CO/2052/2004 Neutral Citation 
Number: [2004] EWHC 2848 (Admin) 
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2
Date: Thursday, 18th November 2004
BEFORE:
MR JUSTICE WILSON
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	THE QUEEN ON THE APPLICATION OF G	(CLAIMANT)	
	-v-		
	SECRETARY OF STATE FOR THE HOME DEPARTMENT	(DEFENDANT)	
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MR E NICHOLSON (instructed by Luqmani Thompson & Partners) appeared on behalf of the CLAIMANT
MR A PAYNE (and, for judgment, MISS F MAULADAD) (instructed by Treasury Solicitor) appeared on behalf of the DEFENDANT
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JUDGMENT

1.       MR JUSTICE WILSON: The claimant is a young female of Somali ethnicity. By letter dated 26 November 2003 the defendant issued a certificate in relation to her under section 11(2), as substituted, of the Immigration and Asylum Act 1999 ("the Act of 1999"). The certificate was to the effect that another member State of the European Union, namely Italy, had accepted that under standing arrangements it was the responsible State in relation to her claim for asylum and that in his opinion she was not a citizen of Italy. Accordingly, by the same letter, he communicated his decision that she was to be removed from the UK to Italy.

2.       Under section 82(1) and 2(h) of the Nationality, Immigration and Asylum Act 2002 ("the Act of 2002") the claimant has a right of appeal to an adjudicator against the decision that she was to be removed. Section 93 of the Act of 2002, however, provides as follows:

"(1)     A person may not appeal under section 82(1) while he is in the United Kingdom if a certificate has been issued in relation to him under section 11(2)... of the [Act of 1999]. (2)    But subsection (1) does not apply to an appeal if -

(a) the appellant has made a human rights claim, and

(b) the Secretary of State has not certified that in his opinion the human rights claim is clearly unfounded."

3.       By a letter from her solicitors dated 18 March 2004 the claimant did indeed make a human rights claim, namely a claim that removal to Italy would be unlawful under section 6 of the Human Rights Act 1998 in that it would be incompatible with her rights under Article 8 of the Convention of 1950 ("the human rights Convention"). By letter dated 6 April 2004, however, the defendant not only rejected the human rights claim but certified that in his opinion it was clearly unfounded. The result is that section 93(1) of the Act of 2002 applies to the claimant's appeal to the adjudicator and prevents her from making it while she is in the United Kingdom.

4.       It is the decision reflected in the defendant's certificate that in his opinion the claimant's human rights claim is clearly unfounded which is the subject of this claim for judicial review. The claimant asks the court to quash that certificate so that she can remain in the United Kingdom while she makes her appeal.

5.       On 8 September 2003, in Liverpool, the claimant applied to the defendant for asylum. She claimed that she had left Somalia on 5 September 2003; had been born on 27 January 1984, so was about 19¾ years old; and had on 1 April 2001 become married in Janale, Somalia, to a man whom she named and who had then been aged about 17.

6.       Before determining the application the defendant used the Eurodac facility for checking, by the use of fingerprints, whether the claimant had sought asylum in any other State of the European Union. His use of the facility revealed that on 7 July 2003 she had claimed asylum in Italy and had again given her date of birth as being 27 January 1984. The defendant established that Italy should be deemed to have accepted that, under standing arrangements, it was the responsible State in relation to the claimant's application for asylum; and, by the letter dated 26 November 2003, he certified accordingly. Subsequently Italy confirmed to the defendant that it was indeed thus responsible.

7.       What were the "standing arrangements" under which Italy had accepted responsibility for examining the claimant's application for asylum? By the Dublin Convention, signed by all members of the union other than Denmark on 15 June 1990 and subsequently ratified by them, the signatories agreed provisions for identifying the member State which should be responsible for examining an application for asylum lodged in one of them. The Dublin Convention came into force on 1 September 1997. The provisions of the Dublin Convention have now been replaced, again in respect of all States other than Denmark, by Council Regulation Number 343/2003 (sometimes known as "the Dublin II Regulation" but hereafter referred to as "the Regulation"). The effect, however, of Article 29 of the Regulation is that it applies only to asylum applications lodged on or after 1 September 2003. The article proceeds to provide that:

"The Member State responsible for the examination of an asylum application submitted before that date shall be determined in accordance with the criteria set out in the Dublin Convention."

Thus, although nothing turns on it, it is agreed that the standing arrangements under which Italy accepted responsibility for examining the claimant's application must have been those set out in the Dublin Convention rather than those set out in the Regulation.

8.       The claimant's address is not recited on the defendant's letter dated 26 November 2003 and it may well be that she did not receive the letter until, in February 2004, she was detained with a view to her removal to Italy. At that point the claimant asserted that she had been born on 10 August 1988, in other words that she was at that time only about 15½ years old, rather than on 27 January 1984.

9.       By an undated letter apparently faxed on 27 February 2004, an organisation called "Bail for Immigration Detainees" wrote to the defendant on behalf of the claimant. In the letter the organisation asserted on her behalf that she had a family life in the UK. It did not specifically refer to Article 8 of the human rights Convention; instead it invoked Article 15 of the Regulation, entitled "HUMANITARIAN CLAUSE", and argued that the claimant's removal to Italy would be in breach of it. It reiterated that the claimant's date of birth was 10 August 1988; and it asserted that the reason why, in Liverpool, she had claimed to be an adult was that she had been instructed to do so in order to be allowed to work in the UK. The letter proceeded as follows:

"We have been instructed by the Detainee's cousin, [Mrs S], that the latter is willing to accept responsibility for the Detainee's well being. The cousin also points out that the Detainee also has an uncle resident in the UK, who is currently on the Haj pilgrimage.

Conversely, we have been instructed that the Detainee has no relatives residing in Italy, and so would be separated from any family life if removal were carried out. When the Detainee was originally smuggled into Italy she slept in [a] bus shelter in Rome. There is no one to care for her there."

10.     Enclosed with the letter faxed on 27 February 2004 was a statutory declaration made on 24 February by the claimant's cousin, Mrs S, who has been granted refugee status in the UK and who is apparently aged 25. In the declaration Mrs S said:

"I, [Mrs S], of [a specified address]... do solemnly declare that [the claimant] of [a different specified address]... is a Somalian citizen born in Janallah, Somalia on 10.8.1988 and confirm that she is the daughter of my auntie, [Mrs Y]."

11.     By letter dated 18 March 2004 the claimant's solicitors wrote to the defendant. By their letter they specifically invoked not only Article 15 of the Regulation but Article 8 of the human rights Convention. They asserted that the claimant was living with her cousin, Mrs S, at a third specified address and alleged that, although in the UK she had two family members, namely Mrs S and her uncle, she had no family or contacts in Italy. They again asserted that the claimant's date of birth was 10 August 1988; and they enclosed with the letter a report dated 15 March 2004 of Dr Michie, a consultant paediatrician, who had examined the claimant on 15 March in order to seek to ascertain her age. In the report Dr Michie shortly recited the history given to him by the claimant through an interpreter and he set out the results of a physical examination of her. He stated as follows:

"The social, schooling and narrative history provided by the client provides some support for the declared date of birth, with accurate milestones. Further, her height and weight, skin fold thickness, body mass index, the skin signs seen in young adults and her dental examination today were consistent with a chronological age of 16 plus or minus 2 years when compared with published charts of these measures. This observation is supported by non-objective assessment of the psychological maturity of this client during the interview, particularly in response to detailed questioning. A more narrow error margin is probably not possible using these methods. The birthdate given to me today by [the claimant] falls within the recognised and recommended error limits for this estimate.

... it is my independent opinion that [the claimant's] age is consistent with a birthday in August 1988."

12.     It is worth noting that, were the claimant's later assertion of her age to be true, she would have been aged 15 years and seven months at the time of Dr Michie's examination; and that, were her initial assertion of her age to be true, she would have been aged 20 years and two months at that time. Although Dr Michie did not say in terms that, on the basis of his examination, it was impossible, or even very unlikely, that the claimant was aged 20 years and two months, such an age does fall outside his suggested parameters; and so in my view the report should be taken as a conclusion that she was not of that age. On the other hand he accepted that at the time of the examination she might have had an age of 18 years, indeed, so I infer, of almost 19 years.

