph 101). The potential importance of the factor is effectively stressed in V v United Kingdom (1999) 30 EHRR 121 at paragraph 71:

"The question whether the purpose of the treatment was to humiliate or debase the victim is a further factor to be taken into account but the absence of any such purpose cannot conclusively rule out a finding of a violation of Article 3."

97. vii) As to (b), in this case, in France, the Claimant himself would not be at any risk of prosecution or any other adverse treatment by the State as a result of the 2010 Law. In the course of debate before me, Mr Kadir submitted that, under French law, the Claimant might be liable for aiding and abetting M in respect of an offence by her under Article 1; on the basis that, absent any other evidence, the rule is that foreign law is the same as that of England and Wales. However, this suggestion was not made earlier. It was not pleaded in the grounds. Despite careful instruction of Professor Lichere, the suggestion that the Claimant might be so liable was not put to him. Mr Manknell was, understandably, not in a position to respond to the submission as to whether in English law a person in that position would be guilty of an offence, or to provide evidence as to the legal position in French law on the point. It was a point that was raised too late for consideration in this claim.
98. viii) M is currently only at risk of prosecution which might lead to an admonition. In any prosecution, it is open to her to rely upon the unlawfulness of the 2010 Law as being contrary to her human rights, through the appellate process and to the European Court of Human Rights, if necessary and if she (or, in reality of course, her father) considers it appropriate. There is no evidence to suggest that the French courts will not sincerely apply the relevant provisions of the ECHR. Simply because Mr Kadri and the Claimants do not agree with the decisions of the French Court to the effect that the 2010 Law is proportionate, it is of course that no such evidence. All of that of course, in practice will almost certainly not be necessary, because the lawfulness of the 2010 Law in human rights terms is due to be tested later this year in the European Court of Human Rights in SAS v France. Any risk to M of being prosecuted under a Law which is not ECHR compliant is therefore time limited. In determining whether treatment is degrading, whether it is for a definite or indefinite term is of course a relevant factor. It is no response, as Mr Kadri sought to respond, to say that, if the European Court of Human Rights finds the 2010 Law to be lawful then M faces the prospect of an extended period in France in which she will be unable to wear the burka in public places without the risk of action being taken against her.
99. ix) However, Mr Kadri submitted that M would risk more than merely the possibility of prosecution and sanction under the 2010 Law. First, he referred to an Amnesty International 2012 report entitled, "Choice and Prejudice: Discrimination against Muslims in Europe", exhibited to Mr Ahmed's statement of 21 June 2013. In paragraph 4.3.2, there is reference to another French law, Law No 2004-25 ("the 2004 Law") which introduced an amendment into the Education Code prohibiting school pupils from displaying conspicuous symbols expressing their religion in any French school. It does not make that a criminal offence; but, submitted Mr Kadri, it would mean that M would not be able to attend school in even the hijab, yet alone the burka. However, again, this was not a matter that was raised in this claim before yesterday: it was not pleaded, Professor Lichere was not asked to opine upon it, and Mr Manknell was not given an opportunity to prepare a response. Again, reliance on the 2004 Law is simply too late (although I should add that, even if Mr Kadri is entirely right about its effect, I would still be unpersuaded that this case is in Article 3 country). Second, Mr Kadri said that the effect of the 2010 law together with the 2004 Law would be that M would be effectively confined to her house in France. She would not be able to go to school. She would not be able to associate with anyone outside, even other Muslim girls. She would not be able to walk the streets, nor use public services such as transport. She would be liable to abuse from members of the public in the streets. He submitted that she would be put into making the "extremely painful and intensely burdensome choice of either being true to [her] faith or else respectful of the [secular] law", referred to in Christian Education South Africa v Minister of Education (2009) BHRC 53 at [35]. An unhappy position reflecting also that in the Supreme Court of Zimbabwe case of Ray Chicote (1995) 2 LRC 93 at [100]. In particular he stressed as clearly relevant factors that M is vulnerable both as an asylum seeker, and of course as a child. However, whilst I accept that M would be at least at risk of prosecution under the 2010 Law if she wore a burka in public in France: (a) she does not wear the burka in public a great deal as yet, she wears it occasionally. In France she will be able to wear it in certain circumstances, (e.g) at places of worship such as the Mosque; (b) the evidence is that she is very unlikely to be prosecuted for wearing the burka in France; (c) if she is prosecuted, she will be able to take the human rights point to the European Court of Human Rights if necessary and, there, seek Rule 39 interim relief if necessary; (d) the issue is time limited, because it will in due course be determined by the European Court of Human Rights in SAS v France - there is no evidence that France will not comply with the judgment of that court; and (e) there is no evidence that the French State will not adequately protect her from any abuse she might receive, particularly abuse which might approach degrading treatment levels: it has the systems for doing so. Therefore, whilst I accept that the 2010 Law may result in M being in some fear of prosecution in France, and adverse treatment such as non-admittance to public places and services, I do not accept the full picture Mr Kadri sought to paint.
100. x) Furthermore, as I have indicated, "degrading treatment" is defined in terms of its effects on an individual. As I said in Grant and Gleaves v Ministry of Justice [2011] EWHC 3379 (QB) at [52]:

"... the test with regard to minimum severity is an objective test, to be determined on the basis of all relevant circumstances, including the effects that the treatment or conditions are likely to have upon a person with the attributes of the victim. However, the definition of "degrading treatment" is focused on the effects on the victim; and, as the Strasbourg cases indicate, unless a claimant can show, by direct or inferential evidence, that the ill-treatment in fact caused him serious suffering in terms of (e.g.) physical or psychiatric injury, or psychological harm or particularly serious evidenced distress, it will usually be difficult for him in practice to show that that objective test has been satisfied."

101. In this case, the Claimants are concerned that they face the risk of treatment in the future in France, which will or may have adverse consequences for them; but there is simply no evidential basis for the assertion that, even if they are treated as they fear, they will be caused "serious suffering in terms of (e.g.) physical or psychiatric injury, or psychological harm or particularly serious… distress", or anything like. There is no medical evidence as to the likely effect on M of being removed to France and being subject to the 2010 Law; and, although I well appreciate that she is only 10 years of age, there is no evidence at all from M herself. There is no evidence really that any attempt has been made to explain any of this to her. That is so, even though the Secretary of State urged that she be involved in the family return conferences on 31 January and 20 February 2011. The Claimant clearly took the view that she should not be involved. One of the Claimant's solicitors (Harjot Singh) says that he has had a number of conferences with the Claimant and M, who was "tearful and… fearful" (statement, paragraph 9); but I am unconvinced by that evidence alone that M has been informed and fully engaged in this process. The fact that she has been tearful at the uncertainty and the prospect of now moving to France, of course, goes nowhere near evidencing that she has been, or may in the future be, the subject of degrading treatment.
102. In the circumstances, I agree with the submission of Mr Manknell: potential treatment at the hands of the French State under the 2010 Law could not, even as a future hypothetical construct, anywhere near approach the high threshold required to engage Article 3.
103. For those reasons, I do not consider there is any legitimate foundation for the contention that Article 3 is even engaged in this case. There is certainly no reliable body of evidence demonstrating that France systemically fails to comply with its obligations under the ECHR, leading to a real risk of a serious violation of the dignity of an asylum seeker amounting to degrading treatment for the purposes of Article 3 of the ECHR, such that the United Kingdom could arguably be in violation of its obligations under the ECHR if it seeks to remove the Claimant and his daughter to France.
104. Consequently, any potential affront that the Claimant or his daughter may potentially suffer to their dignity at the hands of the French State if they were removed there, would fall short of degrading treatment, and can properly be left to be addressed exclusively by the French public authorities, including the judicial authorities. There is no evidence that those authorities are systemically unable or unwilling to address, determine and remedy any alleged breach. Indeed, the evidence is quite to the contrary, namely that both the French Government and especially the French courts take their obligations in respect of human rights compliance seriously. That is underlined by the Conseil d'Etat consideration of the 2010 Law and its report to which I have referred, which concluded by indicating a real doubt as to whether the Law is compatible with the French Constitution and the ECHR.
105. For those reasons, in my judgment, the Secretary of State was entitled to refuse the Claimants' human rights claim. There was no consideration before me as to the appropriate test for review of a decision to certify as totally unfounded, but, on the material available to the Secretary of State, I am quite satisfied that the claim was clearly unfounded on the basis of any of the formulations of that term discussed by Beatson J (as he then was) in Toufighy (at [53] and following).
106. Ground 1 therefore fails.

