Yussuf, R (on the application of) v Secretary of State for the Home Department [2005] EWHC 2847 (Admin)

Case No CO/1114/2004[2005] EWHC 2847 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 8th November 2005
Strand
London WC2
B E F O R E:
MR JUSTICE BEAN
Between
THE QUEEN ON THE APPLICATION OF YUSSUFClaimant-v-
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR E NICHOLSON (instructed by Wilson & Co) appeared for CLAIMANTMISS E GREY (instructed by the Treasury Solicitor) appeared for DEFENDANT
J U D G M E N T
[1]MR JUSTICE BEAN: The claimant is 19 years old and a citizen of Somalia. He already has several siblings with leave to remain in this country as refugees. Three of his sisters were granted indefinite leave to remain on this basis by the Secretary of State. A fourth sister was recognised as a refugee in Finland, but now lives in the UK. The claimant's half brother was granted refugee status and indefinite leave to remain in this country in October 2004.[2]The claimant left Somalia but did not come directly to this country. It is not necessary to set out the details of his journey from Somalia via Ethiopia, then back to Somalia and on a boat heading towards Europe. The boat ran into difficulties and its passengers were picked up by the authorities in Greece. Greece is designated as a safe country and scheduled as such to the most recent statute.[3]The claimant alleged in a witness statement of 26th March 2004 that he was detained in seriously adverse conditions in Greece and beaten up while being interrogated. He alleges that after three months in detention he was released and told to leave the country. What is not in dispute is that he arrived in the United Kingdom clandestinely on 7th October 2003, made a claim for asylum six days later and was served with an one-stop notice the following day. His original statement of additional grounds in response to the one-stop notice raised the issue of his family links but not his alleged ill-treatment in Greece. As I say, that allegation came in a witness statement some five months later.[4]By a decision letter of 8th January 2004, the Secretary of State certified under section 11(2) of the Immigration and Asylum Act 1999 that the authorities in Greece had accepted responsibility under the Dublin Convention regulation for examining the claimant's application for asylum, that by virtue of section 11(1) of that Act (as it then was) Greece is regarded as a safe country and that the claimant was not a national or citizen of Greece.[5]By an application lodged on 4th March 2004 judicial review was sought, and by a letter of the same date the Secretary of State certified that in his opinion the allegation that the claimant's return to Greece would breach his Human Rights under Articles 3 and 8 of the ECHR was clearly unfounded. The result, as the letter pointed out, if that certificate is upheld is that although the claimant has a right of appeal under section 82(1) of the 2002 Act, it could only be exercised from outside this country.[6]The claim as put by Mr Nicholson for the claimant is essentially on three bases. Firstly, that irrespective of the claimant's stay in Greece, the Article 8 claim was sufficiently exceptional to be one which was not bound to fail, to use the familiar phrase from the House of Lords in the Yogathas case, and that therefore, on that ground alone, the certificate should not be upheld. Secondly, Mr Nicholson argues that given the history of this case the claimant would be at risk of having his Article 3 rights breached if returned to Greece. Thirdly, that material supplied by the United Nations High Commission on Refugees gives ground for concern that an asylum seeker who lands in Greece and who does not pursue his substantive claim in that country because of (as in this case) going to another country or otherwise, may be unable to obtain proper substantive consideration of his claim in Greece on being returned to Greece and may thus be subject to a violation of the principle of non-refoulement in refugee law.[7]The second and third bases of claim raise major issues as to the interaction of the Dublin Convention with the principles of Articles 3 and 8 relating to asylum seekers and other refugees, but in view of my conclusion on the first issue, which is that if the claimant succeeds on this application it is unnecessary to deal with them. I will simply record that Miss Eleanor Grey for the Secretary of State vigorously contended and would have argued in detail, had we got that far, that the second and third claims were hopeless in law and that the principles of the EC's Dublin Convention regulation would be undermined if I were to uphold them.[8]To return to the Article 8 point, it is of course trite law following the decisions of the House of Lords in Razgar and the Court of Appeal in Huang that an Article 8 claim must be truly exceptional in order for an applicant to be entitled to leave to remain in the United Kingdom notwithstanding that he or she has no right to do so under the Immigration Rules or other statutory provisions.[9]In the case of someone who relies on family life with siblings, as opposed to a spouse or partner or parents or children, the hurdle is a very high one to jump. As Arden LJ said in the case of Kugathas [2003] EWCA Civ 31, on which Miss Grey relied, at paragraph 25:
"Because there is no presumption of family life, in my judgment a family life is not established between an adult child and his surviving parent or other siblings unless something more exists than normal emotional ties: see S v United Kingdom (1984) 40 DR 196 and Abdulaziz and othersv United Kingdom [1985] 7 EHRR 471. Such ties might exist if the appellant were dependant on his family or vice versa. It is not, however, essential that the members of the family should be in the same country. The Secretary of State accepts that that possibility may exist although in my judgment it will probably be exceptional. Accordingly, there is no absolute rule that there must be family life in the UK as the Immigration Appeal Tribunal held."
[10]I respectfully agree. The general proposition is obvious. There are routinely (I would say almost every day) appeals in the immigration and asylum system based on the natural wish of people to come and join their brother or sister in the United Kingdom which are unsuccessful. But this is not an ordinary case. I agree with the observations of the Immigration Appeal Tribunal, Ouseley J presiding, in the case of H (Somalia) [2004] UK IAT 27 at paragraph 14 that:
"It cannot be right to approach the disruption to family life which is caused by someone having to flee persecution as a refugee as if it were of the same nature as someone who voluntarily leaves or leaves in the normal course of the changes to family life which naturally occur as children grow up."
Here it is not simply that the claimant has, on his case, fled Somalia because of the real risk of persecution, it is that he has no family except in the United Kingdom. He has several siblings who have been granted leave to remain here as refugees from persecution and so the factor identified by the Immigration Appeal Tribunal in H (Somalia) is magnified several times.[11]Miss Grey also relied on the very recent decision of Leveson J in (R on the application of) Djassebi and others v Secretary of State for the Home Department [2005] EWHC 2298. This also was a case challenging a decision of the Secretary of State to certify as clearly unfounded the representation made by the claimants that to return them to Greece pursuant to the Dublin regulation would be in breach of their rights under Articles 3 and 8 of the Strasbourg Convention. So, in procedural form the case was identical to the present one. But it was not identical on the facts. The claimants were a married couple who were said to be dependant on the husband's sister who arrived in the United Kingdom -- apparently not as an asylum seeker, possibly as a child of an asylum seeker -- and at some stage thereafter married a British citizen and so became entitled to remain here. Leveson J noted at paragraph 39 that prior to April 2004 when the claim was made the husband had been separate from his mother (who was the other possible link establishing family life apart from the sister) for at least three years and his sister for the best part of six years. The sister, as a British citizen, was free to travel to Greece. Leveson J found that Article 8 rights were engaged, as plainly they were, and moved on to proportionality. He said:
"There is no question but that the decisions taken by the Secretary of State were in pursuit of the lawful operation of immigration control and I recognise that any interference with family life in returning a person to another member state is, save in truly exceptional circumstances, inevitably going to be proportionate. After all, even assuming that an application to the Greek authorities to request the authorities in this country to assume responsibility for a claim pursuant to Article 15 of the Dublin regulation fails, the effect of returning the claimant to Greece will be limited to requiring the Greek authorities to determine their claim for asylum and will include an analysis of their position under the ECHR. If the claim is found to be made out the claimant will be able to remain in Greece or move to this country. If it is not, there is no reason to consider that it would have fared better in this country. I repeat that I have sympathy for the position of the claimants and recognise the assistance that [the sister] has provided to them. Nevertheless, I am afraid that I am clear that the evidence in this case does not start to meet the criteria of exceptional circumstances sufficient to defeat the legitimate operation of immigration control. Indeed, I do not see it as exceptional at all. The condition of the claimant is far from exceptional and is commonplace in those seeking asylum in this country in circumstances such as theirs. All those who claim asylum with family members in this country prepared to look after them through this time in their lives will be in a similar position. A contrary claim is, in my judgment, bound to fail. The Secretary of State was therefore entitled to conclude that the claims were clearly unfounded ... There is no reason to believe that the approach of the Greek authorities will be any less favourable to the claimant's asylum claim from what might have been the approach in this country. The claimant will remain with the protection which the ECHR provides for them."
[12]It does not appear that Leveson J's attention was drawn to the material on which Mr Nicholson was going to rely in support of his claims alleging ill-treatment in Greece and the possibility of refoulement, but beyond that I say nothing about the claims.[13]In contrast to the Djassebi case of a couple relying on a British citizen sister in a family where it does not appear that anyone had successfully made an asylum claim here in the United Kingdom, the present case is one where there have already been at least three successful asylum claims in the United Kingdom and a fourth in Finland (now living here) among the claimant's siblings. It is not for me to decide whether the claimant's claims under Article 8 or otherwise will succeed. I only have to decide whether they are bound to fail. In the light of the exceptional facts to which I have drawn attention, I take the view that on Article 8 grounds alone they are not bound to fail. It seems to me that the claimant is entitled to put his case to an immigration judge. What the outcome of that will be is not for me to say.[14]I therefore quash the certificate granted by the Secretary of State that the claims were clearly unfounded. The Secretary of State will no doubt consider whether it would be more convenient and practicable for the asylum issues to be considered alongside the Human Rights issues, but in view of the fact that this is a Dublin Convention case it would not be right for me to seek to make any order to that effect. I must leave it to the Secretary of State.[15]Any other matters to be dealt with?[16]MR NICHOLSON: My Lord, I would seek to apply for our costs in this matter. As far as I can see you have quashed the certification of the claim. That was the issue upon which we were granted permission and I would say we must be entitled to our costs.

MR JUSTICE BEAN: Do you require a CLS assessment as well?

[18]MR NICHOLSON: Yes, my Lord.

MR JUSTICE BEAN: Miss Grey?

[20]MISS GREY: We would have no answer to the request for costs. In the circumstance of this case, however, your Lordship will appreciate that the trees that have been cut down have been as a result of the Article 3 points. The claim as determined by your Lordship is a relatively short point. This case has been anything but. Taking the matter very crudely, one might say that this point on which your Lordship gave judgment should perhaps represent a third of the costs. On that basis, my Lord, I would respectfully submit that it would be appropriate either to make no order as to costs or alternatively to make the Secretary of State pay a maximum of a third of the claimant's costs. The case could have been quite short but it has been considerably longer.[21]MR NICHOLSON: My Lord, I understand my learned friend's point. It is certainly the case that we have succeeded on one of the three issues identified. I think that in those circumstances I cannot resist the application presented in that way. Perhaps the most sensible route, my Lord, would be to make a no order as to costs, save for public funding.[22]MR JUSTICE BEAN: Yes. Well, in view of that very fair attitude I will say no order as to costs except for Community Legal Service detailed assessment of the claimant's costs.[23]MISS GREY: My Lord, there is another matter. We have some difficulty in the circumstances because one has not had an opportunity to take instructions. It is, of course, the convention that I should apply to your Lordship for leave to appeal rather than going straight to the Court of Appeal. I can either make that application now or your Lordship can extend time for that application to be made. If your Lordship is sitting in this jurisdiction for another week or so --

MR JUSTICE BEAN: Only until Thursday.

[25]MISS GREY: Well, I do not know whether or not your Lordship might still think it is more convenient to extend time for seven days for written submissions to be made in support of any application for leave to appeal. Otherwise I will make the application here and now.[26]MR JUSTICE BEAN: I am quite content that you should make it in writing with a copy to Mr Nicholson to submit observations if you want to. Presently, my view, without having heard or read any submissions, is that the decision on point 1 is very fact specific. The decision on points 2 and 3, as I have indicated, would have had the Court of Appeal if not House of Lords written all over it. I will not stop you if, having taken instructions, you would like to make an application; it should be made in writing within seven days and copied to Mr Nicholson. He can then have seven days to reply and it will all be sent up to me in Leeds where I shall be conducting a murder trial, and I will give you the decision in writing.[27]MISS GREY: My Lord, I am grateful. It is rather more satisfactory than a knee jerk application on my part.

MR JUSTICE BEAN: Yes.

[29]MISS GREY: Thank you very much.

MR JUSTICE BEAN: Thank you both very much for your assistance.

Cited in 1 later judgment