COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF
OF JUSTICE ADMINISTRATIVE COURT
The Hon Mr Justice Bean
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE LAWS
LORD JUSTICE GAGE
| The Secretary of State for the Home Department
|- and -
|The Queen on the Application of AA (Afghanistan)
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Lord Justice Laws:
"1 The Claimant, who was born on 1 July 1980, is a citizen of Afghanistan. In November 2002 he arrived in Austria and claimed asylum there. Before the Austrian authorities had decided his claim he left Austria for the United Kingdom, arriving here on 1 December 2002, and immediately claimed asylum in the UK. He was released from temporary detention but was required to report three times weekly.
2 On 2 April 2003, the UK requested Austria, pursuant to the Dublin Convention [viz Dublin I], to accept responsibility for dealing with Mr AA asylum claim. Austria did so with commendable promptness the following day. On 3 June 2003 the Secretary of State certified Mr AA's UK asylum claim under section 25 of the Immigration and Asylum Act 1999; and on 23 March 2005 he certified it once more under the Asylum and Immigration (Treatment of Claimants) Act 2004. But, apart from the certificates being issued, nothing else appears to have occurred during a period of more than two years either to progress Mr AA's asylum claim in the UK or to return him to Austria.
3 On 8 June 2005 Mr AA's reported as he had so often before, but this time he was detained and served with a notice that directions had been given for his removal to Austria on 10 June. The next day Goldring J granted a stay and on 10 June an application was issued for judicial review. On the 11 July 2005 Sullivan J granted permission adding:-
'The delay in this case from June 2003 to June 2005 when the Claimant was detained (well over two years after Austria had accepted responsibility) requires some explanation. Is there no time limit whatsoever (even a reasonable time by implication) upon Austria's acceptance in April 2003?'
4 On 10 August 2005 the Austrian authorities confirmed that they were still willing to accept responsibility. In October the Claimant was granted bail and continued to report for some three weeks, but in November 2005 he absconded. He was rearrested and detained in January 2006. It has not been suggested that this unfortunate lapse on his part affects the answer to the point of law identified by Sullivan J."
"7 I have established a life in the United Kingdom. I have made several friends of varying nationalities. I have learned the language and settled here. I am also involved with a relationship with a British citizen. I want to live in the United Kingdom and make a family here."
In fact the respondent has since Bean J's judgment voluntarily returned to Austria to have his asylum claim determined there. This court was so informed by letter from the Treasury Solicitor on 28 April 2006. So the proceedings are moot or academic so far as the particular asylum claimant is concerned. However the issue of the effect of administrative delay in cases like this is said to be an important one, and there has been some difference of view about it among judges of the Administrative Court. On the other hand Dublin I (whose provisions are material in this case) is now itself historic, or at least passing into history: asylum applications made since a date in late 2003 fall to be considered under Dublin II, whose provisions are such that the problem which has surfaced in this case would not arise.
"AWARE of the need, in pursuit of this objective, to take measures to avoid any situations arising, with the result that applicants for asylum are left in doubt for too long as regards the likely outcome of their applications and concerned to provide all applicants for asylum with a guarantee that their applications will be examined by one of the Member States and to ensure that applicants for asylum are not referred successively from one Member State to another without any of these Member States acknowledging itself to be competent to examine the application for asylum".
I should go next to Article 3(4):
"4 Each Member State shall have the right to examine an application for asylum submitted to it by an alien, even if such examination is not its responsibility under the criteria defined in this Convention, provided that the applicant for asylum agrees thereto."
There are important provisions contained in Article 11, setting time limits for certain actions, which I should set out:
"1 If a Member State with which an application for asylum has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any case within the six months following the date on which the application was lodged, call upon the other Members State to take charge of the applicant.
If the request that charge be taken is not made with the six-month time limit, responsibility for examining the application for asylum shall rest with the State in which the application was lodged.
2 The request that charge be taken shall contain indications enabling the authorities of that other State to ascertain whether it is responsible on the basis of the criteria laid down in this Convention.
3 The State responsible in accordance with those criteria shall be determined on the basis of the situation obtaining when the applicant for asylum first lodged his application with a Member State.
4 The Member State shall pronounce judgment on the request within three months of receipt of the claim. Failure to act within that period shall be tantamount to accepting the claim.
5 Transfer of the applicant for asylum from the Member State where the application was lodged to the Member State responsible must take place not later than one month after acceptance of the request to take charge or one month after the conclusion of any proceedings initiated by the alien challenging the transfer decision if the proceedings are suspensory.
6 Measures taken under Article 18 may subsequently determine the details of the process by which applicants shall be taken in charge."
"4 Where the transfer of the asylum applicant has to be postponed due to special circumstances such as sickness, pregnancy, criminal detention, etc., and it is therefore not possible to carry out the transfer within the normal period of one month, the Member States concerned shall duly consult and agree on a case by case basis on the time limit within which the transfer must take place.
5 Where the asylum applicant avoids implementation of the transfer so that it cannot be carried out, it is irrelevant with regard to responsibility whether the applicant disappeared before or after the formal acceptance of responsibility by the Member State responsible. If the asylum applicant is subsequently found, the Member State concerned should duly consult and agree on a case by case basis on the time limit within which the transfer must take place.
