T & Ors, R (on the application of) v Secretary of State for the Home Department [2010] EWHC 3572 (Admin)

Case Nos. CO/1858/2010, CO/1995/2009, CO/8022/2010

[2010] EWHC 3572 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Tuesday 21 December 2010

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE DAVIS

Between

THE QUEEN ON THE APPLICATION OF TClaimant

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant

THE QUEEN ON THE APPLICATION OF MAClaimant

SECRETARY OF STATE for HOME DEPARTMENT

Defendant

THE QUEEN ON THE APPLICATION OF A

Claimant

SECRETARY OF STATE for HOME DEPARTMENT

Defendant

Computer-Aided Transcript of the Stenograph Notes of

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Mr Stephen Knafler QC, Ms Kathryn Cronin and Ms Amanda Poynor appeared for Claimants

Mr Steven Kovats QC appeared for Defendant

Hearing Hearing dates: 14 and 15 December 2010

J U D G M E N T

Introduction

[1]These are three linked cases. Each raises a question of some general importance. It arise in circumstances where an unaccompanied minor, not having a relevant family member legally present in any European Union Member State, comes to the United Kingdom and claims asylum having previously claimed asylum in another Member State. The question arising is this: is the unaccompanied minor liable to be removed under Article 6 of Council Regulation EC 343/2003 ("Dublin II") to the Member State where the an unaccompanied minor first lodged his or her application? The position of the defendant Secretary of State is that unaccompanied minors in such a situation are liable to be so removed. The position of the claimants is that they are not and that the Member State responsible for determining their applications for asylum is the one where the unaccompanied minors have most recently lodged their applications: that is to say, in the present cases, the United Kingdom.

[2]The issue is thus one of interpretation of provisions of Dublin II and in particular Article 6 of that regulation.

[3]On the face of these three sets of proceedings significant further issues are also raised. But these have been overtaken by events. In the case of the claimant BT the Secretary of State exercised her discretion undoubtedly available to her substantively to examine BT's application for asylum made in the United Kingdom. BT has now been granted refugee status. In the case of MA the Secretary of State has also agreed to consider her claim substantively, although the claim has not as yet been determined. In the case of A, his case was that he was a minor born on 24 November 1992, which was not disputed by the Secretary of State. On that basis he is by now an adult. Very shortly before the hearing before me, further materials were sought to be put before me seeking to suggest that in fact A still is a minor. The delay in formulating that new position on behalf of A was not cogently explained and, more importantly, the Secretary of State had had no chance to respond to such new allegations. If such a revised position is to be pursued, it must be done by appropriate amendment on proper notice and with leave of the court. For present purposes I proceed on the footing - if it be material to what I currently have to decide and I do not think that it is - that A has attained his majority.

[4]It was in such circumstances clear that - as Mr Knafler QC for the claimants and Mr Kovats QC for the defendant agreed - examination of all the issues currently raised in the proceedings and detailed investigation of the underlying facts was at this stage inappropriate. I add that the time allocated for the hearing before me would have been insufficient for such a purpose in any event.

[5]I raised a further point with Mr Knafler and Mr Kovats. Given that BT's and MA's asylum claims have been or are being examined substantively by the Secretary of State and given that A is, on present assumptions, now over 18, I queried whether I should engage in a decision even on the issues ultimately sought to be put before me for decision. Ordinarily a court would be reluctant to engage in consideration of legal matters which are or have become academic even if those legal matters are of a wider interest or importance. Mr Knafler and Mr Kovats submitted to me that I properly can and should deal with them in these cases. In particular I am told that a significant number of other cases - fourteen so far - have been stayed pending a legal ruling on the principal issue raised before me. Further, possibly such a ruling may continue to have a bearing in the case of BT who, as I will come on to say, was in fact removed to Italy before being returned to the United Kingdom and who challenges on a number of grounds the validity of such removal. Overall it does not seem very helpful if I were to decline to deal with these points when they may bear on other cases and when the parties had prepared for a full hearing to debate them.

[6]I was as it happened nevertheless asked to deal with one particular further issue. As ultimately formulated and put compendiously it comes to this: is the defendant Secretary of State, prior to any transfer under Dublin II, in all cases required, under her statutory duties and applicable policy and guidance, to consult the potential receiving Member State about transitional planning arrangements for that minor in that receiving State and to take into account such arrangements before deciding to transfer? Background Facts

[7]Before dealing with the argument on the two issues raised and my conclusions on them I will briefly set out the background facts relating to each of the claimants to explain the context in which these questions were initially raised. (1) BT

[8]BT is a national of Eritrea apparently born on 20 January 1993. On 12 August 2009 she arrived in the United Kingdom and claimed asylum the following day. An age assessment undertaken by the London Borough Council of Southwark accepted her date of birth as 20 January 1993. A screening interview was undertaken. On 27 August 2009 a Eurodac search showed that she had been fingerprinted in Italy on 18 August 2007. On 1 September 2009 the defendant requested Italy to take her back under Dublin II.

[9]There was an amount of dialogue between the Third Country Unit on behalf of the Secretary of State and social services within the London Borough Council of Southwark. On 29 August 2009 the Secretary of State certified BT's claim under paragraph 3 (2) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 on third country grounds. Removal directions were set (but not served) on 25 November 2009 for the 4 December 2009. On 30 November 2009 the Secretary of State consulted the Children's Champion about BT's case and same-day removal was authorised. On 1 December the Secretary of State notified Italy of the transfer arrangements, with the Southwark age assessment subsequently being sent. On 4 December 2009 BT was taken to the airport and removed to Italy. The claim form challenging such removal was issued on 9 February 2010, the claim being amended on 18 February 2010 to include a ground which raised the first issue before me.

[10]Consequent upon an order of Mr Justice Collins made on 18 February 2010, following an oral hearing for interim relief directed to take place by Mr Justice Blake on 9 February 2010, BT was returned to the United Kingdom (with the concurrence of Italy) on 26 February 2010. On 25 March 2010 the Secretary of State withdrew the third country certificate and told BT that her asylum claim would be considered substantively. BT was requested but declined thereafter to withdraw her proceedings. On 24 September 2010 BT was granted leave to remain until 24 September 2015.

[11]That brief summary is, I think, all that I need to say about the asserted background in BT's case to explain the context in which the two issues arise. I should however put on record that there is a very great deal of evidence put in relating to the circumstances prior to and of BT's initial removal from the United Kingdom to Italy on 4 December 2009. It is asserted, for example, that on her initial arrival as a child to Italy from Eritrea (after, it is said, very great hardship and suffering en route) BT suffered extreme hardship in Italy: ultimately being reduced to living on the streets and having to offer sex for money. It is asserted further that after her arrival from Italy in the United Kingdom there was insufficient discussion, so far as the Secretary of State was concerned, between the Third Country Unit and Southwark Social Services, Southwark expressing concerns about any removal of BT to Italy. It is further asserted that the manner of BT's same-day removal on 4 December was unnecessarily harsh. It is also asserted that BT again suffered a terrible time when returned to Italy. Such detailed evidential matters are, as is agreed, not for me at this hearing.

[12]As to the same-day removal of BT, Mr Justice Collins expressed himself in his interlocutory ruling of 18 February 2010 very strongly. The validity in principle of same-day removals has since been considered at length by Mr Justice Silber in R (Medical Justice) v Secretary of State for the Home Department

[2010] EWHC 1925

Admin. I was told that decision is the subject of an appeal by the Secretary of State. I was also told that the provision permitting such same-day removals under Dublin II is currently suspended. (2) MA

[13]I turn to set out the background with regard to MA. MA is also a national of Eritrea. It is said that she was born on 24 May 1993. She arrived in the United Kingdom on 25 July 2008 and claimed asylum on that date. There was a screening interview at that time. A Eurodac search showed that MA was fingerprinted in Italy on 13 August 2007 and 11 October 2007. On 12 August 2008 the Secretary of State requested Italy to take her back under Dublin II. An age assessment of the London Borough Council of Croydon accepted the age assessment of MA as consistent with a date of birth of 24 May 1993. Italy had failed initially to respond to the request but subsequently agreed on 13 October 2008 to take MA back. On 24 September 2008 the Secretary of State had certified MA's claim under paragraph 3 (2) of Part II of Schedule 3 of the 2004 Act on third country grounds.

[14]There was discussion between the Third Country Unit and MA's foster parent and social worker as well as consultation with the Children's Champion. MA briefly absconded from her foster family in order, it would appear, to avoid being removed. Arrangements for transfer on 26 January 2009 previously notified to Italy were, in consequence, cancelled. Further directions for removal on 26 February 2009 were set on 18 February 2009, although not served, and Italy was notified accordingly. After consultation by the Third Country Unit with the Children's Champion, same-day removal was authorised.

[15]There was, it is said, a degree of violence at the airport on 26 February 2009. The facts are in dispute. Suffice it to say that the removal directions were cancelled. Solicitors for MA then claimed that removal was unlawful. These proceedings were in due course issued on 2 March 2009. There was an agreed stay of proceedings for a time. Permission was initially refused on the papers but was granted by Mr Justice Collins on 18 February 2010, he directing joinder of the case with the case of BT. On 25 March 2010 the Secretary of State withdrew the third country certificate and indicated that MA's asylum claim would be considered substantively. Thereafter MA was invited but declined to withdraw the proceedings.

[16]Again, as with BT, it is alleged that MA suffered very great hardship in travelling from Eritrea to Italy and that when she arrived in Italy she became homeless and destitute. Once she was in the United Kingdom complaint, amongst other things, is made about alleged lack of consultation on the part of the Third Country Unit with social services and others in Croydon and about the same-day removal. Again, these are not matters for me. (3) A

[17]I turn to the background relating to A. A is an Iraqi national claiming to be of Kurdish ethnicity. The case has proceeded until the very recent assertions were raised on the footing that he was born on 24 November 1992. He arrived in the United Kingdom on 20 November 2009. He claimed asylum on 8 December 2009 when there was a screening interview. A Eurodac search showed that he was fingerprinted in the Netherlands on 26 February 2009. On 18 January 2010 the Netherlands were requested to take back A under Dublin II and agreed to do so on 2 February 2010. There was correspondence between A's solicitors and the Secretary of State and also discussion between the Third Country Unit and Nottinghamshire Social Services. On 5 July 2010 a certificate under the 2004 Act was issued on third country grounds. Representations against removal were made by Nottinghamshire Social Services but, on 14 July 2010, removal directions were set for 22 July 2010. On 15 July 2010 those directions were cancelled, apparently for want of an adult to accompany A to the airport. On 19 July 2010 proceedings were intimated on behalf of A and such proceedings were commenced on 26 July 2010. Further removal directions which had been set were cancelled in consequence.

[18]On 25 August 2010 permission was granted on the first issue only, the judge refusing permission on the other grounds advanced. An application to renew on those other grounds has been made. By consent, it was ordered on 5 November 2010 that A's proceedings be joined with those of BT and MA.

[19]It is said that A initially falsely claimed to the United Kingdom authorities that he had not applied for asylum elsewhere. The Eurodac search indicated that he had made the prior application in the Netherlands using a different name and age, giving a date of birth of 5 April 1988, and, as he was to say, having presented a made-up story as to why he could not return to Iraq. Prior to and in course of these proceedings detailed representations were made on behalf of A by reference to A's asserted physical and mental health problems as to why, so it is said, it was not in his best interests for him to be removed to the Netherlands. As I have said, very recently it has also been asserted that he still remains a minor notwithstanding what had been stated before. Legislative Background

[20]It is convenient at this stage briefly to set out the provisions of the relevant domestic legislation by reference to which the removal directions were initially set. Section 33 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 provides by sub-section (1):

"(1) Schedule 3 (which concerns the removal of persons to countries known to protect refugees and respect human rights) shall have effect."

Schedule 3 in Part II sets out a list of those safe countries, being European Union Member States and of course including Italy and the Netherlands. In part, it provides as follows:

"3 (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 — (a) from the United Kingdom, and (b) to a State of which he is not a national or citizen. (2) A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (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. 4 Section 77 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (no removal while claim for asylum pending) shall not prevent a person who has made a claim for asylum from being removed — (a) from the United Kingdom, and (b) to a State to which this Part applies; provided that the Secretary of State certifies that in his opinion the person is not a national or citizen of the State. 5 (1) This paragraph applies where the Secretary of State certifies that — (a) it is proposed to remove a person to a State to which this Part applies, and (b) in the Secretary of State’s opinion the person is not a national or citizen of the State. (2) The person may not bring an immigration appeal by virtue of section 92 (2) or (3) of that Act (appeal from within United Kingdom: general). (3) The person may not bring an immigration appeal by virtue of section 92 (4) (a) of that Act (appeal from within United Kingdom: asylum or human rights) in reliance on — (a) an asylum claim which asserts that to remove the person to a specified State to which this Part applies would breach the United Kingdom’s obligations under the Refugee Convention, or. (b) a human rights claim in so far as it asserts that to remove the person to a specified State to which this Part applies would be unlawful under section 6 of the Human Rights Act 1998 because of the possibility of removal from that State to another State. (4) The person may not bring an immigration appeal by virtue of section 92 (4) (a) of that Act in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly unfounded.

(b) "

It is by reference to these statutory provisions that the Secretary of State in the present cases certified and then set removal directions.

[21]As to the first issue relating to the interpretation of Article 6 of Dublin II, it is of course also necessary to refer to some of the provisions of Dublin II at length. Clearly it is necessary to consider the interpretation of Article 6 of that Regulation in the context of the whole of the Regulation. The Recitals to Dublin II must also be taken into account in assessing the purpose and meaning of Article 6. The following recitals in particular may be noted:

"(3) The Tampere conclusions also stated that this system should include, in the short term, a clear and workable method for determining the Member State responsible for the examination of an asylum application. (4) Such a method should be based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum applications. ..... (6) Family unity should be preserved in so far as this is compatible with the other objectives pursued by establishing criteria and mechanisms for determining the Member State responsible for examining an asylum application. ..... (8) The progressive creation of an area without internal frontiers in which free movement of persons is guaranteed in accordance with the Treaty establishing the European Community and the establishment of Community policies regarding the conditions of entry and stay of third country nationals, including common efforts towards the management of external borders, makes it necessary to strike a balance between responsibility criteria in a spirit of solidarity. (9) The application of this Regulation can be facilitated, and its effectiveness increased, by bilateral arrangements between Member States for improving communications between competent departments, reducing time limits for procedures or simplifying the processing of requests to take charge or take back, or establishing procedures for the performance of transfers. ..... (11) The operation of the Eurodac system, as established by Regulation (EC) No 2725/2000 and in particular the implementation of Articles 4 and 8 contained therein should facilitate the implementation of this Regulation."

[22]Chapter I of Dublin II is headed "Subject Matter and Definitions". By Article 1 it is provided as follows:

"Article 1 This regulation lays down the criteria and mechanisms for determining the Member State responsible for examining an application for asylum lodged in one of the Member States by a third-country national."

Article 2 contains various definitions. The definitions relating to "application for asylum", "applicant" or "asylum seeker", "unaccompanied minor" and "family member" may be particularly noted for present purposes. "Withdrawal of the asylum application" is stated to mean - "the actions by which the applicant for asylum terminates the procedures initiated by the submission of his application for asylum, in accordance with national law, either explicitly or tacitly."

[23]Chapter II is headed "General Principles". Article 3 provides as follows:

"Article 3 1 Member States shall examine the application of any third-country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible. 2 By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility. Where appropriate, it shall inform the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of or take back the applicant. 3 Any Member State shall retain the right, pursuant to its national laws, to send an asylum seeker to a third country, in compliance with the provisions of the Geneva Convention. 4 The asylum seeker shall be informed in writing in a language that he or she may reasonably be expected to understand regarding the application of this Regulation, its time limits and its effects."

[24]Article 4 provides as follows:

"Article 4 1 The process of determining the Member State responsible under this Regulation shall start as soon as an application for asylum is first lodged with a Member State. 2 An application for asylum shall be deemed to have been lodged once a form submitted by the applicant for asylum or a report prepared by the authorities has reached the competent authorities of the Member State concerned. Where an application is not made in writing, the time elapsing between the statement of intention and the preparation of a report should be as short as possible. 3 For the purposes of this Regulation, the situation of a minor who is accompanying the asylum seeker and meets the definition of a family member set out in Article 2, point (i), shall be indissociable from that of his parent or guardian and shall be a matter for the Member State responsible for examining the application for asylum of that parent or guardian even if the minor is not individually an asylum seeker. The same treatment shall be applied to children born after the asylum seeker arrives in the territory of the Member States without the need to initiate a new procedure for taking charge of them. 4 Where an application for asylum is lodged with the competent authorities of a Member State by an applicant who is in the territory of another Member State, the determination of the Member State responsible shall be made by the Member State in whose territory the applicant is present. The latter Member State shall be informed without delay by the Member State which received the application and shall then, for the purposes of this Regulation, be regarded as the Member State with which the application for asylum was lodged. The applicant shall be informed in writing of this transfer and of the date on which it took place. 5 An asylum seeker who is present in another Member State and there lodges an application for asylum after withdrawing his application during the process of determining the Member State responsible shall be taken back, under the conditions laid down in Article 20, by the Member State with which that application for asylum was lodged, with a view to completing the process of determining the Member State responsible for examining the application for asylum. This obligation shall cease, if the asylum seeker has in the meantime left the territories of the Member States for a period of at least three months or has obtained a residence document from a Member State."

[25]Chapter III is the crucial chapter for present purposes. It is headed "Hierarchy of Criteria". Articles 5 and 6 read:

"Article 5 1 The criteria for determining the Member State responsible shall be applied in the order in which they are set out in this Chapter. 2 The Member State responsible in accordance with the criteria shall be determined on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. Article 6 Where the applicant for asylum is an unaccompanied minor the Member State responsible for examining the application shall be that where a member of his or her family is legally present, provided that this is in the best interest of the minor. In the absence of a family member, the Member State responsible for examining the application shall be that where the minor has lodged his or her application for asylum."

[26]There then follows a series of Articles which I have borne in mind but need not be set out here, setting out further criteria as part of the hierarchy.

[27]Article 13 provides as follows:

"Article 13 Where no Member State responsible for examining the application for asylum can be designated on the basis of the criteria listed in this Regulation, the first Member State with which the application for asylum was lodged shall be responsible for examining it."

[28]Chapter IV is headed "Humanitarian Clause". By Article 15.3, the particular position of an unaccompanied minor with relatives in another Member State is addressed.

[29]Chapter V is headed "Taking charge and taking back". Article 16 provides in part as follows:

"1 The Member State responsible for examining an application for asylum under this Regulation shall be obliged to: (a) take charge, under the conditions laid down in Articles 17 to 19, of an asylum seeker who has lodged an application in a different Member State; (b) complete the examination of the application for asylum; (c) take back, under the conditions laid down in Article 20, an applicant whose application is under examination and who is in the territory of another Member State without permission; (d) take back, under the conditions laid down in Article 20, an applicant who has withdrawn the application under examination and made an application in another Member State; (e) take back, under the conditions laid down in Article 20, a third-country national whose application it has rejected and who is in the territory of another Member State without permission. ..... 4 The obligations specified in paragraph 1 (d) and (e) shall likewise cease once the Member State responsible for examining the application has adopted and actually implemented following the withdrawal or rejection of the application, the provisions that are necessary before the third-country national can go to his country of origin or to another country to which he may lawfully travel."

[30]Article 17 provides as follows: "Article 17 1 Where a Member State with which an application for asylum has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any case within three months of the date on which the application was lodged within the meaning of Article 4(2), call upon the other Member State to take charge of the applicant. Where the request to take charge of an applicant is not made within the period of three months, responsibility for examining the application for asylumshall lie with the Member State in which the application was lodged. 2 The requesting Member State may ask for an urgent reply in cases where the application for asylum was lodged after leave to enter or remain was refused, after an arrest for an unlawful stay or after the service or execution of a removal order and/or where the asylum seeker is held in detention. The request shall state the reasons warranting an urgent reply and the period within which a reply is expected. This period shall be at least one week. 3 In both cases, the request that charge be taken by another Member State shall be made using a standard form and including proof or circumstantial evidence as described in the two lists mentioned in Article 18(3) and/or relevant elements from the asylum seeker's statement, enabling the authorities of the requested Member State to check whether it is responsible on the basis of the criteria laid down in this Regulation. The rules on the preparation of and the procedures for transmitting requests shall be adopted in accordance with the procedure referred to in Article 27 (2).

[31]Article 18 sets out matters which the requested State is to undertake.

[32]Article 19 in the respects relevant to the present issues provides as follows:

"Article 19 1 Where the requested Member State accepts that it should take charge of an applicant, the Member State in which the application for asylum was lodged shall notify the applicant of the decision not to examine the application, and of the obligation to transfer the applicant to the responsible Member State. ..... 3 The transfer of the applicant from the Member State in which the application for asylum was lodged to the Member State responsible shall be carried out in accordance with the national law of the first Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request that charge be taken or of the decision on an appeal or review where there is a suspensive effect."

[33]Article 20 is in these terms:

"Article 20 1 An asylum seeker shall be taken back in accordance with Article 4 (5) and Article 16 (1) (c), (d) and (e) as follows: (a) the request for the applicant to be taken back must contain information enabling the requested Member State to check that it is responsible; (b) the Member State called upon to take back the applicant shall be obliged to make the necessary checks and reply to the request addressed to it as quickly as possible and under no circumstances exceeding a period of one month from the referral. When the request is based on data obtained from the Eurodac system, this time limit is reduced to two weeks; (c) where the requested Member State does not communicate its decision within the one month period or the two weeks period mentioned in sub-paragraph (b), it shall be considered to have agreed to take back the asylum seeker; (d) a Member State which agrees to take back an asylum seeker shall be obliged to readmit that person to its territory. The transfer shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request that charge be taken by another Member State or of the decision on an appeal or review where there is a suspensive effect; (e) the requesting Member State shall notify the asylum seeker of the decision concerning his being taken back by the Member State responsible. The decision shall set out the grounds on which it is based. It shall contain details of the time limit on carrying out the transfer and shall, if necessary contain information on the place and date at which the applicant should appear, if he is travelling to the Member State responsible by his own means. This decision may be subject to an appeal or a review. Appeal or review concerning this decision shall not suspend the implementation of the transfer except when the courts or competent bodies so decide in a case-by-case basis if the national legislation allows for this. If necessary, the asylum seeker shall be supplied by the requesting Member State with a laissez passer of the design adopted in accordance with the procedure referred to in Article 27 (2). The Member State responsible shall inform the requesting Member State, as appropriate, of the safe arrival of the asylum seeker or of the fact that he did not appear within the set time limit. 2 Where the transfer does not take place within the six months' time limit, responsibility shall lie with the Member State in which the application for asylum was lodged. This time limit may be extended up to a maximum of one year if the transfer or the examination of the application could not be carried out due to imprisonment of the asylum seeker or up to a maximum of eighteen months if the asylum seeker absconds. 3 The rules of proof and evidence and their interpretation and on the preparation of and the procedures for transmitting requests, shall be adopted in accordance with the procedure referred to in Article 27 (2). 4 Supplementary rules on carrying out transfers may be adopted in accordance with the procedure referred to in Article 27 (2)."

[34]Chapter VI contains provisions relating to administrative co-operation.

[35]Some initial general observations can be made on Dublin II.(1) First, by its recitals, it stresses the need for a clear and workable method of determining responsibility for the examination of an asylum application, with co-operation between Member States being expected.

(2) Second, the desirability of a rapid determination of responsibility is also stressed.

(3) Third, in terms of the stated purpose, as evidenced by the recitals, the position is, as it were, stated generically. While emphasis is placed on the need to safeguard family unity, no specific or separate purpose or treatment so far as the operation of the regulation is concerned with regard to children is stated.

(4) Fourth, Article 3.2 expressly confers a right of derogation empowering a State in its discretion to examine an asylum application even if that is not its responsibility under the criteria set out in Dublin II. That indeed is precisely what the Secretary of State has here done in the cases of BT and MA.

(5) Fifth, Article 4 and in particular Article 4.4 and Article 4.5 demonstrate an intention to have enforceable anti-avoidance provisions. Thus Article 4.5 in general terms has the effect that where an asylum seeker lodges an application in one State and then makes a further application in another State responsibility remains with the first State.

(6) Sixth, there are internal indications that total precision of draftsmanship has not been deployed in this Regulation.

[36]As to the second paragraph of Article 6 itself, it seems that there is no published Commission report explaining the precise rationale for or intent of such provision. I was told that there are no published papers at all of Commission or Council relating to it. In argument, I was also told that the second paragraph was added at a late stage: the original version as drafted contained only the first paragraph.

[37]Another point that should be borne in mind is that Dublin II is to be read in conjunction with other measures enacted by the Council with regard to asylum applications. The position is helpfully summarised by Lord Hoffmann in R (Nasseri) v Secretary of State for the Home Department

[2009] UKHL 23

[2010] AC 1

, which was a case of proposed removal of an adult to Greece under Dublin II. At paragraphs 24 and 25 of his opinion Lord Hoffmann said:

"24 The Dublin II Regulation, pursuant to which the Secretary of State proposes to remove Mr Nasseri, is part of an attempt by the European Union to co-ordinate its asylum laws with the eventual objective of having a Common European Asylum System, under which there will be a common procedure and uniform status, valid throughout the Union, for those granted refugee status: see recitals (2) and (5) of the Regulation. A key provision of the Regulation is that whichever Member State an asylum seeker first enters, whether by land, sea or air, is responsible for examining his application. If he moves on to another Member State, he may be sent back without substantive consideration of his case. There is a fingerprinting system ('Eurodac') to enable the authorities of Member States to detect multiple applications. 25 In addition to the Dublin II Regulation, the Council of Ministers has issued several directives intended to introduce greater uniformity into the treatment of asylum seekers. Directive 2003/9/EC ('the Reception Directive') lays down minimum standards for the reception of asylum seekers: the information with which they should be provided, documentation they must be given, material reception conditions and so on. Directive 2004/83/EC ('the Qualification Directive') concerns the minimum standards for the qualification and status of applicants as refugees and Directive 2005/85/EC ('the Procedures Directive') prescribes minimum standards for the procedures for granting and withdrawing refugee status."

Lord Hoffmann went on to say at paragraph 41:

"41 The KRS case appears to me to confirm the validity of the conclusions reached by Laws LJ in the Court of Appeal, which rested principally upon the fact that there was no evidence that anyone returned under the Dublin II Regulation had been removed to Iran, Afghanistan, Iraq, Somalia or Sudan. The ECHR also appears to have been of the opinion that there are limits to the extent to which one Member State of the European Union can be expected to police the asylum policy of another. The European Commission is responsible for enforcing the obligations of Member States under the Dublin II Regulation to process asylum applications which are their responsibility and to give effect to the asylum directives. Other Member States are entitled to assume - not conclusively presume, but to start with the assumption - that other Member States will adhere to their treaty obligations. And this includes their obligations under the European Convention to apply article 3 and give effect to the Rule 39 indications. There is no evidence that in respect of applicants returned under the Regulation, Greece has not done so."

Reference may also be made to paragraphs 49 and 50 of Lord Scott's opinion.

[38]To those directives mentioned by Lord Hoffmann may be added Regulation 2725/2000 EC concerning the establishment of Eurodac for fingerprint comparisons for the purposes of Dublin II and its predecessor. I note that this Regulation is not confined to adults only. Reference is also to be made to Regulation 1560/2003 EC which lays down detailed rules for the application of Dublin II. Article 7 of that Regulation relates to practical arrangements for transfers. Article 12 relates specifically to the situation of unaccompanied minors.

[39]Chapter IV of the Reception Directive itself also contains detailed provisions regarding those with special needs, including particular provision for minors and unaccompanied minors. Within that Chapter, Article 18.1 of the Reception Directive states that "the best interests of the child shall be a primary consideration" for Member States when implementing the provisions of the Reception Directive involving minors. A similar approach is specified in the Procedures Directive although, as Recital 29 provides, that does not directly apply to the procedures of Dublin II cases. In particular, Article 17 of that Directive may be noted. The First Issue

[40]An initial point needs to be made. It seems that until raised in these present proceedings the point now advanced by Mr Knafler has not previously been advanced in any other case or, if it has been, it has been rejected. The general assumption has been, both in terms of what the Secretary of State has previously done and in terms of various legal authorities where Dublin II has featured, that Dublin II does apply to unaccompanied minors (without family members legally present in a Member State) in a way very broadly corresponding to adults: that is, that they are liable to be returned to the Member State where his or her asylum application was first lodged. That likewise appears to be the assumption in other Member States. No domestic authority or textbook or European case was cited to me to support the proposition advanced now on behalf of the claimants. Indeed this point was not even initially raised in the proceedings issued by BT and MA.

[41]Mr Knafler frankly acknowledged that this point had not occurred to the claimants' advisers until they saw the short written reasons given by Mr Justice Blake in ordering an oral hearing to consider the application for an interim injunction in the case of BT. In those reasons Mr Justice Blake, who, of course, has considerable experience of asylum and immigration cases, stated without either equivocation or elaboration:

"If the claimant was under 18 she should not have been removed at all."

Thereafter Mr Justice Collins granted permission. He said that the point was "clearly arguable".

[42]There is however direct authority going the other way. That is to be found in the decision of Mr Justice Lightman in R (Mosari) v Secretary of State for the Home Department

[2005] EWHC 1343

Admin. There, in a reasoned final judgment in a case involving an unaccompanied minor being returned to Hungary under Dublin II, Mr Justice Lightman said (in paragraph 6 and confirmed in paragraph 9), with no less equivocation than Mr Justice Blake:

"It is clear that under the Regulation in this case examination of the claimant's application for asylum is a matter for Hungary which is the Member State where the claimant made his first application for asylum and where he was when that application was made."

It is not clear if the point was substantively argued before Mr Justice Lightman, and, in any event, the case was primarily directed at other matters. Whilst it is persuasive, I of course agree with Mr Knafler that it is not binding on me.

[43]The submissions of Mr Knafler and Mr Kovats - and I intend no disrespect to their careful and detailed arguments if I summarise them fairly shortly - come to this.

[44]Mr Knafler's submissions were, in summary, to the following effect.(1) The actual hierarchy of criteria is to be found in Articles 6 to 14 of Dublin II. Article 5 is not itself part of such hierarchy but rather sets out how applications are to be treated by the Member State responsible.

(2) The wording of the second paragraph of Article 6, in particular the phrase "has lodged", is to be contrasted with the wording of the immediately preceding Article 5.2. Article 5.2 expressly uses the phrase "first lodged": exactly reflected also as a phrase in Article 4.1 and, in effect although not exactly, reflected also in Article 13.2. The second paragraph of Article 6 however - and conspicuously so, he says - does not use the phrase "first lodged". That, he says, connotes an intended distinction.

(3) The second paragraph of Article 6 is thus to be read as connoting that the responsible Member State is the one where the unaccompanied minor has most recently lodged his or her asylum application. That, it is submitted, accords with the language used and would be consistent with the purpose stated in the recitals: since such a conclusion is clear and workable and makes it possible rapidly and easily to determine the Member State responsible.

(4) Such an interpretation can be read consistently with other provisions found in Dublin II such as Articles 16.1, 19.3 and 20.2.

(5) To the extent that the unaccompanied minor has previously lodged an application in another Member State, the procedures for that earlier application can be taken as "tacitly" terminated as contemplated by the definition in Article 2 (a). (I note however that in this context Mr Knafler did not explain how the first Member State could always necessarily know that.)

(6) Mr Knafler acknowledged that such an interpretation gives rise to an approach very different from that applicable under Dublin II to an adult asylum seeker who has previously made an asylum application in another Member State. But he submits that that is not surprising: just because unaccompanied minors are unaccompanied minors. One would expect, he submits, the regulation to promote the best interests of unaccompanied children and, in the absence of family unity cases, to seek to avoid a "pass the [human] parcel" situation. The paramountcy given to unaccompanied minors, he submits, is borne out by the very fact that unaccompanied minors feature first in the hierarchy under Chapter III and Article 6.

(7) In this regard he also draws attention to the lack of any proviso relating to the best interests of the minor contained in the second paragraph of Article 6 in contrast with the first paragraph. The lack of such proviso in the second paragraph, he suggests, is to be explained by the fact, as he asserts it to be, that such application is to be examined by the Member State where it was most recently lodged.

(8) While the provisions of Article 4 are clearly designed, at least in part, to prevent abuse, that cannot be readily thought to apply to children who, by virtue of their age and vulnerability are not to be taken as persons falling within an abusive category of manipulative applicants.

(9) So to interpret Article 6 would accord with the spirit of international conventions such as, for example, the UN Convention on the Rights of the Child.

[45]Mr Kovats' submissions were to the following effect.(1) Dublin II, on any view, contemplates that unaccompanied minors may be returned to another Member State (see, for example, the first paragraph of Article 6 and see Article 15.3). That is also confirmed by Article 12 of Regulation 1560/2003.

(2) Article 5.2 is consistent with Article 4.1. Those provisions mandate ("shall") that the application is to be examined by one Member State and the process of determining the Member State responsible starts as soon as an asylum application is first lodged.

(3) The claimants' interpretation of the second paragraph of Article 6 is not consistent with Article 4.1 or Article 5.2.

(4) Article 4.5 is a clear restriction designed to prevent the operation of Article 4.1 being avoided by the making of a second or further application in another Member State. There is nothing, either in the Recital or in Article 4 to restrict the application of such "general principles" to adults.

(5) The claimants' interpretation, he says, involves writing in words (viz, "most recently"). The defendant's interpretation, he says, does not. The words "has lodged" read in context mean what they say and naturally relate to the Member State where the unaccompanied minor had first lodged his application. That accords precisely with the overarching provision as to the treatment of applications contained in Chapter III in Article 5.

(6) Such an interpretation as advanced by the Secretary of State is itself clear and workable and capable of rapid determination just as with adults.

(7) There is nothing in the Recitals or General Principles to indicate that so different a position as advanced by the claimants is intended to apply to unaccompanied minors (without family present in a Member State) as compared to adults: and such a situation could give rise to complexity.

(8) So far as the interests of the unaccompanied minors are concerned, that is capable of being addressed as a matter of generality by operation of directives such as the Reception Directive and as a matter of particularity in an appropriate case by exercise of the derogation power in Article 3.2. Further, if there is to be removal of an unaccompanied minor then, as Recital 8 connotes, there can be presumed to be the appropriate degree of co-operation by the receiving State. It is for those reasons that there was no need to provide a requirement of "best interests" in the second paragraph of Article 6.

(9) If the claimants were right, an unaccompanied minor or individual claimant to be an unaccompanied minor could make several applications in Member States, each of which would be required to examine it, at all events until and unless it was established that it was withdrawn.

[46]I should add that Mr Knafler and Mr Kovats were in agreement that Article 6 provided, as it were, an internal comprehensive position for the purposes of the hierarchy under Dublin II, such that if an individual unaccompanied minor came within Article 6 the subsequent criteria set out in Articles 7 to 14 would not apply. Disposition on the First Issue

[47]I accept Mr Kovats' submissions. In my view the interpretation advanced by the Secretary of State is the correct one, and I agree with the conclusion of Mr Justice Lightman in Mosari.

[48]The first and important point, as it seems to me, is that there is no nothing whatsoever in the recitals to Dublin II to give rise to the notion that serial applicants who are unaccompanied minors without family are to be treated - for the purpose of deciding who is the Member State responsible for examining the application under the Regulation - in a way profoundly different from serial adult applicants. Second, and no less importantly, Chapter II contains general principles applicable to Dublin II. Article 3.1 makes clear that an application is to be examined "by a single Member State". Article 4.1 makes clear that the process of determining the Member State responsible "shall start as soon as an application for asylum is firs lodged with a Member State". Further, the anti-avoidance provisions of Articles 4.4 and 4.5 are not modified with regard to unaccompanied minors. All this, in my view, tells against Mr Knafler's interpretation.

[49]I also do not think that the use of the phrase "has lodged" in the second paragraph of Article 6, naturally read, has the meaning Mr Knafler would apply to it. The provisions of Articles 3.1, 4.1 and 5.2 are all proceeding on the basis of there being one application required to be examined and determined by one Member State which ordinarily is the first Member State where the application is lodged. Set in context, in my view, that is precisely what the second paragraph of Article 6 connotes: that is to say, in the present cases, Italy, Italy and the Netherlands respectively. In my view Mr Knafler's interpretation departs from this context and requires impliedly reading in words such as "most recently" which are not there. Per contra, there was no need or reason explicitly to write into the second paragraph of Article 6 the word "first" just because the context indicates that that would be so anyway. Likewise, it was not thought necessary to write in the word "first" in the context of the phrase "was lodged" as used in Article 4.5.

[50]Further the content and operation of the provisions contained in Chapter IV as to taking charge and taking back are at least consistent with the Secretary of State's interpretation.

[51]I do acknowledge the general force of Mr Knafler's arguments with regard to the position and potential vulnerability of unaccompanied children without family present in a Member State. But it would be an important policy matter to cause the operation of Dublin II to diverge from the stated General Principles. As I have said, such divergence is not indicated either by the Recitals or General Principles themselves or by the actual language of Articles 5 and 6. Further, accepting Mr Kovats' submission, I agree that the welfare of an unaccompanied minor is in various respects to be the subject of the provisions relating to consultation contained in Dublin II, for example, Articles 19.3 and 20.1 (d), and in the Reception Directive and in other directives, as well as in the general presumption of co-operation. A case of course can also, where appropriate, be the subject of derogation under Article 3.2.

[52]I was, interestingly, shown a detailed written submission by the European Council on Refugees and Exiles submitted in 2007. That makes ten recommendations for reform of Dublin II. The seventh recommendation relates to Article 6. It is expressly stated in the submission that such Article requires that the asylum application of an unaccompanied minor (without a family member legally present in a Member State) should be considered in the Member State where it was first lodged. It is said in the submission that the application of this can cause hardship. The recommendation is that Article 6 be amended so that (in the absence of a family member legally present in a Member State) the Member State responsible for examining the application shall be that where the minor has "currently" lodged his or her application. There may or may not be considerable merit in that recommendation. That is not a matter for me. The point is that in my view the European Council on Refugees and Exiles was right to proceed on the footing that amendment to Article 6 of Dublin II was needed to achieve such a result.

[53]I therefore conclude, accepting the Secretary of State's argument on this issue, that an unaccompanied minor claiming asylum (having no family member legally present in a Member State) is liable to be removed under Dublin II to another Member State where he or she has first made an asylum application.

[54]In his written argument Mr Knafler did briefly suggest, as an alternative, a reference on this issue to the Court of Justice. He noted that the Court of Appeal had recently directed a reference in NS (Saeedi)

[2010] EWCA Civ 990

. That arose on a particular point arising in the context of returns under Dublin II of adults to Greece, a situation different from the present. In oral argument Mr Knafler did not really pursue that suggestion. So far as I am concerned, I do not think this an appropriate matter for me, as a High Court judge, to direct to be the subject of a reference.

[55]Finally on this issue, I would for the record add that I was given some details relating to returns of unaccompanied minors from the United Kingdom to other Member States under Dublin II. Although I gather that the figures are not necessarily exact or agreed, according to a Parliamentary answer given on 5 March 2010, there were - with regard to unaccompanied minors removed by the United Kingdom under Article 6 of Dublin II, and it may be not necessarily just under the second paragraph - seventy-nine removals in 2004, one-hundred-and-three in 2005, fifty-one in 2006, forty in 2007, twenty-five in 2008 and thirty-six in 2009. Second Issue

[56]I turn to the second issue. I have felt particular concern as to whether I should be dealing with it at all in the absence of being required to make findings as to the specific factual context in each case. However, as I have indicated above, I was persuaded that it may assist if I deal with this point: although I am not prepared to range further as some of Mr Knafler's detailed argument might have suggested.

[57]Mr Knafler, in support of his arguments, in fact sought to rely on recently adduced materials such as a statement by Miss Judith Dennis of the Refugee Council, dated 8 December 2010, and in particular a detailed letter from a team manager of the Unaccompanied Asylum Seeking Children's Team of Solihull Metropolitan Borough Council dated 10 December 2010. Quite why this material was put in so late was not really explained. At any event, and more importantly, the Secretary of State had had no sufficient chance to respond. In such circumstances I ruled that I would not have regard to such materials for the purposes of the hearing before me.

[58]The overall submission by Mr Knafler was that in all Dublin II cases the Secretary of State was, before deciding whether or not to remove an unaccompanied minor, always required to consult the prospective receiving Member State as to the "concrete transitional planning arrangements", as he described them, planned by the receiving State after reception of the unaccompanied minor. The overall submission by Mr Kovats was that the Secretary of State was not, as a matter of generality, invariably required so to consult. Mr Kovats however conceded that there may be special cases where such a degree of consultation may be required.

[59]So far as Dublin II itself is concerned, I think it reasonably clear that no consultation of the kind urged by Mr Knafler is required.

[60]Articles 19.3 and 20.1 (2), in the context of taking charge and taking back, stipulate that there is to be "consultation between the Member States concerned" with regard to "the transfer" to be carried out. Consultation as to what? I agree with Mr Kovats that the answer is essentially to be found in Regulation 1560/2003. Articles 7, 8 and 10 of that Regulation deal specifically with practical arrangements, transfers, co-operation on transfers and transfers following acceptance by default. Those in terms relate to the timing, place and practical detail of the transfer itself. There is nothing in that Regulation or any other related Regulation or Directive or Dublin II itself to require consultation about post-reception or transitional planning arrangements for the minor. On the contrary, the consultation is to relate to the transfer itself: without moreover any stated distinction between adult and unaccompanied minor. Thereafter, arrangements subsequent to transfer are a matter for, for example, the Reception Directive.

[61]As Mr Kovats also pointed out, Dublin II itself contains no mechanism for prohibiting a transfer on the ground of asserted inadequacy of post-reception arrangements: although it can again be pointed out that in any individual case Article 3.2 of Dublin II gives the Secretary of State the right of derogation. Furthermore Directive 2005/85 EC, the Procedures Directive, relates to the minimum standards for granting and withdrawing refugee status. Recital 29 makes clear that such Directive does not deal with procedures under Dublin II. But in Article 17 which relates to unaccompanied minors, Article 17.6 states in terms that the "best interests" of the child shall be a primary consideration for Member States implementing the Article. It seems to me that such a consideration is to be regarded as likewise applicable for receiving Member States of unaccompanied minors sent back under Dublin II.

[62]Ultimately, Mr Knafler in effect acknowledged the force of Mr Kovats' arguments by reference to Dublin II and related Regulations or Directives. Instead, Mr Knafler placed prime emphasis on domestic legislation and policies. In this regard, Mr Knafler submitted that the best interests of a minor was a primary consideration. That being so, he submitted, it was unreal to separate a decision to set removal directions under Dublin II for an unaccompanied minor without regard to what, in transitional planning terms, might await that minor not only on but also after reception in the receiving Member State. He cited the general observations of Lord Justice Keene in CL (Vietnam) v Secretary of State for the Home Department

[2008] EWCA Civ 1551

where this was said at paragraph 21:

"21 In the case of a child applicant, it would seem to be difficult for a decision-maker to carry out a proper assessment of the effect of removal on the child's right to a private life without considering the circumstances which would await that child upon removal. Those circumstances must surely include in most cases the adequacy of reception and care arrangements for the child in the receiving country. If they were inadequate, there might be serious consequences for the child's physical and mental well being. It seems to me to be impossible for that aspect of the assessment to be taken away from the Immigration Judge and left to the Secretary of State, since the judge would then be having to decide the Article 8 claim on only some of the facts and with only part of the picture."

[63]One can readily see the clear general force in that. But that was said in a debate by reference to Article 8 in the context of prospective removal of an unaccompanied minor to a non-Convention Member State. So far as a receiving Member State is concerned, the authorities clearly show, as it seems to me, that sending States are entitled to start with the presumption (albeit, and importantly, a rebuttable presumption) that the receiving State will comply with its obligations under EU law and Directives and under international treaties (see, for example, Nasseri cited above and Mosari cited above at paragraph 15). There have been attempts, unsuccessful thus far, to show that such presumption is to be displaced on the evidence with regard to a particular Member State: as illustrated by, for example, the cases of Nasseri (relating to return of adults to Greece) and EW

[2009] EWHC Admin 2957

(relating to return of adults to Italy). I note that permission to appeal in the latter case was refused (see

[2010] EWCA Civ 508

). Such cases go to confirm that the relevant presumption is rebuttable providing that the necessary evidence is forthcoming and as was not so in those particular cases.

[64]Mr Kovats, as I have said, did not dispute that the Secretary of State may be required in a particular case and in particular circumstances to give consideration to post-reception arrangements before deciding to transfer. He also stated to me that in practice the Secretary of State generally takes into account her general knowledge of how the receiving State deals with the reception of asylum claimants. He also submitted, rightly in my view, that the question of the Secretary of State consulting with a receiving State as to the arrangements planned for a minor in that State was not to be wholly equated with the Secretary of State having regard to the circumstances of the individual minor within the United Kingdom.

[65]So far as the operation of the 2004 Act is concerned, paragraph 345 of the Immigration Rules makes clear that there is no general obligation to consult the authorities of the receiving State before removal.

[66]Mr Knafler referred me to the provisions of Section 1 of the Children Act 1989 which of course stipulates that a child's welfare shall be the paramount consideration with respect to, amongst other things, the determination of a question regarding the upbringing of a child. That Act has no application in the context of asylum cases (see R (Tiame) v Secretary of State for the Home Department

[1995] 1 FLR 293

). Nor does Section 11 (2) of the Children Act 2004 have any application since the Secretary of State, exercising asylum and immigration functions, is not a person or body listed as one to whom that Act is applicable under Section 11 (1).

[67]What is potentially in point however is Section 55 of the Border Citizenship & Immigration Act 2009 which came into force on 2 November 2009. That indeed uses language corresponding to that of Section 11 (2) of the Children Act 2004. It does apply to the Secretary of State exercising, amongst other things, any function in relation to immigration, asylum or nationality. Mr Kovats conceded, clearly rightly, that this applies to removal decisions under Dublin II of the kind illustrated by present cases.

[68]Accordingly, the Secretary of State is required to make arrangements for ensuring that those functions are discharged "having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom". Mr Kovats submitted that that does not apply to events happening after removal to a Member State country. Any complaint about post-reception events should, he said, be taken up with that receiving State, citing Nasseri and EW for that purpose. Elaborating on that in his argument, he explained that in the absence of cogent grounds to the contrary the Secretary of State was ordinarily entitled, in accordance with cases such as Nasseri, to rely on the presumption - applicable, he says, as much to minors as to adults - that a receiving Member State would comply with the relevant minimum requirements of EU law, including the Reception Directive and the Procedures Directive and including international treaties.

[69]I agree with that general proposition. Were it otherwise, the United Kingdom would, in effect, be required as a starting point to police or distrust the standard of arrangements in other Member States which, as Lord Hoffmann explained in Nasseri, is not to be expected.

[70]For his part, Mr Knafler nevertheless maintained that prior to any removal of an unaccompanied minor under Dublin II, the Secretary of State was, in each and every case, required to consider whether the child's welfare would be promoted by being sent to another State. He said that in every such case it was necessary prior to any removal for the Secretary of State to "compare and contrast" the "concrete arrangements" for such child in the United Kingdom as requesting State with the "concrete arrangements" for such child in the requested Member State. Only by that means, he submitted, could the best interests of the child be properly assessed and taken into account by the Secretary of State in each case and the child's welfare be promoted and safeguarded. Mr Knafler further submitted that such an approach would at least be consistent with

Article 8 of the European Convention on Human Rights

: although he did not go so far as to say that Mr Kovats' approach would not be.

[71]Mr Knafler referred me to the provisions of the United Nations Convention on the Rights of the Child, in particular Articles 2 and 3 - "the best interests of the child shall be a primary consideration" - 12 and 22. He also referred me to the Asylum Process Guidance relating to Third Country cases - Referring and Handling, the most recent version being issued, as I was told, on 26 July 2010. That, by paragraph 1.2, requires officers to have due regard to Section 55 of the 2009 Act and provides that the duty included demonstrating fair treatment meeting the same standard that a British child would receive. I was also referred to paragraph 7 which, amongst other things, requires the Third Country Unit to notify the relevant local authority's children's services department, requires that the child be given the opportunity to state his or her views and also requires referral to the Children's Champion.

[72]The extent to which consultation with the local authority and the child is necessary and the implications are not matters on which I am asked to pronounce. I cannot see anything in any of this positively to require the Secretary of State always first to consult about the prospective post-reception arrangements in the receiving Member State.

[73]I was then referred to the policy statement "Every Child Matters" issued in November 2009 under Section 55 of the 2009 Act. Amongst other provisions, paragraph 1.14 deals with individual children and includes taking account of their wishes and feelings. Paragraph 2.7 stipulates that - "Every child matters even if they are someone subject to immigration control," and that, in accordance with the Convention on the Rights of the Child, "the best interests of the child will be a primary consideration." Paragraph 2.18 contains provisions relating to work with individual children, including a situation where an unaccompanied minor is being escorted to a port for removal.

[74]The policy statement is, it has to be said, and as Mr Kovats commented, drafted at quite a high level of generality. There is, in particular, no stated requirement that consideration always must first be given, prior to removal, to individual reception or post-reception planning arrangements by receiving Member States with regard to a particular unaccompanied minor in a Dublin II case.

[75]Accordingly, I do not accept Mr Knafler's submission which really is to the effect that Section 55 of the 2009 Act and guidance issued under it of themselves have the effect of displacing the rebuttable presumption that a receiving State will comply with the obligations that it is under to have regard to the interests of the child.

[76]Potentially also in point is the current version of the Enforcement Instructions and Guidance. Chapter 26 relates to asylum claims relating to unaccompanied children. In paragraph 26.4 it is stated:

"Removal of unaccompanied children During the course of their consideration, NAM case owners may, establish the likelihood of removal should the asylum claim fail. Where a case is referred to an enforcement office to effect removal: • establish with the country to which the child is to be removed that adequate reception arrangements are in place; • liaise with the children's services and/or nominated guardian with responsibility for care of the child in the UK to ensure the removal is effected in the most sensitive manner possible; • consider the need for escorts to accompany the child."

[77]That, I agree, does connote an obligation to establish with the country to which the child is to be removed that "adequate reception arrangements" are in place. But that is speaking quite generally and not in the Dublin II context. In any case, "reception arrangements" are not necessarily to be equated with post-reception or post-handover arrangements. It may be noted that paragraph 26.4 is stated to apply in a situation where an officer is to "effect removal" and so is directed at removal and reception, not post-reception matters.

[78]In any case, it seems to me that paragraph 26.4 is not be taken as applying in its generality to Dublin II removals of unaccompanied minors. For Dublin II removals are the subject of express treatment in Chapter 28 of the Enforcement Instructions and Guidance. There is no requirement in that Chapter for first establishing that adequate post-reception arrangements are in place. I appreciate that Chapter 28 applies to Dublin II removals generally without differentiating, it seems, between adults and unaccompanied minors: whereas Chapter 26 applies to unaccompanied minors, on the face of it, generally. In my view, Chapter 28 reflects Dublin II itself. There is no specific requirement in Chapter 28 of the Enforcement Instructions and Guidance stipulating that it must be established that there are adequate reception arrangements in place in the case of removals of unaccompanied minors under Dublin II. That, in my view, is to be explained in the case of Member States precisely because of the existence of the various obligations contained as to consultation in Dublin II and in Directives such as the Reception Directive and because of the presumption that a receiving Member State will apply the applicable law and treaties. To the extent that Mr Justice Cranston in R (J) v Secretary of State for the Home Department

[2009] EWHC Admin 1182

(in paragraph 26) may have indicated a different view on the meaning of paragraph 26.4 of the Enforcement Instructions and Guidance and on the relationship between Chapter 26 and Chapter 28, I must express my respectful disagreement.

[79]I was referred in argument to the recent decision of Mr Justice Wyn Williams in R (TS) v Secretary of State for the Home Department

[2010] EWHC Admin 2614

. That was a case of proposed removal of an unaccompanied minor under Dublin II from the United Kingdom to Belgium. With regard to transitional post-handover arrangements in Belgium, Mr Justice Wyn Williams said:

"73 I accept that the decision maker in this case was entitled to expect that Belgium would comply with its obligations towards an unaccompanied child seeking asylum under the EU Instruments specified above, the UN Convention on the Rights of the Child and the ECHR. I appreciate that the defendant has adduced no evidence in these proceedings to demonstrate that the decision maker had any actual knowledge of how the claimant would be treated upon his removal to Belgium. However the decision maker asserts that UKBA knew that Belgium had at least the equivalent health care service to that available in the United Kingdom. I have no reason to doubt what he says. Accepting that factual premise, it was open to him to conclude that the claimant would receive appropriate medical treatment for his psychiatric illness (whatever its state of severity) upon arrival in Belgium. 74 There is no basis to conclude that the claimant's welfare would not be appropriately safeguarded during the process of removal so far as reasonably possible - although I accept, of course, that the evidence before the decision maker was that removal in itself would impact adversely on the claimant's psychiatric health. 75 I am more concerned about the apparent failure to address the social and educational aspects of the claimant's welfare upon his arrival in Belgium. There is no evidence before me to show that UKBA had any specific knowledge of how these aspects of the claimant's welfare would be catered for in Belgium. This is not a theoretical point in this case. I assume that a decision under the Dublin II Regulation is normally made within weeks or at most a few months. In the instant case the claimant had spent about a year in England becoming more and more fluent in the English language and becoming more and more integrated into an English community. In my judgment on the particular facts of this case, at least, some attention was necessary on the part of the decision maker as to what would occur in relation to schooling and the wider aspects of the claimant's welfare upon his arrival to Belgium. 76 In my judgment in the one respect identified in the paragraph immediately above this ground of challenge probably has some substance. That said, I regard my finding under this ground of challenge not as a freestanding criticism of the decision in this case but rather an aspect of the decision maker's failure to have regard to the need to safeguard and promote the welfare of the clamant. Consequently, my finding under this ground is inextricably bound with my finding on ground a)."

[80]Mr Kovats submitted to me that he was not concerned to challenge the correctness of that decision provided it was understood that, as Mr Justice Wyn Williams emphasised at paragraph 75, that was a decision on its own particular facts. This acceptance indeed reflects Mr Kovats' general approach: which was not that there was a hard and fast bright-line rule that the Secretary of State is never required to consult a receiving State under a Dublin II removal of an unaccompanied minor with regard to its planning arrangements for such child on and after reception or to consider such arrangements prior to deciding to remove.

[81]For his part, Mr Knafler expressed reservations about aspects of Mr Justice Wyn Williams' approach, in particular the judge's approach to the mental health issues relating to TS and to the judge's reliance on the presumption as stated in paragraph 73 of his decision in that regard. It seems to me that TS was a decision made in a particular factual context and, as I have explained, I am not required in the present cases at this stage to go into the facts of the cases before me. Certainly TS is no support to Mr Knafler's general proposition as advanced to me. Indeed it tends against it, as indicating that a presumption can indeed exist in this context, albeit it may be rebutted in appropriate factual circumstances. Disposition on Second Issue

[82]My conclusion overall on this second issue therefore is again broadly to accept the arguments advanced on behalf of the Secretary of State. In a Dublin II context the Secretary of State is not, in the case of unaccompanied minors (and of course again leaving aside those having family members legally present in a Member State) invariably required first to take into account, before seeking to transfer, concrete transitional planning with regard to such minor in the proposed receiving Member State. Such requirement, in my view, only arises in circumstances where cogent grounds are adduced so as to call for such matters to be taken into account before such removal is to be effected.

[83]Before leaving this issue, I should say that I am not sure in practice if it will make much difference in cases of contested removals. A prima facie cogent challenge with regard to the prospective transitional arrangements in a receiving State is likely to be raised, where it is raised, as part of a wider challenge as to the decision to remove from the United Kingdom: for example, whether sufficient account has been taken as to whether removal would safeguard the welfare of the minor or whether sufficient account has been given as a primary consideration to the best interests of the child and so on. TS is indeed an illustration of that scenario.

[84]I stress this because aspects of Mr Knafler's arguments went well beyond the issue I was actually being asked to address. I repeat that the issue of the level of consultation and consideration concerning the best interests and welfare of the child within the United Kingdom is a wider issue, not appropriately discussed in the absence of an evaluation of the facts in a particular case. What I would, however, record is that Mr Knafler and Mr Kovats indicated that they raised no challenge with the general approach in this respect of Mr Justice Wyn Williams as illustrated in paragraphs 26 to 36 (and see also paragraphs 45 to 48) of his judgment in TS. Conclusion

[85]In the result, I conclude on the principal issue that each of the claimants was in principle liable to removal under Article 6 of Dublin II. As I have said, other matters raised in these proceedings have been overtaken by events.

[86]I will hear counsel as to the impact of my decision on the further conduct of these cases and as to any consequential matters.

[87]MR KOVATS: The parties are extremely grateful to your Lordship for delivering judgment before the end of term.

[88]The Secretary of State's position is that the appropriate order for the court to make is this. In the case of both BT and MA the court should - - - - -

[89]MR JUSTICE DAVIS: I will direct that initials be used in the case of all three claimants subject to any further order.

[90]MR KOVATS: In the cases of BT and MA, their claims should be dismissed. If so advised, they can bring any damages claim but there is no reason why it should be holding up the Administrative Court. In the case of DA, he was granted permission only on the Dublin point. He has lost on that so the appropriate order is for permission to be refused on his other grounds and his claim to be dismissed.

MR JUSTICE DAVIS: He has applied to renew.

[92]MR KOVATS: That is what I said. The appropriate order is for permission to be refused on the other grounds and for the claim to be dismissed on the ground on which permission is granted. Alternatively if your Lordship thinks that he ought to have permission on his other grounds - - - - -

[93]MR JUSTICE DAVIS: How can I prevent him from reviewing his other grounds which have not been debated before me?

[94]MR KOVATS: At the moment the position is he is an adult so his other grounds fall away for the same reason as the MA and BT transfer. If he wants to raise this question that he is in fact still a minor then in our submission he needs to make a fresh claim. That is the best way to do it. So, in other words, get rid of this one. If so advised, he can make a fresh claim saying he is still a minor.

MR JUSTICE DAVIS: So you want all the claims kicked out?

[96]MR KOVATS: Yes.

MR JUSTICE DAVIS: Before we get on to that, what about making the declaration on the first point?

[98]MR KOVATS: If we are right, we do not need a declaration. It is sufficient for our purposes to look at your Lordship's judgment and for the order to say that the claim has been dismissed.

MR JUSTICE DAVIS: You are not asking for a declaration.

[100]MR KOVATS: We are not asking for a declaration.

[101]MR JUSTICE DAVIS: Plainly, subject to anything else, it is not appropriate to make a declaration in your favour on the second issue which has been somewhat elusive.

[102]MR KOVATS: Yes.

MR JUSTICE DAVIS: On the first issue, you think a declaration is not going to be very valuable.

[104]MR KOVATS: We are, with respect, entirely happy to rely on your Lordship's judgment. Certainly, in my experience, it is extremely rare for the Secretary of State, if she wins, to seek a declaration rather than simply looking at the judgment and having a claim discussed - - - - -

[105]MR JUSTICE DAVIS: I appreciate Mr Knafler may think a declaration would be more in point. You are not asking for a declaration.

[106]MR KOVATS: We are not asking for a declaration, no.

MR JUSTICE DAVIS: Mr Knafler, what do you say about the form of relief I should grant.

[108]MR KNAFLER: If your Lordship was minded to grant a declaration there was a particular passage in your judgment which I have not got down word for word but I made a note of it, just before you dealt with the matter of a possible reference to the CJEU. You delivered a paragraph that would form the basis of a declaration in favour of the Secretary of State. As far as we are concerned, our submission is that it would crystalise your judgment for that declaration to be made and, in the event of any appeal, it would form a convenient focus for that if that was the course the claimants ultimately took. We would invite the court to make one.

[109]MR JUSTICE DAVIS: I do not think I can grant a declaration simply to facilitate an appeal. My greater difficulty is that if I make a declaration it would be really in favour of the defendant and the defendant is not asking me to.

[110]MR KNAFLER: As a matter of practice in this jurisdiction, declarations I have seen granted specifically for that purpose so as to form a focus for an appeal. It would be rather unusual to grant one in the face - - - - -

MR JUSTICE DAVIS: If a party does not want it.

[112]MR KNAFLER: - - - - - of any resistance.

[113]MR JUSTICE DAVIS: My judgment says what it says for those who feel they can look at it. I think if Mr Kovats does not want a declaration I will not make one. There is the second issue which I do not think ever would I do not think ever would have been the subject appropriate for declaration in any event.

[114]MR KNAFLER: There is that paragraph there - - - - -

MR JUSTICE DAVIS: You can look at that.

[116]MR KNAFLER: - - - - - which rather stands out I think, the conclusion, the analysis.

[117]MR JUSTICE DAVIS: If anyone wanted a declaration but they do not. What do you say about his submission that all the proceedings should be dismissed?

[118]MR KNAFLER: On BT's case, my understanding of the Secretary of State's position statement coming in was that any claim for damages can and should be dealt with in the County Court before the QBD and that the Secretary of State would not object to those claims being adjourned pending the Court of Appeal's judgment in the Medical Justice case. That is what I had thought the position would be at the conclusion of these proceedings whether we won or lost, that BT's claim, and it specifically BT's damages claim - - - - -

MR JUSTICE DAVIS: I am not aware that damages is being claimed as a remedy in the other two cases.

[120]MR KNAFLER: No. It is specifically BT. But her claim, my understanding was that that was the brief position. I am certainly submitting that that ought to be the order that your Lordship makes, that her damages claim is stayed pending decision in the Medical Justice case. After that the parties are to consider whether she needs any further relief in the Administrative Court in order to pursue her damages claim and then to consider whether, if not, it should go to a County Court.

[121]MR JUSTICE DAVIS: As I said at an earlier stage of the argument, it is pragmatic grounds this damages claim. I say nothing about the rights and wrongs. What this case has really really been about is can she stay in the United Kingdom, and she can.

[122]MR KNAFLER: Yes.

[123]MR JUSTICE DAVIS: Whatever may be said by BT about the way in which she was initially removed, the Secretary of State has been prepared to exercise discretion when on a strict legal sense she would have waited for the courts to rule. I just wonder. I do not want to give encouragement to the idea that a lot of money is going to be spent pursuing a claim for damages. It may not be a very good thing.

[124]MR KNAFLER: Yes. What your Lordship raised earlier on is certainly not forgotten. It will be considered in a number of different ways.

[125]MR JUSTICE DAVIS: You need time to consider this. Your team needs time to consider this.

[126]MR KNAFLER: Yes. The draft order that I set out acknowledged what your Lordship indicated earlier by including the expression if the claim has not settled the parties will need to consider whether public law relief is sought.

[127]MR JUSTICE DAVIS: You said the balance of BT's claim should be adjourned for further consideration with liberty to apply. Effectively that is what it comes to.

[128]MR KNAFLER: Yes.

MR JUSTICE DAVIS: What about MA?

[130]MR KNAFLER: MA, I accept that there is no - - she accepts no further relief beyond the relief on the two points that she sought and that your Lordship has dealt with.

MR JUSTICE DAVIS: The problem in her case, it was an academic case because she was not even removed.

[132]MR KNAFLER: No. I accept that in MA's case - - - - -

MR JUSTICE DAVIS: So that claim can be dismissed.

[134]MR KNAFLER: Yes.

MR JUSTICE DAVIS: What about A?

[136]MR KNAFLER: A's case, as we flagged up in our position statement, raises some genuinely tricky issues. The relatively easy issues are these. In my submission on what one might call conventional public law points of the kind dealt with by Mr Justice Wyn Williams in TS, A's claim was manifestly arguable.

[137]It is conceded in fact by the Secretary of State that on at least one point there was a failure to comply with the third country APG in that there was no referral to the Office of the Children's Champion. We have identified at least two further failures to comply with the procedures in the APG. There was a failure to provide the care plan and the age assessment to the Netherlands authorities. Perhaps more importantly, the Secretary of State wrote an almost identical letter in the case of A stating that there were no exceptional or compelling circumstances why removal should not take place, wrote an almost identical letter to the letter written in TS which Mr Justice Wyn Williams said manifested a completely wrong approach inconsistent with Section 55 of the 2009 Act which resulted in him quashing the decision to remove TS.

[138]In a sense, that may be the relatively easy part of the case. We say that not only is A's challenge through his renewed application to the particular decision made in his case arguable, we say that in the light of TS it is almost bound to succeed. The difficulty is what then happens afterwards.

MR JUSTICE DAVIS: Are there still outstanding aspects of A's claim which still need to be resolved?

[140]MR KNAFLER: We would say all of that because suppose A establishes - - - - -

MR JUSTICE DAVIS: If he is still a minor you have what I call your TS points.

[142]MR KNAFLER: If he is still a minor, yes. Let us say that he is - - at the moment the only material before the court is that he is an adult. We do not know. We have material, I do not think your Lordship has seen it. There is material indicating that a number of his teachers believe that he is a minor. That will be sent to the local authority. They will carry out an age assessment. They will agree with it or disagree with it.

MR JUSTICE DAVIS: His teachers believe that he is a minor?

[144]MR KNAFLER: Yes.

MR JUSTICE DAVIS: That is admissible evidence, is it?

[146]MR KNAFLER: I am asking the court to look at it but it is highly relevant material for the local authority when the local authority conducts a further age assessment. That is the process.

[147]MR JUSTICE DAVIS: These things are so arbitrary because you can get physically immature 16 year olds with a mental capacity of a 25 year old. You can get very physically mature 19 year olds with a mental capacity of a 6 year old. These things all get so arbitrary.

[148]MR KNAFLER: That is the strength - - - - -

MR JUSTICE DAVIS: Anyway 18 is the cut-off.

[150]MR KNAFLER: - - - - - of A's case because he has always claimed to have this earlier date of birth. It was not accepted by the local authority in the course of their initial age assessment. But at that time they had only had dealings with A for a very short period of time, a matter of a few days. His teachers have seen him over the course of about a year. They have had prolonged contact with him. A number of them are fairly satisfied that he is the age he has always claimed to be. That material will go to the local authority with a request that they reconsider. If they reconsider and decide that he is still a minor then ordinarily the Secretary of State would accept that, but is not strictly obliged to. That is all outside of these proceedings and that particular process - - - - -

[151]MR JUSTICE DAVIS: What you would say is it is hardly convenient if it is your case that he is still a minor for you to have to start fresh proceedings all over again, and you would rather use these proceedings and amend as appropriate.

[152]MR KNAFLER: That is one point. Another point is this. Suppose A is not re-assessed as being an adult, A's position is that he - if allowed to do so - can establish that the Secretary of State's decision to remove him back in July 2010 was an unlawful decision. Ordinarily, unlawful decisions are quashed, leaving the Secretary of State free to make any fresh decision that she is advised to make. What the Secretary of State is seeking to do - I do not mean that in any pejorative sense - in this case is not to litigate the lawfulness or otherwise of the decisions that she made in July 2007 but still to use them as a basis for now removing A as an adult, and that is a completely new point in our understanding which has not been considered or litigated.

[153]MR JUSTICE DAVIS: What I need to know from you, Mr Knafler, because I have not looked into all the wider aspects obviously, are there still outstanding issues extant on A's claim?

[154]MR KNAFLER: Absolutely, on those two heads.

MR JUSTICE DAVIS: So far as MA is concerned, you accept that everything is now resolved?

[156]MR KNAFLER: Yes. I do.

MR JUSTICE DAVIS: BT and MA, still possibly outstanding; A still possibly outstanding matters?

[158]MR KNAFLER: Yes.

[159]MR JUSTICE DAVIS: I have to consider the question of relief. Mr Kovats, who has succeeded on the principal issue, has indicated that he does not seek a declaration. While I might have been receptive to making a declaration, if the party who has won does not ask for it I do not propose to push it on that party. Therefore I will grant no declaratory relief.

[160]The question remains as to what is to be done with these claims. Mr Knafler accepts that so far as the case of MA is concerned, everything now of any practical import has been decided and accordingly her claim is dismissed. So far as BT is concerned, it may be that there are still outstanding matters, including perhaps the issue of damages relating to her removal to Italy. While I repeat what I said earlier in argument that I hope a pragmatic view will be taken as to the wisdom of pursuing that, I cannot shut out at this stage BT from pursuing claims if properly pursued. Therefore the balance of her claims will be adjourned for further consideration with liberty to apply.

[161]Likewise, on the basis of what Mr Knafler has told me, there still may be extant matters relating to A. It may be also that an application to amend will be made as well. So the balance of the issues in that case will also be adjourned for further consideration with liberty to apply. Obviously the hope is that all such outstanding matters can be the subject of agreement. If so, a written order can be lodged as agreed by the parties.

[162]Costs?

[163]MR KOVATS: We do not ask because there is no money to pay us.

[164]MR JUSTICE DAVIS: The practicalities. I will say no order as to costs. Do you need legal representation orders?

[165]MR KNAFLER: Yes.

[166]MR JUSTICE DAVIS: I grant you. Do you have any objection?

[167]MR KOVATS: No. Given that BT has insisted on her claim being adjourned, I think in order to protect my client's position - just in case further down the line there is an award of damages - I will ask for costs in her case subject to the usual proviso of Section 11 of the Access to Justice Act.

[168]MR JUSTICE DAVIS: No, Mr Kovats. It has all to be taken together. So far as the further issues are concerned, your position is reserved as to costs. If these claims are pursued the outcome will dictate the result in practice.

[169]MR KOVATS: So be it.

[170]MR JUSTICE DAVIS: So far as the hearing before me is concerned, no order as to costs; legal aid representation.

[171]Do you want to apply for permission to appeal, Mr Knafler?

[172]MR KNAFLER: Yes. I am instructed to apply on both limbs. I do not know if it would assist, given all the recent argument, to expand on that. The first point obviously is a point of general importance.

[173]MR JUSTICE DAVIS: What worries me about the second point is, first, although you tried to pin it down, in practice it has to be set in the context of the wider considerations of best interests prior to removal such as are discussed by Mr Justice Wyn Williams. It is quite a narrow point, is it not? Simply there is a presumption to be relied upon but it is capable of being rebutted.

[174]MR KNAFLER: Yes. I think the difficulty with the second point, if I may put it in this way, is that the duty to consult, as, I think, you rightly indicated, is not found by us ultimately in Dublin II but in Section 55 and the guidance under Section 55. The way I would put it briefly here is that the presumption that one finds in Nasseri simply does not engage fully or fully satisfy the statutory duty to have regard to the need to safeguard and promote the welfare of children.

[175]MR JUSTICE DAVIS: I can understand the force of that if I had been asked to go rather further than I was. What do you say about the first issue?

[176]MR KNAFLER: General importance, first. Secondly, a matter of construction, different tribunal taking a different view as they say. Whilst one can see the force, with respect, of arguments derived from what is in the preambles, I suppose the lack of any clear basis for a radically different approach to children than to adults, equally in my submission it is fairly clear that a different tribunal could place a much greater emphasis or different emphasis on the language of Article 6 and in particular the structure of Chapter 3 given that the point is of such importance.

MR JUSTICE DAVIS: Possibly you might also Mr Justice did not seem to think that Dublin II applied.

[178]Mr Kovats, I need not trouble you about the question of permission to appeal on the second issue. What do you say about the first issue?

[179]MR KOVATS: Two very brief observations: first, whilst we acknowledge it is a matter of importance, we would submit there is no reasonable prospect of a Court of Appeal coming to a different conclusion.

MR JUSTICE DAVIS: I can ignore what Mr Justice Blake and Mr Justice Collins, for example, said.

[181]MR KOVATS: With all due respect to Mr Justice Blake, I think even he would not say that was a considered judgment.

[182]MR JUSTICE DAVIS: Of course, he had no argument. One must assume this is something he must have thought about before this.

[183]MR KOVATS: The second observation still in relation to this point is, for the same reason that the parties asked you to deal with this at all, we submit that there is a public interest in resolving this with finality at the earliest opportunity, and that reinforces my first objection, namely that there is no reasonable prospect of the Court of Appeal disagreeing. So to give permission to appeal would, we submit, simply have the undesirable effect of prolonging uncertainty.

MR JUSTICE DAVIS: There are fourteen cases thus far hanging on my decision on the first issue.

[185]MR KOVATS: Yes.

MR JUSTICE DAVIS: This point is not confined to itself, is it? There are other cases.

[187]MR KOVATS: No. We positively rely on the fact that this is not a case relying on itself. We submit the clarity of your Lordship's judgment and there is no reasonable prospect that the Court of Appeal would find otherwise.

[188]MR JUSTICE DAVIS: Mr Knafler, I propose to grant you permission to appeal on the first issue. I do not think it appropriate to grant you permission to appeal on the second issues. I do not think the matter will be improved by that matter being before the Court of Appeal. If the Court of Appeal takes a different view that is for the Court of Appeal.

[189]MR KNAFLER: Can I ask you to extend time for lodging an appeal, that it does not run until we get the transcript.

[190]MR JUSTICE DAVIS: Not only that but also the holiday coming up. How long do you want?

[191]MR KNAFLER: I think it has gone back up to 21 days. I would ask for 21 days after the transcript.

[192]MR JUSTICE DAVIS: I do not like doing it by reference to that. I will give you a fixed time from today. I do not like doing it from the date of transcript because you never know when it is going to be. I just want your indication. How long do you want? Assume you get back the revised transcript by the middle of January, I am not going to re-write the judgment.

[193]MR KNAFLER: I think the time we need would be much more to consider our position on the second issue than to formulate grounds on the first. We would want to do the two things at the same time. If we could have perhaps until something like 26 February to be on the safe side; I believe it is a Friday.

[194]MR JUSTICE DAVIS: I will grant you an extension of time until Tuesday 1 February. If you need any further extension you will have to go to the Court of Appeal for it.

[195]I am not going to give a direction but in many ways this is a matter that might be best heard with expedition in the Court of Appeal, but that is a matter for the Court of Appeal to direct. This point has now surfaced. Fifteen cases have been affected by it so far.

[196]MR KOVATS: I mention one matter by way really of clarification. Does the grant of permission to appeal extend to the case of MA given that the other two - - - - -

[197]MR JUSTICE DAVIS: I was thinking about this. Mr Knafler is going to try to get a peg on which to hang his appeal. He can only appeal against an order. He cannot appeal against a judgment, as you know. It seems to me that he is possibly entitled to appeal against my dismissal of MA's case because he would have been asking for a declaration in favour of MA, I suspect.

[198]MR KOVATS: It was not a point I was planning to take but to avoid any embarrassment of BT and DA being told there is no final decision, in that case I will say no more about that.

[199]MR JUSTICE DAVIS: Given that we are adjourning the outstanding issues with regard to BT and DA, an open-ended adjournment is not acceptable. Can we have a time limit? If no steps are taken it can stand dismissed. Alternatively, I could say parties to required to notify the court within four months of today with regard to the position of BT and MA (sic). If they do not do so, they will stand dismissed.

[200]MR KOVATS: I have no objections to it.

[201]MR JUSTICE DAVIS: We cannot leave it. Can you the two of you draft up an order to reflect all this, what I have decided? So four months from today. I will also indicate that if any further matters do require to be dealt with by the Administrative Court, I will reserve those matters to myself if available. I stress "if available" for obvious reasons for the Administrative Court. If you get the minute of order? Is there anything else?

[202]MR KOVATS: No.

[203]MR KNAFLER: It has been mentioned that in A's case there is a stay on removal currently. Yes, that continues.