England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		18 March 2016

1. MR JUSTICE CRANSTON: This is an application for a so-called "generic" stay - in fact, an interim injunction - on all Dublin III Regulation returns to Bulgaria pending judgment in a test case relating to that issue (Khaled v Secretary of State for the Home Department CO/2899/2015). Dublin III (shorthand for Regulation (EU) No 604/2013) is the current legal basis for the principle in the European Union that only one Member State is responsible for examining an asylum application and other Member States may return persons to that Member State for an assessment to occur.
2. The injunction sought in this case will not benefit the claimant since there is already an order of this Court granting him permission to apply for judicial review and staying his case pending judgment in the test case. Thus, effectively, what is being sought is an injunction to benefit other persons whom the Secretary of State intends to remove to Bulgaria under Dublin III, even if those other person have made no application in this Court or elsewhere in relation to their removal unless they consent to be removed. The issue was not raised in Khaled.
3. The justification for the application is that apparently there are already at least forty orders of the Court of Appeal or the Upper Tribunal Immigration Asylum Chamber where permission to apply for judicial review of decisions to remove to Bulgaria has been granted. Yet, it is said by Mr Halim, the Secretary of State egregiously continues to remove persons to Bulgaria under Dublin III. He submits that the grant of permission to apply for judicial review in those other cases illustrates that there is clearly a triable issue in such cases and the balance of convenience undoubtedly points in the direction of interim injunctive relief.
4. Although Khaled has been heard, judgment, he says, is likely to be some time off because of the complex evidential and legal arguments advanced there concerning Article 3 of the European Convention on Human Rights (EHCR), Article 4 of the Charter of Fundamental Rights of the European Union and the interpretation of Dublin III itself. There is an obvious need, he contends, to stem what are, prima facie, unlawful removals. He adds that it is a waste of public funds and judicial and administrative time to require persons threatened with removal to have to take legal proceedings in circumstances where the Secretary of State should desist from that course pending the outcome in Khaled.
5. The arguments in Dublin III (Bulgarian returns) do not turn on the individual circumstances of the persons affected but are about generic reception conditions in Bulgaria for all arriving after removal from the United Kingdom. Mr Halim rests in particular on a judgment of Lord Justice Christopher Clarke in HN (Afghanistan) v Secretary of State for the Home Department [2015] EWCA Civ 1043. In that case, Lord Justice Christopher Clarke had given permission for certain appellants to appeal a decision of the Upper Tribunal. Ultimately, early this month when the appeal was heard the Court of Appeal dismissed the appeal: R (On application of HN and SA) (Afghanistan) (Lead cases associated Non-Lead Cases) v Secretary of State for the Home Department [2016] EWCA Civ 123.
6. Lord Justice Christopher Clarke having given permission, the appellants made application for interim relief as regards other persons to be removed with them on a specific flight to Kabul on 21 April 2015. An order to that effect had been given out of hours by Lady Justice Rafferty. Ultimately, the order that Lord Justice Christopher Clarke made was as follows:

"The appellant's application for further interim relief is granted in the form of a stay on a removal from the UK until further order of the Court of Appeal, for all other persons [i.e. not the appellants] facing forced removal from the UK on the charter flight PVT 081 to Kabul on 26 August 2015 who were not habitually resident in the Provinces of Bamyan, Panjsher and Kabul."

7. In the course of his judgment, Lord Justice Christopher Clarke said that the logic of the grant of permission to appeal was that the appellants would arguably face a real risk of injustice to them and, more importantly, danger. He noted that persons other than the appellants might make applications for interim relief against removal but "others may not be in a position to do so in time to prevent their removal on Wednesday of next week". He then said (paragraph 21):

"It seems to me that this Court probably does have jurisdiction to make an order of the type now sought under the general power to make an injunction whenever it is just and convenient to do so or under the Court's inherent jurisdiction. I make no final decision in relation to that. It seems to me that in any event it has jurisdiction to make an order such as the one that I propose to make on an interlocutory basis."

