182.
No fair-minded person would be unsympathetic to the practical difficulties faced by the hard-pressed officials who have to deal with a large number of “fresh” asylum applications at the same time as applications for section 4 support. All judges of the Administrative Court will themselves have seen purported “fresh” submissions which are no such thing and submissions which, in their presentation, are voluminous and unfocused. I have certainly seen submissions of that nature in my judicial capacity and that is why the suggestion that only about 15% of such submissions ultimately are found to be true “fresh” submissions within Rule 353 comes as no real surprise. Equally, it would be wrong not to acknowledge that the formulation of guidance to case owners dealing with such matters must undoubtedly be a difficult task. Furthermore, the resources available to deal with these matters doubtless face the same constraints that every other publicly-funded task faces at present.
183.
However, the court can deal only in what is or is not lawful. Amongst the
unmeritorious cases there are deserving cases. Furthermore, recourse to statistics must
never be allowed to divert attention from the fact that there are human beings behind
each application made and that some (including single men) may be extremely
vulnerable at the time of making the application for support, the vulnerability being
exacerbated by being destitute and homeless at the time. Whilst it would probably be
unrealistic to expect that any policy or practice, however tightly drafted and
conscientiously observed, would always ensure that every deserving case was dealt
with properly and efficiently, that can never be a justification for not endeavouring to
set in place a policy that does try to achieve this objective
.
184.
The evidence in this case drives me to the conclusion that the blanket instruction set
out in paragraph 134 above does involve a significant risk that the Article 3 rights of a
significant number of applicants for section 4 support will be breached. Whether it is
to be looked at purely on that basis or on the basis of a breach of the Reception
Directive does not, to my mind, matter: given the test that a case like Munjaz (see
paragraph 152 above) requires to be applied, it seems to me clear that the instruction
has to be characterised as unlawful. It also has the effect of denying the applicant any
independent review of the merits of his or her claim for support whilst the substantive
“fresh” claim application is considered.
Zie: http://www.judiciary.gov.uk/Resources/JCO/Documents/Judgments/mk-ah-sec-state-home-dept-judgment-10072012.pdf
Andere wetten en zoals hij later zegt "hij had er artikel 3 EVRM niet voor nodig" maar een mooie redenering die ook in een Nederlandse zaak kan worden gebruikt. Vergeleken met een Nederlandse uitspraak een heel persoonlijke en ook op de politiek gerichte (doet later beroep op Minister).
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