6 The Member States concerned must inform each other a quickly as possible if they learn that one of the situations referred to in paragraphs 4 and 5 has arisen. In both the above cases, the Member State responsible for examining the asylum application under the Convention shall remain responsible for taking charge of or taking back the applicant without prejudice to Article 10(2), (3) and (4)."
I should also read Article 23(3) of the Decision:
"3 If establishment of proof carried excessive requirements, the procedure for determining responsibility would ultimately take longer than examination of the actual application for asylum. In that case, the Convention would fail totally to have the desired effect and would even contradict one of its objectives since the delays would create a new category of 'refugees in orbit', asylum seekers whose applications would not be examined until the procedure laid down under the Convention had been completed."
-"8 In the present case the UK complied with the six month limit under Article 11(1) for submitting a request to Austria; and Austria, by replying the next day, complied comfortably with the three month time limit for responding under Article 11(4). But the UK, far from meeting the one month limit specified by Article 11(5), failed to take action for more than two years. None of the excusing factors provided for by Article 11(5) of the Convention or Article 21 of the Committee Decision – suspensory proceedings, sickness, pregnancy, criminal detention or disappearance of the applicant – applied in this case."
Notwithstanding this, on 10 August 2005 the Austrian Federal Asylum Office wrote to the respondent's solicitors as follows:
"According to your fax dated on 24.07.2005, we would like to inform you that the a/m person applied for asylum in Austria on 14.11.2002. The person absconded on 02.12.2002 and the asylum process stopped.
If the person has not left the common territory in the meantime, Austria is still responsible for determining his application for asylum."
This is the document the judge had in mind in stating (paragraph 4, which I have set out) that the Austrian authorities confirmed "that they were still willing to accept responsibility". That is, with respect, not an entirely accurate summation. It is of some significance that what the Federal Office actually stated was that 'Austria is still responsible' (my emphasis).
THE DECISION OF THE JUDGE BELOW
i) He accepted that Dublin I has effect only as a treaty on the international plane. It confers no rights, cognizable in domestic law, on individual asylum claimants. In particular a violation by the United Kingdom of the obligation to abide by the time limits specified in Article 11(5) (as, of course, has happened here) confers no legal right on the claimant to insist that his asylum claim be determined substantively in this country. So much is established by the decision of this court in Omar  EWCA Civ 285. Omar is an important case, but with respect I need not cite the text of the judgment. These propositions are common ground and, it seems to me, incontestable.
ii) The judge proceeded to specify the "real questions in the present case" as follows:"18… (a) whether Dublin I requires the UK to transfer the Claimant to Austria even after a substantial and unexpected delay; and, if not (b) whether the Secretary of State is nevertheless entitled to transfer the Claimant against his wishes despite the delay. Neither of these questions was decided Omar."
iii) The judge concluded (paragraph 22) that Dublin I did not require the Secretary of State to return the respondent to Austria despite the delay.
iv) Then he proceed to hold as follows:"23 Turning to domestic law, Mr Johnson submits that the prejudice to the Claimant, no more and no less than that identified in paragraph 17 above, is insufficient to disentitle the Secretary of State from removing the Claimant to Austria. But the unexplained delay is some 25 times that permitted by Article 11(5) of Dublin I; and the prejudice, though by no means exceptional, is significant. I conclude that in the present case it would be wholly unreasonable, after the lapse of more than two years, for Mr AA to be transferred against his wishes to Austria. He is now entitled to have his claim for asylum (and the subsidiary claim based on human rights grounds) heard in the United Kingdom. His application for judicial review accordingly succeeds."
I should read paragraph 17, which the judge there refers to:"Mr AA would indeed have difficulty, on the face of it, in crossing the high threshold set by Huang ( QB 1): but the Article 8 issue is secondary. Dublin I (and likewise Dublin II) deals with responsibility for determining asylum claims. In theory, no doubt, an asylum claim can be made just as well in one Member State as in another. But there is force in Mr Jacobs' submission that his client would now suffer some prejudice in attempting to establish such a claim in Austria without the benefit of the support network of his girlfriend (a British citizen), other friends he has made here over the past two years, and lawyers who have been acting for him in recent months."
THE APPELLANT'S CASE
i) He failed to recognise the overriding purpose of Dublin I.
ii) He should not have found any relevant prejudice.
iii) He was wrong to hold that the prejudice he did identify possessed any significance for the purposes of his decision.
iv) He should have recognised and accorded a significant degree of deference to the Secretary of State as the decision-maker, given that the case's context lay in the field of international relations and immigration policy.
"... once it is plain that there has been an agreement for the purposes of dealing with an asylum claim, following application of the provisions of Article 5.2 the approach of the court must be simply to accept that that has been agreed to on the international plane and the matter is thereby closed."
Counsel in the skeleton referred also to a passage in the judgment of Lightman J in Mosari  EWHC Admin 1343, which he submitted was to like effect, though its context was Dublin II.
THE RESPONDENT'S CASE
Lord Justice Gage:
Lord Justice May: