R (On the application of Mofazzar Baradarn and Malik Baradarn0 v Secretary of State for the Home Department and the Sikh Council Hampshire 24 June 2014  EWCA Civ 854 – read judgment
David Manknell of 1 Crown Office Row represented the Home Office in these proceedings. He has had nothing to do with the writing of this post.
France is a country which observes its Convention obligations therefore it is not in breach of Article 3 or any other of the Convention’s provisions to return an asylum seeker thence under the Dublin Regulation, since that system provides that once a Member State has “taken charge” of an application for asylum (as France has in this case) it has exclusive responsibility for processing and determining the claim for asylum. The prohibition on religious clothing in public schools in France did not disclose a threat to the second appellant’s Convention rights.
The appellants were Iranian nationals (father and daughter) who challenged the Secretary of State’s decision on 5 December 2011 to refuse their asylum claims on safe third country grounds and to remove them to France. France had accepted responsibility for their asylum claims pursuant to the Dublin II Regulation. Before Hickinbottom J, they objected to their return to France because under French law they were banned from the wearing of the burka and the niqab in public. They alleged that this would breach their rights under articles 3, 8, 9, 11 and 14 of the European Convention on Human Rights. Their claims were dismissed by the judge in their entirety. Maurice Kay LJ gave them permission to appeal in relation only to articles 8, 9 and 14 by reference only to the French Law 2004-228 (“the 2004 law”) and in relation to section 55 of the Borders, Citizenship and Immigration Act 2009 (“BCIA”). The 2004 law had not featured in argument before the judge. It was, however, common ground that the appeal was concerned with the 2004 law and not the 2010 law. The 2004 Law provides that “in public elementary schools, middle schools and secondary schools, the wearing of symbols or clothing by which the students conspicuously indicate their religious belief is prohibited”.
In essence, the court below accepted the Secretary of State’s submission that “potential treatment at the hands of the French state under the 2010 Law could not, even as a future hypothetical construct, anywhere near approach the high threshold required to engage Article 3. There was no reliable evidence that France systematically failed to comply with its obligations under the Convention with the risk of a serious violation of the dignity of an asylum-seeker “such as would amount to degrading treatment for the purposes of Article 3“.
On the contrary, the French government and especially the French courts take their obligations in respect of human rights compliance seriously
The central administrative court in France, the Conseil d’Etat, considered the conformity of the law with articles 8, 9, 10 and 14 of the Convention in its rulings of 5 December 2007 and 6 March 2009. It concluded that the law “does not either have an excessive impact on freedoms of thought, conscience; moreover such a penalty, which is imposed without discrimination between the beliefs of the students, does not breach the non-discrimination principle..
Although the ban constituted a restriction on the applicants’ freedom to manifest their religion, it pursued the legitimate aim of protecting the rights and freedoms of others and public order and was not disproportionate. A “spirit of compromise on the part of individuals was necessary in order to maintain the values of a democratic society” and “expulsion was not disproportionate as a sanction because the pupils still had the possibility of continuing their schooling by correspondence courses”.
The arguments before the Court if Appeal
At the heart of the appellants’ case was the submission that the 2004 Law violates articles 8, 9 and 14 of the Convention and that for that reason the Secretary of State’s decision to remove M to France was unlawful.
The Secretary of State disputed this submission on the grounds that (i) it would be inappropriate for a UK court to scrutinise legislation which has been passed by the democratically-elected legislature of another country; (ii) there is very limited extra-territorial application of qualified Convention rights such as those conferred by articles 8 and 9; and (iii) it is a requirement of the Dublin II Regulation that Convention challenges to the domestic law of a state which has accepted responsibility for an asylum claim (the “responsible state”) should be considered only by that state, save in exceptional circumstances.
The Master of the Rolls was inclined to accept the Secretary of State’s arguments. For a start, the present claim came nowhere near satisfying the stringent “flagrancy” test that is required to be satisfied in an article 8 or 9 case. First, the ECtHR has decided that the 2004 Law does not amount to a violation, let alone a “flagrant” violation of article 9. The applicants’ complaints in those six cases were dismissed by Strasbourg as “manifestly unfounded (Aktas (no 43563/08), Bayrak (no 14308/08), Gamaleddyn (no 18527/08), Ghazal (no 29134/08), Singh (no 25463/08) and Singh (no 27561/08).Secondly, the ECtHR has held that a similar prohibition on the wearing of headscarves in educational institutions is not a violation, let alone a “flagrant” violation of article 9. Thus, in Sahin v Turkey (2007) 44 EHRR 5, the Grand Chamber held that the denial of access by a university student to an examination on the grounds that she was wearing a headscarf was justified having regard to the Turkish state’s principle of secularism. Thirdly, M would not be exposed to the possibility of criminal sanction for wearing a burka at school (although she would eventually be expelled). Fourthly, M would retain the possibility of being educated privately, at home or by correspondence, in the event of her expulsion for wearing a burka at school (although I note that it is said that B could not afford to pay for private education). Fifthly, M would be permitted to wear her burka at home and at places of worship.
He had further sympathy for the Secretary of State’s position on the Dublin II Regulation allocation of responsibility between states.
It is not in dispute that the purpose of the Dublin II Regulation is to introduce a clear division between a responsible state (France in this case) and a non-responsible state (the UK in this case) for managing the asylum claims of third country national asylum seekers. Mr Manknell submits that (i) it would be inconsistent with the policy of the Dublin II Regulation if a non-responsible state (the UK in this case) were required to assess Convention challenges to the legislation of a responsible state (in this case France); and (ii) it is clearly established in the relevant EU, ECtHR and domestic case law that a Convention challenge to the legislation of a Dublin II Regulation state must be brought in the responsible state, save in exceptional circumstances.
In conclusion, then the appellants had come nowhere near rebutting the presumption that France would comply with its obligation to respect the rights enjoyed by the appellants under articles 8, 9 and 14 of the Convention.
The sticking point appeared to be Section 55 of the Borders, Citizens, and Immigration Act 2009 (“BCIA”). The requirements on the Secretary of State under this provision are well established. It has to be borne in mind that
- the best interests of a child are an integral part of the proportionality assessment under article 8;
- in making that assessment, the best interests of the child must be a primary consideration, although not always the only primary consideration, and the child’s best interests do not of themselves have the status of the paramount consideration;
- although the best interests of a child can be outweighed by the cumulative effect of other considerations, no other consideration can be treated as inherently more significant;
- while different judges might approach the question of the best interests of a child in different ways, it is important to ask oneself the right questions in an orderly manner in order to avoid the risk that the best interests of a child might be undervalued when other important considerations are in play;
- it is important to have a clear idea of a child’s circumstances and of what is in a child’s best interests before one asks oneself whether those interests are outweighed by the force of other considerations;
- to that end there is no substitute for a careful examination of all relevant factors when the interests of a child are involved in an article 8 assessment; and
- a child must not be blamed for matters for which he or she is not responsible, such as the conduct of a parent.
Even taking all these considerations aboard, the judge hearing the original judicial review application accepted the Secretary of State’s view that any limited adverse affect the applicant’s removal may have on his daughter was proportionate to the need to maintain an effective immigration control and an efficient implementation of the Dublin Regulation.
This is not a case where those (S.55 BCIA) interests were ignored or treated as being of little or no importance. The Secretary of State considered it to be of some significance that the majority of M’s life had been spent outside the UK. In both letters, she said that any adverse effect of her removal to France would be limited by the fact that she was remaining with her father, her primary carer. In the letter of 7 May 2014, she specifically addressed the issue of the Law of 2004 and noted that she would be unable to attend public school if she chooses to wear a religious garment, but it would be open to her to be educated elsewhere (either at home or at a private school). Importantly, she said that she considered that any adverse effect removal may have was proportionate to the need to maintain an effective immigration control and an efficient implementation of the Dublin II Regulation.
The appellant father’s argument appeared to proceed on the basis that section 55 requires that a child in the position of M be permitted to remain in the UK if that is the place where she would prefer to live. But that was not a correct understanding of section 55 as established in Zoumbas v SSHD  UKSC 74 where the Supreme Court said that
There is no irrationality in the conclusion that it was in the children’s best interests to go with their parents to the Republic of Congo. No doubt it would have been possible to have stated that, other things being equal, it was in the best interests of the children that they and their parents stayed in the United Kingdom so that they could obtain such benefits as health care and education which the decision-maker recognised might be of a higher standard than would be available in the Congo. But other things were not equal. They were not British citizens. They had no right to future education and health care in this country.
In conclusion, it had been clear throughout that the Secretary of State did consider the best interests of M under section 55 of the BCIA. This was not a case where those interests were ignored or treated as being of little or no importance. The Secretary of State considered it to be of some significance that the majority of M’s life had been spent outside the UK. In both letters, she said that any adverse effect of her removal to France would be limited by the fact that she was remaining with her father, her primary carer. In the letter of 7 May 2014, she specifically addressed the issue of the Law of 2004 and noted that she would be unable to attend public school if she chooses to wear a religious garment, but it would be open to her to be educated elsewhere (either at home or at a private school). Importantly, she said that she considered that any adverse effect removal may have was proportionate to the need to maintain an effective immigration control and an efficient implementation of the Dublin II Regulation.
The Court therefore rejected both grounds of challenge and dismissed the appeal.