13.     By letter dated 6 April 2004 the defendant, as I have indicated, rejected the assertion that the claimant's removal to Italy would infringe her rights under Article 8 of the human rights Convention and certified that the allegation was clearly unfounded. By the letter the defendant pointed out that both in the claimant's pro forma statement of evidence and in her interview she had asserted that she had been born in 1984; and he disputed the suggestion that Dr Michie's report represented conclusive evidence that she was a minor. He asserted that any interference with the claimant's right to respect for her family and private life arising out of her return to Italy was both proportionate and justifiable.

14.     Thereafter the defendant gave directions for the claimant's removal to Italy; but, upon receiving notice that these proceedings were to be issued, he suspended them.

15.     The defendant alleges that it was only on 6 July 2004, at the first hearing of her application for permission to proceed with this claim, that he learnt that she was asserting that in July 2003 she had lied not only about her age but also about having been married. By statement dated 9 July 2004 the claimant made clear that such was indeed her assertion. She said that she had so informed the defendant at an interview in February 2004. Be that as it may, it is clear from notes made by her solicitor on 9 March 2004, which she attached to the statement, that she had told him on that date that she had not been married. In the statement dated 9 July she also revisited the reason why in July 2003 she had allegedly lied about her age. She said that in that regard there had been an error in the letter faxed on her behalf on 27 February by "Bail for Immigration Detainees." She said that she had had difficulties in communicating with the officer of that organisation who had taken instructions from her and that she did not recall having told him that the reason for her having misrepresented her age was in order to be able to work. On the contrary, according to her statement dated 9 July, the reason for having lied about her age, as well as about being married, was lest, if she told the truth, she would be taken into care and kept incommunicado in a children's home.

16.     Mr Nicholson's challenge on behalf of the claimant to the lawfulness of the certificate dated 6 April 2004 is founded upon a number of premises. He submits:

(a) that she was born on 10 August 1988 and so was and is a minor;

(b) that she has never been married;

(c) that since prior to 6 April she has been living with her first cousin, Mrs S; has been cared for by her and has been dependent upon her; and

(d)  that the circumstances set out at (c) give rise to her enjoyment of family life with Mrs S within the meaning of Article 8 of the human rights Convention.

17.     The defendant does not accept these premises. He states that the claimant has not established them to his satisfaction. Mr Nicholson counters by submitting that every rational decision-maker in the position of the defendant would have accepted them. I will return to these controversial premises in paragraphs 39 and 40 below. Meanwhile I will proceed on the basis of them.

18.     Mr Nicholson's arguments require a close study of the Regulation. He submits that it clearly shows that it is for the UK rather than for Italy to conduct the substantive examination of the claimant's application for asylum. He submits that there are no less than three different provisions within it which independently give rise to that conclusion. What, one may ask, is the nexus between this alleged effect of the Regulation and the central issue, namely whether it was open to the defendant to certify that the claimant's human rights claim was clearly unfounded? The answer, says Mr Nicholson, is simple, namely that the defendant's interference with the claimant's right to respect for her family life cannot be justified because it would be neither in accordance with the law nor proportionate to any legitimate purpose.

19.     Mr Payne, on behalf of the defendant, responds that Mr Nicholson's arguments betray a fundamental misconception about the way in which the Regulation operates.

20.     It will become clear why I state that the draftsmanship which lies behind the Regulation could win no prize. In these circumstances authority on the meaning, and in particular on the general architecture, of the Regulation would have been welcome. Oddly, however, there is, so counsel tell me, no such reported authority or other commentary.

21.     There are fairly close parallels between the provisions of the Regulation and those of the Dublin Convention. Indeed the fifth recital to the Regulation states that:

"... it is appropriate at this stage, while making the necessary improvements in the light of experience, to confirm the principles underlying the Convention ..."

But there is at least one major difference. Whereas, being only an international treaty, the Dublin Convention did not give rise to enforceable rights and duties under UK domestic law, the following words are subscribed at the foot of the Regulation:

"This Regulation shall be binding in its entirety and directly applicable in the Member States in conformity with the Treaty establishing the European Community."

For reasons which are unclear to me, Mr Payne makes no formal concession that in principle the Regulation confers rights on individuals which they can assert against State decision-makers. But, save in one respect to which I will refer in paragraph 35 below, he is content for me to proceed on the basis that it does so. The different nature of the Dublin Convention probably explains why, notwithstanding its six years of operation, there is, again, an almost complete dearth of reported authority on its meaning and in particular on its general architecture.

