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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> B, R. (on the application on) v the Secretary of State for the Home Department [1999] EWHC Admin 595 (24 June 1999) URL: http://www.bailii.org/ew/cases/EWHC/Admin/1999/595.html Cite as: [1999] EWHC Admin 595

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

		Royal Courts of Justice Strand London WC2
		24th June 1999

1. MR JUSTICE OWEN: This is an application for judicial review. I have a working bundle of some 135 pages, two skeleton arguments and some 16 authorities.
2. As originally presented on 15th May of last year, the Form 86A sought to quash a certificate issued by the Secretary of State under section 2 of the Asylum and Immigration Act 1996 authorising the removal of the Applicant from the United Kingdom to Germany, and also a decision of the Immigration Officer to refuse leave to enter the United Kingdom and to remove the Applicant from the United Kingdom to Germany.
3. The certificate to which reference was made was dated 21st April 1998. It seems that originally the argument was that Germany was not a safe country, but in this Court that argument is no longer pursued, although it is fair to Mr Gill to say that he reserved the right to argue that or some such similar argument in another place at a later stage, if that becomes necessary.
4. There have been various amendments, the last is dated 28th October of last year. By these amendments, the Applicant challenges further like decisions of the Secretary of State dated 30th April, 11th May, 8th September and 14th October all of last year.
5. The argument next was that the certificate was unlawful, because the Applicant was a minor. This argument continues, together with a further argument, that the decision was and is unreasonable or contrary to Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
6. The facts are that the Applicant was born in Libya. His date of birth is not clear. On 4th July 1997 he made an asylum application in Germany. He gave the name Abdulsalam Bouzgaya, which is a name near enough to the name he gives now. He then gave a date of birth of 25th May 1978. This application was not granted. It seems to have been refused on 6th January of 1998, but at this time the Applicant was in the United Kingdom. What matters were taken into account by the Germany authorities, I do not know, and it is no part of anyone's case to tell me but I do note the fact that at the time of refusal he could not have been in the country, and it may be that it was refused on the ground that it was not pursued any further, I just do not know.
7. In any event, in September 1997, he made another asylum application, this time in the Netherlands. He gave the name Galid Al-Koaffie and a date of birth of 1st July 1975.
8. On 16th October 1997 he arrived in the United Kingdom giving his correct name and a date of birth of 25th May 1981. He said he had left Libya on 7th October 1997 which was clearly untrue. He was arrested later that day. He had apparently been brought into this country in a clandestine manner in a vehicle. He did not reveal the fact that he had made the German and Dutch applications.
9. On 9th April 1998, in accordance with the Dublin Convention, the Secretary of State requested Germany to take responsibility for the asylum application which the Applicant had meantime made in this country.
10. Mr Gill criticises the delay from that time. However, inquiries and checks for fingerprints had to be made. Those checks revealed the earlier applications in Germany and the Netherlands. In those circumstances, I am certainly not prepared to criticise the time which has elapsed.
11. On 21st April 1998, Germany accepted responsibility (as can be seen from page 20 of the bundle). The Secretary of State wrote to the Applicant (a letter which is copied at page 17) which contains the certification. That letter is dated 21st April, the day when the Germans accepted responsibility.
12. In a letter dated 11th May 1998 (copied at page 24) the Home Office indicated that their understanding was that because the Applicant had claimed to the Germans to be a 19 year old he would be treated as a 19 year old on his return to Germany.
13. On 15th May 1998 he made the original application for judicial review. By letter dated 6th October 1998, [p52 onwards] the Applicant's solicitor criticised the Home Office. The letter quoted from letters from the Asylum Directorate-

"the Secretary of State takes the view that, on the balance of probabilities, your client's true date of birth is not 25th May 1981."

