Dalbudak, Re Application for Permission

In deciding whether permission for judicial review should be granted, the court asks whether the proposed challenge is arguable. Where removal is arguably unlawful, relief requiring the Secretary of State to use best endeavours to secure return still depends on an arguable breach of Article 6 if the claimant remains abroad. The relevant question is whether there is a reasonable requirement for the claimant to remain in the United Kingdom to conduct proposed civil proceedings with reasonable efficiency. The assessment is fact-sensitive and concerns the stage, likely complexity and practical arrangements for conducting the litigation. Speculative, exaggerated or premature assertions about the need for personal attendance will not suffice.

The claimant sought permission to apply for judicial review concerning the removal of himself and his family to Germany on 25 February 2003. At an earlier hearing, the court had concluded that the removal was arguably unlawful. The issue adjourned for determination was whether, despite that finding, it was arguable that the court would ultimately declare the removal unlawful and order the Secretary of State to use best endeavours to return the family.

The claimant relied on proposed civil claims concerning detention, alleged assaults, detention between September 2002, and denial of education. The central question was whether remaining outside the United Kingdom would arguably breach Article 6 because the family could not conduct those proceedings with reasonable efficiency.

1. Renewed application refused. The court held that the Secretary of State was right to conclude that there was no reasonable requirement for the claimant and his family to remain in the United Kingdom in order to conduct the proposed civil proceedings with reasonable efficiency.
2. The court focused on the only claim which could realistically justify success: the alleged assault on 15 August 2002. That issue appeared comparatively simple. Other claims involved enquiries or primarily legal issues and did not presently require the family’s return.
3. Assertions that detailed instructions, lengthy appointments and personal attendance in the United Kingdom were necessary were scrutinised against the nature and stage of the litigation. The court regarded several assertions as exaggerated, premature or unfounded. Medical records and police statements could be addressed without the extensive preparation alleged.
4. The possibility of psychiatric evidence did not establish a need for return. The reasoning assumed, without foundation, that appropriate psychiatrists could not be found in Germany or Turkey. Teleconferencing, overseas visits and overseas lawyers acting as agents were available practical alternatives.
5. The court was concerned with return at an early stage, before allocation of the civil proceedings. It did not exclude the possibility that return might become necessary later, once the nature and timing of the litigation had been established.
6. The court reached its conclusion without relying on allegations against the claimant in the Secretary of State’s letter and without undertaking the proposed balancing exercise. The renewed application for permission therefore failed. A detailed assessment of legal aid costs was directed within seven days.