22.     Article 1 of the Regulation explains its subject-matter in the following terms:

"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."

In effect the Regulation sets out a screening process by which to identify the Member State which will be responsible for the substantive examination of the application for asylum.

23.     Articles 5 to 14 of the Regulation are contained in a chapter entitled "HIERARCHY OF CRITERIA". Article 5 explains why it is a hierarchy:

"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."

24.     The State which conducts the screening process is thus required to work its way, in strict order, through the following seven articles (Articles 6 to 12) in order to ascertain whether the circumstances of the application meet any of the seven criteria there set out. If so, the article thus engaged will identify the State which will be responsible for the substantive examination of the application; and, if the State which conducts the screening process is other than the State thus identified, the former will call upon the latter to "take charge" of the applicant pursuant to Articles 16, 17 and 19 of the Regulation. If, however, the circumstances of the application meet none of the seven criteria, Article 13 applies:

"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."

Such is therefore a default provision by which the State which conducts the screening process becomes responsible for the substantive examination of the application.

25.     The Dublin Convention also contained a hierarchy of criteria and a default provision in terms almost identical to those in Article 13. It is common ground that Italy conducted the screening process of the applicant's application required by the Convention and, by reference to the default provision, identified itself as the State responsible for the substantive examination of it.

26.     Without criticising Italy for reaching that conclusion on the information before it, Mr Nicholson argues that it is now clear that its acceptance of responsibility for the substantive examination of his client's application is at odds with the conclusion to be reached by application of the criteria in the Regulation. He says that Article 6, or in particular Article 7, of the Regulation applies so as to identify the UK as responsible for the substantive examination, with the result that the default provision which would identify Italy as responsible is not reached. Articles 6 and 7 provide as follows:

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.

Article 7 "Where the asylum seeker has a family member, regardless of whether the family was previously formed in the country of origin, who has been allowed to reside as a refugee in a Member State, that Member State shall be responsible for examining the application for asylum, provided that the persons concerned so desire."

27.     To Mr Nicholson's argument Mr Payne has a two-fold response. He says that, even on the premises set out in paragraph 16 above, neither Article 6 nor Article 7 applies to the claimant's case. But it is convenient first to consider his alternative response, which raises an important point of principle. Mr Payne contends that, under the Convention and now the Regulation, the screening process falls to be conducted only once and that, inasmuch as Italy has already completed it, an applicant cannot demand further consideration of the hierarchy of criteria, whether in the UK, Italy, or elsewhere. He argues that, subject only to the possible invocation by Italy of Article 15, to which I will turn in paragraph 34 below, the applicant's application for asylum may now be subject to substantive examination only by Italy. He submits that it would run counter to the policy behind the Regulation to allow an applicant who has become dissatisfied with the result of the screening process undertaken by one State to move to a second (or, so he postulates, perhaps even a third or fourth) State and, by reference to the purported revelation of further or different facts, to demand that the process be undertaken again. To this Mr Nicholson has one simple response, namely that no amount of clever argument can justify the maintenance of a decision which, for whatever reason, has been made upon inaccurate data.

28.     I hold that the submissions of Mr Payne set out in paragraph 27 above are correct. The fourth recital to the Regulation describes its objective as being:

"... in particular [to] make it possible to determine rapidly the Member State responsible [for the substantive examination of the application for asylum]."

Article 5.2, set out in paragraph 23 above, requires the screening process to "be determined on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State." Mr Nicholson argues that "the situation obtaining" means "the situation truly obtaining, whether or not then discernible". But I disagree with him. In my view the words indicate that the process must be undertaken by reference to the upshot of an enquiry conducted by the member State with which the application for asylum is first lodged and at the time when it is lodged.

29.     Article 3, relied on by both counsel, is, in my view, irrelevant to this argument because it refers to the obligation to conduct the substantive examination of the application for asylum rather than to conduct the screening process. Highly relevant, however, is the mechanism for "taking back", to which Articles 4.5, 16 and 20 refer. This present case is an example of the mechanism: for under Articles 16 and 20 the UK has required Italy to take the claimant back. Articles 4.5 and 16.1(c) address the situations in which an applicant for asylum moves to a second member State at a time when a first member State is conducting either the screening process or the substantive examination of her or his application; and in each such situation they oblige the first State to take the applicant back. In my view the mechanism is inconsistent with the existence of any power, still less a duty, on the second State itself to conduct the screening process. I have already explained that the claimant is appealing against the decision, reflected in the letter dated 26 November 2003, that Italy should take her back but that, unless this claim succeeds, the pendency of the appeal will not prevent her removal to Italy. In this regard it is worthwhile to note the content of Article 20.1(e):

"This decision [by one Member State that the applicant be taken back by another] 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."

