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

On an application for interim relief to restrain removal, an arguable challenge to a negative reasonable-grounds trafficking decision does not necessarily justify interim relief. The court must assess the strength of the challenge, the public interest in implementing removal arrangements, the safety and healthcare available in the receiving country, and whether litigation can continue after removal.

Common-law procedural fairness principles do not ordinarily create an arguable right to obtain legal assistance and marshal detailed evidence before removal where the applicable removal policy requires swift action. An arguable issue on one ground may therefore coexist with a balance of convenience favouring removal.

The claimant, an Eritrean national who arrived in the United Kingdom from France by small boat, sought urgent interim relief preventing his removal to France. France had agreed to receive him under the relevant removal arrangements.

He challenged, among other matters, a negative reasonable-grounds decision under the National Referral Mechanism, the treatment of his protection and human rights claims, the relevant guidance and procedure, and his detention. He contended that the trafficking decision was irrational or failed to take account of relevant material, and that he had been denied a fair opportunity to obtain legal advice and make representations.

The court confined its decision to interim relief against removal. It considered whether there was a triable issue and where the balance of convenience and justice lay.

1. Interim relief refused. The application to restrain removal to France was refused. The court did not determine the claimant’s other interim application, including the application concerning release from detention.
2. There was a triable issue concerning the negative reasonable-grounds trafficking decision. The challenge was arguably based on irrationality, disregard of relevant material, or both. The issue was nevertheless assessed as arguable but not particularly strong.
3. No arguable procedural-fairness right required the defendant to wait until the claimant had obtained full legal assistance and assembled detailed evidence and submissions. The court considered that the common-law principles discussed in R v Secretary of State for the Home Department, ex parte Doody and R (AAA) v Secretary of State for the Home Department did not, in this context, produce such a right. The one-in-one-out treaty policy contemplated swift removals, generally within three months.
4. The balance of convenience and justice favoured removal. France was treated as a safe third country with functioning healthcare, no risk of persecution, and agreement to receive the claimant. Further litigation could continue while he was in France.
5. The claimant’s mental anguish, including the tragic suicide of his brother in France, did not make removal unlawful or create a bar to removal. The decision that removal would not cause irreparable damage to his health was regarded as incontestably lawful.

First-instance application for interim relief in judicial review proceedings. The substantive claim had been issued shortly before the hearing. The judgment records no earlier appellate decision.