The applicant is a Zimbabwean national now resident in
the Republic of Ireland having been removed from Northern Ireland on 22 November
2005 ("the removal"). She currently has an ongoing asylum application in the
Republic of Ireland which is the subject of an appeal. In this matter she seeks
judicial review of a number of issues:
(a) The quashing of the decision by the Secretary of State for the Home
Department ("the respondent") to remove her to the Republic of Ireland.
(b) An order of mandamus requiring the respondent to accept the applicant back
into the UK from the Republic of Ireland and accept responsibility for her
asylum claim.
(c) An order to quash the decision of the respondent to certify the human rights
claim of the applicant as "clearly unfounded" and to declare that the decision
was unlawful, ultra vires, contrary to her Article 5 and 8 rights under the
European Convention of Human Rights and Fundamental Freedoms ("ECHR") and of no
force or effect.
(d) A declaration that her removal offended against her legitimate expectation
that she would be informed of any decision to transfer her to the Republic of
Ireland and be given an opportunity to make representations before any such
application was made or a decision to transfer effected.
(e) A declaration that her removal was contrary to the terms of the Dublin II
Regulations.
(f) A declaration that the removal of the applicant to the Republic of Ireland
was not preceded by the required issuing of removal directions and that these
were not served on her.
The background facts
[2] (i) The applicant makes a case that she had
originally travelled to the UK from Zimbabwe via South Africa and the Republic
of Ireland. She had arrived in the Republic of Ireland using a visa that was
issued to her from the Irish Embassy in South Africa. She was only in Dublin for
a very short time when she moved to Northern Ireland. She claimed she was
travelling north to her family and to claim asylum in the UK.
(ii) She applied for asylum in the UK on 9 February 2004. She was not afforded a
substantive interview in relation to the claim although she did attend a
screening interview at Belfast International Airport on 24 February 2004. At
that interview she was told that the UK might not be the country responsible for
hearing her asylum but that if transfer was to be made she would be advised of
this.
(iii) She was then in possession of a visitor's visa in the Republic of Ireland
until 12 March 2004. That visa had been granted in the Irish Embassy in South
Africa.
(iv) The applicant asserts that she had two younger siblings who had arrived in
Northern Ireland on 12 August 2005 and they had all resided together as a family
with her mother between that date and the date of her removal.
(v) Unknown to her, an application was made by the United Kingdom (UK) to the
Republic of Ireland (ROI) to the effect that the latter was the country
responsible for hearing the applicant's asylum claim.
(vi) The ROI accepted this on 28 May 2004 under the terms of EC Council
Regulation 2003/343/EC of 18 February 2003 (hereinafter referred to as "Dublin
II" and referred to in detail subsequently in this judgment). This Regulation
came into force on 1 September 2003 and applies to requests made by Member
States in respect of asylum seekers from that date. The ROI accepted the
responsibility under Dublin II because the applicant had first arrived the
territory of the EU by entering through the ROI on a visa issued by that country
in South Africa and then travelled north to Northern Ireland. It is conceded by
the respondent that the applicant was not notified of the UK's decision not to
examine her application for asylum and of the decision to transfer the applicant
to the Republic of Ireland. Moreover she was not notified of the certification
of her asylum application on third party grounds on 2 June 2004.
(vii) It is the respondent's case that it was the intention to serve the
applicant with removal directions and detain her prior to her removal from the
United Kingdom on 26 October 2004 when she was due to report under the terms of
her temporary admission to the United Kingdom to Strandtown PSNI Station in
Belfast. There is a dispute between the parties as to what happened on that
occasion. It is the respondent's case that the applicant absconded upon being
informed that a member of the Immigration Service was to attend to speak with
her at Strandtown Station. I shall return to that issue later in this judgment
as it has a direct relevance to the time limits for actions taken by the
respondent to remove the applicant in this case.