Then continuing (at paragraph 23):

" ..... In a public law case when a consideration which affects one group of applicants affects others who are not or not yet parties to the proceedings in that or a very similar way it seems to me proper for the recent stay ordered by the Court to extend to those in the latter as well as the former category. At any rate, that seems to be appropriate on the facts of the present case."

8. In his submissions Mr Halim contends that this is an a fortiori case. He submits that the present cases are not troubled by fact-sensitivity since they affect all returnees to Bulgaria under Dublin III. There is no need to distinguish an area to which returnees to Bulgaria will be sent as there was in the HN litigation reflected in the order I have quoted. Nor, in this case, is there a need for the Secretary of State to trouble itself with determining whether returnees are vulnerable.
9. Consequently, he urges me to apply the approach of Lord Justice Christopher Clarke in the HN (Afghanistan) decision and to grant generic interim relief to this case.
10. There are, in my view, three reasons why this is not appropriate.
11. First, the relief which is being sought is on behalf of persons unknown. By contrast with the situation in HN, where the identity of those on the specific flight was identifiable, Miss Anderson submitted that there was a general principle that litigation cannot be carried out on behalf of individuals save with their consent and in strictly defined circumstances.
12. In argument, I identified three exceptions to that principle. First, there is the historic role of the Attorney General in taking proceedings in the public interest carried over into other areas such as in Section 222 of the Local Government Act 1972. Secondly, this Court enables NGOs to act on behalf of groups of persons who may not be immediately identifiable. A recent example is R (On Application of Detention Action) v First Tier Tribunal Immigration Asylum Chamber [2015] EWCA Civ 14, [2015] 1 WLR 5341. Thirdly, as I noted, Section 47B of the Competition Act 1998 enables opt-out collective actions to be launched. But none of those exceptions applies in this case where certainly, as the claimant has advanced his case so far, he has sought to advance his private interest. There seems to me barriers at this stage to piggy-backing this type of application on to his claim as it has hitherto been advanced.
13. Secondly, there seem to be statutory barriers to the current application. Miss Anderson referred to Section 31 (3) [Note: See paragraph 36] of the Senior Courts Act 1981 and submitted that any claimant seeking discretionary relief had to demonstrate a sufficient interest in it. That section does not, in my view, apply in the circumstances of this case where permission has already been granted.
14. However as a result of amendments to the Senior Courts Act in 2015 or 2013, Section [31] (2A) of the Act reads as follows:

"(2A) The High Court -

(a) must refuse to grant relief on an application for judicial review, .....

.....

if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred.

(2B) The court may disregard the requirements in sub-section (2A) (a) ..... if it considers that it is appropriate to do so for reasons of exceptional public interest."

The reference to "relief" in that section must refer to the relief mentioned in Section 31 (1) and that relief includes injunctive relief.

15. Mr Halim contended that Section 31 (2A) of the Senior Courts Act 1981 did not apply in the circumstances of this case but that if it did there were reasons of exceptional public interest for Section 31 (2B) (2) to be invoked. For reasons which I shall give in a moment, it seems to me that there are not reasons of exceptional public interest in this case. [NB See explanation paragraph 34]
16. Even if I am wrong in terms of the first and second reasons I have given for declining to grant this application, it seems to me that purely as a matter of discretion an injunction should not be granted. In my view the circumstances of HN are far from being on all-fours with those in this case. The injunction - the interim relief in that case - applied to a clearly definable group (all those on a particular flight [who] were ascertainable, if not ascertained at the time). Moreover as Lord Justice Christopher Clarke pointed out, given the short time between the date of his order and the scheduled date of departure of the flight, it was possible that some of those on the flight would not be able to make applications for judicial review and associated applications for urgent interim relief in time. That is not this case.
17. Here, there is no evidence that those facing return to Bulgaria under Dublin III cannot obtain access to this court or to the Upper Tribunal. Under the procedure which has operated for some considerable time and was recognised by this Court in Pharis [2004] 1 WLR 2590, as soon as an application for judicial review is made the Secretary of State automatically suspends removal of the applicant or claimant (as the case may be). Thus, in terms of the balance of convenience which operates in this area, and given the justice of the case, it seems to me that there is no need for interim relief to be granted.
18. Miss Anderson also contended that in terms of balance of convenience there was a disruption to immigration control should a single applicant be able to obtain this type of interim relief applying to categories of persons in a similar position. There is no need for me to comment on that given that that is not this case. I simply reiterate that the circumstances in HN were different and, in my view, quite exceptional.
19. In the result, I refuse the application.
20. MR HALIM: May I turn my back for a moment?
21. MR JUSTICE CRANSTON: Yes. (Pause)
22. MR HALIM: My Lord, thank you.
23. MISS ANDERSON: I apply for my costs under the usual rule that costs follow the event. The Secretary of State was directed to appear and to produce written argument, as it were. Whilst in permission applications of course there is the convention that normally the Secretary of State would not recover save for the acknowledgement of service, in this case the exception is usually made because the Secretary of State was required to attend.
24. MR JUSTICE CRANSTON: Were you directed by the court?
25. MISS ANDERSON: Yes. It was directed. I was a bit surprised. As I understand it, we were given a direction to provide written submissions as well. I can provide that to the court. (Document passed). As I have indicated, in any event, under the usual strong law that costs follow the event, there is no reason to deprive the defendant of the costs.
26. MR JUSTICE CRANSTON: Mr Halim, what do you say?
27. MR HALIM: There are two points: this is an interlocutory hearing and costs should be reserved in the usual way. That is the usual form. Costs follow the event once the case has been decided. That is what we say is the ordinary position and that should hold today.
28. If you are not with me on that point so far as costs were concerned, I made the point initially that we received the Secretary of State's full-blooded defence last night. It was not served on the date that it was required. We pursued the Secretary of State and her solicitor for that response. The deadline was last Friday. We were told there was nothing forthcoming other than the letter that we have. So if you are minded to grant costs - and we say that is a question to be reserved - it ought not to be for any work done for the defence we received late last night which engendered a huge amount of work on our part at a very late stage. That is all I say if you are minded not to - but we say the convention position is to reserve costs at the end of the hearing.
29. MISS ANDERSON: Briefly to come back on that, there is no requirement for a defence to an application. The Secretary of State gave her grounds for resisting the application in the letter. You will see that the submissions were just reiterating those grounds.
30. MR JUSTICE CRANSTON: What are your costs?
31. MISS ANDERSON: They are not that significant. I would say it would be five hours' work at £120 an hour. I cannot speak for my solicitors' costs. I do not think that they are considerable. That would be what I would apply for - five hours' work at £120 an hour. It is really the principle anyway because the claimant is legally aided.
32. The other point to make about my friend's argument is that there is a question mark over whether these are properly costs in this case in any event. In a sense the outcome of the case does not make any difference to this particular facet, as it were. So it is not really costs in the case in that sense. It is a distinct matter.
33. MR JUSTICE CRANSTON: It seems to me it is appropriate that the Secretary of State should get her costs, and I am going to award costs in the sum of £800.
34. MR HALIM: There is one matter unrelated to costs that I wanted to flag up. In your judgment, as a point of correction and it is a matter for your Lordship, you recalled my submissions on Section 31 (2A) primarily being that it did not apply in the circumstances of this case but in the alternative we meet the exceptional public interest point. My submission was not that it did not apply in the circumstances of this case but that the Court of Appeal had it in mind, and you got the answer; alternatively, if we had to meet the case that that is our submission.
35. It is a matter for your Lordship. I just make a note of it because it may matter to others what I did or did not say.
36. MISS ANDERSON: There was mention of Section 33 at one point but I am sure
37. MR JUSTICE CRANSTON: I might order that the transcript be expedited in this case.