IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(MR JUSTICE TOULSON)
B e f o r e :
LORD JUSTICE MAURICE KAY
MR JUSTICE BODEY
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|SECRETARY OF STATE FOR THE HOME DEPARTMENT||DEFENDANT/RESPONDENT|
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MR A McCULLOUGH & MR A PAYNE (instructed by Treasury Solicitor) appeared on behalf of the Respondent.
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"… see any basis on which it could rationally be found that a removal of this claimant to Italy for the processing of his asylum claim would be a disproportionate measure and would contravene his Article 8 rights." (paragraph 11)
"… to work towards establishing a common European Asylum System …"
"3) The Tampere conclusions also stated that this system should include, in the short term, a clear and workable method for determining the Member State responsible for the examination of an asylum application.
"4) Such a method should be based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum applications.
"6) Family unity should be preserved in so far as this is compatible with the other objectives pursued by establishing criteria and mechanisms for determining the Member State responsible for examining an asylum application.
"12) With respect to the treatment of persons falling within the scope of this Regulation, Member States are bound by obligations under instruments of international law to which they are party.
"15) The Regulation observes the fundamental rights and principles which are acknowledged in particular in the Charter of Fundamental Rights of the European Union (3). In particular, it seeks to ensure full observance of the right to asylum guaranteed by Article 18."
"h) 'unaccompanied minor' means unmarried persons below the age of eighteen who arrive in the territory of the Member States unaccompanied by an adult responsible for them whether by law or by custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the member States;
"i) 'family members' means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States:
"(j) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens;
"k)the minor children of couples referred to in point (i) or of the applicant, on the condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law;
"l)the father, mother or guardian when the applicant or refugee is a minor and unmarried; …"
Then Article 3(i):
"Member States shall examine the application of any third country national who applies at the border or in their territory to anyone of them for asylum. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible."
I must read part of Article 4(iii):
"For the purposes of this Regulation, the situation of a minor who is accompanying the asylum seeker and meets the definition of a family member set out in Article 2, point (i), shall be indissociable from that of his parent or guardian …"
"1. The criteria for determining the Member State responsible shall be applied in the order in which they are set out in this Chapter.
"2. The Member State responsible in accordance with the criteria shall be determined on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State.
"Where the applicant for asylum is an unaccompanied minor, the Member State responsible for examining the application shall be that where a member of his or her family is legally present, provided that this is in the best interest of the minor.
"In the absence of a family member, the Member State responsible for examining the application shall be that where the minor has lodged his or her application for asylum.
"Where the asylum seeker has a family member, regardless of whether the family was previously formed in the country of origin, who has been allowed to reside as a refugee in a Member State, that Member State shall be responsible for examining the application for asylum, provided that the persons concerned so desire."
"1. Any Member State, even where it is not responsible under the criteria set out in this Regulation, may bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. In this case that Member State shall, at the request of another Member State, examine the application for asylum of the person concerned. The persons concerned must consent.
"3. If the asylum seeker is an unaccompanied minor who has a relative or relatives in another Member State who can take care of him, or her, Member States shall if possible unite the minor with his or her relative or relatives, unless this is not in the best interests of the minor.
"4. Where the Member State thus approached accedes to the request, responsibility for examining the application shall be transferred to it."
"The Member State responsible for examining an application for asylum under this Regulation shall be obliged to:…
"(c) take back, under the conditions laid down in Article 20, an applicant whose applicant is under examination and who is in the territory of another Member State without permission."
"1. An asylum seeker shall be taken back in accordance with Article 4 (5) and Article 16 (1) (c), (d) and (e) as follows: …
"c) where the requested Member State does not communicate its decision within the one month period or the two weeks period mentioned in subparagraph (b), it shall be considered to have agreed to take back the asylum seeker;
d) a Member State which agrees to take back an asylum seeker shall be obliged to readmit that person to its territory. The transfer shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request that charge be taken by another Member State or of the decision on an appeal or review where there is a suspensive effect;
"2. Where the transfer does not take place within the six months' time limit, responsibility shall lie with the Member State in which the application for asylum was lodged. This time limit may be extended up to a maximum of one year if the transfer or the examination of the application could not be carried out due to imprisonment of the asylum seeker or up to a maximum of eighteen months if the asylum seeker absconds."
"…on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State".
