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England and Wales Court of Appeal (Civil Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Secretary of State for the Home Department v ST (Eritrea) [2010] EWCA Civ 643 (09 June 2010) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/643.html Cite as: [2010] EWCA Civ 643, [2010] WLR 2858, [2010] 4 All ER 314, [2010] 1 WLR 2858 |
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
NICOLA DAVIES QC (sitting as a Deputy High Court Judge)
Strand, London, WC2A 2LL |
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B e f o r e :
LORD JUSTICE LONGMORE
and
LORD JUSTICE STANLEY BURNTON
____________________
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Appellant |
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- and - |
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ST (ERITREA) |
Respondent |
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Richard Drabble QC and Eric Fripp (instructed by Duncan Lewis & Co) for the Respondent
Hearing date: 11 May 2010
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Crown Copyright ©
Lord Justice Stanley Burnton :
Introduction
The facts
"Mr Fripp and Mr Tarlow reminded us that the respondent had proposed to remove the appellant to Eritrea. Mr Tarlow said that the respondent does not take issue with any of the findings made by the Adjudicator and nor does it challenge the conclusions drawn by the Adjudicator in paragraph 50 of his determination. However he went on to say that the respondent may decide to issue fresh removal directions in this case. He accepted that what the respondent might or might not do in the future is not a matter that need concern us. Mr Fripp asked us to find that the determination of Mr K R Doran is materially flawed and to allow the appeal.
4. The parties have agreed that the decision of the Adjudicator is in material error of law in that his conclusions are plainly contrary to the findings that he has made in paragraph 50 of his determination. We are satisfied that the Adjudicator erred in law and upon a review of all the relevant evidence, using the Adjudicator's clear and reasoned findings of facts, which are not challenged, we find that the appellant is a refugee and also that her removal to Eritrea would breach her protected rights under Article 3 of the ECHR. We conclude that her fear of persecution for a Convention reason in Eritrea is well founded and that she is entitled to international protection as a refugee under the 1951 Convention on Refugees. We further conclude that with regard to removal to Eritrea, the removal would be unlawful as it would lead to her ill treatment contrary to her protected rights under Article 3 of the ECHR."
"The original Tribunal (Adjudicator) made a material error in law and we substitute the decision as follows:
The appeal is allowed on asylum grounds.
The appeal is also allowed on human rights grounds."
The judgment below
The applicable statutory, Immigration Rule and Treaty provisions
Right of appeal: general
(1) Where an immigration decision is made in respect of a person he may appeal to an adjudicator.
(2) In this Part "immigration decision" means–
(a) refusal of leave to enter the United Kingdom,
(b) refusal of entry clearance,
…
(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b) or (c) of the Immigration and Asylum Act 1999 (c. 33) (removal of person unlawfully in United Kingdom),
(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (c. 77) (control of entry: removal),
(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),
(j) a decision to make a deportation order under section 5(1) of that Act, and
(k) refusal to revoke a deportation order under section 5(2) of that Act.
…
83 Appeal: asylum claim
(1) This section applies where a person has made an asylum claim and–
(a) his claim has been rejected by the Secretary of State, but
(b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).
(2) The person may appeal to an adjudicator against the rejection of his asylum claim.
84 Grounds of appeal
(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds–
(a) that the decision is not in accordance with immigration rules;
(b) …
(c) that the decision is unlawful under section 6 of the Human Rights Act 1998 (c. 42) (public authority not to act contrary to Human Rights Convention) as being incompatible with the appellant's Convention rights;
(d) that the appellant is an EEA national or a member of the family of an EEA national and the decision breaches the appellant's rights under the Community Treaties in respect of entry to or residence in the United Kingdom;
(e) that the decision is otherwise not in accordance with the law;
(f) that the person taking the decision should have exercised differently a discretion conferred by immigration rules;
(g) that removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom's obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant's Convention rights.
(2) …
(3) An appeal under section 83 must be brought on the grounds that removal of the appellant from the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention.
An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:
(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;
(ii) he is a refugee, as defined by the [Refugee] Convention and protocol;
and
(iii) refusing his application would result in him being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Convention and Protocol, to a country in which his life or freedom would be threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.
Under the Rules an asylum applicant is a person who:
(a) makes a request to be recognised as a refugee under the Geneva Convention on the basis that it would be contrary to the United Kingdom's obligations under the Geneva Convention for him to be removed from or required to leave the United Kingdom; or
(b) otherwise makes a request for international protection.
