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

A renewed application for permission to bring judicial review will fail where the proposed grounds do not disclose an arguable error of law. Article 27 of the Dublin III Regulation does not ordinarily require a complete rehearing of every factual and legal issue underlying a transfer decision. A claim is clearly unfounded only where, assuming the asserted facts, it cannot succeed on any legitimate view. Detention under the Dublin procedure requires an objectively sufficient basis for finding a significant risk of absconding. Rule 35 procedures must be initiated within a reasonable time, but the decision-maker may assess whether the available medical evidence amounts to independent evidence of torture. Where removal directions are in force for departure within 14 days, the Secretary of State may withhold consent to release despite a tribunal granting bail, provided the decision is reasoned.

The claimant, an asylum seeker detained after entering the United Kingdom from France, challenged the refusal to transfer her asylum claim to Italy and decisions maintaining her detention. She relied on alleged torture and sexual abuse, medical evidence, Articles 3 and 5 of the Convention, the Dublin III Regulation, the Rule 35 procedure and the refusal to consent to release after an immigration judge granted bail.

Permission had been refused on the papers. The claimant renewed the application orally. Removal directions were later cancelled and she was released, but the court considered the asserted points of principle. The central issues were whether the grounds were arguable and whether the Secretary of State had applied the correct legal tests.

1. Renewed application dismissed. None of the eight grounds disclosed an arguable basis for judicial review.
2. Article 27 of the Dublin III Regulation did not confer a right to a complete rehearing of all factual and legal matters considered by the Secretary of State. The court applied the approach in Habte v SSHD [2013] EWHC 3295 (Admin). The possible alternative view that judicial review itself satisfied Article 27 was supported by Al and Vo v Advocate General [2015] CSOH 95, but it was unnecessary to decide the point.
3. For certification as clearly unfounded, the claimant’s asserted facts had to be assumed to be true. Certification was lawful only if the human rights claim could not succeed on any legitimate view. The decision in MS and others v SSHD [2015] EWHC 1095 (Admin) remained good law despite permission to appeal. The Secretary of State had considered both systemic issues and the claimant’s individual circumstances. The pending appeal in MS and others was therefore not centrally important.
4. The detention challenge based on Article 28 of the Dublin Regulation was unarguable. The claimant could not rely on individual rights under that provision to challenge detention. In any event, inconsistent identity details, lack of connection with the United Kingdom, illegal entry and unwillingness to return to Italy provided an objectively sufficient basis for finding a significant risk of absconding.
5. Rules 33–35 of the Detention Centre Rules 2001 required allegations of torture to be addressed within a reasonable time. The evidence did not establish that the alleged earlier report had been delivered. The appropriate procedure began promptly after the solicitors’ letter of 23 July 2015.
6. The Secretary of State was entitled to conclude that the evidence did not place the claimant within the category for whom detention was permissible only in very exceptional circumstances. Greater weight arguably should have been given to medical evidence concerning injuries typical of falaka, but that criticism alone did not make the detention arguably unlawful.
7. Paragraph 22 of Schedule 2 to the Immigration Act 1971 allowed the Secretary of State to withhold consent to release where removal directions were in force for removal within 14 days. The statutory scheme imposed no requirement for a material change of circumstances or an error in the tribunal’s decision. The reasoning in R (on the application of Evans) v Attorney General [2015] UKSC 21 did not require that additional restriction.

Permission to apply for judicial review was refused on the papers by Sir Stephen Silber, sitting as a High Court judge. The claimant renewed the application orally before the Administrative Court. The renewed application was dismissed.