14. That is the date which he had given when he arrived in this country.
15. With the same letter the solicitor sent a copy of a medical report by a Dr Robinson and also reports by members of staff at the Integrated Care Residential Home, St Aubyn's, to which the Applicant had been directed and at which he had been staying since the October of his arrest.
16. Dr Robinson said that, in his opinion, the balance of probability was that the Applicant was a minor and that can be seen at page 57 of the bundle. The letter also (that is the solicitor's letter) raised the question of whether specific inquiries had been made to confirm that suitable reception arrangements were in place for the reception of the Applicant in Germany. This question was prompted by the Government statement that it remained committed to the policy announced by Baroness Blatch in 1996 that the government would not send an unaccompanied child to another country (whether or not that child had claimed asylum) unless they were satisfied that safe and adequate reception arrangements had been made.
17. It could have been said that at the time of certification and later, no such arrangements had been made for the reception of a child since the Germans were to treat the Applicant as an adult.
18. However, that is not to mean, and it is not necessarily the case, that safe and adequate reception arrangements had not been made. In any event, whether this Applicant was below the age of 18 or just over, similar arrangements would be necessary and, no doubt, the German Government would be able to treat him as a very young person and would treat him as a very young person in any event.
19. By letter dated 9th October 1998, [p65] it becomes apparent that in February of that year, the Applicant had been referred to the Medical Foundation of which Helen Bamber is a stalwart, being, in fact, one of the founders of that organisation. She said in the letter dated 9th October 1998 [para 3] that:

"Removal to Germany would be detrimental to this young person's health and well-being and I am convinced that his mental health would be at risk. It has taken him a long time to establish a trusting relationship. He now has a network of people who support him..."

She also pointed out that "he had also learned to speak English well" whereas he had, and has, no German.

20. The fourth paragraph of that letter requires, in my judgment, careful consideration:

"The question of whether treatment can be obtained for this young person in Germany is really irrelevant to his health and well-being. My own experience over many years of work with holocaust orphan children who experienced cruelty, deprivation and massive loss in their developmental years established beyond doubt the importance of continuity in their support and treatment. To interrupt the process of psychological support and treatment in which attachment and trust has been established is both counter-productive and damaging and I believe it would be an act of cruelty to sever these relationships. To consider whether this young man could receive treatment in Germany is, I believe, irrelevant in this case."

It is no doubt true that this young man could receive treatment in Germany, but what Helen Bamber was saying was, that because there had been this build up of trust, trust which it is difficult to build, to take him away from such a situation would be an act of cruelty.

21. In the letter I have quoted, she mentioned her work with Holocaust orphan children, but her experience is wider than that. I say that and refer to her experience, because cruelty is a word which may have a strong emotional content and it is necessary often to see who it is that is using the word.
22. Helen Bamber says [p76 & onwards] (having been asked to do so for no other reason by the solicitor acting for the Applicant) that she has been working with people traumatised by life-threatening events since the Second World War:

"I went with one of the first rehabilitation teams to enter Belsen.. shortly after its liberation."

There, at the time, she was dealing with the identification of children and adolescents suffering from tuberculosis but she was, nevertheless, dealing with people who undoubtedly had been subjected to cruelty:

"These were young people who had experienced the deaths of their parents and siblings. It was in this context that I gained experience in responding to people in the immediacy of war and violence.

On my return to the UK in 1947, I was appointed to the Committee for the Care of Children from Concentration Camps with responsibility for a large group of 720 young orphan children from Auschwitz. I worked for seven years under the direction of a senior psycho-analyst and in collaboration with the Anna Freud Clinic. We were concerned not only with the physical and social rehabilitation of these children but also with the emotional handicaps and deprivations of immense psychic trauma on them in their developmental years. Continuity of care and attachments were central to our work. I was later appointed to the Invalid Children's Aid Society working with families divided by the presence of tuberculosis."

(Her original interest at Belsen).

Her letter continues:

"My subsequent career took me to a variety of hospital and health organisations including working as almoner in St George in the East Hospital in East End of London."

She relates how she joined Amnesty International, became Chairman of the first group in the British Section and established the first medical team in the British Section in Germany:

"The team included a number of eminent physicians, surgeons and forensic pathologists and with their skills it was possible to document evidence of torture injuries."

She founded at the end of 1985, together with others, the Medical Foundation for the Care of Victims of Torture.

23. She describes how that organisation has helped over 13,500 survivors of torture and their families in the United Kingdom. She describes how they are in touch with the BMA, with organisations overseas including the United Nations and the European Union. There evidence is provided to the United Nations Rapporteur on Torture:

"In addition to its work with individuals, the Medical Foundation offers training to those working in the UK and abroad with survivors of torture and aims to educate health professionals..."