"Application for asylum" shall be construed accordingly.
A. For the purposes of the present Convention, the term "refugee" shall apply to any person who:
(1) Has been considered a refugee under the Arrangements of 12 May 1926 and 30 June 1928 or under the Conventions of 28 October 1933 and 10 February 1938, the Protocol of 14 September 1939 or the Constitution of the International Refugee Organization;
Decisions of non-eligibility taken by the International Refugee Organization during the period of its activities shall not prevent the status of refugee being accorded to persons who fulfil the conditions of paragraph 2 of this section;
(2) …. owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.
In the case of a person who has more than one nationality, the term "the country of his nationality" shall mean each of the countries of which he is a national, and a person shall not be deemed to be lacking the protection of the country of his nationality if, without any valid reason based on well-founded fear, he has not availed himself of the protection of one of the countries of which he is a national.
Article 32
Expulsion
1. The Contracting States shall not expel a refugee lawfully in their territory save on grounds of national security or public order.
2. The expulsion of such a refugee shall be only in pursuance of a decision reached in accordance with due process of law. Except where compelling reasons of national security otherwise require, the refugee shall be allowed to submit evidence to clear himself, and to appeal to and be represented for the purpose before competent authority or a person or persons specially designated by the competent authority.
…
Article 33
Prohibition of expulsion or return ("refoulement")
1. No Contracting State shall expel or return ("refouler") a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.
2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.
Les Etats Contractants n'expulseront un réfugié se trouvant régulièrement sur leur territoire que pour des raisons de sécurité nationale ou d'ordre public.
The contentions of the parties in summary
Issue 1
Issue 2
Discussion
Issue 1
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.
See too Article 32 of that Convention
28. A person is a refugee within the meaning of the 1951 Convention as soon as he fulfils the criteria contained in the definition. This would necessarily occur prior to the time at which his refugee status is formally determined. Recognition of his refugee status does not therefore make him a refugee but declares him to be one. He does not become a refugee because of recognition, but is recognized because he is a refugee.
While all refugees benefit from a number of core rights, additional entitlements accrue as a function of the nature and duration of the attachment to the asylum state. The most basic set of rights inheres as soon as a refugee comes under a state's de jure or de facto jurisdiction; a second set applies when he or she enters a state party's territory; other rights inhere only when the refugee is lawfully within a state's territory; some when the refugee is lawfully staying there; and a few rights accrue only upon satisfaction of a durable residency requirement. Before any given right can be claimed by a particular refugee, the nature of his or her attachment to the host state must therefore be defined.
"For refugees resident in another state who were authorized to enter on a strictly temporary basis, lawful presence normally concludes with the refugee's departure from the territory. The lawful presence of a sojourning refugee may also be terminated by the issuance of a deportation or other removal order issued under a procedure that meets the requirements of the Refugee Convention, in particular Art.33. The same is true of a refugee admitted upon arrival into a procedure designed to identify the country which is to examine his or her claim under the terms of a responsibility-sharing agreement: his or her lawful presence in the state conducting the inquiry comes to an end when and if an order is made for removal to a partner state."
Footnotes 145 and 146 are as follows:
"145: "The expression "lawful entry within their territory" throughout this draft convention would exclude a refugee who, while lawfully admitted, has over-stayed the period for which he was admitted of was authorized to stay or who has violated any other condition attached to his admission or stay": Report of the Ad Hoc Committee on Statelessness and Related Problems", UN Doc. E/1618, Feb.17 1950, at Annex II (Art.10).
146: Critically, however, so long as the refugee remains in the territory or otherwise under the jurisdiction of the moving country, the duty of non-refoulement (Art.33) continues to apply."
See too Professor Hathaway's discussion of Article 32 at page 663 ff.
"Article 32 of the Convention proscribes the expulsion of refugees "save on grounds of national security or public order" and requires that due process be afforded an individual refugee prior to expulsion. However, this does not apply until a refugee is "lawfully present" in the territory of the relevant state party. This suggests some flexibility between the point at which Article 33 is activated (explored below) and the point at which a refugee is lawfully present in a state, during which a state is not explicitly constrained from removing a refugee to a third state."
[Article 32] only applies to persons lawfully in the territory of the contracting state in question. A refugee who has entered illegally may be expelled without being able to invoke Article 32. The same applies to a refugee whose residence permit has expired, provided that the state in whose territory he lives is not under an obligation to renew it.
