Troitino, R (on the application of) v National Crime Agency & Ors [2017] EWHC 931 (Admin)

Case No CO/874/2017[2017] EWHC 931 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/04/2017
Before
LORD JUSTICE BURNETTMR JUSTICE OUSELEY
Between
THE QUEEN (on the application ofClaimantANTONIO ARRANZ TROITINO)Claimant
Ms Laura Dubinsky and Ms Jelia Sane (instructed by Birnberg Peirce & Partners) for ClaimantMr Malcolm Birdling (instructed by the National Crime Agency) for DefendantMs Julie Anderson and Mr Myles Grandison (instructed by the Government Legal Department) for 1 st Interested PartyMr Ben Lloyd (instructed by the Crown Prosecution Service) for 2 nd Interested PartyHearing Hearing date: 24 March 2017
Judgment
[1]This is the judgment of the Court prepared by Ouseley J.[2]The Claimant seeks permission to apply for judicial review of the action of the Defendant National Crime Agency, NCA, in seeking to extradite him to Spain. On 25 November 2016, the Divisional Court dismissed his appeal from the order for his extradition by Senior District Judge Riddle at Westminster Magistrates’ Court, and on 9 February 2017, it refused to certify a point of law for the Supreme Court. The NCA was required by s36 of the Extradition Act 2003 to remove him to Spain within 10 days after 9 February. The Claimant says that he has an outstanding appeal against the refusal of an asylum claim, and that his removal is barred the while by s39 of the 2003 Act. The Secretary of State for the Home Department said that no such asylum claim had been made, and so the NCA intended to proceed with removal on 16 February. The Claimant applied for injunctive relief on 15 February to prevent his removal; the application came before Ouseley J on 16 February, on informal notice to the NCA and SSHD, who were not present. Ouseley J ordered that the Claimant be not removed until 24 February 2017, when Supperstone J continued the injunction pending a full hearing of the application for relief and permission. That came before this Court on 24 March 2017.[3]Two broad issues arise: did the Claimant make an asylum claim on 27 November 2013, the date of the document which he relies on for that purpose? In view of the dependence of any asylum claim upon human rights issues which he did or could have raised in his extradition appeals, did s39 of the 2003 Act apply to prevent his removal?

The background

[4]In 1989, the Claimant, a member of the Basque separatist group, ETA, was convicted in Spain of 91 offences including murder, attempted murder and terrorism. He had detonated an explosive device in central Madrid, as a convoy of the Civil Guard approached. He was sentenced to 2232 years in prison. In 2000, the Audiencia Nacional, the highest trial court in Spain, capped the combined time to be served at 30 years without remission. This would have led to release in January 2017, but he was also entitled to remission for good conduct against that 30-year sentence or sentences, which would lead to release in 2011. In 2006, the Spanish Supreme Court amended the calculation for the remission of multiple capped sentences, with the effect that release in 2011 was postponed to 2017; the so-called “Parot doctrine”. In fact, he was released on 13 April 2011, even though the Audiencia Nacional had ruled in February 2011 that he was not to be released until 2017. On 19 April 2011, the release order was revoked. But he had fled Spain, initially for France, and then, at a date unknown, he came to the UK.[5]He had arrived by 29 June 2012 because on that day he was arrested here pursuant to a European Arrest Warrant, EAW1, issued by a Spanish judicial authority, seeking his extradition to serve the 6 years or so balance of the sentence. In June 2013, the Divisional Court dismissed his appeal against the order for his extradition on that warrant, on the basis of the Spanish judicial authority’s undertaking to abide by the forthcoming decision of the ECtHR Grand Chamber. On 21 October 2013, the ECtHR Grand Chamber upheld its earlier section decision, that the retrospective application of the “Parot doctrine” breached Articles 5 and 7 ECHR; Del Rio Prado v Spain (2014) 58 EHRR 37. Next day, he applied to re-open the appeal, and was granted bail by the Lord Chief Justice.[6]On 22 October 2013, however, the Claimant was taken into immigration detention because of a decision by the SSHD to deport him to Spain on the grounds that his presence in the UK constituted a sufficiently serious threat to its interests. The SSHD’s letter required the Claimant, pursuant to a “One Stop Notice” under s120 of the Nationality, Immigration and Asylum Act 2002, the NIAA 2002, to state, on the Notice of Appeal form, any grounds he had for not being removed from the UK.[7]His Grounds of Appeal to the First-tier Tribunal, FtT, denied that he was a threat, and included the ground that his removal would breach the Refugee Convention; the form of persecution he feared was unlawful detention contrary to Article 5 ECHR and the application of retrospective penalties under Article 7. This treatment was said to be sufficiently severe to constitute persecution. It would also be a “flagrant breach” of those Articles of the ECHR. This is not said by the Claimant to be the making of an asylum claim for the purposes of s39 of the 2003 Act.