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	England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Ay, R (On the Application Of) v Secretary of State for the Home Department [2002] EWCA Civ 1922 (17 December 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/1922.html Cite as: [2002] EWCA Civ 1922

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IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(Mr Roger Henderson QC sitting as a Deputy High Court Judge)

		Royal Courts of Justice Strand London, WC2
		17 December 2002

1. LORD JUSTICE KEENE: What I propose to do is to refuse the application for an adjournment for the reasons which have been spelt out by Mr Underwood on behalf of the Secretary of State. However, I do propose to grant permission to seek judicial review.
2. I do so because it seems to me that it is properly arguable that the Secretary of State erred in maintaining his certificate in the light of Dr Boyle's evidence. I do not of course decide that he did err -- that is not my function at this stage -- only that it is properly arguable that he erred. The evidence of the mental problems of the three youngest children is not as strong, taken in isolation, as in Bensaid v UK (2001) 33 EHRR 10 but we are here dealing with children's mental health and with their mental development, and that seems to me to be a relevant consideration.
3. As for the case of Ullah [2002] EWCA Civ 1856 (16 December 2002) again in my judgment it may be properly arguable that Ullah is not applicable where the potential breach of Article 8 is said to arise from the act of removal itself rather than from the treatment which the individuals would receive in the country to which they would be sent. In my view there is an issue as to whether Article 8(1) is engaged, an issue properly to be considered by the courts. I bear in mind, in saying that, that I am told that the Court of Appeal in Ullah has given permission to appeal to the House of Lords.
4. It seems to me that this matter should proceed in the High Court. If any further evidence is obtained in the meantime it will be a matter for that court to decide whether it wishes to admit it or not. I do not propose to give a judgment at any greater length in the light of the conclusion to which I have come, because that might itself prejudge the consideration by the High Court of this matter.
5. I am not prepared to grant bail in this case. I think that, given the history of the applicant's absconding both in this country and in Germany, the risk is too great that she will abscond yet again, even given the presence of sureties and the other restrictions which are proposed in this case. What I am prepared to do is to direct that there be a hearing of the application for judicial review at an early date. That would seem to me in this particular case to be in the interests of the children, as well, no doubt, of immigration control from the Secretary of State's point of view.

ORDER: Permission to adjourn the application refused. Permission to apply for judicial review allowed. Permission to amend the claim form allowed. Application to adduce fresh evidence adjourned. This matter be listed for hearing before a judge of the Administrative Court before the end of January 2003. The costs of permission to be reserved.

(Order does not form part of the approved judgment)