Judicial Review - application for leave to apply for Judicial Review.
[2018]JRC222
Royal Court
(Samedi)
3 December 2018
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Before :
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T. J. Le Cocq, Esq., Deputy Bailiff, sitting
alone.
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Between
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X
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Applicant
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And
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Minister for Home Affairs
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Respondent
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IN THE MATTER OF AN APPLICATION FOR
LEAVE TO APPLY FOR JUDICIAL REVIEW
Advocate S. E. A. Dale for the Applicant.
Advocate S. A. Meiklejohn for the Respondent.
judgment
the deputy bailiff:
1.
This is an
application by X ("the Applicant") for leave to apply for judicial
review of the decision of the Minister for Home Affairs, acting through the
Jersey Customs and Immigration Service ("the Respondent") taken on
or around 15th August, 2018, ("the Decision") to remove
the Applicant to a European jurisdiction.
It is not disputed that the Applicant arrived in Jersey illegally and he
claims asylum. The Decision was to
the effect that he should be forthwith removed to the European jurisdiction
without any substantive consideration of his asylum claim.
2.
The
application was made, as is the norm, ex
parte on 21st August, 2018, and I directed that it should be
served upon the Respondent and that leave should be considered on an inter partes basis. The hearing of that application took
place initially on 13th September, 2018 but, with the agreement of
the parties, was adjourned part heard following the receipt of an expert report
from clinical psychologist Dr Katherine Boucher of 10th September,
2018, on the Applicant's mental health (the "Psychological
Report"). The purpose of that
adjournment was to allow the Respondent to consider the contents of the
Psychological Report and the matter was re-listed and resumed before me on 14th
November, 2018.
3.
At this
stage I am considering whether or not leave should be granted to the Applicant
to apply for judicial review. The
test that I should apply is not in dispute. It is the test set out by the Privy
Council in Sharma -v- Browne-Antoine (6) [2007] 1 WLR 780 as
applied by this Court in Warren-v-Lieutenant Governor [2017] (1) JLR 291
where, at paragraphs 3 and 4, Beloff Commissioner said:-
"3. The test for such leave
in this jurisdiction, as applied in Welsh -v- Deputy Judicial Greffier
(7), is that set out by the Privy Council in Sharma -v- Browne-Antoine
(6) [2007] 1 WLR 780, at para 14(4):
"The ordinary rule now is
that the court will refuse leave to claim judicial review unless satisfied and
there is an arguable ground for judicial review having a realistic prospect of
success and not subject to a discretionary bar such as delay or an alternative
remedy: see R -v- Legal Aid Board, Ex p Hughes (1992) 5 Admin LR
623, 628 and Fordham, Judicial Review Handbook 4th ed (2004),
p426. But arguability cannot be
judged without reference to the nature and gravity of the issued to be
argued. It is a test which is
flexible in its application."
4. For an application for judicial
review to succeed, the Royal Court would have to be satisfied that His
Excellency's decision was unlawful, irrational or flawed by procedural
impropriety (Planning & Environment Cttee. -v- Lesquende Ltd. (4))
and for present purposes I must be satisfied that one or more of those grounds
is arguably established on the material before me."
4.
I note
that in a recent decision of the Royal Court, namely J-v-His Excellency the
Lieutenant Governor of Jersey [2018] JRC 072A at paragraph 1, Sir William
Bailhache, Bailiff, said this:-
"1. On 23rd October 2017 the
Applicant sought leave to apply for judicial review in relation to the decision
of the Respondent on 24th July 2017 to deport the Applicant from the
Bailiwick of Jersey. On 24th
October, the Court granted the Applicant leave. Affidavits have been filed in
accordance with the Royal Court Rules 2004 and a date fixed for
hearing. Although the issue is
arguably one of law, I decided to sit with Jurats because, as will be apparent
from this judgment, the case raises questions of proportionality and human rights
- see Edore v Secretary of State for the Home Department [2003] EWCA Civ 716 at paragraph 23. Indeed, the parties were agreed that it was
appropriate that the Court be so constituted.
5.