[8]On 13 November, the SSHD wrote that she had decided to withdraw her letter of 22 October 2013, and invited the Claimant to make the representations he should have already been given the opportunity to make. The letter invited the Claimant to withdraw his appeal. The accompanying letter invited the Claimant to give any reasons, why he should not be deported, to the Home Office at its Croydon address. It contained a “One Stop Warning”, saying that “you must now make a formal statement about any reasons why you think you should be allowed to stay in this country. This includes why you wish to stay here, and any grounds why you should not be removed or required to leave… You do not have to repeat any reasons you have already given us.”[9]At a hearing on 27 November 2013, the Claimant was discharged from EAW1, because the Spanish judicial authority was not abiding by its undertaking. There were therefore then no extradition proceedings in progress in the UK, although EAW1 was not withdrawn, and the Spanish authorities clearly intended to pursue it in other countries, or to return him to prison should the Claimant return to Spain. Also on 27 November 2013, however, the Claimant’s solicitors wrote to the Treasury Solicitor’s Department in response to that letter of 13 November. This is the letter relied on as making an asylum claim to the SSHD for the purposes of s39 of the 2003 Act. It described itself as providing a “brief outline” and an “interim response” because there had not been time and funding to take full instructions, and because counsel for the SSHD at a hearing that morning had made it clear that the SSHD had already reached a settled view that the Claimant was to be deported. The letter “took this opportunity to sketch out the response that my client will make in his appeal to the Tribunal.” The letter repeated what had been set out in the earlier letter on the Refugee Convention and ECHR points. The Claimant was released from immigration detention two days later. Later, the SSHD said that the decision to deport had been withdrawn on 29 November in the light of further extradition proceedings.[10]The Treasury Solicitor replied to that letter on 11 December 2013 saying:
“My client notes that your client purports to make a claim for protection under the Refugee Convention, although your letter does not contain any detailed representations. I am instructed that if your client wishes to make an application for asylum he should attend at the Asylum Screening Unit in Croydon to make his submission in person. I would be grateful if you could advise your client accordingly.”
[11]The Claimant did not seek to attend to make his submission in person, nor did he send to the SSHD any more elaborate claim. Nor did he take issue with the content of the letter.[12]The Spanish judicial authority issued a second EAW in January 2014, from which the Claimant was discharged by Westminster Magistrates’ Court in October 2014. That led to the issue of a third EAW, EAW3, in November 2014, an accusation warrant alleging membership of a terrorist organisation and forgery of official documents. It was upheld by Westminster Magistrates’ Court, but from which the Claimant was discharged by the Divisional Court on 31 July 2015, [2015] EWHC 2305 (Admin), Lord Thomas LCJ and Cranston J. This judgment is important for the issues which it covered and for the basis of the discharge. The Claimant was discharged only under s12A of the Extradition Act 2003, because of the inadequate consideration given to the use of Mutual Legal Assistance in the particular circumstances of that case. The appeal had raised issues of what was called “judicial engineering”, and Articles 5 and 6 ECHR, which were rejected by the Divisional Court.[13]“Judicial engineering” alleged that the Spanish judicial authorities were doing all they could to give effect to the “Parot doctrine” in response to popular and political concerns about the release of ETA terrorists. This allegation appears to have been a mixture of an allegation of abuse of power, and of the real risk of flagrant breaches of Articles 5, 6 and 7 ECHR. This was carefully considered but the decision of the Senior District Judge was held not be wrong. EAW1 was only withdrawn in the course of that appeal. Breaches of Articles 5 and 6, relating to what were said to be procedural failings in Spain, were rejected. An argument about Article 31 of the Refugee Convention did not need to be resolved because of the s12A decision.[14]Once again, there were no extradition proceedings in progress, and on 18 August 2015, the SSHD, for the second time, decided to make a deportation order. Her letter set out the public interest reasons for the decision; it referred to Article 8 ECHR rights, though none had been claimed. The Claimant’s representations pursuant to the 2006 Immigration (European Economic Area) Regulations were rejected, as were “your protection and or human rights claim”. He was told that he could appeal against that refusal of his “protection and/or human rights claim.” Among the grounds of appeal said to be available to him were that removal would breach the Refugee Convention. A “One-Stop Notice Reminder” said that he had previously been served with a notice under s120 NIAA 2002, as amended by the Immigration Act 2014. He should tell the SSHD of any new reasons for not wishing to be removed from the UK. The Claimant says that this letter was the refusal of his asylum claim, which entitled him to appeal against it, the appeal in which is, yet, not finally determined.