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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Brahane, R (On the Application Of) v Secretary of State for the Home Department [2017] EWHC 1261 (Admin) (28 March 2017) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2017/1261.html Cite as: [2017] EWHC 1261 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		28 March 2017

1. HIS HONOUR JUDGE DIGHT: This is an application which has a relatively long procedural history. The only questions before me today are whether I should lift a stay which was granted some considerable time ago and give permission to allow ground C of the claimant's grounds for judicial review to proceed.
2. The claim concerns two Eritrean nationals who came to Britain via Malta in 2011. The position of the Secretary of State has at all material times been that the claimants are liable to be removed to Malta pursuant to the Dublin II Regulations. The real issue before me is as to whether the time limit of six months for doing so has at any time in the course of the long history expired, and whether the Secretary of State's position following the expiry of the time limit is irrational. I remind myself that the test is whether there is an arguable case for seeking judicial review which merits full investigation and a full oral hearing with all the parties and all the relevant evidence.
3. There have been two sets of judicial review proceedings in this court, the first of which was settled. The second remains live and contains three grounds. Ground A relates to the certification of the claimants' asylum claims and human rights claims; B relates to what is said to be the decision unlawfully to detain and remove the claimants; and C, the alleged breach of the defendant's policy on Article 19 of the Dublin Regulations. Permission in respect of that matter has not formally been considered. It has been the subject matter of a number of interim directions, and most recently directions have been given by Jeremy Baker J and King J, who on 29 November 2016 ordered an oral hearing of the application.
4. The most recent order is a consent order dated 6 December 2016. The context is that the claimants' solicitors have been in contact with the Maltese authorities to discover whether the Maltese authorities would still accept the claimants back if they were to be removed there, pursuant to their obligations under the Dublin Regulations. The picture, it is fair to say, is unclear.
5. The consent order recites the fact that enquiries had been made of the Maltese authorities by both parties as regards the authorities' willingness to accept the claimants back, and on that basis the hearing which was due to take place in December was vacated and there was a stay for a period of three weeks "or pending a response from the Maltese authorities, whichever is sooner".
6. The Maltese authorities had originally accepted in September 2011 that the claimants could be returned there, which started the six-month time limit running, during which period the Secretary of State plainly intended to remove the claimants, but she notified the Maltese authorities in October of that year of an extension of the time limit which occurred as a result of the first set of judicial review proceedings having been issued. There were then various hearings, the detail of which I need not recite, before Mitting J, Beatson LJ, and on appeal before Patten and Aikens LJJ in the course of 2013. When dealing with the matter Mitting J expressly granted an extension of the stay of proceedings until 1 March 2013, arguably giving rise to a new six-month time limit for the purposes of the Dublin Regulations which would have expired on 1 September 2013, during the course of which the Secretary of State neither removed nor appears to have decided to remove the claimants. The claimants submit that the order of Mitting J gave rise to a six-month time limit which expired without the defendant having taken any appropriate steps and there was a breach at that stage of the Dublin Regulations.
7. The appeal, which was ordered to be a rolled-up hearing by Aikens LJ, was settled by a consent order dated 4 July 2014 approved by Rimer LJ. The appeal was withdrawn because it had become academic, the Secretary of State having withdrawn the decision to certify the claimants' human rights grounds. Mr Malik on behalf of the Secretary of State says that it is apparent from the order of Rimer LJ, properly construed, that there had been no breach of the Dublin time limits because it was plainly understood by the parties that the stay or suspension of the time limit was to continue because the terms of the order suggested that a period of five days was to be given to the claimants of notice of any intended removal from the UK.
8. Mr Nathan submits that properly read, that order does not amount to a further stay or suspension of the time limit. He submits that what was really happening was that the court was affording five days to the claimants to get to court if they were going to be removed, and refers me to paragraph 2 of the substantive or operative parts of the order in which the stays previously granted by the Court of Appeal were specifically lifted. Without finally deciding the matter, it seems to me that Mr Nathan's submission on the proper construction of that order in the context is more than reasonably arguable.
9. If the effect of that order was that the Dublin time limit started again, then there was a further period of six months within which the Secretary of State could remove the claimants to Malta, but it was not until 13 March 2015 that notice of an intended transfer on 23 March 2015 was given. The claimants submit that therefore a second period of six months had elapsed without the Secretary of State having performed the transfer, and therefore there was a second alleged breach of the Dublin Regulations.
10. The position as to whether the Maltese authorities would accept the claimants back is - and I think Mr Malik accepts this - unclear on the present evidence. There is a suggestion on both sides that the other has misled the Maltese authorities as to the true position. It seems to me that both of those positions are arguable. The current stance of the Maltese authorities certainly appears to be, having regard to the terms of their letter of 27 January 2017, that they would not accept the claimants back.