1 A refugee who has been granted the right of lawful residence in a particular State needs the assurance that this right will not be withdrawn, with the result that he again becomes an uprooted person in search of refuge. Such assurance is given in Article 32 of the 1951 Convention and Article I(1) of the 1967 Protocol relating to the Status of Refugees. These provisions, however, also recognize that circumstances may arise in which a State may consider expulsion measures.
The italics are mine.
The case of Musisi raises first a distinct issue of law. The
decision to refuse him leave to enter was not based on the denial of his claim to refugee status quoad Uganda, which is the country of his nationality, but on a conclusion by the Secretary of State that, even if he is properly to be treated as a refugee from Uganda, within the definition of "refugee" under the Convention, this presents no obstacle to his return to Kenya whence he came to this country. The primary submission made by Mr. Collins on his behalf is that, if he is a refugee, as is to be assumed, he is protected not only by Article 33.1 of the Convention against return to the country where he fears persecution, but also by Article 32.1 against return to any other country because he is now "lawfully in [the] territory" of the United Kingdom and cannot, therefore, be expelled save on grounds of national security or public order. The temporary admission pursuant to paragraph 21 of Schedule 2 to the Act of an applicant for leave to enter pending a decision on his application has the effect, it is submitted, of making the applicant's presence in the United Kingdom lawful for the purpose of his entitlement to the protection of Article 32.1 of the Convention.
Section 11(1) of the Act provides:
"A person arriving in the United Kingdom by ship or aircraft
shall for purposes of this Act be deemed not to enter the
United Kingdom unless and until he disembarks, and on disembarkation at a port shall further be deemed not to
enter the United Kingdom so long as he remains in such
area (if any) at the port as may be approved for this
purpose by an immigration officer; and a person who has not
otherwise entered the United Kingdom shall be deemed not
to do so as long as he is detained, or temporarily admitted
or released while liable to detention, under the powers
conferred by Schedule 2 to this Act."
Mr. Collins was constrained to concede that, if his argument
is right, it must apply equally to any person arriving in this
country at a regular port of entry and presenting himself to the
immigration authorities, whether he is detained or temporarily
admitted pending a decision on his application for leave to enter. It follows that the effect of the submission, if it is well-founded, is to confer on any person who can establish that he has the status of a refugee from the country of his nationality, but who arrives in the United Kingdom from a third country, an
indefeasible right to remain here, since to refuse him leave to
enter and direct his return to the third country will involve the
United Kingdom in the expulsion of "a refugee lawfully in their
territory" contrary to Article 32.1.
The United Kingdom was already a party to the Convention
when the Act was passed and it would, to my mind, be very
surprising if it had the effect contended for. But I am satisfied
that the deeming provision enacted by section 11(1) makes Mr.
Collin's submission on this point quite untenable.
The claimant, a Polish national from the Roma community, claimed asylum on arrival in the United Kingdom. In accordance with paragraph 21 of Schedule 2 to the Immigration Act 19711 he was temporarily admitted under the "written authority of an immigration officer" and was thereafter "at large in the United Kingdom". The Secretary of State initially refused his claim for income support on the ground that, as a person requiring leave to enter or remain, he was subject to immigration control and was thereby excluded from benefits by section 115 of the Immigration and Asylum Act 1999. On reconsideration the Secretary of State confirmed his decision, concluding that, since the claimant was not "lawfully present in the United Kingdom" within the meaning of paragraph 4 of Part 1 of the Schedule to the Social Security (Immigration and Asylum) Consequential Amendments Regulations 2000, his exclusion from benefit was not displaced. A social security appeal tribunal allowed the claimant's appeal but its decision was reversed by a social security commissioner. The Court of Appeal, dismissing the claimant's appeal, concluded that, since a person was deemed by section 11(1) of the 1971 Act not to have entered the United Kingdom as long as he was temporally admitted, he was not lawfully present here and his claim for benefit was therefore properly excluded.
17. The Secretary of State's main argument is that the phrase "lawfully present" in paragraph 4 of the Schedule to the 2000 Regulations has to be read as a whole and that lawful presence for this purpose is a status gained only by having lawfully entered the United Kingdom with leave to enter (and having subsequently remained within the terms of that leave). Not having been granted leave to enter, the appellant accordingly lacks the required immigration status and is not to be regarded as lawfully present. The Secretary of State's fallback argument is that, even if one takes the words "lawfully present" separately, the appellant was not to be regarded as "present": section 11(1) deems him not to have entered the United Kingdom and, not having entered, he must be deemed not to be present either.
