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

Permission to apply for judicial review requires an arguable case. New evidence must be sufficiently persuasive to undermine detailed existing findings before it can justify permission. The assessment of compliance with Article 3 of the European Convention on Human Rights is fact-sensitive. A pending Strasbourg case does not make a challenge arguable where the existing findings disclose no Article 3 breach in the receiving state. Similarly, a reference concerning the scope of Charter rights under the Dublin system does not assist unless the factual circumstances engage those rights. Where an earlier decision has determined the relevant conditions in the receiving state, and no material evidential change is shown, the earlier findings remain determinative at the permission stage.

The claimant, a Sudanese national detained pending removal, sought permission to challenge decisions refusing his asylum claim, certifying the claim and setting removal directions for transfer to Italy under the Dublin Regulation. Permission had previously been refused on the papers. The renewed application relied on expert evidence concerning Italian asylum procedures, the imminent Strasbourg Grand Chamber hearing in MSS v Belgium and Greece, and a Court of Appeal reference to the Court of Justice concerning the scope of the Secretary of State’s discretion under Article 3(2) of the Dublin Regulation and the European Union Charter of Fundamental Rights.

The central question was whether those developments made the proposed judicial review claims arguable.

1. Permission refused. The renewed application did not disclose an arguable challenge to the proposed removal to Italy. The application for a stay of removal was also refused. An expedited transcript was ordered at public expense, and the claimant was permitted to seek permission elsewhere.
2. The expert reports concerning Italy identified additional matters and nuances, including access to legal assistance, protection during the asylum process and non-suspensive appeals. They were not sufficiently persuasive to undermine the detailed findings in R(EW) v SSHD [2009] EWHC 2957. Those findings included that the Italian authorities were not in breach of Article 3 of the European Convention on Human Rights or article 13(2) of the Reception Directive, and that Italy did not avoid or seek to avoid its international obligations towards asylum seekers.
3. The anticipated decision in MSS v Belgium and Greece did not make the claim arguable. Although it might produce a variation in principle, Article 3 of the Convention operates in particular factual contexts. The existing findings concerning Italy disclosed no Article 3 breach.
4. The Court of Appeal’s reference in the NS litigation raised the possible scope of Article 3(2) of the Dublin Regulation and of Articles 1, 18 and 47 of the European Union Charter of Fundamental Rights. It did not assist this claimant. R(NS) v SSHD [2010] EWHC 705 (Admin) concerned returns to Greece, while R(EW) v SSHD was determinative of the factual position in Italy. On the findings in EW, the Charter rights relied on had no application to this case.
5. The Secretary of State’s costs were ordered in the sum of approximately £480, and the claimant was granted detailed assessment of publicly funded costs.

The judgment describes earlier procedural steps in the renewed permission application:

• High Court: Owen J refused permission on the papers on 16 June 2010.
• High Court: Foskett J granted interim protection against removal until the end of July while requiring a response and papers.
• High Court: On 29 July 2010 Cranston J refused interim relief. On 4 August 2010 Ouseley J directed an expedited open-court renewal hearing, without preventing removal.
• High Court (Administrative Court): Cranston J refused permission and declined to stay removal.