(viii) On 22 November 2005 the applicant was detained by the immigration
authorities. Her solicitor avers that before she was removed he contacted the
respondent by letter/fax and by telephone. One of his letters sent on
22 November 2005 lodged an appeal against the removal directions citing Article
5 and Article 8 of the ECHR. The respondent accepts that there was a failure to
provide her with Removal Directions under Rule 5 of the Immigration (Notices)
Regulations 2003. Under Article 5(4) of the Schedule 3 to the Asylum and
Immigration (Treatment of Claimant, etc) Act 2004, the Secretary of State
certified that the human rights claim was clearly unfounded unless satisfied
that it is not clearly unfounded("the certification"). It is conceded by
Mr McGleenan, who appeared on behalf of the respondent, that this certificate
was not issued prior to the applicant's removal on 22 November 2005. He accepts
that the certificate came into being some time between 22 November 2005 (the
date recorded on the certificate) and its receipt by the solicitor on behalf of
the applicant on 7 December 2005. Notwithstanding these matters, the removal
proceeded.
The applicant was removed to the Republic of Ireland where she has processed an
asylum claim (which was refused) and subsequent appeal which is currently
outstanding.
(xi) The present application for a judicial review was not lodged until 24 June
2006 ie seven months after the removal. The applicant asserts that she has good
reason for this delay.
Legislation
[3] Mr McTaggart appeared on behalf of the applicant.
In the course of a clear and skilfully presented skeleton argument well
augmented by oral submissions before me, he made the follow points:
(i) The removal of the applicant on 22 November 2005 was unlawful in light of
the several failures on the part of the respondent to comply with the provisions
of Dublin II. Whilst acknowledging that the breaches of Articles 19(1) and 19(2)
were procedural, he argued that the failure to comply with the time limit of six
months imposed in Article 19(4) was a substantive breach and should trigger the
respondent now accepting responsibility for the applicant's asylum claim.
(ii) Counsel recognised that the alleged breach of the time limit of six months
is obviated if, as suggested by the respondent, the applicant was an absconder.
He challenged that finding by the respondent, asserting that the applicant had
not absconded from Strandtown Police Station and that contrary to assertions by
the immigration officials, her address was known. Consequently the time
extension referred to in Article 19(4) did not obtain.
(iii) The applicant's removal whilst a human rights claim had been lodged was a
breach of the Nationality Immigration and Asylum Act 2002. He submitted that the
only ground on which an applicant would not have been able to so appeal whilst
in the country was if a third country certificate had been served on her and it
is accepted that this had not been done albeit it had been prepared on 2 June
2004. There was also a concession by the respondent that the certification of
the human rights claim as "clearly unfounded" had not been drawn up at the time
of her removal.
(iv) Counsel asserted in any event that the actual certification of the human
rights claim as "clearly unfounded" was untenable given the nature of family
life and private life rights which the applicant enjoyed. He drew attention to
an error of fact on the part of the decision makers who had concluded that the
siblings did not have leave to remain whereas one, Vincent, had permission to
remain until he was 18 and the other, Couzie, had a similar discretion bestowed
upon her.
(v) Mr McTaggart resisted the suggestion that the case itself should be
dismissed on the grounds of delay because, whilst he conceded that the time
limit for the lodging of the judicial application was spent, he submitted that
there was good reason for the delay. This included a desire to exhaust
alternative remedies (application before the Appeal Immigration Tribunal), delay
in papers being furnished to his solicitor Mr Hollywood from his former
solicitors Madden and Finucane, delay in obtaining legal aid and the presence of
the applicant outside the jurisdiction.
(vi) In essence Ms McTaggart submitted that the applicant had been subjected to
a succession of unlawful acts on the part of the respondent and that she should
now be allowed to return to the UK and have her asylum claim heard in the UK de
novo.
The respondent's case
[6] Mr McGleenan, on behalf of the respondent, in an
equally persuasive and skilful skeleton argument together with cogent oral
submissions, submitted the following matters:
(i) Whilst he conceded that there had been a number of failures to comply with
the requirements of Dublin II, he invited the court to exercise its discretion
not to grant relief to the applicant.
(ii) He submitted that there had been unconscionable delay on the part of the
applicant in bringing the judicial review proceedings. The applicant was removed
to the Republic of Ireland on 22 November 2005 and notwithstanding the benefit
of legal representation in this jurisdiction since that date, the judicial
review proceedings were not lodged until 24 June 2006. He submitted that the
lapse of time had brought about an adverse impact on the utility of these
proceedings insofar the applicant is and remains fully engaged with the asylum
procedures in the Republic of Ireland. I observe here that the applicant had
lodged an asylum claim in the Republic of Ireland shortly after her removal to
that jurisdiction. She had been invited to a screening (which she had attended)
and to a further substantive interview. The applicant had claimed that she had
not received notice of this latter interview and accordingly her application was
refused on the grounds of non-compliance. She is now processing an appeal
against that decision which was lodged according to Mr McTaggart some time in
early 2006.