She goes on to deal with other experiences which she had with those who were tortured by the Japanese during the war, with holocaust survivors and with those who have been bereaved through violence in Northern Ireland. She says:

"In 1993 I was named European Woman of Achievement in recognition of my.. work."

24. The importance of all that is not because one immediately admires someone who has done that amount of good in a rather naughty world, it is much more than that, it is that she is the person who uses the word "cruelty" and anybody using that word with that background must be given (as I see it) a proper consideration of the word used - "cruelty" it is not enough to ignore it, it is what she said, with that background, she was meaning something which any ordinary person in the street would mean by cruelty.
25. She describes in the same letter [p78] how:

"to interrupt the process of psychological support and treatment in which attachment and trust has been established is both counter-productive and damaging and I believe it would be an act of cruelty to sever these relationships."

Of course she was talking about the Applicant.

26. By letter dated 13th October 1998 [p80] to the Applicant's solicitors, the United Nations High Commissioner for Refugees, through a deputy, expressed some concern about the Respondent's approach and stated:

"...we believe that it is very important for the Home Office to reconsider whether it is in the best interests of Mr Bouzgya to be returned to Germany."

He stated in that letter that a child should be given the benefit of the doubt of the exact age, when the exact age is uncertain, and pointed out that the guidelines issued by that organisation said:

"The guiding principle is whether an individual demonstrates an 'immaturity and vulnerability that may require more sensitive treatment'. In our opinion, if an individual appears to have undergone any form of torture or abuse this constitute a 'vulnerability'."

It was the opinion of the medical persons that he had undergone such treatment.

27. By letter dated 14th October 1998 [p83 & onwards], the Respondent answered by saying that the Secretary of State gave additional consideration to the report of Dr Robinson (to whose report I have already referred) and Helen Bamber but:

"...did not consider that they were sufficiently compelling as to lead him to exercise his discretion in your client's favour.

28. The Secretary of State notes in particular that

Dr Ms Bamber considers that your client's return to Germany would be detrimental to his mental health and well being and that the interruption of the process of psychological support and treatment in his case would be counter productive and damaging."

That can be seen at page 84 of the bundle. It is noteworthy that there is no mention of cruelty there of any kind. The balancing exercise is done in the light that the return would be detrimental to his mental state and well-being and, the interruption and process of psychiatric support would be counter-productive and damaging, but, it seems to me, that does not sufficiently represent what was being said by those medical persons.

29. In addition, at page 84, the letter states:

"You state that the return of your client to Germany would be in breach of Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms. However, the Secretary of State is satisfied that your client would not be subject to torture or inhuman or degrading treatment or punishment on his return to Germany."

That, as it seems to me, fails to understand what was being said. It was not suggested that in Germany he would be subject to torture, inhuman or degrading treatment or punishment, but that the act of returning him would amount to that treatment and that would continue. That is as I read that passage.

30. The next step was the letter at page 87 which is dated 19th May 1998. That deals with two matters which are raised by Mr Gill. It indicates that if the Secretary of State is satisfied:

"... if your client were to provide the German authorities with evidence to substantiate his claimed identify... they would treat him in accordance with their own national laws and their international obligations in respect of minors."

At this stage, perhaps I might be allowed to mention an argument of Mr Gill. I do it at this stage because I reject it and it will not be necessary to refer to it, I hope, again later. It is, as I understand it, that the Secretary of State is stating what he believes to be the case as a result of looking at least, in part, at the laws of Germany and is not based wholly on experience. It is quite clear later on that the person who is giving the evidence for the Secretary of State indicates that they have an ongoing and a deep relationship with the Germans, and there is absolutely no doubt in my mind that the Secretary of State was entitled to make that point.

31. In addition in that letter, the Secretary of State says that he notes:

"... in accordance with Section 12 of the German Asylum Procedure Act a person over the age of 16, yet under 18 years must make an application for asylum in their own right."

He goes on to deal with the fact that:

"...the Youth Welfare Office in the Federal Lander concerned is informed by the competent border authority, in turn they are responsible for examining whether or not measures are required to protect the minor [if that is what he claims so to be] and, if so, what measures are adequate."

In those circumstances, it seems to me, it is perfectly proper for the Secretary of State to say that proper and safe arrangements would be made upon the reception of the Applicant into Germany.