And then,
at paragraph 2 to 5 inclusive, the Court analysed its approach on matters of
deportation in the following terms:-
"2. There is no right of appeal against
the decision of the Lieutenant Governor and judicial review is therefore the
only basis upon which the Applicant can have the decision examined by an
independent tribunal. That being
so, although it is a question of judicial review, the ambit of the examination
is wider because the Human Rights (Jersey) Law 2000 requires that a decision
affecting the human rights of the Applicant must ultimately be taken by a human
rights compliant tribunal. See also
De Gouveia v Lieutenant Governor and Minister for Home Affairs [2012]
(1) JLR 291 at paragraph 23. The
Court on judicial review, as it were, fills the gap which otherwise exists from
having no human rights compliant tribunal to which the Applicant can appeal
from the Respondent's decision.
Although these statements are of direct relevance to judicial review in
deportation cases, they have a wider significance. On occasion the courts have
to consider the reasonableness of a decision by a minister that may expressly
have been considered by the States.
Where, for example, a minister has delegated power under a piece of
primary legislation to make an order, which is tabled before the States and may
in some cases be debated, the fact that the order has been approved by the
States is no bar to an examination by the court of its compatibility with the
Human Rights Law and indeed it is the duty of the Court in such a case to apply
a full Human Rights review to what the minister has set out in his or her
order, just indeed as there would be a full review as to whether the order fell
within the vires of the primary legislation. The fact that the same process
would apply where Regulations, also secondary legislation, are challenged in
court, demonstrates that the approval by the States of a piece of secondary
legislation does not inhibit the duty of the courts to investigate the
lawfulness of such legislation. This is consistent with the comments of Lord
Phillips of Worth Matravers MR in R v Secretary of State for the Home
Department ex parte Brind 2 AC 696 when he said:-
"'The wider
principle' of common law must accommodate the right and the duty of the
court to review the legality of subordinate legislation. The fact that, in the course of debate,
the Secretary of State or others make statements of fact that support the
legitimacy of the subordinate legislation, and that the house thereafter
approves the subordinate legislation, cannot render it unconstitutional for the
court to review the material facts and form its own judgment, even if the
result is discordant with statements made in parliamentary debate."
3. In
Wang v Secretary of State for the Home Department [2007] UKHL 11, the
House of Lords took the same approach in relation to the submission of the
Secretary of State that the decision taker and the court should assume that the
immigration rules adopted by the responsible minister and laid before
parliament "had the imprimatur of democratic approval and should be taken
to strike the right balance between the interests of the individual and those
of the community". Political
and legal authority are to be distinguished, and the doctrine of judicial
deference does not mean that the courts should surrender their own fundamental
responsibility to determine the lawfulness of what is in question in the
case. We make these comments
because the powers and duties of the Lieutenant Governor in relation to
deportation have been passed to the Minister for Home Affairs, and we make it
plain that the identity of the decision taker makes no difference to the
approach which the Courts will take in relation to these matters.
4. It
is for these reasons that the traditional Wednesbury standard of
unreasonableness - was the decision of the decision maker so unreasonable
that no reasonable decision maker could reach it? - is inappropriate
where the decision under review engaged a fundamental right or important
interest. Where that is the position, the decision does indeed engage the most
anxious scrutiny of the courts - see Bugday Cay v Secretary of State
for the Home Department [1987] AC 514 at 531 per Lord Bridge. As Sir Thomas Bingham MR (as he then
was) put it in R v Ministry of Defence ex parte Smith [1996] 1 All ER 257, the more substantial the interference with human rights, the more the
court will require by way of justification before it is satisfied that the
decision is reasonable. In R v
Lord Saville of Newdigate ex parte A [2000] 1 WLR 1855 at paragraph 37, the
Court of Appeal said that:-
"It is not open to the
decision maker to risk interfering with fundamental rights in the absence of
compelling justification".
5. There
are nonetheless constraints upon the Court's powers to intervene. First of all, the Court is not a fact
finding body in this exercise. It
takes a given set of facts and applies the relevant legal tests to them. Of course, one such legal test may
involve consideration of a submission that the decision taker has proceeded on
the wrong facts, but it seems to us that it would be very rare and highly
exceptional that any evidence other than affidavit evidence would be considered
by the Court on such applications.
