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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 >> Rawi & Anor, R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs & Anor [2006] EWHC 458 (Admin) (16 February 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/458.html Cite as: [2006] EWHC 458 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		16 February 2006

1. MR JUSTICE COLLINS: I should like to emphasise at the outset that I am concerned, and concerned only, with whether there is an arguable claim in the circumstances of this case. I am not deciding any matter to exist or not to exist in the sense that I am making no findings in relation to the allegations which are made. I have to approach this on the basis that the allegations made are to be accepted as founding the possibility of a claim. When I talk about the allegations, I mean the allegations of fact which are part of this claim.
2. There are three claimants who are detainees in Guantanamo Bay, and the others are members of the families of those three detainees. Two of them are refugees and have been recognised as such by this country and have been given indefinite leave to remain in this country on the basis that they are refugees. The third is not, as I understand it, a refugee, but nonetheless has been given indefinite leave to remain. Their families are all British citizens. They are not. It is on that basis that they have not had the benefit hitherto of any assistance from the Government in order to try to have them released to the custody no doubt of this country, insofar as that is material, from Guantanamo Bay.
3. A similar matter was raised back in 2002 in the case of Abbasi, and the court then decided in relation to a British citizen that there was no legal obligation upon the Government to take any particular steps beyond those which are set out in the guidance that is given concerning the protection that will be afforded to British citizens. But Mr Sales has made the point, and relied heavily upon it, that Abbasi was concerned with British citizens, and there are no international law obligations upon a state to take any particular steps in relation to non-citizens; and even if those non-citizens are refugees and have no other state who can provide them with any protection, there are equally no obligations upon the state which has granted them refugee status. That is made clear by Article 28 of the Refugee Convention itself.
4. What is said to tip the balance here is the evidence which was not available in Abbasi that there is torture being practised in Guantanamo Bay. That evidence at the moment cannot be discounted as being incredible because it is supported not only by the assertions made by the claimants, but also by the person who has been assigned to assist and to represent them by the American authorities, and it has been confirmed more recently and indeed today by the UN report on what is going on in Guantanamo Bay. Unfortunately, it appears that the Americans have a somewhat different view as to what constitutes torture to certainly this country and to what is applied by Strasbourg under the European Convention on Human Rights, and I suspect what is applied by the international body in relation to the Convention against Torture. That being so, a new dimension is added, and there are obligations which may exist as a result of the allegations of torture.
5. There is also the element that the families are themselves suffering. There is undoubted interference with their family life under Article 8. The question is whether there is any obligation in the circumstances of these cases, and they are said to be -- and it is only because, in my view, there is some substance in this assertion -- wholly exceptional that it is said there is a positive obligation which stems from the duty to respect family life upon the United Kingdom Government under the European Convention to take some action in relation to that. The only action, of course, that it is suggested they can take is similar action to that which achieved the release of the British subjects who were detained in Guantanamo Bay.
6. Since I am granting permission, it would be undesirable for me to say anything more in relation to the details, although I have heard substantial submissions on both sides in the course of today's hearing. But for the reasons that I have indicated, shortly stated, I propose to grant permission in this case. I make it clear that that does not mean that this case will in the end succeed. There are formidable arguments as a matter of law which have been raised by Mr Sales on behalf of the government, and it may be at the end of the case that these claims will fail. There is certainly no guarantee of success, and I know Mr Singh is well aware that that is the position. But I would not want it to be thought -- and nor should it be reported -- that this indicates in any way at all that these claims are going to succeed. It does not. As I repeat, there are formidable legal arguments to the contrary. But as was said in Abbasi, it seems to me the point is one which is of the greatest public concern and public interest and therefore the extent, if at all, to which the obligations of Her Majesty's Government extend in the exceptional circumstances of Guantanamo Bay and the fight against terrorism of which it is said to be part, are or may be engaged should be determined. For those reasons, I propose to grant permission.