Ground 2

107. I can deal with the second ground shortly.
108. Article 8 of the ECHR, Article 3 of the United Nations Convention on the Rights of the Child, section 55 of the Borders, Citizenship and Immigration Act 2009 and ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 require between them, that the best interests of children are "a primary consideration" in any immigration decision of the State which might affect those children.
109. Such an exercise necessarily requires, as a first step, assessment of the best interests of the children. There is no doubt, Mr Kadri submitted (and I respectfully agree), that it would be in the best interests of M to remain in the United Kingdom, where she now has stable schooling and is able to wear the clothing that she and her father wish her to wear, without risk. Mr Kadri submitted that the Secretary of State failed to make an assessment of the impact on M of removal to France, including in particular of course her exposure to the 2010 Law; especially, he submitted, as France has entered into a reservation under Article 3 of the UNCRC, such that it is not bound to treat a child's best interests as a primary consideration in any decision made by the State.
110. However:
111. i) It is not unlawful to remove a child to another country simply because that State is not a signatory to the UNCRC.
112. ii) The submission that the Secretary of State did not obtain the views of M has no force. M was 8 years old at the relevant time. The Claimant was encouraged to ensure that she was fully engaged, by attendance at the family returns conference (both well before the 7 June 2012 decision letter) and/or ensuring that M knew what was happening, and why, and what her views about it were. The opportunity was clearly there. It was not taken. Even now there is no evidence in this claim from M as to what her wishes are, and, without doubt, there has been every opportunity to express them in the course of these proceedings.
113. In reply, Mr Kadri submitted that because of her young age, the views of M could and were properly expressed by her father but if that were the case then again the submission that the Secretary of State did not obtain her views has no weight.
114. iii) In any event, Mr Kadri's submission is based upon a false premise, the Secretary of State did consider and assess the best interests of M in the decision letter 7 June 2012. At the time of the 5 December 2011 letter the point concerning the 2010 law had not been raised by the claimants at all. When it was in the grounds of this claim, the Secretary of State addressed the issue in terms [13 - 15] of 7 June 2012 letter. Those paragraphs were clearly written in the very context of the 2010 Law.
115. iv) The rights and best interests of relevant children in a Dublin II Regulation return case have been considered in two recent cases, namely EM and Toufighy especially in the latter [95] and following. In EM, Sir Stephen Sedley, giving the judgment of the Court of Appeal, having set out the relevant passages from ZH, found in this context the best interests of the child - to remain in the United Kingdom - came up against:

"...the formidable fact that the children's position in this country, albeit through no fault of theirs, is both fortuitous and highly precarious, with no element whatever of entitlement....

[The claimant's] son, now 14, is settled in school; but he is only here because his mother has been able for four years to resist removal."

116. Given that the destination country in that case was deemed to comply with its international obligations, he said:

"...the case against the removal of MA, albeit with her son, is too exiguous to stand up in any legal forum when set against the history of her entry and stay here and the legal and policy imperatives for returning her to the destination country."

117. Of course, every case will turn on its facts, but the case before me, if anything, is weaker than that, so far as the Claimants are concerned, because, amongst other things, the Claimants in this case have not been in the United Kingdom as long and the claimants in EM, prior to their clandestine flight to the United Kingdom from Italy, had suffered for three months on the streets in that country as described in [24] of Sir Stephen Sedley's judgment. Adapting his words of, given my firm conclusion that France will be compliant with its international law obligations (including its obligations under the ECHR), as the removal of the Claimants would be pursuant to the Dublin II Regulation, the case against their removal is "too exiguous" to stand up in any legal forum when set against the history of their entry and stay here, and the legal imperatives for removing them to France. In this context, it is noteworthy that the European Court of Human Rights in the recent reference of Hussein v Netherlands and Italy [2013] 57 EHRR SE1, after referring to NS and EM, found a claim on its face similar to this claim not only inadmissible, but "wholly unsubstantiated" and "manifestly ill-founded" (see [85]).
118. For those reasons, the Secretary of State was entitled, not only to refuse the Claimants' human rights claim based on the best interests of M, but entitled - and again, under the 2004 Act, bound - to certify the claim as clearly unfounded. In my judgment, on the material before the Secretary of State, it was clearly unfounded.
119. Consequently, Ground 2 also fails.

Ground 3

120. Mr Kadri submitted that, even if the removal of the Claimants was not in breach of the Claimants' human rights, the Secretary of State had a discretion whether to return them to France or deal with their application for asylum in the United Kingdom. The decision to remove them was, he submitted, in any event Wednesbury unreasonable.
121. This claim was not pressed hard by Mr Kadri. It was not pleaded, nor is there a draft amendment to the grounds available. In my view Mr Kadri was right to be reticent. It is sufficient for me to say that, given the nature and aims of the Dublin II Regulation, the provisions of the 2004 Act and all of the circumstances of this case, such a claim clearly has no legal merit and I refuse permission to proceed with it.

