Tesfay, R (On the Application Of) v Secretary of State for the Home Department
2014
ADMINISTRATIVE COURT
UK
CORAM
- MR CHRISTOPHER BUTCHER QC
Areas of Law
- Administrative Law
- Immigration Law
2014
ADMINISTRATIVE COURT
UK
CORAM
AI Generated Summary
The case of Aklilu Tesfay vs. UKBA involved an application for Judicial Review regarding the Home Office's failure to make a 'legacy decision' under the Legacy Programme concerning the grant of Indefinite Leave to Remain (ILR). The Claimant argued that this failure and associated delays were unlawful. The court held that the Claimant's case had been lawfully concluded by the UKBA, dismissing the arguments of unlawful delays and improper conclusion. The judgment relied significantly on existing case law and the administrative framework of Immigration Rules, ultimately ruling against the Claimant’s contentions.
J U D G M E N T
MR JUSTICE COLLINS: These three claims came before me pursuant to orders of Ouseley J made on 23 July 2014 directing that the issue, as it was put, of apportionment of costs should be determined. These claims sought to challenge decisions to remove the claimants to Italy pursuant to what is known as Dublin II because their asylums claims were first made in Italy and, since Italy has accepted that it should deal with the claims, they should be returned there. It has been asserted in these and in many other similar claims that there was and is a real risk that claimants would suffer treatment which breached their human rights, in particular Article 3 of the European Convention on Human Rights. This was said to result from the pressure of numbers on the Italian authorities which resulted in lack of support leading to destitution.
There is a presumption that member states of the European Union as signatories to the European Convention on Human Rights will comply with their obligations under the Convention. Consistently with that, section 92(4)(a) of the Nationality, Immigration and Asylum Act 2002 and paragraph 5(4) in Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 provide that claims relating to removals under Dublin II are to be certified as clearly unfounded unless the Secretary of State is satisfied that they are not. Kenneth Parker J in (R) Medhanye v Secretary of State for the Home Department [2011] EWHC 3012 decided that the presumption could only be rebutted if the claimant established through a reliable body of evidence that Italy systematically and on a significant scale failed to comply with its obligations under the Convention. It followed that the vast majority of these Italy claims were certified so that there was no in-country right of appeal.
Mr Tesfay, an Eritrean, entered the United Kingdom on 4 January 2012. On 6 February there was a decision to return him to Italy and to certify, and removal directions were to take effect on 16 February. The claim was issued on 15 February. There was an additional Article 8 ground in respect of a partner that he had here, but that was not pursued. Removal was not to take place having regard to the issue of the proceedings, and in due course amended grounds sought relief which was the quashing of the certification and a declaration that the Secretary of State could not reasonably certify.
Mr Rahma is from Sudan. He entered the United Kingdom vi