(iii) Mr McGleenan argued that the transfer had taken place within the extended
time limit afforded by Article 19(4) of Dublin II due to the applicant
absconding. He submitted that it was a perfectly proper conclusion by the
immigration authorities that the applicant had absconded given the facts that
appeared on the papers before the court.
(iv) In any event counsel asserted that the procedural breaches of Dublin II
Regulation do not confer freestanding rights upon individual applicants and a
breach of the Regulations cannot result in the determination of an asylum
application by a State other than the State which has accepted the transfer
pursuant to Article 9. In terms Mr McGleenan argued that Dublin II is primarily
aimed at the determination of responsibility between Member States rather than
conferring rights on individuals. The purpose of Part V of the Regulation is to
ensure prompt determination of the country in which the asylum claim should be
processed. He placed reliance on a number of authorities which he claimed were
to that effect and to which I shall turn shortly in my conclusions. In essence
it was Mr McGleenan's submission that the only actionable right that the
applicant derives from the Dublin II Regulations is that her asylum application
should be promptly transferred to the Republic of Ireland and there addressed.
Discussion of the issues for determination
[7] A. Delay
(i) An application for permission to apply for judicial review must be made
promptly and in any event within three months from the date when the grounds for
the application first arose unless the court considers that there is good reason
for extending the period within which the application shall be made pursuant to
Order 53 rule 4. It is for the applicant to establish that there is good reason
to extend time (see R v Warwickshire County Council ex p Collymore (1995)
ELR 217 at 228F-g).
(ii) For the removal of doubt, I make it clear that an application for
permission to apply for judicial review must not only be made promptly, but even
where an application is made within three months it may still be rejected where,
for example, finality is important (see R v Bath Council ex p Crombie
(1995) COD 283).
(iii) In approaching this matter I regard a good overview of the principles to
be applied is found in R v Secretary of State for Trade and Industry, ex
parte Greenpeace Limited (2000) ENV LR 221 where Kay J posed three criteria:
"(1) Is there reasonable objective excuse for applying late?
(2) What, if any, is the damage in terms of hardship or prejudice to third party
rights and detriment to good administration, which would be occasioned if
permission were now granted?
(3) In any event, does the public interest require that the application should
be permitted to proceed?"
(iv) I have come to the conclusion that there is good reason and reasonable
objective excuse in this matter to allow the case to proceed for the following
reasons:
(a) Several weeks in the initial period were taken up by the applicant pursuing
an alternative remedy with the Appeal Immigration Tribunal. Pursuit of
alternative solutions or of other avenues is always acceptable in a jurisdiction
where judicial review should be a remedy of last resort. Although this Tribunal
eventually found it had no jurisdiction, I believe this to have been a
reasonable preliminary step by the applicant.
(b) Further delay was engendered by the exchange of papers in this matter
between the applicant's solicitor Stephen Hollywood and his former firm Madden &
Finucane. Whilst tardiness or incompetence of legal or other advisors is
normally not a good ground, the remedy of the client being to sue those
advisors, (see R v Secretary of State for Health ex p Furneaux (1994) 2
AER 652), I think that neither criticism can be visited on the solicitors
involved in this case and the delay may well have simply been an example of
understandable administrative difficulties in the exchange of papers. Not only
does the applicant bear no blame for this, but Mr Hollywood, her current
representative , has been assiduous throughout this case in the pursuit of his
client's interests.
(c) Several weeks delay was encountered as a result of processing the claim for
public funding. In this corner of the law, the results of decided cases are very
fact sensitive. Mr McTaggart relied on R v Stratford on Avon District
Council, ex p Jackson (1985) 1 WLR 1319 where at p. 1324A Ackner LJ said:
"It is a perfectly legitimate excuse for delay to be able to say that the delay
is entirely due to the fact that it takes a certain time for a certificate to be
obtained from the legal aid authorities and that, despite all proper endeavours
by a claimant, and those advising her, to obtain a legal aid certificate with
the utmost urgency, there has been some difficulty about obtaining it through no
fault of the claimant."