32. on 26th November 1998 there was an affidavit [p108 & onwards] filed by Mr Taylor of the Immigration and Nationality directorate; he was then the acting senior executive officer in the Asylum Directorate of the Immigration and Nationality Directorate of the Home Office and was entitled to make that affidavit.
33. In it he says (and I refer to only a few of the matter) that:

"The Respondent is satisfied that, were it to be established that the Applicant is indeed a minor, he would be treated in accordance with German national laws... He is also satisfied that there is no significant difference in approach between the United Kingdom's treatment of minors who seek asylum and that of the German authorities..." -[p112]

He says at paragraph 17 (which also is at page 112):

"The Respondent had particular regard to the medical report of Dr Derek Robinson and the letter of 9 October 1998 from Helen Bamber... The Respondent gave additional consideration to these matters but did not consider that they were sufficiently compelling as to lead him to exercise his discretion in favour of the Applicant."

In other words, repeating that which had been said before. It continues:

"The Respondent noted, in particular, that

Ms Bamber considers that the Applicant's return to Germany would be detrimental to his mental health and well being and that the interruption of the process of psychological support and treatment in his case would be counter productive and damaging."

Then in paragraph 18 [p113]:

"The Respondent in his consideration of the exercise of his discretion in the Applicant's particular case took into account that the Applicant had never previously travelled to this country; had no family or friends present in this country and no other links to the United Kingdom prior to his arrival as a clandestine entrant."

All that seems to be true.

"He took the view that there are equivalent, appropriate and adequate medical and psychiatric facilities in Germany which will be available to the Applicant upon his return there and that this was relevant to his consideration. The Respondent was not persuaded that any detrimental effect on the Applicant's mental health, or the interruption of the process of psychological support and treatment in his case, were he to be returned to Germany, were sufficiently compelling reasons such as to cause him to depart from his normal policy and practice in the Applicant's case."

That, of course, indicates, as is pointed out on behalf of the Respondent, that here the Respondent was recognising that there was a discretion, was taking into account what, in fact, had been said, was making the balance and having made the balance was indicating that the balance was in favour of continuing with that which had been originally decided.

34. By letter dated 30th April 1998, [p119] there was an earlier communication by the Directorate to the solicitor's for the Applicant. This adds nothing.
35. The last letter which I have been supplied with is dated 27th May of this year [p145]. There had been various adjournments of the matter, so that the Respondent might consider the matter afresh. As a result of those adjournments, the original decision was maintained as is apparent from this letter.
36. I should read a few passages from this letter. At paragraph 4, it stated:

"The Secretary of State, in considering the exercise of his discretion... has taken into account that your client, on his arrival to the United Kingdom, had never previously travelled to this country; had no family or friends present in the United Kingdom and had no other links to this country. The Secretary of State also took into account that your client, prior to his travel to this country, had lodged asylum applications in both Germany and the Netherlands. The Secretary of State remains firmly of the view that, after his arrest on 16 October 1997, your client was notified of his liability to removal from the United Kingdom as an illegal entrant and he could, therefore, have subsequently entertained no reasonable or legitimate expectation of his being permitted to remain in the United Kingdom thereafter."

With that conclusion, I see no reason to quarrel. At the time he had come from Germany, the policy was (as is well-known as I shall refer to later) to refer those who come, if they come from Germany, back, for instance, to Germany.

37. Coming in the circumstances which are indicated, there can be, in my judgment, no quarrel with the conclusion in that paragraph. By paragraph 5 [p146], it is stated that:

"5. The Secretary of State has given additional consideration to the matters now raised but he does not consider that they are sufficiently compelling as to lead him to exercise his discretion in your client's favour. The Secretary of State has had particular regard to the opinion of Miss Sheila Melzak, endorsed by Miss Helen Bamber..."

Sheila Melzak had, in her turn, given a report [p140-141] in which she uses the word "cruelty". She also is someone of known repute in this field. I go back to para 5 at p146.

"...your client's return to Germany may have a negative impact on your client's recovery and that his removal to Germany would have a detrimental effect on his physical and mental well being. He has also taken particular account of the opinion of his keyworker Ms Simone Bizzell-Browning that your client's removal to Germany would deny him access to those with whom he has placed his trust and that the result of such action, in her opinion, would be profound social and cultural isolation and would provoke catastrophic consequences for him.