[15]His grounds of appeal dealt with the public interest issue. The “decision to deport”, also referred to as “the decision” was an attempt to undermine the outcome of the earlier extradition proceedings. Deportation would breach Article 6 ECHR, flagrantly so if flagrancy were necessary, because the charges on which extradition had been sought were politically motivated, brought in bad faith and he would face a trial which breached Article 6, because of a want of independence on the part of the Spanish judiciary, and procedural breaches. His detention for that purpose would breach Article 5 ECHR; his pre-trial detention would be unduly prolonged. Finally, the grounds alleged that deportation would breach the Refugee Convention: he faced “a real risk of serious violations of his fundamental rights in Spain for the reasons already pleaded above, on grounds of his actual or imputed political opinion. Cumulatively, these violations are sufficiently severe to constitute persecution.” We note the way in which the Refugee Convention issue depends in the first place on the risk of human rights violations being proved.[16]The Government Legal Department, GLD, responded on 3 March 2016 in relation to what it called a “Purported Asylum Claim”. It said that the SSHD had repeatedly made clear that the Claimant did not have any outstanding asylum claim; if he “genuinely” wished to make a claim for asylum, then he should do so in person in the normal way”, as had been set out in the letter of 11 December 2013. A dispute about that could not be resolved by the appeal, but would be for judicial review. Nor could there be an appeal if there had been no decision. The letter asserted that it was not therefore an issue for the forthcoming appeal. “If your client genuinely wishes to make an asylum claim he should do so in person as my client has set out.” He was asked whether he did intend to make an asylum claim. The Claimant’s solicitor’s reply raised a host of issues about this, including the allegation not now pursued that a letter of 8 November 2013 was an asylum claim, without making any allegation that the letter of 27 November 2013, the only one now relied on, was such a claim. No claim in person was made. The dispute came to life intermittently. The GLD said that it could only be resolved by judicial review, not by the FtT. It came up at a Case Management Review Hearing before the FtT. The GLD emailed the FtT Judge and Claimant on 29 September 2016 saying that the Claimant was not prevented from pursuing arguments based on breach of the Refugee Convention or ECHR, but he had made no asylum claim.[17]This appeal process had, by then, been running in parallel with further extradition proceedings because, on 23 October 2015, EAW 4 had been issued. EAW4 was much the same as EAW 3, except that, this time, the Spanish judicial authority had set out to deal with MLA. The EAW was upheld by Westminster Magistrates’ Court on 14 June 2016. The Claimant did not raise a human rights bar based on Articles 5 or 6 ECHR, as he was entitled to do. The grounds included an allegation that the EAW constituted an abuse of process because of the changed approach of the Spanish judicial authority to MLA. There was an issue about whether Article 31 of the Refugee Convention, relating to the use of false documents for the purpose of fleeing persecution, afforded a ground for resisting extradition to face a charge in relation to their use. The Senior District Judge, SDJ, added that if the Claimant had an unresolved asylum claim, he could not be extradited until it was determined.[18]An appeal to the Divisional Court was on foot, for hearing on 25 November 2016, when, on 13 October 2016, the FtT dismissed the appeal against the decision to deport. The FtT had the benefit of the decision of the SDJ. Among the points argued by the SSHD, before the FtT, was that it was an abuse of the FtT’s process for it to be asked to go behind the claims upon which the SDJ had adjudicated in extradition proceedings. The Claimant should not be able to argue that deportation was an attempt to undermine extradition. The Article 5 and 6 rights issues had already been dealt with. The Refugee Convention ground was an abuse of process for the same reasons. Moreover, he had not claimed asylum in the UK.[19]The FtT judge rejected the appeal based on the threat which the Claimant’s conduct represented to the public interest. He rejected arguments that the decision was made in bad faith, to bring about extradition when it had been refused by the Courts. He then dealt with Articles 5, 6 ECHR and the Refugee Convention together. The Claimant alleged that there was a real risk that he would be re-convicted and re-imprisoned, after having been charged and tried for improper purposes, as the Spanish authorities wanted to imprison him by any means. On return, he would be imprisoned immediately while awaiting trial, and not in accordance with the law. He would also not receive a fair trial. This would be sufficiently severe as to constitute persecution on grounds that he was a member of a social group, high profile former ETA prisoners, or because of imputed political opinion. There was a real risk that the Spanish judiciary in ETA cases would be neither independent nor impartial.[20]The FtT Judge considered relevant extradition cases; he heard evidence on “judicial engineering” and bad faith from one of the witnesses who had given evidence to the SDJ on EAW3. Indeed, UTIAC said in the judgment on the appeal, that all the evidence in the extradition hearing which dealt with judicial engineering, apart from some modest updating, had been before the FtT. At [44], the FtT Judge rejected the claim that the Claimant had either a subjective or objective fear of persecution on return to Spain, or that his Article 5 or 6 rights would be infringed. He continued:
“I bear in mind that he did not claim asylum on entry here, he has failed to subsequently lodge an asylum claim and has never subjected himself to the respondent’s asylum interview process; he chose not to give evidence before me.”