There are a number of authorities pointing in the other direction. In my view
however legal aid delay will not be treated as a sufficient reason to extend
time in cases where speed and the need for early warning is important. That does
not apply with such force in this instance. Given that the claimant was once
again blameless in this search for legal aid funding, I consider that it amounts
to a good reason for that measure of delay. An important factor in the exercise
of my discretion in this regard is the fact that once legal aid was obtained,
the solicitor for the applicant acted with exemplary expedition.
(d) I see no prejudice accruing to the respondent in this case because of the
delay.
(e) Even if the applicant can make out a good reason for obtaining permission to
extend time, the court retains an overriding or residual discretion and may
still refuse permission for example where the public interest does not require
the application to proceed. Moreover if the substantive merits are poor the
applicant may be refused at the initial stage or later. A further reason for
exercising discretion against an applicant may be where the re-opening of the
matter could have a stultifying effect upon a department or have an adverse
effect on good administration. In this regard I have considered the submission
by Mr McGleenan that the exercise of the applicant's rights to pursue her asylum
claim in the Republic of Ireland have been ongoing for several months now and
that the whole process should not be further elongated by having parallel
proceedings here in Northern Ireland. I remain unconvinced by this argument. In
the first place, I am conscious of what Lord Wolff MR said in Ahmad and Simba
v Secretary of State for the Home Department (1999) Imm AR 356 at 357:
"Normally, in the case of asylum seekers, this court will be circumspect about
being too rigorous in applying the normal principles of judicial review in
relation to delay because the court appreciates that to refuse an application
for (permission) to apply for judicial review solely on the grounds of delay may
have very grave consequences for the asylum seeker."
In addition I consider that the merits of this case and in particular the
procedural failures on the part of the respondent are such that the matter does
merit scrutiny . It would not be in the public interest to refuse a late
challenge in circumstances where there is prima facie evidence of the respondent
having acted unlawfully.
B. Absconder notification
[8] A key component in the applicant's case was that
the respondent was in breach of the obligation under Article 19(4) of Dublin II
to ensure that the transfer to the Republic of Ireland was carried out within a
six months' time limit. There was no dispute that this time limit had not been
adhered to. However the respondent's case was that it could avail of the
extension of time under Article 19(4) i.e. "up to a maximum of 18 months if the
asylum seeker absconds". The respondent had issued an absconder notification
dated 30 October 2004. In the event of this notification being valid, the
respondent had complied with the relevant 18 month time limit. Much of this case
was taken up with argument as to whether a breach of Article 19(4) by the
respondent conferred a freestanding right upon an individual applicant or
whether the regulations primarily aimed at the determination of responsibility
between Member States for dealing with asylum seekers. Whilst I shall return to
this general issue later in this judgment, the first matter that I must consider
is whether or not the applicant has sustained her argument that the decision
taken to issue the absconder certification was based on flawed facts and poor
record keeping. In terms was the decision to issue the certificate made with a
disregard of relevancies, a consideration of irrelevancies and overall patently
unreasonable? I am unpersuaded on the facts that this was the case and I have
therefore rejected this aspect of the applicant's submission on a factual basis.
I have come to this conclusion for the following reasons:
(i) The reasons set out in the notification for the conclusion are as follows:
"Absconded from PSNI before IO(Immigration Officer) got there. UKIS
Belfast intended to detain at police station, but subject absconded and has not
lived at the address for two months. Police attempts to capture her failed."
I had before me the statements of Police Constable McGibbon of Strandtown Police
Station and Sarah Lyons of the Immigration Service, Belfast Ports, Belfast
International Airport. The former described how the applicant had attended the
enquiry office on 26 October 2004 at Strandtown Police Station at approximately
8.45 am. He dealt with her. When she had signed her bail (she was to appear
monthly), he observed a note pinned on the immigration sheet which requested the
officer on duty to request the applicant to wait in the enquiry office because a
member of the Immigration Service was to attend to speak with her. He asked her
to wait and advised her that the officer was to attend to speak with her at
approximately 10.00 am in the morning. She initially waited but according to him
she then ran from the room. Because he was on duty he requested one of his
colleagues, Police Constable Cooke, to chase after the applicant and to bring
her back to await the immigration officer. Ms Lyons made an affidavit to the
effect that she had telephoned the enquiry office at the police station at 9.00
am.She spoke to PC Cooke who told her the applicant had run from the enquiry
office and was chased by another officer but she could not be found. During the
day Ms Lyons received several telephone calls from PC Cooke to say that police
had been to the address that had been provided for the applicant and there had
been no one at the property. At 17.30 hrs that day Ms Lyons received a final
call from PC Cooke who stated that she had been to the applicant's address and a
white female had answered the door. That female said she had lived there for two
months and claimed not to know the applicant.