Secondly, it is not correct to say that there is no deference to the
decision taker. A higher degree of
scrutiny on human rights grounds is still not a full merits review. What is
needed is that the Court examine what reasons have been given, whether they
comply with the fundamental rights of the applicant and in particular whether
the lawfulness of what has been done meets the structured proportionality test
that the Courts now apply, recognising that the decision taker has a
discretionary area of judgment."
6.
I have set
out this excerpt in full because it seems to me that if it is arguable that the
Applicant's case involves fundamental issues of his human rights or an
assessment of proportionality arises, then the principles set out in J
apply.
7.
I have
heard careful argument from both the Applicant's and the
Respondent's counsels together with the affidavits of the Applicant and
an affidavit filed on behalf of the Respondent.
8.
The
circumstances of this application are unusual and are based on the assertions
of the Applicant. Whilst the
Respondent does not necessarily accept each assertion of the Applicant, it has
not carried out a substantive consideration of the application and has
therefore taken the Applicant's assertions at face value for the purposes
of reaching its decision. The
circumstances may be summarised as follows:-
(i)
The
Applicant is a Syrian national who, on leaving Syria, sought asylum in a
European jurisdiction. Although the
Applicant had been granted asylum in that jurisdiction, there is a dispute over
his continuing status as his residence permit has expired, he does not wish to
return there and he has written to the authorities of that jurisdiction stating
that he does not wish to have his residence permit / refugee status renewed.
(ii) His circumstances and the reasons for his
reluctance may be summarised for the present purposes as follows:-
(a) There is a significant population of ex-patriate
Syrians resident in the European jurisdiction among who are people who would be
hostile to the Applicant due to his background.
(b) The Applicant has suffered ill-treatment at the
hands of such individuals and he is of the belief that he is being pursued by
ISIS affiliated militant groups resident in the European jurisdiction. His life, so his application asserts,
has been repeatedly threatened and he has been physically attacked.
(c) He had previously, according to his affidavit,
undergone arrest, detention, interrogation and extreme torture by the military
whilst in Syria. This occurred
because it was believed that he had betrayed his government and as a
consequence on release he was ostracised by his community. He left Syria via Turkey and Egypt and was
smuggled by boat to Europe. He
arrived in Italy and then travelled to another European jurisdiction where, as
I have said, he has been granted asylum but has sought to revoke this.
(d) His affidavit depicts a situation where he has
whilst in the European jurisdiction in effect lived a life of fear and as a
recluse. Whilst away from his home
for a short time, in 2017, he returned to find it had been vandalised and a
knife was left on a table with a letter purporting to be from ISIS.
(e) He was moved to other cities in the European
jurisdiction by the authorities but his location there is susceptible to being
discovered by reason of the size of the ex-patriate Syrian community throughout
the European jurisdiction and communication on social media about him.
(f)
It is
clear, and the Applicant accepts, that the European jurisdiction authorities
have done their best to protect him.
There is no suggestion other than the police have taken a proper action
when he has complained of matters to them, as I have said, the authorities have
moved him in the European jurisdiction to different cities in the hope,
presumably, that the persecution that he has experienced would end. He is in receipt of a letter from the
European jurisdiction authorities which he can present anywhere in that country
to obtain assistance.
(g) As a result of his experiences, his mental
health has suffered. I do not need
to go into the Psychological Report at length save, to say, for example, at
paragraph 5.2.3 of her report, Dr Boucher says:-
"... To summarise
[the Applicant] presented with the presence of some difficulties with schizoid,
avoidant and dependent personality traits (though not on the level that would
indicate a personality disorder), and clinical levels of post-traumatic stress
disorder, anxiety, dysthymia and major depression."
(iii) And, in her summary and opinion, Dr Boucher
indicates that the Applicant is experiencing severe psychological distress
which triggers chronic suicidal thoughts and that he would benefit from
individual trauma focussed psychological therapy. However, the Doctor goes on to say:-
"In my opinion, therapy
will only have limited benefit if [the Applicant] feels that he is currently
under threat. For trauma based
therapy to be effective, [the Applicant] will need to be in an environment
where he feels safe.... This may explain why his previous experiences of
therapy whilst in [the European jurisdiction] had little success, as he
continued to feel his life was in danger."
(iv) The Applicant has attempted suicide whilst in
Jersey on more than one occasion and this is normally associated with his
immediate apprehension that he will be returned to the European jurisdiction.
9.
The
application for leave for judicial review is based upon three grounds.
10. The first ground is that the Respondent's
decision to remove the Applicant without investigating whether or not he can be
safely returned is a breach of the procedural requirements of Article 3 of the
European Convention on Human Rights.
11. The second ground is that the decision to
remove the Applicant was in breach of Article 3 of the Convention because he
faces a real risk of inhuman degrading treatment on his return.
12. The third ground is that the Respondent's
failure to consider all material matters is unreasonable or the decision to remove
the Applicant was in all of the circumstances unreasonable.
13. In response, the Respondent argues that there
is no requirement to give substantive consideration to a claim for asylum were
the Applicant being returned to a safe country. It is further asserted that enquiries
were in fact made as to whether the Applicant could be returned safely.
14. This approach, it is argued, is correct and is
in accordance with Rule 345 of the Jersey Immigration Rules which states:-
"(1) If the Minister or, in
the case of a person arriving in Jersey, an Immigration Officer not below the
rank of Senior Immigration Officer, is satisfied that there is a safe country
to which an asylum applicant can be sent, his application will normally be
refused without substantive consideration of his claim to refugee status.
(2) A safe country is one which the
life or freedom of the asylum applicant could not be threatened (within the
meaning of Article 33 of the Geneva Convention) and the government of which
would not send the applicant elsewhere in a manner contrary to the principals
of the Convention...".
15. It is argued by the Respondent that the
European jurisdiction is a safe country.
Enquiries were made of the Home Office who responded that they "would usually assess that [the European
jurisdiction] is a safe country".
16. The Respondent also asserts that the decision
to remove the Applicant to the European jurisdiction from where he most
recently came and where he has or has had refugee status is not in breach of
Article 3 of the Convention. The
Respondent points to Protocol 24 to the Treaty on the Functioning of the
European Union which states:-
"Given the level of
protection of fundamental rights and freedoms by the member states of the
European Union, member states shall be regarded as constituting safe countries
of origin in respect of each other for all legal and practical purposes in
relation to asylum matters."
17. Whereas that protocol does not apply in Jersey,
it is relied on by the Respondent in support of the assessment of the European
jurisdiction as a safe country. The
Respondent points to HLR-v-France [1998] 26 EHRR 29 in which the
European Court of Human Rights said:-
"Owing to the absolute
character of the right guaranteed [by Article 3 ECHR), the Court does not rule
out the possibility that Article 3 may also apply where the danger emanates
from persons or groups who are not public officials. However, it must be shown that the risk
is real and that the authorities of a receiving state are not able to obviate
the risk by providing appropriate protection."
18. Furthermore, the Respondent relies on the
statement of the Court in R (Bagdanaviciu) v Secretary of State to the Home
Department [2005] 2 AC 668 in which Lord Brown at paragraph 24 stated:-
"In cases where the risk
emanates from intentionally inflicted acts of the public authorities in the
receiving country ... one can use those terms interchangeably: the
intentionally inflicted acts would without more constitute the prescribed
treatment. Where, however, the risk
emanates from non-State bodies, that is not so: any harm inflicted by non-State
agents will not constitute Article 3 ill-treatment unless in addition the State
has failed to provide reasonable protection... non-State agents do not
subject people to torture or to other prescribed forms of ill-treatment,
however violently they treat them; what, however, would transform such violent
treatment under Article 3 ill-treatment will be the State's failure to
provide a reasonable protection against it."
19. The Applicant refers to the case of CK-v-Slovenia. For my purposes it is not necessary to
refer to that case in length but at paragraph 74 and 75, the following is
said:-
"74. In that context, it must
be held that, in circumstances in which the transfer of an asylum seeker with a
particularly serious mental or physical illness would result in a real and
proven risk of a significant and permanent deterioration in his state of
health, that transfer would constitute inhuman and degrading treatment, within
the meaning of that article.
75. Consequently, where an asylum
seeker provides, particularly in the context of an effective remedy guaranteed
to him by Article 27 of the Dublin III Regulation, objective evidence, such as
medical certificates concerning his person, capable of showing the particular
seriousness of his state of health and the significant and irreversible
consequences to which his transfer might lead, the authorities of the Member
State concerned, including its courts, cannot ignore that evidence. They are, on the contrary, under an
obligation to assess the risk that such consequences could occur when they
decide to transfer the person concerned or, in the case of a court, the
legality of a decision to transfer, since the execution of that decision may
lead to inhuman or degrading treatment of that person (see, by analogy,
judgment of 5 April 2016, Aranyosi and Caldararu, C-405/15 and C-659/15 PPU.
EU:C:2016:198, paragraph 88)."
20. And, at paragraph 96:-
"In the light of all of the
foregoing considerations, the answer to Question 2, 3 and 4 is that Article 4
of the Charter must be interpreted as meaning that:
even where there are no substantial
grounds for believing that there are systemic flaws in the Member State
responsible for examining the application for asylum, the transfer of an asylum
seeker within the framework of the Dublin III Regulation can take place only in
conditions which exclude the possibility that that transfer might result in a
real and proven risk of the person concerned suffering inhuman or degrading
treatment, within the meaning of that article;
in circumstances in which the
transfer of an asylum seeker with a particularly serious mental or physical
illness would result in a real and proven risk of a significant and permanent
deterioration in the state of health of the person concerned, that transfer
would constitute inhuman and degrading treatment, within the meaning of that
article;
it is for the authorities of the
Member State having to carry out the transfer and, if necessary, its courts to
eliminate any serious doubts concerning the impact of the transfer on the state
of health of the person concerned by taking the necessary precautions to ensure
that the transfer takes place in conditions enabling appropriate and sufficient
protection of that person's state of health. If, taking into account the particular
seriousness of the illness of the asylum seeker concerned, the taking of those
precautions is not sufficient to ensure that his transfer does not result in a
real risk of a significant and permanent worsening of his state of health, it
is for the authorities of the Member State concerned to suspend the execution
of the transfer of the person concerned for such time as his condition renders
him unfit for such a transfer, and
where necessary, if it is noted
that the state of health of the asylum seeker concerned is not expected to
improve in the short term, or that the suspension of the procedure for a long
period would risk worsening the condition of the person concerned, the requesting
Member State may choose to conduct its own examination of that person's
application by making use of the 'discretionary clause' laid down
in Article 17(1) of the Dublin III Regulation."
21. The Decision has potentially profound and far
reaching effects on the Applicant and his future. Given the evidence relating to the
Applicant's particular circumstances and his experience in the European
jurisdiction, and notwithstanding the undoubted and material efforts that the
authorities in the European jurisdiction have undertaken to protect the
Applicant, it appears to me that there are serious issues to be considered
relating to the Applicant's human rights and how those interplay with the
asylum regime in these particular circumstances. Should in these circumstances an
assessment of the merits of the Applicant's claim have been carried
out? There are, it seems to me,
arguments on both sides.
22. In my judgement, there is an arguable ground
for judicial review having a realistic prospect of success on consideration of
the human rights issues although, of course, in making that assessment, I do
not pre-judge what the eventual outcome might be.
23. However, in the circumstances, I grant the
application for leave to apply for judicial review and I extend the stay on the
Applicant's removal to the European jurisdiction until the Court shall
have considered that application.
Authorities
Sharma-v-Browne-Antoine
(6) [2007] 1 WLR 780.
Warren-v-Lieutenant
Governor [2017] (1) JLR 291.
J-v-His
Excellency the Lieutenant Governor of Jersey [2018] JRC 072A.
HLR-v-France [1998] 26 EHRR 29.
R (Bagdanaviciu) v
Secretary of State to the Home Department [2005] 2 AC 668.