He found, [47 and 48], that the Claimant would not be at risk for a Convention reason on deportation to Spain and that there would be no breach of Articles 5 or 6 ECHR. The appeal was dismissed on all grounds, including asylum grounds.[21]The extradition appeal from the SDJ was heard on 1 November 2016, at a time when the application for permission to appeal from the FtT to UTIAC was outstanding. Permission to appeal was only received from UTIAC on 14 December 2016, after the Divisional Court judgment of 25 November, [2016] EWHC 3029 (Admin), Sir Brian Leveson, PQBD, and Leggatt J, but before the refusal of certification. No human rights arguments were raised before the Divisional Court on appeal, whether on the grounds of new material or otherwise. The judicial engineering arguments, which fitted into one category of extradition bar or another, were not repeated. All of that was quite understandable: they had not been raised before the SDJ either. This was not because of some failure of understanding; Ms Dubinsky was a common member of the extradition and immigration teams, as were Birnberg Peirce as solicitors. Article 31 of the Refugee Convention was considered and disposed of as a bar to extradition, as was s12A and whether the approach of the Spanish judicial authority to MLA constituted an abuse of process. The nature of the Article 31 issue required the Court to reach a view on some aspects of the Refugee Convention, whilst accepting that the only way to rely on the Convention as a means of resisting extradition was by making an asylum claim. The Court accepted that the fear of an additional “Parot doctrine” 2164 days in prison amounted to a fear of persecution, and that those facing it could be regarded as a “particular social group” for the purposes of the Refugee Convention. The Claimant was considered to have been a refugee from the time he left Spain until the “Parot doctrine” was revoked after the ECtHR decision in Del Rio Prada.[22]At [54], the Court said that the Claimant “did not make a formal asylum claim until 27 November 2013 but the substance of the claim was articulated in the first set of extradition proceedings.” We note that the SSHD was not a party and was not represented; the debate over whether such a claim had been made was not brought to the Court’s attention. It may have been picked up from a comment in earlier extradition proceedings. We attach no weight to that comment in resolving the issue before us.[23]The grounds of appeal to UTIAC are replete with argument over human rights issues, already considered in the extradition process. The asylum point is not mentioned in the several paragraphs of the summary. A footnote to one paragraph set forth five bases upon which it was said that an asylum claim had been made, only one of which is now pursued, and asserted that the SSHD had not sought to interview the Claimant. The SSHD’s response included a denial that any asylum claim had been made, and claimed that it was an abuse of the process for registering and evidencing such claims, to make such an allegation in a challenge to a decision, taken after such a claim should have been made.[24]The UTIAC decision, available to Ouseley J and the Claimant on 16 February 2017 but not formally promulgated until 22 February, allowed the Claimant’s appeal and remitted it for rehearing to UTIAC itself. The hearing is due on 9 and 10 May 2017. From [54]-[75], UTIAC considered the Article 5, 6 and judicial engineering grounds raised before the FtT. It concluded that there were some factual errors, some errors of understanding and principally that the reasoning was inadequate. The judgment said nothing on the disputed issue of whether there was an asylum claim or not. The only reference to the role of the Refugee Convention is in [75] where it simply appears as an addition to the possible breaches of Articles 5 and 6 ECHR, and of Article 47 EU Charter of Fundamental Freedoms. But for that and another reason, we set out [75] in full:
“75. We would add that we accept Ms Dubinsky’s submission that flagrant breach is not the touchstone to be applied in cases where apprehended breaches of Articles 5 and 6 ECHR are raised in resistance to expulsion decisions involving transfer between the High Contracting Parties who have subscribed to the ECHR. We contrast the test applicable in cases involving expulsion to third country states: see R (Ullah) v SSHD [2004] 2 AC 329 at [24], [29] and [69]. Furthermore, no flagrancy threshold is specified in Article 47 of the EU Charter. The uncluttered and straightforward question for the FtT in this appeal was whether there were substantial grounds for believing that there was a real risk of a breach of the Appellant’s rights under Articles 5 and 6 ECHR, Article 47 of the EU Charter and the Refugee Convention in the event of expulsion to Spain. The FtT failed to formulate and apply this test.”

The statutory provisions in relation to the making of an asylum claim

[25]S39 of the Extradition Act 2003 provides: “(1)-(2) […] (3) [If—] [(a) an order is made under this Part for the person to be extradited in pursuance of a Part 1 warrant, and (b) the person has made an asylum claim (whether before or after the issue of the warrant), the person must not be extradited in pursuance of the warrant before the asylum claim is finally determined; and sections 35, 36, 47 and 49 have effect subject to this.] … (5) If the Secretary of State allows the asylum claim, the claim is finally determined when he makes his decision on the claim. (6) If the Secretary of State rejects the asylum claim, the claim is finally determined—(a) when the Secretary of State makes his decision on the claim, if there is no right to appeal against the Secretary of State’s decision on the claim;(b) when the period permitted for appealing against the Secretary of State’s decision on the claim ends, if there is such a right but there is no such appeal;(c) when the appeal against that decision is finally determined or is withdrawn or abandoned, if there is such an appeal. (7) An appeal against the Secretary of State’s decision on an asylum claim is not finally determined for the purposes of subsection (6) at any time when a further appeal or an application for leave to bring a further appeal— (a) has been instituted and has not been finally determined or withdrawn or abandoned, or (b) may be brought. (8) The remittal of an appeal is not a final determination for the purposes of subsection (7).” [(a) an order is made under this Part for the person to be extradited in pursuance of a Part 1 warrant, and (b) the person has made an asylum claim (whether before or after the issue of the warrant), the person must not be extradited in pursuance of the warrant before the asylum claim is finally determined; and sections 35, 36, 47 and 49 have effect subject to this.] (a) when the Secretary of State makes his decision on the claim, if there is no right to appeal against the Secretary of State’s decision on the claim; (b) when the period permitted for appealing against the Secretary of State’s decision on the claim ends, if there is such a right but there is no such appeal; (c) when the appeal against that decision is finally determined or is withdrawn or abandoned, if there is such an appeal. (a) has been instituted and has not been finally determined or withdrawn or abandoned, or (b) may be brought.[26]An “asylum claim” is defined in s216(7) as follows:
“(7) “Asylum claim” has the meaning given by section 113(1) of the Nationality, Immigration and Asylum Act 2002 (c.41).”
