England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE KAY: This is an application for leave to move for judicial review against the decision of the Secretary of State to proceed with the removal of the applicant to France, that decision being dated 2nd December 1997.

2. This matter has a long history which it is unnecessary to go into in any great detail. The applicant is an Algerian national. He went originally to France and remained in France for some time but then travelled to the United Kingdom on false identity documents in April or May 1995.

3. Having entered the United Kingdom illegally he remained undetected until 2nd April 1996 when he was apprehended and detained. Thereafter he claimed asylum. There have been a series of applications already determined by the courts in relation to this matter. In that the applicant sought to challenge the Secretary of State's intention to return him to France for the substantive consideration of his application for asylum.

4. That matter was finally determined in the Court of Appeal. An application for leave to appeal to the House of Lords was refused.

5. The fresh application results entirely from the fact that the Dublin Convention has come into effect since that date having, by reason of the provisions of the Treaty, come into effect on 1st September 1997.

6. The sole point that is now taken is that the Secretary of State in a detailed response to a number of matters raised by the applicant as to why the decision to remove him to France should not be implemented, dealt with the question of the Dublin Convention and concluded that since the applicant had applied for asylum and a decision had been made to return him to France, before such time as the Convention came into force, his case fell outside the provisions of the Convention. Therefore it was proper to return him to France.

7. It is that aspect of the decision that is challenged and put shortly the challenge is, that in concluding his construction of the Dublin Convention the Secretary of State erred in law.

8. On behalf of the respondent a number of matters are taken. It is put in counsel's skeleton in this way:

9. A) it is not open for the applicant to seek to challenge the Secretary of State's decision on the basis that he misconstrued a treaty which has not been incorporated into domestic law.

10. B) in any event his construction of the Dublin Convention and his analysis of the consequences on the applicant's case is clearly right.

11. C) alternatively the question of domestic law requires him to consider whether there was any likelihood of the breach of the Refugee Convention in his proposed course of action and so even if he was wrong there will not be any breach of the Refugee Convention.

12. The first of those matters properly needs to be considered first. It is submitted that the Dublin Convention has the status of an international treaty but it has not been incorporated into domestic law and it is therefore not directly enforceable in domestic law.

13. As I understand it Mr Nicol, on behalf of the applicant, does not seek to contend that that proposition is wrong but says the way in which this matter was approached by the Secretary of State, involved him taking into account the Dublin Convention and that therefore this court has power to review his decision in relation to the matter since he himself took the matter into account.

14. It is submitted on behalf of the respondent that the proper

15. It is said that establishes that the Secretary of State is under no domestic law obligation to take the Dublin Convention into account. His duty is to consider whether his proposed course of action might result in a breach of the Refugee Convention.

16. The situation in this case is that the Secretary of State did not in any sense take into account the convention that would enable a challenge to his decision. He considered whether it applied; he rejected the suggestion that it did apply.

17. He gave a very detailed explanation as to why he had rejected it and it is really that detailed explanation which is said now to amount to him taking the convention into account.

18. I reject that submission as being one that is not arguable. The Secretary of State was doing no more than to say that it did not apply to this situation and he was not taking it into account as a result.

19. As Mr Pleming, on behalf of the Secretary of State, points out, if he had said so in so many words and not given reasons it would be difficult to say in any way that he took it into account and I do not see how it can possibly be arguable simply because he sought, as a matter of fairness and in order that those who advise the applicant could understand, to explain why he reached the conclusion that it played no part in the consideration of this application.

20. I do not consider that there is any way in which it is arguable that it is for the courts then to review his decision in that regard.

21. That in my judgment concludes this application because it follows, since it is bound to fail in that regard, that the question of the merits of the construction do not come into play.

22. As to those merits it is unnecessary for me to say anything in any great detail. I simply say, as a matter of completeness, that having considered the arguments addressed on both sides, my clear view of the matter is that the construction put forward by the Secretary of State is in fact right.

23. Whether in other circumstances, if I rejected the first and overriding submission I would have viewed the matter as arguable I am not entirely clear and would have had to have taken time to think about the matter. Certainly my provisional view would have been that the arguments were likely to fail in any event.

24. The third matter that was raised related to the possible situation of the applicant and that he might go into a state of limbo; be sent to France and then thereafter the French not accept the application. The Secretary of State has explained how he has considered in detail the problems that might arise in such circumstances. He firstly has given reasons, and good reasons, why he believes that the French, who indicated at an earlier stage that they would accept the applicant back, will continue to honour the indication that they have given.

25. He further looks to the final question which is what would happen if it does not. He makes it clear that if he was concerned that the French might in some way return him to Algeria that he might feel under an obligation to act differently. However, he believes (and there is no reason to think he is wrong in believing) that if the French did not accept the applicant back they would return him to this country.

26. It does not seem that out of those matters independently of any other consideration any proper challenge could be mounted. For those reasons I come to the clear conclusion that this is a proper case in which to refuse the application.

27. MR NICOL: The only other matter I need to raise is legal aid taxation.

28. MR JUSTICE KAY: Certainly. Does that need a separate certificate for leading counsel? If it does I give one, because it is a matter of considerable importance.

29. MR NICOL: I am grateful. I wonder if your Lordship has our authorities bundles? Can I have them returned through your associate.

30. MR JUSTICE KAY: I will return everything. If you need something else you can collect it.