"… Mr Payne contends that, under the Convention and now the Regulation, the screening process falls to be conducted only once and that, inasmuch as Italy has already completed it, an applicant cannot demand further consideration of the hierarchy of criteria, whether in the UK, Italy, or elsewhere. He argues that, subject only to the possible invocation by Italy of Article 15, to which I will turn in paragraph 34 below, the applicant's application for asylum may now be subject to substantive examination only by Italy. He submits that it would run counter to the policy behind the Regulation to allow an applicant who has become dissatisfied with the result of the screening process undertaken by one State to move to a second (or, so he postulates, perhaps even a third or fourth) State and, by reference to the purported revelation of further or different facts, to demand that the process be undertaken again. To this Mr Nicholson has one simple response, namely that no I amount of clever argument can justify the maintenance of a decision which, for whatever reason, has been made upon inaccurate data.
"28. I hold that the submissions of Mr Payne set out in paragraph 27 above are correct. The fourth recital to the Regulation describes its objective as being:
'… in particular [to] make it possible to determine rapidly the Member State responsible [for the substantive examination of the application for asylum].'
"Article 5.2, set out in paragraph 23 above, requires the screening process to 'be determined on the basis of the situation obtaining when the asylum seeker first ledged his application with a Member State.' Mr Nicholson argues that 'the situation obtaining' means 'the situation truly obtaining, whether or not then discernible'. But I disagree with him. In my view the words indicate that the process must be undertaken by reference to the upshot of an enquiry conducted by the Member State with which the application for asylum is first lodged and at the time when it is 1odged.
"29. Article 3, relied on by both counsel, is, in my view, irrelevant to this argument because it refers to the obligation to conduct the substantive examination of the application for asylum rather than to conduct the screening process, Highly relevant, however, is the mechanism for 'taking back', to which Articles 4.5, 16 and 20 refer. This present case is an example of the mechanism: for under Articles 16 and 20 the UK has required Italy to take the claimant back. Articles 4, 5 and 16. l (c) address the situations in which an applicant for asylum moves to a second member State at a time when a first member State is conducting either the screening process or the substantive examination of her or his application; and in each such situation they oblige the first State to take the applicant back. In my view the mechanism is inconsistent with the existence of my power, still less a duty, on the second State itself to conduct the screening process. I have already explained that the claimant is appealing against the decision, reflected in the letter dated 26 November 2003, that Italy should take her back but that, unless this claim succeeds, the pendency of the appeal will not prevent her removal to Italy. In this regard it is worthwhile to note the content of Article 20.1 (e):
"This decision [by one Member State that the applicant be taken back by another] may be subject to an appeal or a review. Appeal or review concerning this decision shall not suspend the implementation of the transfer except when the c o w or competent bodies so decide in a case by-case basis if the national legislation allows for this.'"
"The effect of Article 15 is not to confer a freestanding substantive right on individual applicants. Rather, it is to regulate the relationship between two or more Member States."
"Instinctively I feel that the word 'guardian' connotes the external investment of a person with formal responsibility for a minor and that Mr Nicholson's construction probably widens the application of Article 7 (and, for that matter, of Articles 6 and 8) far wider than the Council intended. Are my instincts valid? Two pointers embolden me to answer affirmatively. First, Article 12 of Commission Regulation No 1560/2003 (which lays down detailed rules for the application of the Regulation and which I will describe as 'the Commission Regulation') refers to a decision to entrust the care of a minor to a relative 'other than the mother, father or legal guardian". Mr Nicholson submits that the difference reflected by the presence of the adjective 'legal' in Article 12 of the Commission Regulation, and by its absence in Article 2(i) of the (Council) Regulation is deliberate and significant. I hold, on the contrary, that it is most unlikely that the trio of persons collected together in each of the Articles are intended to be substantially different. Second, Article 2(h) of the (Council) Regulation defines an 'unaccompanied minor' as, so far as is relevant, a minor 'unaccompanied by an adult responsible for them whether by law or by custom.' In my view this notion of responsibility for a minor, invested in a person externally whether by law or by custom, is precisely the notion which is intended to be carried into the interpretation of the word 'guardian' in the following sub-paragraph."
"at the latest within six months of acceptance of the request that charge be taken by another Member State."
"1. Where, pursuant to Article 18(7) or Article 20(1)(c) of Regulation (EC) No 343/2003 as appropriate, the requested Member State is deemed to have accepted a request to take charge or to take back, the requesting Member State shall initiate the consultations needed to organise the transfer.
"2. If asked to do so by the requesting Member State, the Member State responsible must confirm in writing, without delay, that it acknowledges its responsibility as a result of its failure to reply within the time limit. The Member State responsible shall take the necessary steps to determine the asylum seeker's place of arrival as quickly as possible and, where applicable, agree with the requesting Member State the time of arrival and the practical details of the handover to the competent authorities."
Order: Appeal dismissed.