[27]S113(1) of the NIAA 2002 provides: “(1) In this Part, unless a contrary intention appears – “asylum claim” means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention”.[28]It is common ground that no place has been designated by the SSHD for a person to make an asylum claim.[29]We need also to refer briefly to the appeal provisions, which were significantly changed by amendments made to ss82 and 84 of the NIAA 2002, by s73 and paragraphs 30 and 33 of Schedule 9 to the Immigration Act 2014, with effect from 20 October 2014. So far as material, s82 now reads: “(1) A person (“P”) may appeal to the Tribunal where –(a) the Secretary of State has decided to refuse a protection claim made by P,(b) the Secretary of State has decided to refuse a human rights claim made by P, or(c) the Secretary of State has decided to revoke P’s protection status. (2) For the purposes of this Part – (a) a “protection claim” is a claim made by a person (“P”) that removal of P from the United Kingdom – (i) would breach the United Kingdom’s obligations under the Refugee Convention, or (ii) would breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection; (b) P’s protection claim is refused if the Secretary of State makes one or more of the following decisions – (i) that removal of P from the United Kingdom would not breach the United Kingdom’s obligations under the Refugee Convention; (ii) that removal of P from the United Kingdom would not breach the United Kingdom’s obligations in relation to persons eligible for grant of humanitarian protection”. (a) the Secretary of State has decided to refuse a protection claim made by P, (b) the Secretary of State has decided to refuse a human rights claim made by P, or (c) the Secretary of State has decided to revoke P’s protection status. (a) a “protection claim” is a claim made by a person (“P”) that removal of P from the United Kingdom – (i) would breach the United Kingdom’s obligations under the Refugee Convention, or (ii) would breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection; (b) P’s protection claim is refused if the Secretary of State makes one or more of the following decisions – (i) that removal of P from the United Kingdom would not breach the United Kingdom’s obligations under the Refugee Convention; (ii) that removal of P from the United Kingdom would not breach the United Kingdom’s obligations in relation to persons eligible for grant of humanitarian protection”.[30]S84 provides the grounds of appeal: “(1) An appeal under section 82(1)(a) (refusal of protection claim) must be broughton one or more of the following grounds –(a) that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention;(b) that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection;(c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention). (2) An appeal under section 82(1)(b) (refusal of human rights claim) must be brought on the ground that the decision is unlawful under section 6 of the Human Rights Act 1998.” (a) that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations under the Refugee Convention; (b) that removal of the appellant from the United Kingdom would breach the United Kingdom’s obligations in relation to persons eligible for a grant of humanitarian protection; (c) that removal of the appellant from the United Kingdom would be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention).[31]This has the effect that, while an appeal against the refusal of a human rights claim can only be brought on human rights grounds, an appeal against the refusal of a protection claim can be brought on Refugee Convention, human rights and humanitarian protection grounds. Ms Dubinsky relied on that for her argument that the appeal must have been against the refusal of a protection claim, here an asylum claim, since no asylum grounds could have been raised on appeal against the refusal of a human rights claim. The Claimant had not made a claim for humanitarian protection.[32]We also note that, as at 27 November 2013, the unamended provisions of ss82 and 84 NIAA 2002 were in force. Under these provisions, a Refugee Convention ground could be raised on appeal against a decision to make a deportation order, one of the listed “immigration decisions”. Neither the making of or refusal of an asylum claim was a necessary precursor to making the Refugee Convention argument on appeal.[33]An EU national, such as the Claimant, could appeal under the Immigration (European Economic Area) Regulations 2006 SI No. 1003 against a decision which was said to breach his rights of entry or residence under the EU Treaties. But he could not do so on Refugee Convention grounds. Under UK law, such an appeal was still possible for an EU national, but it could only be brought under s82 NIAA 2002.[34]Although it would have been open to the UK to treat asylum applications from EU nationals as inadmissible earlier than it did, it decided to consider them substantively, having power to treat them as “clearly unfounded” in s94(1) NIAA 2002. The apparent duty in the Asylum Protocol to the Amsterdam Treaty to treat them as “inadmissible” or to presume them to be “manifestly unfounded”, led to a change in the Immigration Rules but only in relation to decisions made on or after 19 November 2015. An EU national’s asylum claim is admissible only in partially defined exceptional circumstances. It cannot affect the position here, if there were a claim decided on in the SSHD’s letter of 18 August 2015, though it reflects the difficulty for EU nationals to establish an asylum claim within the EU.[35]S120(1) and (2) NIAA 2002 provides that, if a person has made a protection or human rights claim or a decision to remove or deport a person has been taken, the SSHD may serve on him a notice requiring him to provide a statement setting out his reasons for wishing to stay or wishing not to be removed. He need not repeat what was stated in his protection or human rights claim. Before 19 October 2014, the language was a little different. The statement could be required where “an immigration decision” within s82 as it then stood had been made; this included a decision to make a deportation order.

Conclusions: 1: Was the letter of 27 November 2013 an “asylum claim”?