(ii) Mr McTaggart closely analysed the affidavits and drew my attention to
certain inconsistencies that appeared on the face of the affidavits. I found
these inconsistencies inconsequential. The applicant's assertion was that she
had not fled from the building at all and had no recollection of this incident.
Mr McTaggart argued that no power of arrest had been exercised in any event.
It has often been observed that judicial review is unsuitable for resolving
disputes of fact. Although it may well be appropriate in certain instances, in
essence judicial review is not a fact finding exercise.It is an extremely
unsatisfactory tool by which to determine matters of dispute such as have arisen
in this instance. (See R v Chief Constable of Warwickshire Constabulary, ex p
Fitzpatrick (1999) 1 WLR 564 at 579D).
(iii) In so far as the immigration officer was clearly informed that the
applicant had run from the police station (and there is a contemporaneous
document in the possession of the PSNI recording this) she was entitled to
conclude that the applicant had taken to flight. Further, in two letters, namely
19 May 2004 and 15 July 2004 – both emanating from Mr Hollywood the
representative acting on behalf of the applicant - it was asserted that she was
currently residing at 97 Greenore Street, Belfast. This was the address to which
the police had called and the evidence they received was that the applicant was
not living there. Mr McTaggart countered this by drawing my attention to the
fact that on 15 November 2004 an enforcement visit was undertaken to the
applicant's address at 1 Ashmount Park, Belfast.This occurred again on 22 August
2005 but on neither occasion was she there. He therefore submitted that the
police had gone to the wrong address on 26 October 2004. On the facts before me
the address notified to the authorities by the applicant's representative was
that to which the police understandably went in order to ascertain the
whereabouts of this woman, namely Greenore Street, Belfast. In those
circumstances I have absolutely no doubt that it was a perfectly reasonable
conclusion for the immigration officer to come to that this applicant had
absconded.
(iv) Mr Taggart, leaving no stone unturned, raised the question of the
definition of "absconder". It is common case that there is no definition set out
in any regulation or guidance at the time that the alleged event occurred. He
drew my attention to an asylum process notice ("APN") issued subsequent to
notification in this case in April 2005. That APN records:
"Only UKIS can identify a claimant as an absconder. Once they have done so they
will prepare an IS159 (enforcement case) for such claimants. …. UKIS will only
prepare and issue an absconder notification when it has been established beyond
reasonable doubt that the claimant is no longer in residence at the address
given on file."
The first point to be made is that this was not in force at the time of the
notification. Mr McGleenan submits that the dictionary definition – "To go away
furtively, especially after wrongdoing" - is the most that could have guided the
immigration officer. I am satisfied that the facts as related by the police to
the immigration officer were sufficient for the conclusion that this applicant
was absconding. Indeed even if the definition referred to in the APN of 11 April
2005 had been in force, I consider that it would have been perfectly reasonable
for an immigration office to have formed the conclusion beyond reasonable doubt
that the claimant was no longer in residence at the address given on file on the
basis of the facts which were related to her on that occasion.
I have therefore concluded that the respondent was not in breach of any time
limit for the removal of this applicant and that it was entitled to avail of the
extension contained in Article 19(4) of Dublin II.
C. Other breaches of Article 19 of Dublin II
[9] (i) It was common case that the respondent had
failed to comply with Articles 19(1) and (2) of Dublin II. When the Republic of
Ireland had accepted that it should take charge of the applicant, the respondent
had failed to notify the applicant of the decision not to examine her
application and of the obligation to transfer her to the Republic of Ireland.
Moreover it had failed to set out the grounds on which the decision was based or
the details of the time limit for carrying out the transfer or information of
the place and date of which the applicant should appear.