11. The Secretary of State's position as set out in a letter of today's date is that for some very considerable time the Maltese authorities have accepted that the claimants may be returned, but the letter does not really engage with the current situation. Mr Malik submits that as a matter of law the Dublin provisions are a product of a treaty between sovereign states and the alleged breach of them is not a matter which is actionable by individual claimants in countries who are parties to the Convention.
12. Mr Nathan takes me to the decision of Beatson J (as he then was) in the case of YZ v Secretary of State for the Home Department [2011] EWHC 205, and while accepting that the time limit cannot itself provide a challenge by individuals, nevertheless as Beatson LJ said in that judgment, a challenge may be brought in circumstances where there is a breach of a norm of domestic public law, the Wednesbury principle, in reliance on the time limits.
13. It seems to me that the defendant's position is arguably irrational in the light of the history which I have set out in that the Secretary of State persists with her intention to remove the claimants to Malta when not only is it arguable that there are two breaches of the Dublin time limits, but also Malta on the face of it appears to be saying on the evidence I have seen that they will not accept the claimants back. For those reasons, therefore, I would both lift the stay and grant permission for ground C to proceed.
14. MR NATHAN: My Lord, I am grateful. Can I observe, the court has not been assisted by the Secretary of State in advance of the hearing notwithstanding the terms of the consent order. It is clearly inappropriate for a costs order in relation to that to be made today, but your Lordship is now familiar with the history, and has it. It may be that the Secretary of State in due course will come back, having belatedly made contact with the Maltese authorities, and matters may change. The concern is the costs of today's hearing in light of her failures to assist.
15. In those circumstances, I wonder if it would be sensible for your Lordship to reserve this matter to be heard substantively by your Lordship as well?
16. HIS HONOUR JUDGE DIGHT: That is rather difficult, because this is not my principal court.
17. MR NATHAN: I appreciate that. I have one case at the moment that is before Helen Mountfield QC as a Deputy Judge, where for similar reasons she has reserved to matter to herself. So I think it can be engineered.
18. HIS HONOUR JUDGE DIGHT: Well, it certainly can be engineered.
19. MR NATHAN: I wonder, particularly as in her case she does not sit all that often as a Deputy, but of course your Lordship does and it could always be that a half-day -- I would imagine that a half-day substantive hearing around the corner within the precincts of these courts could be listed with you sitting as an Administrative Court judge. If you are potentially taking a case out of the Administrative Court list -- mind you, into the Central London list which is even busier --
20. HIS HONOUR JUDGE DIGHT: Well, there are two issues. Although I have another three or four weeks booked in the next financial year to sit in the Administrative Court, I do not know whether there is already stuff diarised for it and my diary at Central London is already full until the end of July. So that is the picture. It is also bound up with what I do about your other two grounds and whether there should be an oral hearing in respect of that.
21. MR NATHAN: Can you just allow me a moment? I am conscious of my learned friend's time, but --
22. HIS HONOUR JUDGE DIGHT: Yes.
23. MR NATHAN: My Lord, in light of your Lordship's indication in relation to your diary and my indication earlier that we propose that the matter come on as soon as possible, perhaps I would withdraw that proposal. I would ask that this matter be listed as soon as possible. It is an issue that has been hanging around now for over two years, with the Secretary of State's position being somewhat inert bar one letter of 1 July throughout that period.
24. I am instructed to ask for the costs of today on the basis that the Secretary of State has simply failed throughout, and I can see there is some force. So, ideally one would ask for -- as I have said the fall-back would be for your Lordship to reserve it to yourself, but in the absence of that it does seem to me that the Secretary of State has failed the court fairly dismally following her own (Inaudible) to a consent order in December, and then providing a letter suggesting that the claimant's solicitors were misleading the Maltese authorities on the morning of the hearing, where she was copied in to all communications up until today, it is a fairly contemptuous - and I use that word advisedly - letter, which is just not borne out by the correspondence. So, in my submission this is a rare case where the claimants, we say, ought to be entitled to their costs of today's hearing and the costs between the consent order on 6 December and today.
25. HIS HONOUR JUDGE DIGHT: Otherwise, what order would you normally be asking me to make?
26. MR NATHAN: Just an order with standard directions, which will appear in the CPR. So permission granted, standard directions to apply save that the matter be listed for the first possible opening.