Conclusion

122. Otherwise, for the reasons I have given, this substantive claim for judicial review fails in its entirety.
123. MR JUSTICE HICKINBOTTOM: Yes Mr Kadri?
124. MR KADRI: My Lord, I would be applying for leave to appeal but at this moment, your Lordship will appreciate I have heard your Lordship's judgment, I concede that. It may well be that I (inaudible) unless your Lordship is minded to give me now because it is a very important case, if your Lordship wants me to pursue it, then it has to be some other time.
125. MR JUSTICE HICKINBOTTOM: Under the CPR, and I know it is very difficult because you have only just heard what I have said but an application for permission to appeal has to be made now.
126. MR KADRI: My Lord, I am appealing because this case involves fundamental situation and, in my respectful submission, the case of Begum, the school, is an authority which your Lordship has not accepted on my invitation. It is an authority that wearing a headscarf is -- prohibiting the wearing of a headscarf is contrary to Article 9(1) and there is no justification, so far as English law is concerned, that it is, it comes into exclusion of 9(2). Therefore, your Lordship should have found and I want to go to the Court of Appeal to recite, that that is a trite law, I say now. There is no doubt about it. That wearing of a scarf in a school, which is very important for Muslims in this country, if they are any doubt wearing a scarf in a school is prohibiting by any school, in any circumstance, wearing a scarf would be in breach of Article 9 and there is no defence under Article 9(2). There is one ground because I say out of this case, because if I am right, then the very fact that there are prohibitions in France and the denial of the school comes within Article 3, if a person is denied education, everything (inaudible) I respectfully submit, that it is very severe threshold, that a child is being denied a basic right. There are some of my grounds.
127. The other one, obviously is the interest of the child. I submit as soon as an indication is given by the person who is being removed either under the Geneva Convention or Dublin Convention or ordinary immigration law, as an illegal immigrant, whatever, deportation, in all that situation if, we respectfully submit, if an indication is given in an interview or through a letter to the Secretary of State that the child be denied certain rights which are very essential, then it is for the Secretary of State to investigate and to give reason why he thinks that that is not something which is not in the best interests of the child. Like in this case the movement on the 31st, it was said that she cannot wear, she will not be allowed in France to cover herself. It was the duty of the Secretary of State to put in motion investigations: is it true? What will happen? What would be the impact of this child of that? The Secretary of State failed to do and does not address it until today, not even in the letter of January, June or February, or even now, in my respectful submission. I respectfully say that that is something which as a matter of law is his obligation which he failed. That I want respectfully to ask the Court of Appeal to give authoritative reply to this question.
128. Thirdly, I say that we are merely wearing but I respectfully say that if a person, even for few days put in a curfew position, like in this case the girl will not be wearing burka all the time. But even a person placed in a position whereby all her fundamental rights, rights to walk on the street, rights to visit places is denied, that achieves demeaning of severity and one does not need evidence. We respectfully say that either that there should be direct evidence or evidence from which a court or an authority could infer, and we say the evidence from the French expert, describing what the law says one would infer from that, it is compelled to infer that that will mean that she will be at least a few days on occasions and be confined to home, denied all liberties, all her fundamental rights as a citizen, as a human being. We say that.
129. Thirdly, we respectfully say that when there is a balanced situation it is itself inhuman treatment to ask somebody to choose. We do not the religion or the circular law for a State and if a State is intentionally asking them then we say it is intentional degrading treatment. My Lord that is all.
130. MR JUSTICE HICKINBOTTOM: Thank you very much Mr Kadri.
131. I am not going to give you leave to appeal; I am afraid you are going to have to go elsewhere for that.
132. In relation to the first ground, as I indicated in the judgment, in Begum the House of Lords were very careful to emphasise that they were not setting any precedent with regard to the lawfulness of religious clothing in schools.
133. Secondly, in relation to the interests of the child, the relevant Decision Letter is the one of 7th June 2012, and that for the reasons I gave in the judgment was fully and properly dealt with in that letter. Thirdly, as I said in the judgment, whilst no doubt this child may be put to some may put to some suffering in France, the level falls very, very, very far below the minimum level of severity that the authorities make clear is required for an Article 3 claim.