(ii) The issue took up most of the hearing before me and centred around the
question of whether Dublin II had direct effect conferring on the applicant
freestanding rights. The respondent's submission was that the regulation was
primarily aimed at the determination of responsibility between Member States
rather than conferring rights on individuals. Both sides made generous reference
to authorities which have helped me to come to the following conclusions:
(a) Dublin I has a composite purpose. It was intended to effect a clear
assignment of responsibility for dealing with asylum claims between Member
States and to do so as speedily as possible. It was a treaty or Convention and
thus as a matter of English law only had effect on the international plane.
Dublin II is by contrast a Council Regulation and is directly applicable in the
legal systems of the Member States. The Dublin II Regulation therefore has
direct effect. I respectfully adopt the summary of both the Convention and the
Regulation set out by Sir Swinton Thomas in Omar (Mohamed) Abdi v Secretary
of State for the Home Department (2005) EWCA 285 at para. 22 when he said:
"Both the Convention and the Regulation draw a clear distinction between
criteria and mechanisms, and both provide for the circumstances, in which
consequences follow a breach. The distinction between criteria and mechanisms is
drawn in the pre-amble. Article 2(3) defines the criteria as those set out in
Articles 4-8. Article 8 refers to the criteria that precede that Article.
Article 13 of the Regulations similarly refers to the criteria which precede
that Article and then in subsequent chapters provision is made for the carrying
into effect of the Regulation (the equivalent of the mechanisms) with
consequences to follow where consequences are intended to follow. There is a
stark contrast between the transfer provisions in the Convention and in the
Regulation concerning transfer from the requesting State to the requested State,
the Convention not providing for consequences to follow a breach, whereas the
latter does provide for consequences, but with quite different time limits."
Thus Article 19 lays down various requirements placed on both the requested
Member State and the requesting Member State, such as notification to the
applicant of the decision, setting out grounds upon which the decision is based,
details of time limits for carrying out the transfer, and means of travel.
Article 19(2) provides that the decision may be subject to an appeal or review.
Article 19(3) provides that the transfer of the applicant from one State to the
other shall be carried out "as soon as practicably possible and at the latest
within six months of acceptance of the request that charge be taken or of the
decision on an appeal or review where there is a suspensive effect." 19(4) is as
I have already outlined. 19(4) thus makes provision for consequences to follow
in those circumstances. The Regulation however is clearly primarily aimed at
determining responsibility between Member States, rather than conferring rights
on individuals (see Macdonald's Immigration Law and Practice 6th
Edition at para. 12.155). Mr McGleenan helpfully took me on an odyssey through
each of the chapters illustrating that the express wording of the Regulation
again and again refers to the aim of determining responsibility between Member
States. In most instances eg. 19(1), 19(2) no consequence is expressed for a
failure to adhere to provisions. Whether this gives even Member States rights to
enforce these Articles against each other may be a moot point, but certainly
there is no indication whatsoever in these Articles that they give rise to a
freestanding right to individuals outside the Member State.
(b) It has proved unnecessary for me to make a determination whether the direct
effect of 19(4) would have provided a freestanding right for the applicant in
the event of me determining that the respondent had acted outside the time
limits but I venture to suggest that the clear references in 19(4) to the Member
States are indicative that this Article is aimed at determining responsibility
between the Member States rather than conferring any right on an individual.
(c) My conclusion that Article 19 of Dublin II does not confer any freestanding
right on the applicant does not necessarily dilute Mr McTaggart's submission to
me that, as directly applicable measures, regulations can apply horizontally
between private parties as well as vertically against public bodies. He relied
on an extract from Antonio Munoz Cia Sa v Frumar Limited (case C-253/00),
quoted in Steiner and Woods text book on EC Law 8th Edition at page
93 which states:
"In terms of enforcement, it also seems to suggest that it is not necessary that
rights be conferred expressly on the claimant before that individual may rely on
the sufficiently clear and unconditional provisions of a regulation. In this,
there seems to be the beginning of a divergence between the jurisprudence and
regulations and that on directives."
The flaw in his argument however is that much will depend upon the precise
provisions in the Regulations. In my view the wording and purport of Regulation
19 is very clear This Regulation is clearly aimed at determining responsibility
between Member States and does not confer rights on individuals certainly. The
wording of other articles in this or other Regulations may lead to different
conclusions. Accordingly I refuse the relief sought and referred to in
paragraphs 1(d),(e)and (f) of this judgment.