6. The Secretary of State accepts that both the prospect and the actually removal of your client to Germany may have a negative impact upon him."

The letter goes on:

"However, although he may be exposed to some harm through, for example the disruption of care programmes, the Secretary of State does not accept that on all the evidence submitted to him your client's risk reaches that level of severity of physical or mental suffering which might trigger the United Kingdom's Article 3 obligations [there is then reference to D v UK to which I was referred]. The Secretary of State is also of the view that any anticipated treatment or conditions which might confront your client in Germany would not cause the United Kingdom, or indeed Germany, to be in breach of ECHR provisions. The Secretary of State remains of the firm opinion that the consequences for your client are not so severe, whether considered under Article 3 or otherwise, as to warrant the Secretary of State departing from his normal practice in this case. In view of all the circumstances, the Secretary of State does not consider that such a conclusion is an irrational one.

7. The Secretary of State takes the view that there are appropriate and adequate medical and psychiatric facilities in Germany which will be freely available to your client upon his return there and that this is relevant to his consideration to return your client to Germany."

Pausing there, I see nothing to quarrel with in that statement. However, the point which is made is that there would not be such a trust as would render those facilities appropriate and adequate for, the very least, some months and that would all be in the light of the fact that he would have been removed from the position in which he is at the moment of having those in whom he does trust. The letter goes on: [p146]

"The Secretary of State is not persuaded that any detrimental effect on your client's mental health, or the interruption of the process of psychological support and treatment in this case, were he to be returned to Germany are sufficiently compelling reasons such as to cause him to depart from his normal policy and practice in your client's case.

8. The Secretary of State takes the view that it would not be appropriate for your client's application to be considered afresh in this country. Such a course would run contrary to the spirit and purpose of the Dublin Convention which is designed to ensure that a responsible Member State considers an application for asylum and processes the claim. In your client's case, the responsible Member State is Germany. The Secretary of State is confident that Germany will consider and deal with your client's application properly in accordance with their international obligations."

38. Of course the general rule is undoubtedly as was stated in that letter. However, it has been brought to my attention that the very terms of the Convention indicate what is considered to be the appropriate approach under the Convention. On the second page of the Convention which is copied at page 23 of the Applicant's original authorities bundle, it is stated clearly that the idea is to harmonise asylum policies. It is stated:

"Aware of the need, in pursuit of this objective, to take measures to avoid any situations arising, with the result that applicants for asylum are left in doubt for too long as regards the likely outcome of their applications and concerned to provide all applicants for asylum with a guarantee that their applications will be examined by one of the Member States and to ensure that applicants for asylum are not referred successively from one Member State to another without any of these States acknowledging itself to be competent to examine the application for asylum;"

The Convention then provides various articles.

39. The point I am asked to bear in mind is that it is stated there that applicants should not be left in doubt for too long. What is meant by "too long" of course is not stated and could not be stated. Article 11 [p28] states:

"1. If a Member State with which an application for asylum has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any case within the six months following the date on which the application was lodged, call upon the other Member State to take charge of the applicant."

That was, in fact, done within the six months. It is said it was not done as quickly as possible, but as I have already indicated, I do not accept that that criticism may properly be made of the Home Office in respect of the time which lapsed in view of the undoubted inquiries which would have to be made and, no doubt, were made as a result of the Applicant having given various different ages. I have already made reference to the report by Sheila Malzak and that can be found at page 124 of the bundle.

40. On 25th May of this year, on any account, the Applicant ceased to be a minor. Various arguments are put forward on behalf of the Applicant. He challenges the certificate and challenges all the subsequent decisions rejecting applications to stay, those decisions having been made to the Home Secretary so that he might exercise his undoubted discretion.
41. Firstly, it is said that the Secretary of State erred in the way that he assessed the Applicant's age. There was, as I have indicated, at the very least a difficulty. It is said, that by paragraph 349 (which is to be found at page 68 of the bundle) of the Statement of Changes in Immigration Rules dealing with dependants, and I quote only the relevant part to which I was referred:

"(In this paragraph and paragraph 350-352 a child means a person who is under 18 years of age or who, in the absence of documentary evidence, appears to be under that age)."

As I understand it, the argument is that he appeared to be under age and that is shown by the fact that he was taken to the appropriate place for a person of such an age, and there was no documentary evidence to the contrary since documentary evidence must be accurate and reliable.