[36]In our view, it was clearly not an asylum claim. Such a claim requires no set formalities under the NIAA. But two points are clear. First, it must be a claim for asylum, however much detail it may or may not contain. For the purposes of the definition in s113 NIAA, it does not matter whether it is made in writing or in person. There is nothing in s113 itself which requires it to be made in person rather than through a solicitor. How the SSHD thereafter deals with the claim is another issue. Second, however made, it must be made to the SSHD.[37]We shall assume that for these purposes a letter sent to the GLD, can constitute a claim to the SSHD. What is however unarguably clear is that the letter of 27 November 2013 contains no asylum claim at all, and in our view was not intended to do so, or thought to do so, at the time. This letter was written in response to the SSHD’s letter addressed personally to the Claimant, with the One Stop Warning, requiring the information to be sent to the SSHD at her Croydon address. What is striking about it is that, brief, interim and not based on full instructions though it is, it simply makes no asylum claim. It would have been simplicity itself to have said that the letter constituted an asylum claim. We see no reason to treat that letter as making an asylum claim; it does not do so expressly nor is that a necessary or obvious implication.[38]Instead, what it says about the Refugee Convention is that “My client will submit” that deportation would breach it. What then follows is sketchy, but not so sketchy that there was no chance to claim asylum. The language above was not accidental. The author was specifically taking “this opportunity to sketch out the response that my client will make in his appeal to the Tribunal”. It was forewarning that human rights, EU rights, and the Refugee Convention would be raised on the appeal. It fulfilled that purpose of a response to a s120 notice, and no more. It enabled the issue, if it arose, to be argued. At the time, the then current version of s82 and s84 did not require a claim for asylum to have been made, for the SSHD to be on notice that an asylum ground would be argued on the appeal.[39]The SSHD is entitled to know clearly that an asylum claim has been made, so that procedures for identifying the claimant, including fingerprinting, and the use of Eurodac, and Dublin III, can be instituted, the claimant can be interviewed, the claim investigated and a decision reached, including on certification. Whatever informalities may be accepted in relation to the making of an asylum claim to the SSHD, it must at least claim asylum, though no such precise words are necessary. It cannot subsequently be turned into an asylum claim. That is the end of the issue. Ms Dubinsky stressed that it was for the Court to decide, not the SSHD, to decide whether it was an asylum claim or not. It was not, and plainly so, in our judgment.[40]Nothing in the subsequent events, in the light of the arguments raised notably in 2016, casts any doubt on that. First, there is the notable absence of any contradicting response to the very clear letter of 11 December 2013 from the Treasury Solicitor that the SSHD did not regard the letter of 27 November 2013 as an asylum claim. There was no action, second, whether by writing to make a claim, or by the Claimant’s personal attendance at the SSHD’s address in Croydon, which, following his release before the 11 December 2013 letter was written, would have been perfectly straightforward, and was the normal way for asylum claims to be made and registered. Either step would have been rather more obvious for someone who genuinely wished to claim asylum than waiting years before engaging in a debate about the status of the letter of 27 November 2013.[41]The SSHD understood that the Claimant might intend to make a claim for asylum, because the Treasury Solicitor notes that the Claimant “purports to make a claim for protection under the Refugee Convention….” But this is no acceptance that a claim had been made. It is a rejection that any claim has been made. There was no response, taking issue with that rejection from the Claimant. This seems to us a clear acceptance by the Claimant of the position as stated on behalf of the SSHD in her letter.[42]Such a stance from the Claimant is not surprising. First, as we have said, in November and December 2013, a Refugee Convention ground of appeal could be raised against a decision to make a deportation order; and the SSHD was alerted by the s120 response to that fact. Second, even before the change in the Immigration Rules in 2015, there was every prospect that an asylum claim by an EU national would be rejected as clearly unfounded and certified, though individual consideration would have been given to the circumstances of his case. There was, third, every prospect that an asylum claim by this Claimant would be rejected under Article 1F(c) of the Refugee Convention because he had been convicted of “acts contrary to the purposes and principles of the United Nations”. We have referred to his convictions for mass murder and other very grave offences as a separatist terrorist. It is an obvious point to be taken against him. Ms Dubinsky, fourth, told UTIAC that the reason the Claimant had given no oral evidence to the FtT, from which the judge had concluded that little weight should be given to his written evidence, was that he desired to protect himself against the risk of self-incrimination, should he be deported to Spain. Whether that is so or not, there is no reason to suppose that he would have been any more forthcoming in asylum interview to the SSHD, a stance which would have left any asylum claim yet more severely weakened.