D. The Removal
[10] (a) When the applicant was detained on 22 November
2005, and before she was removed to the Republic of Ireland, her legal
representative Stephen Hollywood had contacted the respondent by letter/fax and
also by telephone call. One of the letters sent on 22 November 2005 endeavoured
to lodge an appeal against any removal directions under Section 82 of the
Nationality Immigration and Asylum Act 2002 ("the 2002 Act"). Inter alia, the
letter stated:
"We advise we have this afternoon been informed that our client has been
detained under the Immigration Legislation pending removal to the Republic of
Ireland.
We would submit that this would amount to a clear breach of our client's rights
under articles 5 and 8 of the European Convention on Human Rights. Furthermore
we would advise that our client initially made her application for asylum on 9th
February 2004 and that to date we have not received clarification of the outcome
of this application despite numerous written requests. It is our submission that
our client has not been afforded any degree of procedural fairness.
We advise that we hereby lodge appeal against any removal directions under
Section 82 of the Nationality Immigration and Asylum Act 2002. We would advise
that this appeal is suspensive. In light of the above we would submit that to
remove our client would be unlawful. We would advise also that we intend to
lodge High Court proceedings without further notice if continued attempts are
made to remove our client from this jurisdiction.
Please confirm by return that our client will not be removed from Northern
Ireland until such time as the above issues have been properly addressed".
(b) Section 82 of the 2002 Act provides a right of appeal, inter alia, against a
decision that a person is to be removed from the United Kingdom by way of
directions under Section 10(1)(a), (b) or (c) of the Immigration and Asylum Act
1999 and also against the decision that an illegal immigrant is to be removed
from the United Kingdom by way of directions under paragraphs 8 to 10 of
Schedule 2 of the Immigration Act 1971. A person may not appeal under Section
82(1) whilst he is in the United Kingdom if a certificate has been issued in
relation to him under Section 11(2) or 12(2) of the Immigration and Asylum Act
1999 save 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.
(c) It was common case that human rights appeals are generally suspensive of
removal (see s. 92(4)(a) of the 2002 Act). In that event the Secretary of State
may certify a claim as "clearly unfounded" which will deprive the appeal of
suspensive effect by virtue of paragraph 5(4) of Schedule 3 of the Asylum and
Immigration (Treatment of Claimant's etc) Act 2004. It is equally clear that the
respondent failed to implement that suspension and the applicant was removed on
22 November 2005. The affidavit of Lesley Elliott of the Immigration Service, UK
Enforcement and Removals Directorate on 14 September 2006 is instructive as to
the manner in which the statutory right of appeal and its suspensive effect were
considered by the respondent:
"6. On 22 November 2005, I was advised by the Immigration Service in Liverpool,
who had responsibility for removals from Northern Ireland, of their intention to
remove the Applicant to the Republic of Ireland later that day. By letter dated
22nd November 2005 the Applicant's solicitors made representations to
the Home Office that removal of the Applicant to the Republic of Ireland would
be in contravention of her ECHR rights. This letter was received during the
afternoon of 22 November 2005, shortly after the applicant had been detained. I
tried to contact the Immigration Service at Liverpool to advise them that
representations had been received, but they were unable to contact the officer
dealing with the case in Belfast and the removal went ahead as planned.
7. During the afternoon of 22nd November 2005 I was in the process of
considering these representations and received a number of telephone calls from
the Applicant's solicitors regarding their client's removal. I spent a
considerable amount of time that afternoon speaking to the solicitors and was
still in communication with them by telephone at 6.00 pm. During the telephone
conversation the solicitors mentioned that they were going to make further
representations in addition to those which I had already received. I asked them
to put the further representations in writing and said that I would respond to
them as possible. I duly noted the applicant's Home Office file to this effect.
By the time I had finished speaking to the solicitors, the applicant had already
been removed to Ireland.
8. No further representations were received and I considered those made in the
letter of 22 November 2005 taking into account the information available. Due to
the amount of time which has elapsed, I cannot recall the exact date on which I
responded and unfortunately I did not note on the file on which date I sent the
response to the solicitors. Neither is there a copy of the faxed confirmation.
9. It is of note that the letter to the Applicant's solicitors is still dated 22
November 2005. This is an oversight on my part as I had begun my draft on 22
November 2005. There was never any intention to indicate that I had responded to
the solicitors representations on 22 November 2005. My intentions are clearly
noted on the Home Office file and I had informed the Applicant's solicitor that
I would not be responding to their representations on 22 November 2005, but
would wait for their further representations and answer the letters together".