30.     In the light of my conclusion in principle, it is unnecessary to address, other than briefly, Mr Payne's other response, namely that, even on the premises set out in paragraph 16 above, neither Article 6 nor Article 7 applies to the claimant's case.

31.     Article 6, set out in paragraph 26 above, provides inter alia that the State responsible for conducting the substantive examination shall be that in which a member of the minor's family is present. Article 2(i) provides that the phrase "family members" means:

"... insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States:

(iii) the father, mother or guardian when the applicant is a minor and unmarried."

Since the applicant does not suggest that any "family" reflective of her relationship with Mrs S already existed in Somalia, I hold that Mrs S cannot, for that reason even if for no other, constitute a member of the claimant's family so as to engage Article 6.

32.     So I move to Article 7 in which, as Mr Payne concedes, that particular problem does not confront the claimant. For the requirement in the definition of "family members" in Article 2(i) that the family should already have existed in the country of origin seems to

be excluded in Article 7 by the words "regardless of whether the family was previously formed in the country of origin." Nevertheless the definition presents Mr Nicholson with another difficulty: for Mrs S qualifies as a "family member" for the purpose of Article 7 only if she is the claimant's "guardian". Mr Nicholson argues that many asylum seekers flee from countries in which there is no rule of law and no court of law exercising a power to appoint a person as a guardian of a minor; that accordingly it is most unlikely that, in passing the Regulation, the Council had in mind any notion of legal guardianship; that most asylum seekers flee without documents and accordingly that proof of legal guardianship would usually be impossible in any event; and that the Regulation works sensibly only if any blood-related de facto carer of a minor qualifies as a guardian.

33.     I disagree with the arguments of Mr Nicholson set out in paragraph 32 above. Instinctively I feel that the word "guardian" connotes the external investment of a person with formal responsibility for a minor and that Mr Nicholson's construction probably widens the application of Article 7 (and, for that matter, of Articles 6 and 8) far wider than the Council intended. Are my instincts valid? Two pointers embolden me to answer affirmatively. First, Article 12 of Commission Regulation No 1560/2003 (which lays down detailed rules for the application of the Regulation and which I will describe as "the Commission Regulation") refers to a decision to entrust the care of a minor to a relative "other than the mother, father or legal guardian". Mr Nicholson submits that the difference reflected by the presence of the adjective "legal" in Article 12 of the Commission Regulation, and by its absence in Article 2(i) of the (Council) Regulation is deliberate and significant. I hold, on the contrary, that it is most unlikely that the trio of persons collected together in each of the articles are intended to be substantially different. Second, Article 2(h) of the (Council) Regulation defines an "unaccompanied minor" as, so far as is relevant, a minor "unaccompanied by an adult responsible for them whether by law or by custom." In my view this notion of responsibility for a minor, invested in a person externally whether by law or by custom, is precisely the notion which is intended to be carried into the interpretation of the word "guardian" in the following sub-paragraph. On any view, so I hold, Mrs S is not the claimant's guardian.

34.     What, then, is the third provision of the Regulation by reference to which Mr Nicholson argues that it is for the UK rather than for Italy to conduct the substantive examination of his client's application? It is Article 15, which falls not within the hierarchy of criteria but within a chapter of its own entitled "HUMANITARIAN CLAUSE". Article 15 provides:

"1. Any Member State, even where it is not responsible under the criteria set out in this Regulation, may bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. In this case that Member State shall, at the request of another Member State, examine the application for asylum of the person concerned. The persons concerned must consent.

3.  If the asylum seeker is an unaccompanied minor who has a relative or relatives in another Member State who can take care of him or her, Member States shall if possible unite the minor with his or her relative or relatives, unless this is not in the best interests of the minor.

4.  Where the Member State thus approached accedes to the request, responsibility for examining the application shall be transferred to it."

