AC-2025-LON-003557 - [2025] EWHC 2687 (Admin)

I will complete this judgment by setting out what I said at the end of the hearing on 15 October 2025. I authorised the use by the Court of voice-recognition software during the ruling, so that I could provide it as an approved version. Here is what I said:

At 11:25pm on 15 October 2025 I am announcing at the hearing of this case that I am dismissing the application for interim relief and I am also refusing the claim for permission for judicial review. I am pausing because I am aware of the practical position which may require steps to be taken within the Home Office and I want to ensure that whoever needs to leave this hearing is able to do so. Subject that pause, I am in a position where I can continue.

As the parties know and as I made clear earlier at this hearing it is my intention to deal with the case in two stages. The first stage is to announce the decision and an outline of the reasons which is what I am doing at present. But the second stage is that this case will be listed in open court at the Royal Courts of Justice on Friday morning. The purpose of that is not to hear any more submissions or indeed to resolve any further issue. I have made my decision and have heard the submissions. The purpose is that, in the public domain and at a public hearing, I will be able to explain nature of the hearing that took place in this case at short notice tonight. I will be able to explain the decision that I have reached. I will also have the opportunity to give fuller reasons, to the extent that I consider that to be appropriate. It will be no discourtesy to the Court if either or both of the two advocates who have been available to make submissions this evening find that they are not available to attend at that hearing. But I can be made aware during tomorrow of anything that arises from a practical point of view.

This is a legal challenge which seeks urgent interim relief to prevent a removal to France on an aircraft early tomorrow morning. The claim is squarely put on the basis of Article 3 of the ECHR, as scheduled to the Human Rights Act. In legal terms, as I see it, it really comes down to two points. One is the familiar substantive test which applies whenever the state authorities remove or extradite an individual. That is the test of whether there are substantial grounds for believing that there is a real risk that the person who would be removed or extradited would face Article 3 torture, inhuman or degrading treatment or punishment. That may be in the country to which they are directly being removed or it may be a risk from an onward removal. The other point, by way of an alternative, is that Ms King has relied on what she submits is an “investigative duty” arising on the part of the SSHD in the context of the prospect of Article 3 harm following removal. I doubt whether the “investigative duty” way of putting the case really materially changes the nature of the Article 3 test. But for the purposes of today I will assume in the Claimant’s favour that the investigative duty can be put on a freestanding basis.

Which are said to have arisen, when the Claimant was previously in France, are two linked documents. One was a French order dated 11 July 2025. It ordered the Claimant’s “Dublin removal” to Italy, a country through which he had previously travelled, for the substantive determination of his asylum claim. The other is a document dated 11 June 2025 emanating from the Italian authorities. It recorded that, due to capacity issues, the Italian authorities were not presently able to receive such a transfer.

Ms King puts at the heart of her submissions the “limbo” consequence – as she puts it – of the French authorities having decided to make a transfer and the Italian authorities having the same time decided not to receive a transfer. She emphasises what she says, on the evidence, is the practical reality of the experience which the Claimant had in France. That was during the one month between the 11 July 2025 French order and the Claimant’s 12 August 2025 small boat journey from France to the UK. Ms King emphasises what the Claimant has said about periods in France of homelessness and destitution in France. She suggests that there is a lacuna, at least in practical terms, in the “reception standards” that should apply to asylum seekers when they in European countries. She ultimately strongly emphasises what she says is a very modest, simple, straightforward and necessary step. Namely, that the SSHD should communicate with the French authorities about these particular features of the Claimant’s case for clarification. In legal terms, she submits that there is an Article 3 need for an “assurance” from the French authorities before any removal could take place. She also submits that the principle of anxious scrutiny is applicable to the decision-making and that there has been a failure, at least arguably, to meet that standard.

For the SSHD, Ms Reid squarely takes her stand for the purposes of today on whether there is any viability in the legal challenge that the Claimant seeks to bring.

I have examined the case with the assistance of the advocates. I have considered the materials. I have put to one side and out of mind, at the request of the Claimant’s legal team, some materials that I was told had mistakenly been included within the bundle, about which is not necessary to say any more.