134. MR KADRI: My Lord, just for information, I say as in the case which is from this country.
135. MR JUSTICE HICKINBOTTOM: Which one?
136. MR KADRI: The applicant to Europe, the case which is being heard in November is from somebody who is in this country.
137. MR JUSTICE HICKINBOTTOM: In the United Kingdom?
138. MR KADRI: Yes, who wears burka, who came from France and said: I cannot go to France, I should be treated under Article 3.
139. MR JUSTICE HICKINBOTTOM: I have not be been told the facts of that case. Just by way of interest, is that person still in the United Kingdom?
140. MR KADRI: Yes. She is saying is: if I go there I will be treated in that manner and Liberty has intervened in that case.
141. MR JUSTICE HICKINBOTTOM: There we are.
142. MR KADRI: May well be if I do not get leave --
143. MR JUSTICE HICKINBOTTOM: -- you may get a stay.
144. MR KADRI: Then I am due on that in November.
145. MR JUSTICE HICKINBOTTOM: Yes. Is there anything else Mr Kadri?
146. MR KADRI: I am told that my instructing solicitor said they need a sealed copy of the order.
147. MR JUSTICE HICKINBOTTOM: You will get one of those. Yes Mr Manknell?
148. MR MANKNELL: Two matters my Lord. The first is that the Secretary of State would ask for her costs of the claim. The claimants do have public funding so that will be subject to the provisions of section 11 of the Access to Justice Act. I do ask for the costs in principle.
149. The second matter is really to be stated.
150. MR JUSTICE HICKINBOTTOM: Let me sort this out. Unfortunately the statutory provisions change regularly. Is the appropriate order now reverted to effectively a Football Pools Order; that is an order that the claimant pays the defendant's costs subject to the permission of the court?
151. MR KADRI: If they win the Lottery or something.
152. MR MANKNELL: That is my understanding. The order would be in terms and along the lines that the claimant do pay the defendant's costs to be subject of a detailed assessment if not agreed, and not to be enforced without an assessment of the claimants' means pursuant to section 11 of the Access to Justice Act 1995.
153. MR JUSTICE HICKINBOTTOM: That sounds right.
154. MR MANKNELL: The second matter which I state for the avoidance of doubt is that your Lordship has refused the claim and refused the application made today for permission to appeal. There is no order in place that prevents removal of these claimants and my submission would be that if the claimants felt that they needed such an order, it has been indicated they are considering applying to the Court of Appeal for permission, then they should go to the Court of Appeal to ask for any injunctive relief.
155. MR JUSTICE HICKINBOTTOM: No, no, it is absolutely proper that you have raised that. Rationally I should - subject to any submissions you make - I should, unless you have given assurance to this effect, I should order a stay on removal for whatever it is - 3 weeks whatever it is - to enable the claimants to go to the Court of Appeal -- well it may take a bit longer because you may have to get funding, but to go to the Court of Appeal, lodge the application and then get a stay from them if they want to continue it. How long is that going to take?
156. MR KADRI: First of all I need the sealed order, a copy of the sealed order. I have to attend that sealed order in the Court of Appeal.
157. MR AHMED: My understanding is that 21 days from the date we receive the sealed order, but we would also like if you could expedite so we can get a copy of the judgment as soon as possible, even though we have taken verbatim notes as best as possible. If you could expedite?
158. MR JUSTICE HICKINBOTTOM: Yes. I will expedite, I will order it, but I will do my best to expedite it on a practical basis because you need that.
159. What about a stay? I think I have to stay removal to give the claimant adequate time to apply to the Court of Appeal for a stay?
160. MR MANKNELL: My Lord, if you feel it is necessary that the claimant has the protection of a stay so they may, if they wish, seek permission to appeal from the Court of Appeal, then we would say the appropriate course would be for you to make that order. We would say that it should be a time limited, there should be a stay and if there need further time then that further time --
161. MR JUSTICE HICKINBOTTOM: Because otherwise, I am not sure the Secretary of State would try to remove the claimant, but if you did, the removal would simply be stayed on an application, pending the attempts to seek permission from the Court of Appeal. Would 28 days be enough? You have to have time to appeal and make any application you want to make.
162. I will make a direction that the ... I will give an injunction in the usual terms: the Secretary of State does not take any steps to remove either claimant until - what is 28 days from today - somebody give me the date. It is 28th June today. So what is 4 weeks from today?
163. I will give the injunction until 4.00 pm on 26th July so that you know where you are.
164. Is there anything else?
165. MR KADRI: Thank you.
166. MR JUSTICE HICKINBOTTOM: Thank you all very much.