I must also refer to the detailed rules for the application of Article 15 set out in Articles

13  and 14 of the Commission Regulation. Article 13 provides that the initiative for requesting another State to take charge of an asylum seeker pursuant to Article 15 shall be taken either by the State which is undertaking the screening process or, later, by the State at that time responsible for the substantive examination of the application. Article

14 provides a mechanism for non-binding conciliation between a State which requests another to undertake the substantive examination on such humanitarian grounds and any such other as declines the request.

35.     Mr Payne tells me that it is the lack of any facility within either the Regulation or the Commission Regulation for an aggrieved person to appeal against the refusal of a State to accede to a request to take charge of an asylum seeker pursuant to Article 15 which leads him actively to resist the conclusion that the article confers rights on individuals which they can assert against State decision-makers. As will become clear, the issue is academic and, for that reason, it has not been fully argued. But I have to say that I do not understand Mr Payne's argument. The effect of the words subscribed at the foot of the Regulation, which I have set out in paragraph 21 above, seems clear, namely that the whole Regulation has direct, binding effect upon the UK. That begs the question as to what an aggrieved person can do in the event of the UK's purported breach of it. Much will depend upon the nature of the purported breach. It will be more easy to complain of a failure to discharge a duty imposed by the Regulation than of an unlawful exercise of a power conferred by it. Nevertheless (so it seems to me) such a difference does not derogate from the principle that even articles such as Article 15 have been given direct effect.

36.     The distinction to which I have just referred is reflected in the different construction placed by counsel upon Article 15. Mr Payne argues that the article never places anything more burdensome than a discretion upon a State requested by another on humanitarian grounds to conduct the substantive examination of an asylum application. He says that the word "may" in Article 15.1 informs all else and that the conciliation procedure is testament to the overarching discretion. Mr Nicholson, on the other hand, like (so I have respectfully come to conclude) a vulture swooping upon the draftsman's foibles, refers to the word "shall" (albeit qualified by the words "if possible") in Article 15.3. I hold that the whole of Article 15 confers only a power upon a State to accept responsibility for the substantive examination of the application on the humanitarian grounds there set out notwithstanding that such acceptance would be in conflict with the result dictated by the hierarchy of criteria set out in the Regulation.

37.     Mr Nicholson proceeds to argue that, since Mrs S is a relative of the claimant in the UK who can take care of her, it would be a perverse exercise of the UK's power under Article 15 to decline to accept responsibility for the substantive examination of the claimant's application for asylum. Mr Payne, by contrast, contends that Mr Nicholson's argument is premature; that the reference in Article 15.1 of the Regulation to "at the request of another Member State", reinforced by Article 13 of the Commission Regulation, indicates that it is Italy, as the State currently responsible for the substantive examination, which, if so minded, should make any request to the UK under Article 15; and that, by illicitly coming to the UK, the claimant cannot bypass such procedures and, by a side-wind generated by her human rights, ask this court to consider what, were Italy to make a request under Article 15, the UK's only rational response might be. Mr Payne argues that in this regard the case is analogous to R(on the application of Ekinci) v SSHD [2003] EWCA Civ 765.

38.     I accept the arguments of Mr Payne in paragraph 37 above. The claimant's argument is that an article which begins to operate only at the request of Italy and following its proper attempt to elucidate the facts, and which then confers only a discretion upon the UK, can, by the expedient of her illicit removal from Italy to the UK, be so invoked as to restrain her return to Italy on human rights grounds. I decline to subscribe to so unprincipled a result.

39.     Finally I return to the controversial premises which I have set out in paragraph 16 above and which are of direct relevance to the central issue, namely whether the defendant has lawfully certified the claimant's human rights claim as clearly unfounded. Mr Nicholson contends that the defendant cannot rationally decline to be satisfied that the claimant is a minor and unmarried. He relies not only upon Mrs S's confirmation of the claimant's birth on 10 August 1988, which is in my view of insignificant weight, but in particular upon Dr Michie's report. On balance I agree with Mr Nicholson that, in the absence of any different professional opinion, the defendant cannot rationally proceed on the basis that the claimant was, as she had initially alleged, born on 27 January 1984. But, after careful thought, I consider that the defendant is entitled to approach the question, as he now does, more broadly: namely that the claimant initially alleged that she was an adult; that Dr Michie does not exclude the possibility of her being an adult; and that accordingly it is open to him, the defendant, not to accept her subsequent allegation that she was a minor. In my view the context in which the subsequent allegation was made, namely the spectre of her imminent removal to Italy, and the inconsistent explanations subsequently offered on her behalf for the alleged falsity of the initial allegation, confirm his entitlement to adopt that approach. In relation to the less important issue of whether she is married, the claimant has offered no logical explanation as to why it was purportedly necessary to lie about being married as well as about her age; and in my view it is open to the defendant to decline to accept that such was a lie.

