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Reported Case

Tesfay & Ors, R (on the application of) v Secretary of State for the Home Department [2016] EWCA Civ 415 (4 May 2016)

Date: 04/05/2016
Duncan Lewis, Reported Case Solicitors, Tesfay & Ors, R (on the application of) v Secretary of State for the Home Department [2016] EWCA Civ 415

In the Court of Appeal (Civil Division) - On Appeal from the High Court of Justice - Queen's Bench Division - Mitting J. in R(MB & Ors) v SSHD [2013] EWHC 123 (Admin).

On 19 February 2014 the Supreme Court delivered its decision in EM (Eritrea) v. Secretary of State for the Home Department [2014] UKSC 12; [2014] AC 1321, reversing the decision of the Court of Appeal and remitting the test cases before it to the Administrative Court. Thereafter the Secretary of State withdrew her certification of the human rights claims and reconsidered those claims in, we are told, over 300 other cases. The appeal and the applications before this court concern the appropriate orders for costs following these withdrawals.

The appeals and applications before this court fall into three groups.

(1) Semere Tesfay, Tariq Rahma and Abdo Tayyara appeal, by leave of Underhill L.J. against the order of Collins J. dated 3 December 2014 (Tesfay and others v. Secretary of State for the Home Department [2014] EWHC 4048). These proceedings concern the return of the appellants to Italy under Regulation 343/2003 ("the Dublin II Regulation").

(2) Applications for costs by Adam Soulaiman and Ali Salih, in relation to which no decision has been made by the court, raise the same or very similar issues to those considered in the judgment of Collins J. These proceedings also concern the return of the applicants to Italy under the Dublin II Regulation. The first two groups are considered together. The individuals in these groups are referred to collectively as "the Italy applicants".

(3) Mesfin Brahane, Yonase Tesfaye, Gadiso Ararso and Teklehaymanot Kiflemariam make applications for costs in their proceedings which concern the return of the applicants to Malta under the Dublin II Regulation. The individuals in this third group are referred to collectively as "the Malta applicants".

The Italy applicants issued proceedings for permission to apply for judicial review of the decision of the respondent certifying as clearly unfounded their human rights claims in accordance with the presumption in section 92(4)(a), Nationality, Immigration and Asylum Act 2002 and paragraph 5(4) of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 and ordering their removal to Italy. Although permission to apply for judicial review was granted in none of these cases, the proceedings were variously stayed at different times and for different periods pending the decision in EM (Eritrea). Following the decision of the Supreme Court the decisions certifying the human rights claims were withdrawn by consent. In the cases of Semere Tesfay, Rahma and Tayyara, the issue of costs was left to be determined by the Administrative Court. The order of Collins J. is now appealed to this court. On 2 February 2015 Underhill LJ ordered that the costs applications of Soulaiman and Salih be heard with those appeals.

The Malta applicants issued proceedings for permission to apply for judicial review of the certification of their human rights claims and of the orders for their removal. Mitting J. dismissed the applications and refused leave to appeal. All applied to the Court of Appeal for permission to appeal. Permission was refused on paper. At a renewed hearing Aikens L.J. referred the permission application to the full court with the substantive hearing to follow if permission was granted. Before that hearing could take place the respondent withdrew the human rights certifications. On 2 February 2015 Underhill L.J. ordered that the resulting costs applications be heard at the same time as the appeals and applications of the Italy applicants.

 

Find full details of this case on Bailii’s website here.
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