User:Amxitsa/The Queen on the Application of “J” v Secretary of State for the Home Department (2006)

The Queen on the Application of “J” v Secretary of State for the Home Department [2006] EWHC 2395 (Admin) (CO/7219/2006) is a decision by the High Court in England and Wales promulgated on September 26 2006. The case considers the impact of removal of failed asylum seekers to Zimbabwe and the decision led the Home Office to suspend all removals pending the outcome of an application for permission to appeal to the Court of Appeal made in another case of AA (Involuntary returns to Zimbabwe) Zimbabwe (2005).

Background to Case
The issue of removing failed asylum seekers to Zimbabwe had been a very difficult legal issue for a number of years and had been the subject of much legal consideration primarily in the cases of AA and AA (No. 2). The Asylum and Immigration Tribunal (AIT) had initially held that to remove a failed asylum seeker to Zimbabwe would be a breach of both the Refugee Convention and the European Convention on Human Rights (ECHR) as incorporated into law by the Human Rights Act 1998. This decision essentially meant that all failed asylum seekers would be refugees and the Home Office appealed the decision to the Court of Appeal. The Court overruled the original decision and referred the issue of risk back to the AIT to reconsider. The AIT reheard the issues in the case of AA (No. 2) and this time found that the removal of failed asylum seekers would breach neither the Refugee Convention or ECHR. The solicitors for AA, the Refugee Legal Centre made an appeal to the Court of Appeal which was still under consideration at the time of this case.

Following the decision in AA (No 2) the Home Office announced their intention to once again begin removing failed asylum seekers to Zimbabwe and began to issue removal directions against those who no longer had pending claims for asylum.

The Facts of the Case
It was in this context that a Judicial Review was lodged to prevent the removal of one person, known as “J” to protect his true identity. The High Court was asked to consider the general principle of whether or not the Home Office could remove someone who may benefit from an application pending before the Court of Appeal.

While rehearsing the facts of AA in some detail Mr Justice Burton illustrates the main issues which are before the Court of Appeal, namely the Home Offices refusal to argue fully the case that to remove a failed asylum seeker to Zimbabwe would not breach their rights under the ECHR, specifically Articles 2 and 3. The Home Offices original stance had been that if the factual findings of the AIT had stood then to remove AA to Zimbabwe would have been a breach of Article 3 ECHR by a route and method found to be unsafe but they qualified this by stating “However this is without prejudice to the Secretary of States ability to argue the point (i.e, as to whether Article 3 is intended to protect against forced removal a person who could safely return home voluntarily albeit that he could not be forcibly removed without a risk of persecution) in a future case” (para 107)

The Home Office Argument
The Home Office through their representative Mr Steven Kovats argued that given the factual findings regarding Zimbabwe and the fact that no argument is made in the appeal against AA that it is dangerous to return voluntarily that the appeal pending before the Court of Appeal has no realistic prospect of success. The factual findings of the AIT are binding and the court must therefore find that Mr “J” is liable to removal as a failed asylum seeker so as to allow for deportation.

Despite being prompted by Mr Justice Burton regarding the argument they were to use regarding Human Rights the Home Office refused to commit themselves. When asked whether they were willing to argue that if Mr J returned to Zimbabwe voluntarily he could do so in safety and therefore no Human Rights issues would arise as there is a method he can use to return safety and by refusing to take this brings himself outside of the terms of the Human Rights Act they refused to be drawn. Despite the Judge indicating that he would be receptive to such an argument Mr Kovats indicated that he was not at present instructed to use such an argument choosing instead to make no full representations on Human Rights.

The Claimants Argument
The claimant through his representative Mr M Henderson argued that that there was an outstanding application for permission to appeal to the Court of Appeal regarding the status of all Zimbabwean asylum seekers in the United Kinddom and that if this succeeds all of the issues will once again be arguable and this will be before a superior court.

Decision
The decision in the case rested largely with the Home Offices failure to fully commit to an argument on Human Rights. The Judge considered the merits of the application for appeal to the Court of Appeal and found that he could not conclude there was no realistic prospect of success. Given the number of cases which are reliant upon its outcome he concluded that the Court of Appeal would be acting as quickly as possible and that given this it was concluded that “I am inevitably driven, particularly in light of what I have said about the proximity of the decision that will be made by the Court of Appeal, to await the outcome of the Court of Appeal’s proper and effective consideration of that application for permission.”

The outcome was to stay the application for Judicial Review until after the outcome of the case of AA. The way in which that case is decided will inevitably impact upon the conclusion of this case. If it is found that there are no arguable grounds then the case would need to be reconsidered and the Human Rights elements considered, however should it be found that there is an arguable case for appeal in AA then the case will be further delayed to allow the Court of Appeal to come to conclusions on all of the issues which can then be implemented by the Court in this case.