40.     Was it open to the defendant to decline to accept that the claimant was living with Mrs S, was cared for by her and was dependent upon her, in circumstances giving rise to family life? The case presented to him in that regard was flimsy in the extreme. In her statutory declaration, made on 24 February 2004, Mrs S said that she lived at one address and that the claimant lived at another address. In the letter on the claimant's behalf faxed on 27 February it was stated only that Mrs S was "willing" to accept responsibility for the claimant's well-being, not that she had done so. But in a letter

sent on the claimant's behalf less than three weeks later it was said that she and Mrs S were living together, but at a third address; and, at around the same time, Dr Michie recorded that, in giving him her history, the claimant alleged that she was currently being cared for by a relative. Such was the total material placed before the defendant in relation to life together, care or dependency. I hold that, upon it, he was entitled to proceed on the basis that, even if it could be said that the claimant enjoyed family life with Mrs S, it was so exiguous as to render interference with it in furtherance of the provisions of the Regulation clearly proportionate and justified.

41.     On analysis at each of two levels, therefore, this claim is exposed as devoid of legal merit and is dismissed.

42.     Mr Nicholson?

43.     MR NICHOLSON: My Lord, thank you for your judgment. I would seek your permission to appeal to the Court of Appeal, mainly - having only a very short time to reflect upon what you have said - on the question of the analogy between my client's circumstances and indeed those of any minor with the cases decided Ekinci and Mahmood. My Lord, it is the case that in — my submission would be that this case and others like it are not analogous to those cases where there is a recognised procedure for applying for entry clearance overseas which there is not, in my submission, in this case. There is no such procedure established by either the Commission Regulations or the Regulation itself. Furthermore, both of the appellants in both Ekinci and Mahmood were adults and not children. So my submission would be, my Lord, that the journey undertaken by persons in my clients' circumstances, from one member state to another, is not analogous to the circumvention of immigration control which the Court of Appeal found the appellants in Ekinci and Mahmood had undertaken.

44.     Insofar as the appeal certification of my client's human rights application as clearly unfounded, depends upon my learned friend's submission as to the availability of an alternative method of applying to join her relative in this country. Insofar as that submission depends on analogy with Ekinci, in my submission, my Lord, the analogy is improper. That would form a facet of my application for permission to appeal.

45.     MR JUSTICE WILSON: Thank you very much, Mr Nicholson. Miss Mauladad, what do you say in response to this?

46.     MISS MAULADAD: My Lord, I have no submissions to make except that you have applied the authorities correctly.

47.     MR JUSTICE WILSON: Thank you very much. Subject to the better view of the Court of Appeal, I do not regard your proposed appeal on the grounds which you have articulated as having a reasonable prospect of success, Mr Nicholson, and you must, if so minded, seek to persuade the Court of Appeal to entertain the appeal.

48.     MR NICHOLSON: Thank you, my Lord.

49.     MR JUSTICE WILSON: You are publicly funded?

50.     MR NICHOLSON: My Lord, I am. I would ask, my Lord, that there should be no order as to costs beyond detailed assessment of costs in the case.

51.     MR JUSTICE WILSON: Let me ask Miss Mauladad whether she is seeking any order for costs.

52.     MISS MAULADAD: My Lord, we are not seeking costs.

53.     MR JUSTICE WILSON: Then there will be no order as to costs save for a public funding detailed assessment of the costs of the claimant.

54.     MR NICHOLSON: Thank you very much, my Lord.

55.     MR JUSTICE WILSON: Anything else?

56.     MR NICHOLSON: No, my Lord.

57.     MR JUSTICE WILSON: Miss Mauladad, anything else?

58.     MISS MAULADAD: No, my Lord.

59.     MR JUSTICE WILSON: Good. Thank you very much.