7. It is obviously desirable that this be dealt with as soon as may be. I think that it is certainly right that it should go to a Divisional Court, and that I propose to direct. We can give you a hearing next week, but I recognise that that may be too soon. On the other hand, it may not because you have had a chance obviously to research it. But if that is impossible, then we will obviously try to deal with it as soon as may be. First of all, sensible time estimates?
8. MR SALES: My Lord, just so I am clear, I think when I was on my feet I indicated that the Al Rawi fact specific claims are stayed.
9. MR JUSTICE COLLINS: Yes, sorry, you are quite right, I should make that clear. I do not think at the moment that it is sensible to pursue the fact sensitive claims of either of the claimants who raise them. The ones that are accepted, in the sense that the Secretary of State recognises that there should be a reconsideration, of course need not and should not be decided as part of this claim as it now stands, and equally with the other. I think the sensible thing -- subject to anything you have to say, Mr Singh -- the sensible thing is to put those over for consideration, if necessary, after the main hearing, because if you succeed on the main hearing on the general points, you do not need the specific. But if you fail, you may. It seems to me that, at the moment, it is likely to hinder or delay things if those issues have to be determined at this stage.
10. MR SINGH: I know that those instructing me are very concerned in the light of Mr Stafford Smith's statements in particular --
11. MR JUSTICE COLLINS: Exactly, you want to get it on as quickly as possible.
12. MR SINGH: We want to get it on quickly. It is not ideal from their point of view that anything should be left over, but I have heard what your Lordship has said about that.
13. MR JUSTICE COLLINS: I understand that. I hope the Secretary of State will at least commence his reconsideration on the basis that he believes to be correct at the moment, because obviously if he decides to make the representations in any event, then you will get what you want for him, although it will not, of course, affect the other two claims.
14. MR SALES: I can make it clear that the Secretary of State is already inviting representations with a view to his reconsideration on the basis of how he understands the position to be at the moment. Obviously, that will be subject to any ruling that the court may make hereafter.
15. MR JUSTICE COLLINS: If on what he believes to be the right approach at the moment, he decides in favour of further representations, then that will fall away. But if he decides against, then no doubt he will revise his approach if the court decides that he ought to adopt a different approach. I think that is the sensible way of dealing with it, Mr Singh, because, as I say, I am anxious that it is dealt with as soon as may be.
16. Now, as far as you are concerned, I take it that really you have nothing to add to the material that you have put in, have you? It is a very thorough consideration. Is there anything extra apart from the formal amendments, which Mr Sales knows about?
17. MR SINGH: The only thing that occurs to me is that, as your Lordship has seen, Mr Stafford Smith operates under certain constrains, and what does happen from time to time, as you have already seen --
18. MR JUSTICE COLLINS: You sometimes get some further information.
19. MR SINGH: Exactly so. As it becomes unclassified, he is able to put before the court. So subject to that possibility being open to us --
20. MR JUSTICE COLLINS: That may arise at any time depending when the case is fixed. But subject to that, I do not think there is any further material that you would want to put in, is there? It is a very full skeleton that you have presented for the purposes of this hearing.
21. MR SINGH: I agree.
22. MR JUSTICE COLLINS: So really, subject to that matter, your case is in order, subject to making the formal amendments which you have already given notice of.
23. MR SINGH: Yes.
24. MR JUSTICE COLLINS: Mr Sales, you have to deal with the Article 5 -- I call it the Article 5 point, but it is in a fairly short compass.
25. MR SALES: That is true. My Lord, essentially two questions arise. My Lord asked the question: how long for the argument? I have to say that, given the novelty of the claims, I personally think that three days --
26. MR JUSTICE COLLINS: I would have thought three days was a sensible estimate.
27. MR SINGH: I would not disagree with that, my Lord.
28. MR JUSTICE COLLINS: Good. As it happens we have three days next week, but I am not going to press you for that if it is impossible.
29. MR SALES: The other thing is then how long will we need to get things ready. Now, I appreciate that the factual compass of the case has been narrowed down considerably (inaudible) disposal of the way in which it should be dealt with. However, there are going to be some areas of greater or less sensitivity, I have to say, both in relation to what happened in relation to Gambia, and in relation to what has or has not been going on in relation to the US. I am afraid with the best will in the world, we will not be able to be ready.
30. MR JUSTICE COLLINS: I was not really expecting you to be able to be ready next week. I feel like doing a Judge Deed on you. "It will be in tomorrow". It is interesting how the courts work on that programme.
31. MR SALES: The thing that amuses me is just how officials from the Lord Chancellor's Department, as then was, suddenly turn into a branch of the MI5, which I think is extraordinary.
32. MR JUSTICE COLLINS: It raises my blood pressure, but I enjoy it.
33. MR SALES: Perhaps that is why you enjoy it.
34. My Lord, realistically, I would have thought that, with the best will in the world, we will need about four weeks to get our evidential case together.
35. MR JUSTICE COLLINS: I very much doubt, I am afraid, whether we would be able to give you a hearing date much before that anyway. As you appreciate, the Divisional Court is fixed for this term, so it is going to be a question of taking other cases out in order to accommodate this case. All I think I can do, I am afraid -- and I do appreciate the need for it -- is to direct -- and I have already had words with the listing officer so she knows the problems -- but I will make sure it gets in this term. I do not think, I am afraid, I can do more for you than that. Having said that, it may be a question of giving you a date which is not able entirely to accommodate counsel if there are any difficulties. We will do our best as, I hope, we always do. But, as you can understand, the need to get this in this term and the need to take out another case in order to get it in does limit the scope of fixing when is convenient.
36. MR SINGH: My Lord, may I just say that those instructing me had certainly hoped, given the urgent nature of the situation, that my learned friends could get their case in order within 14 days and that we could have a hearing in about four weeks time. The Gambia issue, for example, has been the subject of correspondence for three years now.
37. MR JUSTICE COLLINS: I fully understand that, but they have to decide. These things do take a bit of time. It is a novel case and I am very sympathetic, but I cannot make orders which really are unjust to either side. Obviously I recognise, and I hope they recognise, the need for speed. All I will do is to say that I hope they will take rather shorter than four weeks. I think we should be looking at a hearing date in about four weeks time. That is what I would hope. I think you will have to recognise, Mr Singh, that it may be that if they serve their evidence a little bit on the late side, you will have to live with that because I doubt there is anything you will able to put in in reply anyway.
38. MR SINGH: May I just take one moment. My Lord, your Lordship sees the disappointment of those behind me. We hear what your Lordship says (inaudible).
39. MR JUSTICE COLLINS: I know, but if I am saying that I think it ought to be in four weeks time, that is really what you are after. I agree that you would like it earlier than that, but that is what you must work to. I am not going to direct, because I do not think it is appropriate to do so, but you have heard what I have said.
40. MR SALES: My Lord, I have, and we will do the best that we can.
41. MR JUSTICE COLLINS: What I would like to you to do, whoever does it -- probably tomorrow now, having regard to the time -- is to go to the list office and try to get a sensible date, and tell them that I have said that I hope it will be as close to four weeks as possible, ie not before four weeks, but not after four weeks if at all possible.
42. MR SINGH: Yes.
43. MR JUSTICE COLLINS: Obviously it will be likely to be four weeks-plus because it will start -- it will be sensible to start it at the beginning or early on in the week rather than on a Thursday or Friday. So it will be four weeks plus three days, whatever it is. We are coming up to a Friday. One is looking at the Monday, whatever it is, in four weeks plus three days.
44. MR SINGH: I think that is 20 March.
45. MR JUSTICE COLLINS: Whatever it is, and it will be a Divisional Court. It will not be me -- at least I do not think it will.
46. MR SALES: If that is the date, it will not be me and I am not sure it will be Mr Singh either.
47. MR JUSTICE COLLINS: Obviously that is flexible, but you will have to sort out with your clients, and equally Mr Sales with his, as to who does it. No doubt if Mr Sales is replaced, there will be someone to join you in the front row. Right, now, is there anything else that you want from me?
48. MR SALES: I do not think so. My Lord saw the procedure note, but I respectfully agree with my learned friend that it is probably best if we put our evidence together and then when one has concrete material --
49. MR JUSTICE COLLINS: If you can do it more quickly -- you better get a fixed date as soon as possible and that is something to work towards. As far as service of evidence is concerned, I am not again going to make any direction, but you must recognise that to do it the day before would be totally unreasonable. You should aim for five working days before the hearing. As far as skeletons are concerned, do not worry too much about those, and equally do not worry too much about detailed grounds. You have the detailed grounds in the skeleton effectively. Obviously if there is anything you want to add, do so, which there may be on the basis of any evidence that you put in. But, subject to that, I would not expect you to worry about detailed grounds and further skeletons, save for a supplementary to cover whatever may be.
50. MR SALES: Yes, my Lord. I am sure we can talk about this. It might be sensible if we at least aimed for service of skeleton arguments two working days before.
51. MR JUSTICE COLLINS: Certainly. All I am saying is that, when you get round to deciding what you put into skeletons, bear in mind that you are perfectly at liberty to rely on what you have already put in, with anything supplementary -- all I am getting at is it should not involve a huge effort to update the skeletons is what it boils down to.
52. MR SALES: One would hope not. My Lord, the point that I was just going to mention was the whole question of procedure if we have material that needs to be dealt with in private. What I was saying was, it seems to me --
53. MR JUSTICE COLLINS: Apply to me is the sensible thing.
54. MR SALES: I am grateful. Not to try and guess now --
55. MR JUSTICE COLLINS: If you need any order, any directions on procedure, or any application that evidence shall be dealt with through other than open court, then --
56. MR SALES: That is extremely helpful, my Lord. Thank you.
57. MR JUSTICE COLLINS: I am not actually, as it happens, sitting in this jurisdiction next week but I am --
58. MR SALES: -- trackable, my Lord.
59. MR JUSTICE COLLINS: Next week I am. I am actually out of the jurisdiction for the first three days of the following week.
60. MR SALES: I do not think that will be critical.
61. MR JUSTICE COLLINS: Obviously, you can go to another judge, but it is probably sensible to come to me. In fact, I am in the criminal division next week, so I am around. As I say, I shall be in foreign parts for the first three days of the following week. Not, I am glad to say, working.
62. I do not think there is any point in including in the order anything beyond -- you have heard what I have said -- it is on the transcript if anyone wants to check it out. All I need say is: permission granted, hearing to be expedited before the end of term. I dispensed with any formal requirements as to service of evidence or skeletons or detailed grounds. Put it on the basis that any evidence that you want to rely on you must serve at least a week before the hearing date is fixed. You must aim to serve at least a week before, and any skeletons should be two days before the hearing date. But if the hearing date is fixed and you have not got your evidence together, you may find yourself in difficulty in persuading the court to let it in.
63. MR SINGH: I think my Lord said two working days before the hearing.
64. MR JUSTICE COLLINS: Is that not what I said?
65. MR SINGH: You said two days this time.
66. MR JUSTICE COLLINS: It goes without saying, two working days. We do not want another Friday evening for Monday morning, of course not.
67. MR SINGH: It has been known.
68. MR JUSTICE COLLINS: It has often been known, I know.
69. MR SINGH: My Lord, the only other thing I would ask to say is to thank the court staff for sitting late today.
70. MR JUSTICE COLLINS: Obviously it is right that we should dispose of it. Apart from anything else, I think I have a full list tomorrow.