18. One of the group of cases decided by your Lordships' House under the title R v Secretary of State for the Home Department, Ex p Bugdaycay [1987] AC 514 was In re Musisi where the question arose whether Mr Musisi, a Ugandan asylum seeker who had arrived in this country via Kenya, was someone whom the Home Secretary could return to Kenya as a safe third country for that country rather than the United Kingdom to determine his entitlement to refugee status. One ingenious argument raised on his behalf was that his return to Kenya was precluded by article 32(1) of the Geneva Convention relating to the Status of Refugees 1951 (Cmd 9171): "The contracting states shall not expel a refugee lawfully in their territory save on grounds of national security or public order." Mr Musisi was, his counsel argued, "a refugee lawfully in" the United Kingdom.
19. The argument was given short shrift. If well-founded, Lord Bridge of Harwich pointed out, at p 526, it would follow that any asylum seeker arriving in the United Kingdom would have "an indefeasible right to remain here". That, he observed, would be "very surprising" and he concluded rather that "the deeming provision enacted by section 11(1) makes [the argument] quite untenable".
…
24. … In re Musisi was rightly decided but for the wrong reasons. The term "refugee" in article 32(1) of the Refugee Convention can only mean someone already determined to have satisfied the article 1 definition of that term (as, for example in article 23 although in contrast to its meaning in article 33). Were it otherwise, there would be no question of removing asylum seekers to safe third countries and a number of international treaties, such as the two Dublin Conventions (for determining the EU state responsible for examining applications lodged in one member state) would be unworkable. In short, Mr Musisi failed to qualify as "a refugee lawfully in" the United Kingdom not because he was not lawfully here but rather because, within the meaning of article 32(1), he was not a refugee.
25. … In my opinion, however, section 11's purpose is not to safeguard the person admitted from prosecution for unlawful entry but rather to exclude him from the rights (in particular the right to seek an extension of leave) given to those granted leave to enter. Even assuming that section 11's deemed non-entry "for purposes of this Act" would otherwise be capable of affecting the construction of the 1999 Act and the 2000 Regulations (as legislation in pari materia), it would in my judgment be quite wrong to carry the fiction beyond its originally intended purpose so as to deem a person in fact lawfully here not to be here at all. "The intention of a deeming provision, in laying down a hypothesis, is that the hypothesis shall be carried as far as necessary to achieve the legislative purpose, but no further" - the effect of the authorities as summarised by Bennion, Statutory Interpretation, 4th ed (2002), section 304, p 815.
26. To my mind the only way the respondent could succeed in these proceedings would be to make good his core argument, that the word "lawfully" in this context means more than merely not unlawfully; rather it should be understood to connote the requirement for some positive legal underpinning. Mr Giffin illustrates the argument by reference to Taikato v The Queen (1996) 186 CLR 454, a decision of the High Court of Australia on very different facts. The question there was whether an individual carrying a formaldehyde spray possessed it "for a lawful purpose", and it was held that she did not do so even though her purpose (self-defence) was one not prohibited by law. Brennan CJ said, at p 460:
"'Lawful purpose' in [the relevant legislation] should be read as a purpose that is authorised, as opposed to not forbidden, by law because that meaning best gives effect to the object of the section. The meaning of 'lawful' depends on its context, as Napier J pointed out in Crafter v Kelly [1941] SASR 237, 243. As a result, a 'lawful purpose' may mean a purpose not forbidden by law or not unlawful under the statute that enacts the term … or it can mean a purpose that is supported by a positive rule of law … As a general rule, interpreting 'lawful purpose' in a legislative provision to mean a purpose that is not forbidden, rather than positively authorised, by law is the interpretation that best gives effect to the legislative purpose of the enactment. This is because statutes are interpreted in accordance with the presumption that Parliament does not take away existing rights unless it does so expressly or by necessary implication -¦ Nevertheless, the purpose, context or subject matter of a legislative provision may indicate that Parliament has used the term 'lawful purpose' to mean a purpose that is positively authorised by law."
27. So too here, submits the respondent: paragraph 4 of the Schedule to the 2000 Regulations confers an entitlement to certain state benefits (or, more accurately, displaces a prima facie disqualification from receiving such benefits) upon persons who are nationals of a relevant state and who are "lawfully present" in the United Kingdom. Unless, submits Mr Giffin, the appellant's presence in the United Kingdom has been positively authorised by a specific grant of leave to enter, rather merely than by temporary admission, his disqualification from the benefits should not be found displaced.
