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

At the permission stage, the court asks whether there is an arguable case meriting full investigation and an oral hearing. Although expiry of a Dublin transfer time limit may not itself give an individual claimant a direct cause of action, reliance on the expiry may support a domestic public-law challenge based on irrationality. It is arguable that continued reliance on a proposed transfer is irrational where the transfer time limit may have expired and the receiving state appears unwilling to accept the claimant. The court may lift an existing stay and grant permission where those issues require substantive determination.

Two Eritrean nationals entered the United Kingdom via Malta and faced proposed removal to Malta under the Dublin II Regulations. Their continuing judicial review proceedings included grounds concerning asylum and human-rights certification, detention and removal, and an alleged breach of the Secretary of State’s policy concerning Article 19.

The court considered whether to lift a stay and grant permission on ground C. The claimants argued that one or more six-month transfer periods had expired and that Malta appeared unwilling to accept them. The central question was whether there was an arguable case that the Secretary of State’s continuing position was irrational.

1. Permission and stay. The court lifted the stay and granted permission for ground C to proceed. The relevant threshold was whether there was an arguable case for judicial review which merited full investigation and a full oral hearing.
2. Dublin time limits. It was more than reasonably arguable that the order made by Mitting J, and the later consent order approved by Rimer LJ, had the effect contended for by the claimants. In particular, it was arguable that a further six-month period had begun and had expired without the claimants being transferred.
3. Domestic public-law challenge. The expiry of a Dublin time limit could not itself provide an individual claimant with a direct challenge based solely on the Regulations. However, following YZ v Secretary of State for the Home Department [2011] EWHC 205, the time limits could be relied upon in an arguable challenge based on the domestic public-law principle against irrationality.
4. Application to the evidence. The position of the Maltese authorities was unclear, but their letter appeared to indicate that they would not accept the claimants back. Against that background, it was arguable that the Secretary of State’s persistence in intending to remove the claimants to Malta was irrational, particularly given the arguable breaches of the transfer time limits.
5. Further directions and costs. The substantive hearing was directed to take place before the end of the Trinity term, after the anticipated Court of Appeal judgment on related matters. Costs were reserved.

The judgment describes earlier proceedings before Mitting J, Beatson LJ and the Court of Appeal, including an appeal withdrawn by consent after the underlying issue became academic. Those proceedings formed part of the background to the present application, which concerned lifting the stay and granting permission.