(d) It is clear therefore that not only had the respondents recognised that the
effect of the Hollywood letter of 22 November 2005 was suspensive in effect in
terms of the removal, but that the only reason that the removal took place on
that date was because Ms Lyons had been unable to make contact with the relevant
officer to prevent the removal. I have no doubt that had contact been made, this
removal would never have occurred on 22nd November 2005 and the
normal suspension would have operated. Self evidently, the decision to certify
that the applicant's human rights claim was clearly unfounded occurred some time
between 22 November 2005 ("the certification") and 7 December 2005 when it is
agreed the letter was provided to Mr Hollywood. The precise date when that
certification was arrived at is therefore still unknown save that it occurred
after the applicant had been removed.
(e)I consider that this removal was therefore unlawful and in breach of the
applicant's rights under the 2002 Act. Moreover it occurred against a background
where it is accepted by the respondent that the applicant had not been advised
that a request for a "third country" transfer was being made to the Republic of
Ireland pursuant to Article 9(2) of the Dublin II Regulation, that she was not
informed of the acceptance of the transfer request by the Republic of Ireland on
28 May 2004, that she was not informed of the certification of her asylum
application on third party grounds on 2 June 2004 and she was removed from the
jurisdiction without the relevant removal directions having being prepared or
served upon her. In addition Mr McTaggart drew my attention to Home Office
guidelines referred to by Ms Barton-Hanson of the Third Country Unit in a
memorandum dated 2 June 2004 as follows:-
"NB: If an Applicant or their representatives express an intention to seek
judicial review, they should be given three clear working days in detained cases
from the date that the third country decision is served to obtain an
administrative office reference number. This is extended to five days for
applicant's (sic) that are not in detention. If an administrative office
reference number is not obtained by the end of the third/five day period removal
redirections should only be deferred if an injunction is obtained – for more
information see IL Ten 1/99".
(f)Mr McTaggart argued that self evidently the need to give three clear working
days to obtain the administrative office reference number was ignored in this
instance by virtue of the removal on 22 November 2005 despite the indication
that an application for judicial review was to be taken up by the applicant.
(g) Mr McGleenan candidly did not seek to justify any of these failures to
comply with procedure and in particular the failure to operate the suspensive
effect of the human rights based appeal. He readily conceded that the removal
ought to have been suspended.
(h) Counsel for the respondent focused his submission however on the
consequences of these breaches and the unlawful removal. He argued that the
applicant has now readily engaged in the review in the Republic of Ireland to
process her application there for asylum and that she is not precluded from
making any of the points that have arisen before me in that jurisdiction. He
urged the court to recognise that the more direct route for a remedy for the
applicant is in the Republic of Ireland rather than the circuitous route of
judicial review in this jurisdiction. It was his submission that if this court
were to interfere in the processing of her claim for asylum in the Republic of
Ireland it would be to step into the international plane in an unjustified
manner. Both member states have agreed that the asylum issue will be determined
in the Republic of Ireland within the boundaries of Dublin II and that remedies
are to be found in the receiving state. Whilst not conceding the point, he urged
that the most that this court should do was to make declarations of the unlawful
nature of the applicant's removal as constituting a suitable remedy in this
jurisdiction which the applicant could then borrow and usefully employ in her
claim in the Republic of Ireland. In essence therefore he urged the court to
confine any declaration solely to the points conceded by the Crown.
Conclusions on the removal issue
[11] In all the circumstances therefore I make the
following orders:-
(1) I extend the time for the lodgement of this application.
(2) An order of certiorari quashing the decision of the respondent to remove the
applicant to the Republic of Ireland before considering her human rights claim .
(3) An order of mandamus requiring the respondent to take such steps as are
necessary to permit the applicant to come back into the United Kingdom from the
Republic of Ireland if she so requests admission in order to process her human
rights claim in accordance with the time limits to be further considered by this
court.
(4) I dismiss the application in relation to the certification of the human
rights claim of the applicant as clearly unfounded as set out in paragraphs 3, 4
and 5 of the summons before me save that I remit the certification back to the
respondent for reconsideration in light of such further representation as may be
made by the applicant in accordance with the time limits to be further
considered by the court.
(5) I award costs of the application to the applicant .