28. I would reject this argument. There is to my mind no possible reason why paragraph 4 should be construed as requiring more by way of positive legal authorisation for someone's presence in the United Kingdom than that they are at large here pursuant to the express written authority of an immigration officer provided for by statute. (Much of the argument before the House assumed that if a temporarily admitted applicant were "lawfully present" in the United Kingdom for paragraph 4 purposes, so too would be any asylum seeker even were he in fact detained under Schedule 2 to the 1971 Act: he too would be legally irremovable unless and until his asylum claim were rejected. It now occurs to me that that assumption may be ill-founded: certainly Mr Giffin's Taikato-based argument would have greater force in that type of case. For present purposes, however, it is unnecessary to decide the point.)
19. The first basis of [Miss Giovannetti's] submission is the case of Szoma [2005] UKHL 64, in which the House of Lords held that a person was "lawfully present" in the UK even if he was liable to detention as an illegal entrant and at large only because he has been temporarily admitted. That decision concerned the interface between two provisions: the provision of s.11 of the Immigration Act 1971 that a foreign national who is not given leave to enter but is detained or temporarily admitted is deemed not to have entered the UK; and the provision made by regulations that persons "lawfully present" were entitled to certain benefits. It was held that an unlawful entrant who was at large by virtue of a temporary admission was lawfully present for the purposes of the benefit regulation.
20. We do not accept Ms Giovannetti's argument. Szoma neither decides nor gives any basis for inferring that an illegal entrant is to be assimilated for any wider purposes to a lawful entrant. As the House made clear in Khadir [2002] UKHL 39, temporary admission is a term of art within the Immigration Act 1971, allowing the temporary release (under strict limits prescribed by law) of persons otherwise liable to administrative detention pending removal as illegal entrants. Illegal entrants who are temporarily admitted rather than detained may thus be lawfully present here in the restricted sense material to the decision in Szoma; but they remain without an entitlement to be here.
Once an asylum application has been formally determined and refugee status officially granted, with all the benefits both under the Convention and under national law which that carries with it, the refugee has the assurance of a secure future in the host country and a legitimate expectation that he will not henceforth be stripped of this save for demonstrably good and sufficient reason. That assurance and expectation simply does not arise in the earlier period whilst the refugee's claim for asylum is under consideration and before it is granted.
But refugees present in the United Kingdom do not have to be given asylum here if there is a safe third country to which they can be removed.
Issue 2
334. An asylum applicant will be granted asylum in the United Kingdom if the Secretary of State is satisfied that:
(i) he is in the United Kingdom or has arrived at a port of entry in the United Kingdom;
(ii) he is a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;
(iii) there are no reasonable grounds for regarding him as a danger to the security of the United Kingdom;
(iv) he does not, having been convicted by a final judgment of a particularly serious crime, he does not constitute danger to the community of the United Kingdom; and
(v) refusing his application would result in him being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Geneva Convention, to a country in which his life or freedom would threatened on account of his race, religion, nationality, political opinion or membership of a particular social group.
It is only if subparagraph (v) is satisfied that a person who is recognised to be a refugee is entitled to asylum. The application of that paragraph was not considered by the Tribunal in this case, because the issue of return to Ethiopia was and was known to be outstanding, and it made no finding on it.
If the Secretary of State decides to grant asylum to a person who has been given leave to enter (whether or not the leave has expired) to a person who has entered without leave, the Secretary of State will vary the existing leave or grant limited leave to remain.
It would have been open to the Parliament to deal with the question of "asylum shopping" by explicit provisions qualifying what otherwise was the operation for statutory purposes of the Convention definition in Art 1. As indicated earlier in these reasons, such a step may have been taken with the changes to s 36 made by the 1999 Act. The primary change is indicated by sub-s (3):
"Australia is taken not to have protection obligations to a non-citizen who has not taken all possible steps to avail himself or herself of a right to enter and reside in, whether temporarily or permanently and however that right arose or is expressed, any country apart from Australia, including countries of which the non-citizen is a national."
"asylum claim" means a claim made by a person to the Secretary of State at a place designated by the Secretary of State that to remove the person from or require him to leave the United Kingdom would breach the United Kingdom's obligations under the Refugee Convention.
The definition implicitly refers to Article 32, and not Article 33, since it refers to removal or a requirement to leave without identifying a destination. The same applies to paragraphs 327 and 334 of the Immigration Rules. The appeal before the Tribunal was an appeal under section 82, not section 83.
Conclusion
Lord Justice Longmore
Sir Anthony May, President of the Queen's Bench Division: