Jersey Unreported Judgments

Judicial Review - application for leave to apply for Judicial Review.

[2018]JRC222

Royal Court

(Samedi)

3 December 2018

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, sitting alone.

 

IN THE MATTER OF AN APPLICATION FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

Advocate S. E. A. Dale for the Applicant.

Advocate S. A. Meiklejohn for the Respondent.

judgment

the deputy bailiff:

1.        This is an application by X ("the Applicant") for leave to apply for judicial review of the decision of the Minister for Home Affairs, acting through the Jersey Customs and Immigration Service ("the Respondent") taken on or around 15^th August, 2018, ("the Decision") to remove the Applicant to a European jurisdiction.  It is not disputed that the Applicant arrived in Jersey illegally and he claims asylum.  The Decision was to the effect that he should be forthwith removed to the European jurisdiction without any substantive consideration of his asylum claim. 

2.        The application was made, as is the norm, ex parte on 21^st August, 2018, and I directed that it should be served upon the Respondent and that leave should be considered on an inter partes basis.  The hearing of that application took place initially on 13^th September, 2018 but, with the agreement of the parties, was adjourned part heard following the receipt of an expert report from clinical psychologist Dr Katherine Boucher of 10^th September, 2018, on the Applicant's mental health (the "Psychological Report").  The purpose of that adjournment was to allow the Respondent to consider the contents of the Psychological Report and the matter was re-listed and resumed before me on 14^th November, 2018. 

3.        At this stage I am considering whether or not leave should be granted to the Applicant to apply for judicial review.  The test that I should apply is not in dispute.  It is the test set out by the Privy Council in Sharma -v- Browne-Antoine (6) [2007] 1 WLR 780 as applied by this Court in Warren-v-Lieutenant Governor [2017] (1) JLR 291 where, at paragraphs 3 and 4, Beloff Commissioner said:-

"3. The test for such leave in this jurisdiction, as applied in Welsh -v- Deputy Judicial Greffier (7), is that set out by the Privy Council in Sharma -v- Browne-Antoine (6) [2007] 1 WLR 780, at para 14(4):

"The ordinary rule now is that the court will refuse leave to claim judicial review unless satisfied and there is an arguable ground for judicial review having a realistic prospect of success and not subject to a discretionary bar such as delay or an alternative remedy: see R -v- Legal Aid Board, Ex p Hughes (1992) 5 Admin LR 623, 628 and Fordham, Judicial Review Handbook 4^th ed (2004), p426.  But arguability cannot be judged without reference to the nature and gravity of the issued to be argued.  It is a test which is flexible in its application."

4. For an application for judicial review to succeed, the Royal Court would have to be satisfied that His Excellency's decision was unlawful, irrational or flawed by procedural impropriety (Planning & Environment Cttee. -v- Lesquende Ltd. (4)) and for present purposes I must be satisfied that one or more of those grounds is arguably established on the material before me."

4.        I note that in a recent decision of the Royal Court, namely J-v-His Excellency the Lieutenant Governor of Jersey [2018] JRC 072A at paragraph 1, Sir William Bailhache, Bailiff, said this:-

"1.      On 23^rd October 2017 the Applicant sought leave to apply for judicial review in relation to the decision of the Respondent on 24^th July 2017 to deport the Applicant from the Bailiwick of Jersey.  On 24^th October, the Court granted the Applicant leave. Affidavits have been filed in accordance with the Royal Court Rules 2004 and a date fixed for hearing.  Although the issue is arguably one of law, I decided to sit with Jurats because, as will be apparent from this judgment, the case raises questions of proportionality and human rights - see Edore v Secretary of State for the Home Department [2003] EWCA Civ 716 at paragraph 23. Indeed, the parties were agreed that it was appropriate that the Court be so constituted.

5.        And then, at paragraph 2 to 5 inclusive, the Court analysed its approach on matters of deportation in the following terms:-

"2.      There is no right of appeal against the decision of the Lieutenant Governor and judicial review is therefore the only basis upon which the Applicant can have the decision examined by an independent tribunal.  That being so, although it is a question of judicial review, the ambit of the examination is wider because the Human Rights (Jersey) Law 2000 requires that a decision affecting the human rights of the Applicant must ultimately be taken by a human rights compliant tribunal.  See also De Gouveia v Lieutenant Governor and Minister for Home Affairs [2012] (1) JLR 291 at paragraph 23.  The Court on judicial review, as it were, fills the gap which otherwise exists from having no human rights compliant tribunal to which the Applicant can appeal from the Respondent's decision.  Although these statements are of direct relevance to judicial review in deportation cases, they have a wider significance. On occasion the courts have to consider the reasonableness of a decision by a minister that may expressly have been considered by the States.  Where, for example, a minister has delegated power under a piece of primary legislation to make an order, which is tabled before the States and may in some cases be debated, the fact that the order has been approved by the States is no bar to an examination by the court of its compatibility with the Human Rights Law and indeed it is the duty of the Court in such a case to apply a full Human Rights review to what the minister has set out in his or her order, just indeed as there would be a full review as to whether the order fell within the vires of the primary legislation. The fact that the same process would apply where Regulations, also secondary legislation, are challenged in court, demonstrates that the approval by the States of a piece of secondary legislation does not inhibit the duty of the courts to investigate the lawfulness of such legislation. This is consistent with the comments of Lord Phillips of Worth Matravers MR in R v Secretary of State for the Home Department ex parte Brind 2 AC 696 when he said:-

"'The wider principle' of common law must accommodate the right and the duty of the court to review the legality of subordinate legislation.  The fact that, in the course of debate, the Secretary of State or others make statements of fact that support the legitimacy of the subordinate legislation, and that the house thereafter approves the subordinate legislation, cannot render it unconstitutional for the court to review the material facts and form its own judgment, even if the result is discordant with statements made in parliamentary debate."

3.        In Wang v Secretary of State for the Home Department [2007] UKHL 11, the House of Lords took the same approach in relation to the submission of the Secretary of State that the decision taker and the court should assume that the immigration rules adopted by the responsible minister and laid before parliament "had the imprimatur of democratic approval and should be taken to strike the right balance between the interests of the individual and those of the community".  Political and legal authority are to be distinguished, and the doctrine of judicial deference does not mean that the courts should surrender their own fundamental responsibility to determine the lawfulness of what is in question in the case.  We make these comments because the powers and duties of the Lieutenant Governor in relation to deportation have been passed to the Minister for Home Affairs, and we make it plain that the identity of the decision taker makes no difference to the approach which the Courts will take in relation to these matters.

4.        It is for these reasons that the traditional Wednesbury standard of unreasonableness - was the decision of the decision maker so unreasonable that no reasonable decision maker could reach it? - is inappropriate where the decision under review engaged a fundamental right or important interest. Where that is the position, the decision does indeed engage the most anxious scrutiny of the courts - see Bugday Cay v Secretary of State for the Home Department [1987] AC 514 at 531 per Lord Bridge.  As Sir Thomas Bingham MR (as he then was) put it in R v Ministry of Defence ex parte Smith [1996] 1 All ER 257, the more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable.  In R v Lord Saville of Newdigate ex parte A [2000] 1 WLR 1855 at paragraph 37, the Court of Appeal said that:-

"It is not open to the decision maker to risk interfering with fundamental rights in the absence of compelling justification".

5.        There are nonetheless constraints upon the Court's powers to intervene.  First of all, the Court is not a fact finding body in this exercise.  It takes a given set of facts and applies the relevant legal tests to them.  Of course, one such legal test may involve consideration of a submission that the decision taker has proceeded on the wrong facts, but it seems to us that it would be very rare and highly exceptional that any evidence other than affidavit evidence would be considered by the Court on such applications.  Secondly, it is not correct to say that there is no deference to the decision taker.  A higher degree of scrutiny on human rights grounds is still not a full merits review. What is needed is that the Court examine what reasons have been given, whether they comply with the fundamental rights of the applicant and in particular whether the lawfulness of what has been done meets the structured proportionality test that the Courts now apply, recognising that the decision taker has a discretionary area of judgment."

6.        I have set out this excerpt in full because it seems to me that if it is arguable that the Applicant's case involves fundamental issues of his human rights or an assessment of proportionality arises, then the principles set out in J apply. 

7.        I have heard careful argument from both the Applicant's and the Respondent's counsels together with the affidavits of the Applicant and an affidavit filed on behalf of the Respondent. 

8.        The circumstances of this application are unusual and are based on the assertions of the Applicant.  Whilst the Respondent does not necessarily accept each assertion of the Applicant, it has not carried out a substantive consideration of the application and has therefore taken the Applicant's assertions at face value for the purposes of reaching its decision.  The circumstances may be summarised as follows:-

(i)        The Applicant is a Syrian national who, on leaving Syria, sought asylum in a European jurisdiction.  Although the Applicant had been granted asylum in that jurisdiction, there is a dispute over his continuing status as his residence permit has expired, he does not wish to return there and he has written to the authorities of that jurisdiction stating that he does not wish to have his residence permit / refugee status renewed.

(ii)       His circumstances and the reasons for his reluctance may be summarised for the present purposes as follows:-

(a)       There is a significant population of ex-patriate Syrians resident in the European jurisdiction among who are people who would be hostile to the Applicant due to his background. 

(b)       The Applicant has suffered ill-treatment at the hands of such individuals and he is of the belief that he is being pursued by ISIS affiliated militant groups resident in the European jurisdiction.  His life, so his application asserts, has been repeatedly threatened and he has been physically attacked. 

(c)       He had previously, according to his affidavit, undergone arrest, detention, interrogation and extreme torture by the military whilst in Syria.  This occurred because it was believed that he had betrayed his government and as a consequence on release he was ostracised by his community.  He left Syria via Turkey and Egypt and was smuggled by boat to Europe.  He arrived in Italy and then travelled to another European jurisdiction where, as I have said, he has been granted asylum but has sought to revoke this.

(d)       His affidavit depicts a situation where he has whilst in the European jurisdiction in effect lived a life of fear and as a recluse.  Whilst away from his home for a short time, in 2017, he returned to find it had been vandalised and a knife was left on a table with a letter purporting to be from ISIS. 

(e)       He was moved to other cities in the European jurisdiction by the authorities but his location there is susceptible to being discovered by reason of the size of the ex-patriate Syrian community throughout the European jurisdiction and communication on social media about him. 

(f)        It is clear, and the Applicant accepts, that the European jurisdiction authorities have done their best to protect him.  There is no suggestion other than the police have taken a proper action when he has complained of matters to them, as I have said, the authorities have moved him in the European jurisdiction to different cities in the hope, presumably, that the persecution that he has experienced would end.  He is in receipt of a letter from the European jurisdiction authorities which he can present anywhere in that country to obtain assistance. 

(g)       As a result of his experiences, his mental health has suffered.  I do not need to go into the Psychological Report at length save, to say, for example, at paragraph 5.2.3 of her report, Dr Boucher says:-

"... To summarise [the Applicant] presented with the presence of some difficulties with schizoid, avoidant and dependent personality traits (though not on the level that would indicate a personality disorder), and clinical levels of post-traumatic stress disorder, anxiety, dysthymia and major depression."

(iii)      And, in her summary and opinion, Dr Boucher indicates that the Applicant is experiencing severe psychological distress which triggers chronic suicidal thoughts and that he would benefit from individual trauma focussed psychological therapy.  However, the Doctor goes on to say:-

"In my opinion, therapy will only have limited benefit if [the Applicant] feels that he is currently under threat.  For trauma based therapy to be effective, [the Applicant] will need to be in an environment where he feels safe.... This may explain why his previous experiences of therapy whilst in [the European jurisdiction] had little success, as he continued to feel his life was in danger."

(iv)      The Applicant has attempted suicide whilst in Jersey on more than one occasion and this is normally associated with his immediate apprehension that he will be returned to the European jurisdiction.

9.        The application for leave for judicial review is based upon three grounds. 

10.      The first ground is that the Respondent's decision to remove the Applicant without investigating whether or not he can be safely returned is a breach of the procedural requirements of Article 3 of the European Convention on Human Rights. 

11.      The second ground is that the decision to remove the Applicant was in breach of Article 3 of the Convention because he faces a real risk of inhuman degrading treatment on his return. 

12.      The third ground is that the Respondent's failure to consider all material matters is unreasonable or the decision to remove the Applicant was in all of the circumstances unreasonable. 

13.      In response, the Respondent argues that there is no requirement to give substantive consideration to a claim for asylum were the Applicant being returned to a safe country.  It is further asserted that enquiries were in fact made as to whether the Applicant could be returned safely. 

14.      This approach, it is argued, is correct and is in accordance with Rule 345 of the Jersey Immigration Rules which states:-

"(1) If the Minister or, in the case of a person arriving in Jersey, an Immigration Officer not below the rank of Senior Immigration Officer, is satisfied that there is a safe country to which an asylum applicant can be sent, his application will normally be refused without substantive consideration of his claim to refugee status. 

(2) A safe country is one which the life or freedom of the asylum applicant could not be threatened (within the meaning of Article 33 of the Geneva Convention) and the government of which would not send the applicant elsewhere in a manner contrary to the principals of the Convention...".

15.      It is argued by the Respondent that the European jurisdiction is a safe country.  Enquiries were made of the Home Office who responded that they "would usually assess that [the European jurisdiction] is a safe country". 

16.      The Respondent also asserts that the decision to remove the Applicant to the European jurisdiction from where he most recently came and where he has or has had refugee status is not in breach of Article 3 of the Convention.  The Respondent points to Protocol 24 to the Treaty on the Functioning of the European Union which states:-

"Given the level of protection of fundamental rights and freedoms by the member states of the European Union, member states shall be regarded as constituting safe countries of origin in respect of each other for all legal and practical purposes in relation to asylum matters."  

17.      Whereas that protocol does not apply in Jersey, it is relied on by the Respondent in support of the assessment of the European jurisdiction as a safe country.  The Respondent points to HLR-v-France [1998] 26 EHRR 29 in which the European Court of Human Rights said:-

"Owing to the absolute character of the right guaranteed [by Article 3 ECHR), the Court does not rule out the possibility that Article 3 may also apply where the danger emanates from persons or groups who are not public officials.  However, it must be shown that the risk is real and that the authorities of a receiving state are not able to obviate the risk by providing appropriate protection."       

18.      Furthermore, the Respondent relies on the statement of the Court in R (Bagdanaviciu) v Secretary of State to the Home Department [2005] 2 AC 668 in which Lord Brown at paragraph 24 stated:-

"In cases where the risk emanates from intentionally inflicted acts of the public authorities in the receiving country ... one can use those terms interchangeably: the intentionally inflicted acts would without more constitute the prescribed treatment.  Where, however, the risk emanates from non-State bodies, that is not so: any harm inflicted by non-State agents will not constitute Article 3 ill-treatment unless in addition the State has failed to provide reasonable protection... non-State agents do not subject people to torture or to other prescribed forms of ill-treatment, however violently they treat them; what, however, would transform such violent treatment under Article 3 ill-treatment will be the State's failure to provide a reasonable protection against it."  

19.      The Applicant refers to the case of CK-v-Slovenia.  For my purposes it is not necessary to refer to that case in length but at paragraph 74 and 75, the following is said:-

"74. In that context, it must be held that, in circumstances in which the transfer of an asylum seeker with a particularly serious mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in his state of health, that transfer would constitute inhuman and degrading treatment, within the meaning of that article. 

75. Consequently, where an asylum seeker provides, particularly in the context of an effective remedy guaranteed to him by Article 27 of the Dublin III Regulation, objective evidence, such as medical certificates concerning his person, capable of showing the particular seriousness of his state of health and the significant and irreversible consequences to which his transfer might lead, the authorities of the Member State concerned, including its courts, cannot ignore that evidence.  They are, on the contrary, under an obligation to assess the risk that such consequences could occur when they decide to transfer the person concerned or, in the case of a court, the legality of a decision to transfer, since the execution of that decision may lead to inhuman or degrading treatment of that person (see, by analogy, judgment of 5 April 2016, Aranyosi and Caldararu, C-405/15 and C-659/15 PPU. EU:C:2016:198, paragraph 88)."  

20.      And, at paragraph 96:-

"In the light of all of the foregoing considerations, the answer to Question 2, 3 and 4 is that Article 4 of the Charter must be interpreted as meaning that:

even where there are no substantial grounds for believing that there are systemic flaws in the Member State responsible for examining the application for asylum, the transfer of an asylum seeker within the framework of the Dublin III Regulation can take place only in conditions which exclude the possibility that that transfer might result in a real and proven risk of the person concerned suffering inhuman or degrading treatment, within the meaning of that article;

in circumstances in which the transfer of an asylum seeker with a particularly serious mental or physical illness would result in a real and proven risk of a significant and permanent deterioration in the state of health of the person concerned, that transfer would constitute inhuman and degrading treatment, within the meaning of that article;

it is for the authorities of the Member State having to carry out the transfer and, if necessary, its courts to eliminate any serious doubts concerning the impact of the transfer on the state of health of the person concerned by taking the necessary precautions to ensure that the transfer takes place in conditions enabling appropriate and sufficient protection of that person's state of health.  If, taking into account the particular seriousness of the illness of the asylum seeker concerned, the taking of those precautions is not sufficient to ensure that his transfer does not result in a real risk of a significant and permanent worsening of his state of health, it is for the authorities of the Member State concerned to suspend the execution of the transfer of the person concerned for such time as his condition renders him unfit for such a transfer, and

where necessary, if it is noted that the state of health of the asylum seeker concerned is not expected to improve in the short term, or that the suspension of the procedure for a long period would risk worsening the condition of the person concerned, the requesting Member State may choose to conduct its own examination of that person's application by making use of the 'discretionary clause' laid down in Article 17(1) of the Dublin III Regulation."     

21.      The Decision has potentially profound and far reaching effects on the Applicant and his future.  Given the evidence relating to the Applicant's particular circumstances and his experience in the European jurisdiction, and notwithstanding the undoubted and material efforts that the authorities in the European jurisdiction have undertaken to protect the Applicant, it appears to me that there are serious issues to be considered relating to the Applicant's human rights and how those interplay with the asylum regime in these particular circumstances.  Should in these circumstances an assessment of the merits of the Applicant's claim have been carried out?  There are, it seems to me, arguments on both sides.   

22.      In my judgement, there is an arguable ground for judicial review having a realistic prospect of success on consideration of the human rights issues although, of course, in making that assessment, I do not pre-judge what the eventual outcome might be. 

23.      However, in the circumstances, I grant the application for leave to apply for judicial review and I extend the stay on the Applicant's removal to the European jurisdiction until the Court shall have considered that application. 

Authorities

Sharma-v-Browne-Antoine (6) [2007] 1 WLR 780.

Warren-v-Lieutenant Governor [2017] (1) JLR 291. 

J-v-His Excellency the Lieutenant Governor of Jersey [2018] JRC 072A. 

HLR-v-France [1998] 26 EHRR 29. 

R (Bagdanaviciu) v Secretary of State to the Home Department [2005] 2 AC 668.