27. HIS HONOUR JUDGE DIGHT: No, I mean as to costs. That the costs be in the judicial review?
28. MR NATHAN: Otherwise costs would be reserved. I think --
29. HIS HONOUR JUDGE DIGHT: Just reserved? I have had quick look. Every costs order that has been made so far has been reserved.
30. MR NATHAN: Yes.
31. HIS HONOUR JUDGE DIGHT: But --
32. MR NATHAN: I suppose costs --
33. HIS HONOUR JUDGE DIGHT: Unwinding those is rather difficult, because they all proceed on various different bases, all those hearings. They are all going to have to be dealt with at the final hearing.
34. MR NATHAN: They almost certainly are, yes, and if the claimant succeeds almost inevitably the claimants will receive their costs. As I say, standard directions otherwise, save that the matter be listed, as I say, as soon as possible.
35. HIS HONOUR JUDGE DIGHT: Yes, thank you.
36. Mr Malik, what do you want to say?
37. MR MALIK: My Lord, the costs should be reserved. There is no basis in our submission for your Lordship to engage with this issue at this stage. The usual practice of this court is to reserve costs when permission is given, and in the light of the contents of the letter that you have seen it would be appropriate for the presiding judge at the substantive hearing to deal with this issue. My learned friend can make the points that he has made this morning to the presiding judge.
38. So far as the listing directions are concerned, as long as the Secretary of State has 35 days to file detailed grounds of defence I would not object to any of that.
39. HIS HONOUR JUDGE DIGHT: Right. You were saying right at the beginning that you wanted the other grounds to be looked at as well. Is that what you were saying? You were saying it is disproportionate to deal with it separately?
40. MR MALIK: Yes. But you have granted permission now on this particular ground, so the options are that you direct a hearing, a substantive hearing, in relation to this ground now, or that you direct the matter to be listed after the hand-down of the judgment of the Court of Appeal in July.
41. HIS HONOUR JUDGE DIGHT: So, that is what I am asking. What do you want me to do?
42. MR MALIK: Well, in my submission it would be proportionate for the substantive hearing to take place once we have the decision of the Court of Appeal. The parties will be able to take a view as to what the Court of Appeal has said and can then either agree on directions or can apply to the court for those grounds to be dealt with at that hearing. Otherwise we will be in a position where we have a substantive hearing in the next few months, and irrespective of the outcome of that hearing we would have to come back to court. That would not be proportionate.
43. HIS HONOUR JUDGE DIGHT: Yes.
44. MR NATHAN: As I say, my Lord, if I might very briefly reply, if this claim succeeds we do not necessarily have to come back. Ground A falls away. Ground B could actually be transferred to the Central London County Court, and in any event ground B would likely change its course considerably if ground C succeeds, because actually the Ararso case, while helpful, these cases would be even stronger and likely would settle, I would imagine.
45. HIS HONOUR JUDGE DIGHT: I just want to look at the timetable briefly. The standard order is, did you say it is in Part 54?
46. MR NATHAN: It is in Part 54. I am sorry I do not have the White Book with me. It is 35 days for the Secretary of State to file her detailed grounds and thereafter there are no formal directions save that the Practice Direction, I think, dictates skeleton argument from the claimant 21 days before the hearing.
47. HIS HONOUR JUDGE DIGHT: That is going to take you to a hearing not before the beginning of June.
48. MR NATHAN: Yes.
49. HIS HONOUR JUDGE DIGHT: In those circumstances, while I am happy to say that the matter should be heard before the end of the summer term, it seems to me it should not come on until after the hearing in the Court of Appeal and when they give judgement, I suppose.
50. MR NATHAN: I doubt we will get judgment until the last week of July. I would be surprised if the Court of Appeal were to give a judgment (Inaudible).
51. HIS HONOUR JUDGE DIGHT: Yes, you are right.
52. I am being told by the associate that unless I order some form of expedition it will come on in Michaelmas term, probably. So I think what I am prepared to do is to make the standard order but direct that the full hearing come on -- and I am going to suggest a day, actually, come on before the end of the Trinity term. So before 29 July, which will provide a window for there to have been the hearing in the Court of Appeal on the other matters which might illuminate the parties when it comes to discussing what is left of this case.
53. So far as the costs are concerned, while I understand the claimants' position that they say that the defendant has not engaged with the process it does not seem to me that the alleged failure to engage is causative of cost today because the hearing would have gone ahead in any event. It might just have made a slight difference to the way in which I came to my conclusion. For those reasons, therefore, it seems to me it should be the usual order.
54. MR MALIK: Thank you, my Lord.
55. MR NATHAN: My Lord, I will endeavour to draw up an order and email it to the associate.
56. HIS HONOUR JUDGE DIGHT: Thank you very much.