42. It would not include (as I understand the argument) that which was recorded by the Dutch and German authorities as to what he said as to his date of birth.
43. This whole attitude is criticised by Mr Gill. Indeed he says, you cannot take those assertions into account because here you are dealing with an assertion by a tortured and traumatised young person who is inconsistent, in any event, and it must not be held against him. Mr Gill added, in any event, to do so ignores and leaves out of account the evidence of persons best able to assess the Applicant's age, namely Dr Robinson and the various carers.
44. Mr Gill also quotes, as has been done before, from the Government's White Paper "Fairer, Faster and Firmer - A Modern Approach to Immigration and Asylum" and the words are:

"Where reliable medical evidence indicates that a person is under 18 years of age they will be treated as minors and will therefore not normally be detained."

It is said that upon a proper application of this policy, and in the light of Dr Robinson's report, no reasonable Secretary of State could decide that the Applicant was not a minor. The actual decision, as I understood it on behalf of the Home Secretary, was that the date which was given when he came into this country was not the correct date. That conclusion is certainly one which, it seems to me, was open to the Home Secretary.

45. I go on with the various arguments raised by Mr Gill. The Secretary of State, he said, failed to give the Applicant the benefit of the doubt. This he should have done, and he cites the guidelines which were quoted by the Deputy Representative of the United Nations High Commission for Refugees in the letter of 13th October 1998 [p80] and also Article 35, of the Geneva Convention. All of this should have led the Secretary of State to come to the conclusion that here was a child -- and his refusal to do so is and was unlawful and unreasonable and, he says, renders the certificate and decision of 14th October 1998 erroneous in law.
46. As I understand it, the argument put forward by Mr Gill is that the Respondent should have made up his mind and not left the matter in doubt. He should have found that the Applicant was a child, and if that had been the case, then he would not have decided to send the Applicant back to Germany because he would have had to consider the best interests of the child as a primary consideration, and the best interests of the child would be to keep him here. Secondly, he says, as no reception facilities were arranged for a child then again, he would not have sent the child back to Germany. That again is based upon the statement which is copied at page 62 of the bundle.
47. I do not accept that the Secretary of State had to make up his mind as to what age he had to attribute to this child, nor do I accept that he had to decide in the circumstances whether the child was a minor or not. The child was being properly treated, there were difficulties and those difficulties had been caused by the Applicant himself. Although there was medical evidence, and the Secretary of State could have acted on that evidence had he chosen to do so, it was still doubtful evidence and was not obligatory for the Home Secretary to act upon it.
48. In any event, it was no more than a policy, and breach of a policy will not, of itself, necessarily affect a certificate which has been given under the Act.
49. I refer to section 2 of the Asylum and Immigration Act 1996 which deals with the certification process and indicates that:

"2(1) Nothing in section 6 of the 1993 Act... shall prevent a person who has made a claim for asylum being removed from the United Kingdom if-

(a) the Secretary of State has certified that, in his opinion, the conditions mentioned in subsection (2) below are fulfilled..."

There are other factors which it is not necessary for me to refer to here. I do refer, however, to subsection (2) "the conditions". They are all satisfied and there was no reason why the Home Secretary should not have issued that certificate. I do not see that there can be any proper challenge to the certificate.

50. I go on to consider the next aspect of the Applicant's case which deals with reasonableness. This, as I understand it, is the main argument. It is said, on behalf of the Applicant, it was not reasonable and would not be reasonable to send him to Germany. The Respondent refers to paragraph 345 of the Immigration Rules which states:

"If the Secretary of State is satisfied that there is a safe country to which an asylum applicant can be sent, his application will normally be refused without substantive consideration of his claim to refugee status.

A safe country is one in which the life or freedom of the asylum applicant would not be threatened (within the meaning of Article 33 of the Convention) and the government of which would not send the applicant elsewhere contrary to the principles of the Convention and Protocol..."

It is abundantly clear that is the norm as has been stated in many letters to which I have been referred by the Respondent. There is nevertheless, of necessity, in the applications which are made for the exercise of the Respondent's discretion to allow the Applicant to stay here, a balance to be made. Whilst I attribute no blame for the delay which has taken place since October 1997, nevertheless there has been that delay.

