CES, R (on the application of) v Secretary of State for Home Department

FORDHAM J: Introduction

1. In this case a claim for judicial review with urgent consideration of the question of interim relief was first notified to the Court at 16:38 on Wednesday 15 October 2025. A rule-compliant claim bundle was filed at 17:00. The bundle ran to 193 pages. The Form N463 recorded that it had first been appreciated that an urgent application might be necessary at 09:00 on 14 October 2025. By Form N463, this is what the Court was being asked to do. To deal with the application for interim relief within two hours, and in doing so to make an order for an interim injunction on the papers to restrain the removal of the Claimant to France. This proposed removal was pursuant to the UK-France Agreement. The legal background is identified in R (CTK) v SSHD [2025] EWCA Civ 1264 .

2. The SSHD had declared the Claimant’s asylum claim to be inadmissible, pursuant to s.80 B of the Nationality Immigration and Asylum Act 2002 . The SSHD had also certified as clearly unfounded the Claimant’s human rights claims, pursuant to Sch 3 Part 2 §5 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 . The date of those decisions was 7 October 2025. Removal directions – for a removal to France on Thursday 16 October 2025 – had also been served on 7 October 2025. The claim papers said that Counsel had first been instructed on 8 October 2025.

3. This case was one of two urgent cases which were allocated to me, with access to the case papers, at 18:31 on Wednesday 15 October 2025. The other case was R (CSG) v SSHD , in which my judgment is [2025] EWHC 2688 (Admin) . I dealt with them in parallel, then in sequence. The Court understood that the scheduled flight to France was due to take off at 07:45 on Thursday 16 October 2025. I decided to convene an urgent oral hearing by MS Teams later in the evening. I was told that GLD had not been aware of this case. In any event, they speedily instructed Counsel (Ms Reid). She and the Claimant’s Counsel (Ms King) were on standby and waited patiently. I had set about reading key documents, to try to identify the nature and thrust of the legal challenge, and the case for interim relief, in both the present case and the other urgent case. Teams Hearing

4. The Teams hearing in the other case ran from 21:09 to 22:34. The hearing in the present case then ran from 22:37 to 23:54. The hearing was recorded. I was robed. In theory, it was a public hearing. But no member of the public or press could have been aware of it. Several people attended, but they were all connected with the parties. Anonymity

5. As in the other case, at the start of the Teams hearing, I raised the question of anonymity. This was sought by Ms King and not opposed by Ms Reid. I granted anonymity but with liberty to apply. I did so on a precautionary basis, satisfied in all the circumstances that it was necessary, to secure protection from the risk of harm. The claimant is an asylum seeker whose asylum claim has yet to be determined on its merits. I was concerned that he could be imperilled by being identified. My order was published on the judicial website. Resumption Hearing

6. As in the CSG case, I explained at the start of the Teams hearing that it was my provisional intention to list this case for a resumption in open court at the Royal Courts of Justice, on the morning of Friday 17 October 2025. I am delivering this judgment at that resumption hearing. This course of action was supported by both advocates. There were two potential reasons for having a resumption hearing. They were the same as explained in the judgment in CSG at §§7-10. In the event, I was able to give sufficiently full reasons after announcing the ruling in this case. So the resumption is to promote open justice and hand-down this judgment, alongside the judgment in CSG . There are two common concerns: see §§8-9 below. The Oral Submissions

7. I will return to my description of the evening Teams hearing. I was able to allow Ms King a sufficient period of hearing time to make oral submissions seeking to persuade me to grant urgent interim relief in this case. I had pre-read her written arguments. There was then time for Ms Reid to make brief and targeted oral submissions for the SSHD, in light of the exchanges that she had heard between Ms King and the Court. I announced my ruling at the end of the Teams hearing. Timing of Issuing the Claim

8. I have the same general concern as in CSG and invite attention to what I say in that judgment at §13. I am making no criticism of anyone in the present case. An 23:00/23:30 Cut-Off Point

9. I have the same concern as in CSG and invite attention to what I say in that judgment at §§14-17. Again, I am making no criticism of anyone in the present case. By the time I started the Teams hearing in this case, I had been given the 23:30 revised timing. I announced the outcome at 23:25, ahead of the 23:30 revised cut-off point. The advocates were able to work to it. I am satisfied that there was a fair hearing. The Ruling

10. 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:

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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”.

24. 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.

25. 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. Conclusion

26. That was my ruling at the end of the Teams hearing and those were the reasons I gave. The Claimant’s applications are dismissed. I do not think amplified reasons are needed. The advocates have helpfully confirmed that I am not being asked or invited to give any further or fuller reasoning. I will simply record that “Dublin transfer” is a reference to EU arrangements for transferring asylum seekers between EU states for substantive consideration of their asylum claim. And “reception conditions” is a reference to EU obligations in the treatment of asylum seekers.