Shahriyari, Application for Judicial Review

Factual and Procedural Background

This opinion concerns an application for leave to apply for judicial review of a decision by the Public Prosecution Service (PPS) to prosecute the Applicant, an asylum seeker from a foreign country, for two offences: illegal entry into the United Kingdom contrary to section 24(b)(i) of the Immigration Act 1971, and possession of a false identity document contrary to section 6 of the Identity Documents Act 2010. The Applicant entered Northern Ireland from the Republic of Ireland, was arrested, and charged to appear before a Magistrates' Court. Bail was granted and perfected. The prosecution decision was made on 29 July 2024 and maintained on 25 November 2024, which is the decision challenged in this judicial review application. The Secretary of State for the Home Department participates as a notice party in the proceedings.

Legal Issues Presented

1. Whether the PPS decision to prosecute the Applicant breaches article 2(1) of the Windsor Framework by diminishing rights protected under the Agreement between the United Kingdom and the European Union.
2. Whether the PPS decision violates rights under the European Convention on Human Rights (ECHR), specifically articles 3, 5, 6, 8, and 14, rendering the prosecution unlawful under the Human Rights Act 1998.
3. Whether the prosecution contravenes the Common Travel Area arrangements as set out in article 3 of the Windsor Framework.
4. Whether the PPS decision was irrational or unlawful under the Wednesbury unreasonableness standard.
5. Whether the statutory defence under section 31 of the Immigration and Asylum Act 1999, as amended, applies to the Applicant and the implications for the prosecution.

Arguments of the Parties

Appellant's Arguments

• The prosecution breaches the Windsor Framework by diminishing the Applicant’s rights as an asylum seeker under article 2(1) of the Agreement between the UK and EU.
• The Applicant’s rights under various EU Directives related to asylum procedures and qualifications, and the Charter of Fundamental Rights of the European Union, are infringed.
• The prosecution breaches the Refugee Convention, specifically article 31, which prohibits penalties on refugees for illegal entry if they present themselves without delay and show good cause.
• The prosecution breaches multiple ECHR rights (articles 3, 5, 6, 8, and 14) due to the decision and the Applicant’s detention.
• The prosecution contravenes the Common Travel Area provisions under article 3 of the Windsor Framework, arguing that prosecution in Northern Ireland is unlawful if similar action could not be taken in the Republic of Ireland under EU law.
• The PPS decision is irrational and unlawful under the Wednesbury standard.
• A claim was made during the hearing that a statutory amendment to the section 31 defence is incompatible with EU law and the ECHR.

Respondent's Arguments

• The PPS decision to prosecute is lawful and consistent with the statutory defence under section 31 of the Immigration and Asylum Act 1999 as amended.
• The Applicant’s asylum claim is pending; therefore, the prosecution will not seek to disprove refugee status but contends the Applicant will have difficulty establishing the other elements of the statutory defence.
• The prosecution will invite the criminal court to consider the false document charge first, and if the defence is made out, will not proceed with the illegal entry charge, consistent with precedent.
• There is no diminution of rights under the Windsor Framework as the offences existed prior to the UK’s exit from the EU, and the Applicant’s situation is unchanged.
• The Common Travel Area is a longstanding permissive arrangement unrelated to EU law and does not confer substantive rights to the Applicant, who is not a British or Irish citizen.
• The prosecution is in the public interest, considering the Applicant had opportunities to seek protection in safe third countries before illegal entry with false documents.
• The criminal trial process is the appropriate forum for challenges to the prosecution decision, consistent with the Kebeline principle, absent exceptional circumstances.
• Arguments based on EU Directives and the ECHR are unsubstantiated or inapplicable in this case.
• The statutory amendment claim was not pleaded and is without substance.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the application through two principal lenses: the appropriateness of judicial review as a forum for challenging the prosecution decision (satellite litigation), and the merits of the substantive legal challenges raised by the Applicant.

Regarding jurisdiction, the court applied the Kebeline principle, affirming that prosecutorial decisions are generally not amenable to judicial review absent dishonesty, mala fides, or exceptional circumstances. The court found no such exceptional circumstances here and noted that the Applicant has adequate protections through the criminal trial process, including the ability to raise statutory defences and abuse of process applications.

Substantively, the court examined the statutory defence under section 31 of the Immigration and Asylum Act 1999 as amended. It accepted the prosecution’s position that while the Applicant’s refugee status is pending and not disputed at this stage, the Applicant must still satisfy other elements of the defence on the balance of probabilities, which the prosecution contends will be difficult.

The court rejected the Applicant’s arguments based on the Windsor Framework, concluding there was no diminution of rights since the offences and detention practices predate the UK’s EU exit. Similarly, the Common Travel Area argument was dismissed as the CTA is a permissive inter-state arrangement independent of EU law and does not confer rights to the Applicant.

Claims based on EU Directives were found unpersuasive, particularly the misuse of recitals which have no binding force. The ECHR claims were vague and unsupported, with relevant precedent indicating no violation arose from the prosecution decision.

The court also dismissed the claim of irrationality under the Wednesbury standard, finding the prosecution decision was well reasoned and comprehensive.

Finally, the court declined to consider a late-raised argument regarding statutory amendments, noting it was unpleaded and without merit.

Holding and Implications

The court’s final decision is to REFUSE the application for leave to apply for judicial review on all grounds.

The direct consequence is that the Applicant’s challenge to the prosecution decision must proceed, if at all, through the criminal trial process rather than by judicial review. No new legal precedent is established by this decision. The court emphasized that the statutory defence and criminal process provide adequate mechanisms for the Applicant to contest the charges and that the judicial review court is not the appropriate forum for this challenge.