[43]There is also an unanswerable delay point. In fulfilling its duty under the Extradition Act 2003, to remove the Claimant, the NCA is bound to act on the SSHD’s 2013 decision, that no claim was made, which she relied on in stating that the NCA could remove the Claimant. If the SSHD has rejected a document as containing an asylum claim, it is for the person who challenges that decision to challenge it, taking judicial review proceedings timeously. Yet the Claimant did not even regard the letter of 27 November 2013 as an asylum claim, when first asserting in 2016 that he had made one. In his grounds of appeal to UTIAC, it was one of five documents put forward. The Claimant could and should have challenged the SSHD decision of 11 December 2013, by judicial review, but did not do so. Time for doing so expired over 3 years ago. This challenge is, in reality, no more than a late collateral challenge to that decision not to treat the letter as an asylum claim.[44]The Claimant, in 2013, may have been content that he did not need to bring any such challenge because he could raise his asylum ground in his anticipated appeal against the decision to make a deportation order. If that might justify an extension of time in certain circumstances, it does not do so to the extent necessary here, because, by the time the appeal was lodged against the 18 August 2015 decision, that position had changed. An asylum claim had to have been made for the issue to be before the FtT. That might have been the next stage for a challenge. Then, in March 2016, the SSHD again asserted that there had been no such claim, and that if that were at issue, it needed to be resolved by judicial review. There was still no challenge. It is not as though the Claimant was unaware that there was an extradition background to the point which could very readily come to the fore. Before the FtT hearing, EAW4 had not merely been issued, but the Magistrates’ Court had ordered extradition, in June 2016: the existence of an asylum claim was crucial to the operation of s39 and to the removal duty. Still the issue was not raised for judicial review. If time were extended to the date of the Magistrates’ Court decision, it is difficult to see on what basis it could be further extended. Indeed, the challenge to the decision that no asylum claim had been made was brought only just within three months of the Divisional Court decision of 25 November 2016, and scarcely promptly.[45]The extradition process, through the courts and in giving effect to their decisions, requires that the making and resolution of an asylum claim is not left ambiguous, for last minute resolution and delay. It should always be a very straightforward question to answer, during and at the end of the extradition process, as to whether an asylum claim has been made and, if so, finally determined by the SSHD, or if appealed, on appeal. The Claimant knows whether he wants to claim asylum; there is no reason why he should not ensure that the making of the claim is abundantly clear, and if that is challenged, he should take steps to resolve it at the earliest opportunity.[46]There is nothing in the appeal process to lead to a different conclusion or to lead to an extension of time. Ms Dubinsky submitted that the FtT and UTIAC only had jurisdiction to hear the appeal on Refugee Convention grounds if there had been a protection claim which had been refused by the SSHD. It may be that the Claimant thought that the FtT could decide the issue as to whether he had or had not made a claim to the SSHD. However, in so far as the FtT also had power to decide for the purposes of its jurisdiction whether or not a claim had been made, the FtT found that no asylum claim had been made. UTIAC did not expressly disagree. There is thus no Tribunal finding that a claim has been made, and the point was not conceded either. On any view this Court is entitled and obliged to reach a decision. We do not regard the possibility that that was how the Claimant thought the issue might be resolved as justifying an extension of time; it was clearly not pursued by the Claimant before the FtT or before UTIAC as a jurisdictional issue to be resolved.[47]Ms Dubinsky said that no objection had been taken to jurisdiction, and the FtT had found in its summary and decision that the appeal should be dismissed on asylum, human rights and EEA Regulations grounds. UTIAC also considered the Refugee Convention, finding that the FtT’s decision on it was legally defective. Ms Anderson, for the SSHD here and in the deportation appeal proceedings, told us, and we accept, that the jurisdiction issue was not pressed by her, because it would have taken up time in an unnecessary distraction from the Claimant’s lack of substantive merit on the EU and human rights grounds; the Claimant had to succeed on the latter before his asylum ground could even get off the ground. The FtT judge found that no asylum claim had been lodged, but he did not go on to consider jurisdiction, understandably so in the light of the SSHD’s stance. Although the appeal grounds put forward five instances of where it was said an asylum claim had been made, UTIAC made no specific finding on the issue, certainly did not mention what the FtT judge decided on that point, and did not address its significance for its jurisdiction, again understandably.[48]There is nothing of substance in the grounds of appeal and the SSHD’s response to suggest concession or agreement that a claim had been made. There is nothing in Ms Dubinsky’s suggestion that the pro forma references to “protection and/or human rights claim” in the letter of 18 August 2015 signified acceptance that an asylum claim had been made; they show no more than that the pro forma could have been more carefully edited. Just as the alleged breach of the Refugee Convention was no more than a tail piece in the Claimant’s written appeal arguments, so too the SSHD’s written response on the Refugee Convention was merely a consequence of the reasons why she said that the human rights and EEA Regulation grounds were wrong. The main point in reply, followed by a short rejection of its merits in any event, was that the Refugee Convention claim was a repetition of the fear of prosecution which was an abuse of process and ill-founded for the reasons given in relation to the other grounds. It continued:
“Further, it is noted that the Appellant has not claimed asylum in the UK through the required system so it is an abuse of process to circumvent the system for registering and evidencing such a claim by making these allegations in challenge to a decision made after such claims could and should have been made.”