I am entirely satisfied that, looking at the legal merits, this is a claim which has no realistic prospect of success. There is, in interim relief terms, no triable issue. There is, in judicial review terms, no arguable claim. I will therefore dismiss the claim for interim relief and refuse permission for judicial review.

There are very considerable difficulties in the evidential picture that has been provided on behalf of the Claimant. Not least of them, there is the fact that the Claimant provided a witness statement in which he strongly maintained that he had not made any asylum claim in France nor had any opportunity to make an asylum claim in France. The nature of the contentions that he has made across time have changed strikingly. Also, there is a real difficulty in relation to the idea that the Claimant experienced a period of “limbo” after the 11 July 2025 French order, such that he was driven to leave France a month later, when he would have remained in France if only he had felt he had a realistic prospect of promptly being transferred to Italy. I am, however, able to put all of this to one side. I will simply focus on the evidence so far as it relates to the alleged Article 3 risk and the claimed investigative duty.

In my judgment, it is obvious that – for a period of limbo to begin to engage the very high threshold of Article 3 ill-treatment – there would need to be a severe set of circumstances. I do not exclude the possibility that Article 3 could be engaged by a period of limbo. But I cannot accept, on the evidence, that there is a viable case which could trigger a need for an assurance or an investigation.

So far as reception conditions are concerned, it would be an obvious lacuna in the regulated scheme for the reception of asylum seekers in European countries, if the point at which an intention to make the Dublin transfer led to an immediate withdrawal of the legal reception arrangements which safeguard human rights. It is also very difficult to see how a lacuna violating Article 3 could arise consistently with the applicability of Article 3 ECHR to all European state authorities. I remind myself that in this case it is the Article 3 threshold which is in play. In fact, as Ms Reid points out, the applicability of the reception standards in these sorts of cases has been expressly addressed – by reference to the relevant material – in a detailed letter of response which was provided earlier today by the Home Office.

I return to the question of a period of limbo pending a Dublin removal from France to Italy. So far as that is concerned, what would be expected is that the legal safeguards applicable to Dublin transfers would deal with the prospect of indefinite delay between (a) making and (b) being able to implement a decision to transfer an individual asylum-seeker. As Ms Reid has been able to demonstrate, the very French document relied on in this case (the French order of 11 July 2025) has within it an express expiry date of 6 months, plus a possible 6 month extension in a case of imprisonment or absconding. The French order states in terms that the transfer to Italy needed to take place within 6 months. One asks: what is the point of making that provision? The answer is this: the asylum decision-making responsibility would revert to France as the Dublin-transferring state. Again as Ms Reid points out, the relevant provisions from the EU Dublin Regulation are referenced within the body of the French order. There was no inconsistency between the French and Italian documents, because the French document itself made clear that implementation of transfer was separate from the decision to order the transfer. All of this means that, under the applicable arrangements, there was a protective time-limit for transfer. It appears on the face of the very order that has been so strongly relied on by the Claimant as supporting what he claims was an experience or prospect of ongoing limbo.

Finally, there is in my judgment the strong general theme which is applicable to this case. It is that France is presumed to comply with the standards of Article 3 in the ways that it deals with a person who is removed to France. That is a rebuttable presumption. But it is an important presumption. The case-law about removal or extradition and prison conditions demonstrates that there are legal principles which do involve “investigative duties” and which do involve the need for “assurances”.

The Claimant’s difficulty in the present case is that the nature of the complaints put forward, and the body of evidence which has been adduced, comes nowhere near arguably rebutting the general presumption as to France’s Article 3 compliance. The Claimant will be removed tomorrow morning to France, with his Article 3 rights intact, including in relation to the way in which the French authorities will in law be obliged to deal with him. There is no viable Article 3 complaint which can be used to impugn any of the relevant decisions of the SSHD. Nor can they be used as a basis for this Court granting an order to restrain tomorrow’s removal.

I will reflect on whether and to what extent further reasons need to be given but for now I have given my decision. The order will be drawn up in due course.