Bushara, R (On the Application Of) v Secretary of State for Home Department

In a challenge to removal under the Dublin II system, a stay of removal requires a realistic prospect of success and is then determined by the balance of convenience. A stay of proceedings requires good reason to delay the expeditious determination of the claim.

A first-instance court must apply the law stated by the Court of Appeal unless a superior court or Parliament has displaced it. Under NS and EM, individual evidence of risk on return to an EU member state is insufficient without evidence of systemic failure in that state's asylum procedure or reception conditions. The possibility of a future appeal does not itself justify a stay.

The claimant, a Sudanese national who had claimed asylum and was apparently recognised as a refugee in Italy, challenged removal there under Council Regulation 343/2003. His human-rights claims had been certified as clearly unfounded under paragraph 5(4) of Schedule 3 to the Immigration and Asylum (Treatment of Claimants, etc) Act 2004, removing any in-country right of appeal.

Following the Court of Appeal's decision in EM (Eritrea) and Others v Secretary of State for the Home Department [2012] EWCA Civ 1336, the claimant sought stays of both the judicial-review proceedings and his removal pending a possible Supreme Court appeal in EM. The issues were whether the stays were justified and whether the Court of Appeal's decision required a different approach.

1. Stays of removal. A stay of removal is interim relief. Absent special circumstances, the claimant must show a real or realistic prospect of success, after which the court considers the balance of convenience. In a public-law test case, relevant factors include irreparable harm to the claimant, the effect on others in a similar position, the public interest and the impact on regular administration.
2. Stays of proceedings. A stay is distinct from interim relief because it engages the court's own control of its business. The starting point is expeditious determination, and delay requires good reason. A stay may be justified by a foreseeable event likely to affect the decision, but not where that event is unlikely to have a material effect.
3. Effect of binding authority. EM (Eritrea) and Others [2012] EWCA Civ 1336 was unanimous, recent and binding. The court rejected the claimant's reading that EM had found a risk of Article 3 ill-treatment in Italy but felt compelled to disregard it. Properly understood, EM concerned the legal process for assessing risk in Dublin II cases. It required systemic failure in the receiving state's asylum system before individual risk could prevent removal.
4. Presumption of compliance. The mutual confidence underlying Dublin II creates a rebuttable presumption that another EU member state will comply with its Convention and fundamental-rights obligations. Under NS v Secretary of State for the Home Department [2011] EUECJ c-411/10, transfer is precluded where systemic deficiencies create substantial grounds for believing that the applicant faces a real risk of inhuman or degrading treatment. The evidence concerning Italy did not rebut that presumption. Individual hardship, however serious, was insufficient.
5. The claimant therefore had no realistic prospect of success. The public interest in maintaining the Dublin II allocation system, including the consequences of a general stay affecting numerous cases, also favoured refusal. Both the stay of proceedings and the stay of removal were refused. The judgment was stated to be capable of citation beyond the claimant's individual facts.

First-instance judicial review proceedings. The judgment discussed, but did not alter, the binding Court of Appeal decision in EM (Eritrea) and Others v Secretary of State for the Home Department [2012] EWCA Civ 1336.