Both sides and the Tribunal decisions used language which suggests that little attention was paid to the precise language and jurisdiction. All boxes naming a decision appealed against were ticked in the Notice of Appeal, including the refusal of a humanitarian protection claim, which Ms Dubinsky said had never been made; the decision appealed against is in places referred to as the decision to deport, and the FtT described the decision appealed against as being the decision to deport, not the refusal of a protection or human rights claim. The SSHD’s email of 29 September 2016 may also have contained the seeds of error about the significance of there being no asylum claim, as it asserted, for the FtT jurisdiction.[49]No conclusion can sensibly be drawn from that sequence of events that an asylum claim must have been made or that the Tribunal must have found that it had been or that the SSHD had conceded that it had been. It shows no more than that the Tribunal did not consider the jurisdiction issue, to which the competing positions of the parties gave rise; neither party raised the issue for their own reasons and the recent jurisdictional change was not independently in the Tribunal’s mind, at either stage.[50]Ms Dubinsky referred us to the decision of HHJ Anthony Thornton QC, sitting as a High Court Judge, in Jisha v SSHD [2010] EWHC 2043 (Admin). This decided that a One-Stop Notice under s120 NIAA 2002, directing that any reasons why a person should be allowed to stay in the UK should be set out in the Notice of Appeal against the adverse immigration decision, involved a direction to make a human rights claim via a One Stop Notice response, which the Tribunal Procedure Rules required the Tribunal to serve on the SSHD, and so it constituted such a claim made to the SSHD, even though not made directly to her.[51]Whether or not Jisha is right, and a claim can be made in a One Stop Notice response, the issue here is not whether the claim was made to the SSHD or to someone else instead. The issue is whether what was sent to the SSHD, via the Treasury Solicitor, was an asylum claim at all. It was not. It did not lose the attribute of being a claim because it was made in a response to a one Stop Notice; its own terms never gave it that attribute. S39 of the 2003 Act makes clear that the SSHD must receive the claim in a form in which she knows what it is, can investigate and refuse and certify it. The sole question here is: is the letter of 27 November 2013 an asylum claim? It is not - whatever other purpose it may serve.[52]This view is wholly in line with R (Nirula) v FtT [2012] EWCA Civ 1436, and the cases cited in it, in which Jisha was distinguished. It upheld two decisions, distinguished in Jisha, to the effect that an asylum claim after 2005 could not be made in the Notice of Appeal.[53]Accordingly, we have concluded that the letter of 27 November 2013 did not arguably amount to an asylum claim. We also reject the application for permission as out of time. Permission to apply for judicial review is accordingly refused. The interim injunction is discharged. The NCA may apply, if necessary to set the start of a ten day period for the Claimant’s extradition.[54]In the course of argument there was some discussion of whether the claim should be viewed as an application in the extradition appeal; but it was common ground that it was not. Furthermore, whichever way the application was approached it was a criminal cause or matter. Even though judicial review proceedings, they concern directly the culmination of the extradition process, after dismissal of the appeal by the Divisional Court.

Conclusions: 2: the interaction between s39 of the 2003 Act and an asylum claim

[55]In the light of the conclusion we have reached on the first issue, this issue does not arise for decision but we sought and were given some assistance on this point. We content ourselves with these observations. There was agreement that, if an asylum claim has been made, it is not finally determined for the purposes of s39 unless it has run its course within the procedures specified in s39 itself. But that in turn emphasises the importance, where there is any extradition background, and even more so in an EU case, for a clear claim for asylum to have been made so that the SSHD knows that she has a claim to investigate and decide, including certification as clearly unfounded, and now under the December 2015 Asylum Policy Instruction on EU/EAA Asylum Claims to hold inadmissible in the absence of exceptional circumstances.[56]Any contention by a claimant that a document or action rejected by the SSHD as constituting an asylum claim must be tested and resolved swiftly, if there is an extradition background and not left to languish in uncertainty in the appeal process, whether for tactical purposes or not. The Magistrates’ Court and Divisional Court must be kept fully informed as to the precise position with any actual or purported asylum claim. The human rights bars in ss21 and 21A, and the extraneous consideration bar in s13 of the 2003 Act should be fully presented and resolved in the extradition proceedings. They should not be reserved for any asylum claim nor should the extradition proceedings be adjourned to await the outcome of the asylum proceedings, unless very good reason to the contrary is shown.[57]The extradition courts and the FtT and UTIAC should be astute to prevent any abuse of their procedures. Where the human rights issues have been resolved in the extradition proceedings, or where no bars were raised, it is difficult to see on what basis those issues should be reconsidered, let alone determined differently, in FtT or UTIAC proceedings, or why, if the human rights basis for an asylum claim has been disposed of in extradition proceedings, the empty husk of an asylum claim should not be disposed of rapidly by the Tribunal. After all, the former must operate to a fast timetable, the extradition order must be given effect, and the requesting judicial authority is not in a position to respond to the asylum claim allegations. At the very least, the Magistrates’ Court decision on a human rights claim, and even more so the decision of the High Court on appeal, must be a very powerful consideration for the Tribunal, as must be the fact that an available extradition bar, relevant to an asylum claim, has not been raised or pursued in extradition proceedings.[58]This is not the case in which to resolve any issue as to whether, where the asylum claim is essentially a human rights claim, repeated with an asylum “tag”, and that human rights claim has been rejected or not pursued in extradition proceedings, as here, there is scope to treat the asylum claim as an abuse of process or finally disposed of.[59]Finally, we cannot conclude this judgment without expressing very real surprise at the submission, made by Ms Dubinsky and accepted by UTIAC in [75] of its decision (set out in [24] above), that there was no flagrancy threshold in an EU human rights case, although there was for a non-EU case. The “uncluttered” wording of the ECHR and EU Charter of Fundamental Rights and Freedoms makes no provision for “foreign” cases. The “flagrancy” threshold derives from ECHR jurisprudence interpreting the Convention Articles. With an EU member state, there is a presumption of compliance with its ECHR and Charter obligations, which is extremely difficult to disprove. The ability to declare an EU asylum claim inadmissible is but one illustration of that. If an asylum claim is based on fears of human rights breaches, the real risk to be proved is at least that of a flagrant breach, in all contexts. A Dublin III example is R (B) v SSHD [2014] EWCA Civ 854.[60]For the reasons we have given, this application for permission to apply for judicial review is dismissed and the injunction preventing removal is discharged.[61]Permission is given to cite this decision in other cases.

Cited in 2 later judgments