Malik, R (on the application of) v Secretary of State for the Home Department

In a series of judicial review applications concerning removal of asylum seekers to Greece under the Dublin II Regulation, permission should not be determined in isolation where a common and important issue is awaiting authoritative guidance from the Court of Appeal. The Administrative Court should seek a uniform approach and should not simply ignore materially relevant permission decisions of coordinate judges. Where the evidence and legal issues are developing, the appropriate course may be to adjourn the permission application pending the appellate judgment and a composite consideration of the common issue. An individual judge should not pre-empt the Court of Appeal’s guidance or treat earlier first-instance decisions as conclusively determining the issue.

The claimant, an Afghan national who had travelled through Greece and claimed asylum in the United Kingdom, was liable to be removed to Greece as a Dublin II “take charge” returnee. The Secretary of State certified the case under Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, Schedule 3. Permission for judicial review had been refused on paper by Cranston J.

The claimant relied on developing evidence concerning the treatment of asylum seekers in Greece and the pending appeal in Nasseri v Secretary of State for the Home Department [2007] EWHC 1548 (Admin). Earlier first-instance decisions, including Zego v Secretary of State for the Home Department [2008] EWHC 302 (Admin) and Saeedi v Secretary of State for the Home Department [2008] EWHC 673 (Admin), had refused permission in materially different circumstances. The issue was whether permission should now be refused or postponed pending the Court of Appeal’s judgments and a coordinated hearing of the common issue.

1. Application adjourned. The renewed application for permission to apply for judicial review was adjourned and ordered to be relisted after the Court of Appeal had delivered judgment in Nasseri [2007] EWHC 1548 (Admin).
2. The court was not persuaded that the mere fact that judgment was awaited in Nasseri made it appropriate automatically to grant permission. Nor was it prepared simply to refuse permission by following or relying on Zego [2008] EWHC 302 (Admin) and Saeedi [2008] EWHC 673 (Admin). Those cases involved formal acceptance by the Greek authorities, whereas in the present case Greece had not formally accepted the claimant.
3. The developing evidence concerning conditions and asylum procedures in Greece, together with the distinction between “take back” and “take charge” cases, required careful consideration. The court did not finally determine whether that distinction was legally decisive.
4. In a field as important as asylum, the Administrative Court should pursue an approach that is as uniform as possible. It would be capricious for permission decisions to depend materially on which judge happened to receive the application. The court therefore had to take account of materially relevant decisions by coordinate judges, including decisions granting or postponing permission in Ali Shahussain, Manhal Hassan Al Hamood and Zakiri.
5. A composite hearing was desirable because the issue was substantially common to numerous cases, although directions for such a hearing were not made in this isolated application. A transcript was ordered at public expense and with extreme urgency. The judgment did not determine the substantive legality of removal.

This was a renewed first-instance application for permission after Cranston J had refused permission on paper on 12 March 2008. The application was adjourned for relisting after the Court of Appeal’s judgments in Nasseri v Secretary of State for the Home Department [2007] EWHC 1548 (Admin) became available.