51. I will not refer again to the Dublin Convention, save to say that what is contemplated is a speedy decision, whatever the reason that was not in fact done.
52. Mr Gill argues that, of itself, is sufficient for the decisions to be quashed. In my judgment, it is not as clear as that.
53. Mr Gill has arguments at paragraphs 22, 23, 24 and 25. They are all, as I understand it, on the basis that he is submitting that the Applicant has been kept waiting too long, to keep someone waiting so long is wrong and, therefore, what should be decided as to whether the applicant is properly termed a refugee should be done in this country, the application having been made in this country. I hope Mr Gill would not object if I say I find no help in those paragraphs.
54. What has concerned me (as I imagine is quite clear by now) is the evaluation of what is to happen if the Applicant is removed from the protected surroundings and environment which he now has and which he trusts. There clearly is a discretion in the Respondent to allow the Applicant to stay. I have been asked to consider D v UK; I have no help from that. The facts are entirely different. It is said: what is the case? The Respondent must exercise that discretion in a reasonable manner. What is reasonable will, of course, depend on all the circumstances.
55. It is accepted on behalf of the Respondent that it was a hard decision. I accept that those who have to make these decisions have to make hard decisions. The one difficulty, however, in the reasoning (which I have found) may be summed up by saying, I am concerned about the use of the word "cruelty". That is a word which was used (as I indicated earlier) by a person, in the first place, who is of enormous repute in this area, and it is backed up by the Malzak Report as well, and there is no contrary evidence. There could have been, of course, had it been thought right, other medical evidence sought which might have confirmed what was said in those reports or might not, but in the absence of any contrary evidence, it seems to me that it must be accepted that that is what they are saying and, in my view, the word which is used is a strong word and was intended to be a strong word.
56. I have pointed out already that there was initially a misunderstanding in the letter of 14th October 1998 as to what was being said would be the cruelty. That led to the passage which I quoted from page 84 dealing, it is true, with Article 3 and saying that:

"..the Secretary of State is satisfied that your client would not be subject to torture... on his return to Germany."

That is not, as I see it, what was said and that was subsequently corrected, and I note the correction. However, I also note that in the various reasoning paragraphs, for instance, at page 112 paragraphs 17 and 18 (and the others to which I have referred) there is no mention at all of the "cruelty" which it is said would follow. Indeed, it seems that that was not appreciated. I accept, of course, that reference was made to these reports on a number of occasions and, certainly, I am not saying they were not read. It would be quite wrong for me to suggest that and I do not, but there must be a very good reason if anyone in the light of those reports is to say there would not be cruelty. It cannot be sufficient just to ignore the fact that it is said, and as I have said, other evidence could have been sought but was not. The approach, in my judgment, should have been "must I accept this uncontradicted evidence of cruelty?" It would be, in those circumstances, that it would be necessary to ask, would that be contrary to Article 3? Secondly, would it be unreasonable to send him back to Germany now?

57. So far as Article 3 is concerned, it states:

"No one shall be subjected to torture or to inhuman or degrading treatment or punishment."

Clearly we are not dealing with punishment. We are dealing with treatment. All I can say is that there could be an argument that there would be a breach of Article 3. I do not take the view that I can find that there would be a breach. Accordingly, it is necessary for me to consider the second question, would it be unreasonable to send him back to Germany in the sense in which that word is used in this Court? It was necessary to carry out a proper balancing exercise. I do not believe it is too emotional to ask the question, would the Secretary of State say in Parliament, it may be cruel to send this young man to Germany, but I still intend to, it maintain my normal policy? I doubt whether he would wish to or would say that.

58. This all has to be seen (as I see it) in the light of many cases, the last of which is Ex parte A to which I was referred by Mr Gill. It was a decision of Roch LJ and we have only the law report from The Times newspaper for 22nd June of this year. There the Lord Justice said:

"The court had no jurisdiction to make the decision which was under review and even if it disagreed with the decision had no power to overturn it unless it was not within the ambit of decisions that the public authority could have reasonably made. However, where the decision involved, possible interference with fundamental human rights and required anxious scrutiny the court would adopt a more interventionist role and its review of the decision was more stringent and intensive. In such cases the test for 'reasonableness' was not the same as the test for absurdity or perversity. The review was stricter and the test was whether a reasonable body, on the material before it, could have reasonably concluded that the interference with human rights was justifiable. The law gave precedence to those human rights which had to prevail, unless either the threat of infringement was slight or there was compelling reason why they should yield."

It is in that context, which I find to be appropriate here, that I find that a reasonable Home Secretary appreciating that the medical evidence is that to remove him would be cruel in the way described, would not (20 months after the Applicant arrived here and after over a year's treatment) have insisted on him being sent to Germany. The net result is that, in my judgment, the exercise of the discretion may be said to be unreasonable (as that term is used in this Court) and should be quashed so that further consideration may be given to the application.

59. As to the certification, as I have already indicated, in my judgment, that was valid and, accordingly, that application is refused.

MR GILL: I would ask for an order for costs.

MISS FOSTER: I would say only this: of course yes, from the date when the arguments that were articulated today were first put before the court.

MR JUSTICE OWEN: That must be so. Yes, certainly, thank you both. I will just say this: I have not found this an easy case. I am indebted to you both for your help.

MISS FOSTER: I am grateful, my Lord. Might I ask you in the circumstances of this case for leave to appeal, for this reason. Mainly the thrust of your Lordship's judgment is that the Secretary of State will be bound in cases such as this where a legal challenge is made in a third party case and time necessarily flows because of court procedures, always to obtain medical or other evidence to contradict what one sees always in reports which is, that it is frightful, cruel or other synonyms, in this case, your Lordship held appropriately----

MR JUSTICE OWEN: I am not going to give you leave on those grounds, because I do not believe that that is the case. You would not always be bound, you would be bound when there is a report of this kind and, particularly, it is not necessary to give other evidence but, at the very least, to refer to what is said in the report. If you can find a better reason otherwise, I shall not....

MISS FOSTER: Your Lordship rejected my submission that he had dealt with it. I put particularly what I submit is a general point that a number of your Lordship's observations will have wide repercussions in cases of this nature involving medical and other matters. On that basis that is more general than what I previously put, and I respectfully ask for leave.

MR JUSTICE OWEN: Yes. I see how you can put it if you are going to put it in that way.

MISS FOSTER: It may, or course, be that----

MR JUSTICE OWEN: It raises the question of what should be the proper attitude to medical evidence.

MISS FOSTER: My Lord, yes. Your Lordship's approach to it does raise questions which we would wish to canvass with a higher authority and, as far as I am aware, there is no case dealing with it in the way your Lordship did.

MR JUSTICE OWEN: Yes.

MR GILL: So far as this case is concerned, it would not be the appropriate case to provide the Secretary of State with general guidance as to how he should approach the question of obtaining medical reports in every case. It is clear to me it is really concerns that are being put before the court. There are already numerous authorities such as the one by Jowitt J as to the approach the Secretary of State should adopt in given cases. There are authorities in the housing field, in given specified case, where medical reports are particularly relevant to the particular facts of the case. The Court of Appeal unlikely to give any further general guidance and would properly refuse to do so to go beyond what your Lordship has said. I would not suggest this is an appropriate case in which to grant leave.

My Lord, your Lordship, no doubt will rule on that. Of course, in relation to costs if I may say this: so far as the application before 12th October when the amendments were made by age and so on, prior to that date the Secretary of State of course must have had in mind the Applicant had even by April been there in this country in a programme for some time and having (?) made proper inquiries he issued the certificate (inaudible due to coughing) what was happening to this young man he may well not have issued the certificate. In fact in February 1998 contact with the Medical Foundation started. Had he actually dealt with the matter properly before rushing into issuing the certificate we might never have got anywhere near 15th October.

MR JUSTICE OWEN: I found and I still find he was particularly entitled to do that.

MR GILL: So be it.

MR JUSTICE OWEN: I am not going to go behind it. You have continued to argue those. I think the fairest way would be to say, from the time when the amendment was made.

MISS FOSTER: I am grateful.

MR JUSTICE OWEN: As to leave. I am not going to give leave. I think because what Mr Gill says is right. It does depend so much on the facts and I doubt very much that if the Court of Appeal were to consider it, and say the same or say something different, that it would give any help that would be worthwhile to the Home Secretary or, for that matter, any one else.

MR GILL: May I ask for legal aid taxation?

MR JUSTICE OWEN: You may.