England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2
		8th October 2002

1. MR JUSTICE JACKSON: This is an application for permission to apply for judicial review. The facts giving rise to this application are helpfully set out in the first six paragraphs of the skeleton argument prepared by Ms Finch, the claimant's counsel.
2. The applicant was born on 1st January 1986 and he is now aged 16 years and nine months. He travelled to Austria in August 2001 as an unaccompanied minor and claimed asylum. His asylum claim failed. However, on a date which is not apparent, the claimant left Austria and travelled to the United Kingdom. He arrived at Dover, he was refused leave to enter, and he made a claim for asylum in this country. He was granted a temporary admission and, as an unaccompanied minor, was placed in the care of Kent Social Services. He was given an address to reside at in Maidstone.
3. The British Immigration Service discovered that the claimant had previously made an asylum application in Austria. Accordingly, a decision was made that he should be transferred to Austria since that country was the proper state to determine his asylum application under the Dublin Convention.
4. Whilst the claimant was in this country, by chance he met two of his older cousins. Ms Finch tells me this morning that he met them by chance at Victoria Railway Station in January 2002. The claimant had previously in Afghanistan lived in a compound where one of those cousins had also lived. In mid-March of 2002 the claimant moved to live with one of his cousins in London. Because of the emergence of two cousins of the claimant in this country, solicitors acting for the claimant -- both, I think, his former solicitors and his present ones -- maintained that removal to Austria pursuant to the Dublin Convention would be a breach of the claimant's Convention rights. In particular, the argument was put forward that it would be a breach of article 8 to remove the claimant from the United Kingdom to Austria because of his family ties now discovered in the United Kingdom.
5. The Secretary of State addressed these matters in two letters. The first letter was dated 21st March 2002. In that letter the Secretary of State rejected the claimant's human rights claim as being manifestly unfounded pursuant to section 72(2)(a) of the Immigration and Asylum Act 1999. The effect of that certificate was that it was not possible for the claimant to appeal to an Adjudicator under section 65 of the Act.
6. The second letter from the Secretary of State addressing this issue is dated 6th April 2002. In this letter the Secretary of State wrote as follows:

"The Secretary of State further notes your claim that the subject has two cousins in the United Kingdom. The Secretary of State has also given consideration to the claim that to remove your client to Austria without substantive consideration of his asylum claim would place the United Kingdom in breach of its obligations under Article 8 of the ECHR. While it may be the case that your client has been able to enjoy closer contact with his cousins during the seven months of his stay in the United Kingdom, it is not accepted by the Secretary of State that the attachment between your client and his cousins is sufficiently close and well established to constitute family life under Article 8(1) of the ECHR. Furthermore, even were such an attachment to constitute family life within the meaning of Article 8(1) of the ECHR, the Secretary of State considers that the interference with that family life which will result in your client's removal to Austria is justifiable in all the circumstances of this case. Were the Secretary of State to permit persons in your client's situation to remain the United Kingdom then this would run contrary both to the maintenance of a firm, fair and effective immigration control to the United Kingdom and to the spirit and purpose of the Dublin Convention which is designed to ensure that it is the responsible Member State which considers an application for asylum and processes the claim. In your client's case, the responsible Member State is Austria.

"The Secretary of State remains of the view that your client has adduced no evidence to show that he is a minor, but that if he were, the Austrian authorities would make adequate reception arrangements for him.

"The Secretary of State upholds the certification of your client's human rights allegation as manifestly unfounded."

7. The claimant was aggrieved by that decision and commenced the present proceedings for judicial review by a claim form dated 20th May 2002. The Secretary of State for the Home Department has set out detailed grounds of defence in the acknowledgment of service, and in paragraph 4 of the defence the Secretary of State says this:

QUOTE UNCHECKED

"(4) Having fully and carefully balanced all the circumstances of the claimant's case, particularly those relating to the claimant's arrival in the United Kingdom, the defendant believes that such interference as there might be to the claimant's right to respect for family life is outweighed by his public interests concerns to-

• ensure the economic well-being of this country by properly controlling by means of the entry clearance system those who enter the United Kingdom

• prevent disorder by discouraging others from circumventing the system, and to

• protect the rights and freedoms of others who follow the proper procedure to enter this country.

"(5) the defendant considers that any interference with the claimant's right to family life is a reasonable and proportionate response to the need to maintain and uphold these legitimate public interests."

8. Then there is discussion of Mahmood, and in paragraph 7 the Secretary of State's case is set out follows:

QUOTE UNCHECKED

"The defendant has also given consideration to the fact that the claimant is a minor. The Austrian authorities are aware of the claimant's age and special provision is made for the care of unaccompanied minors in Austria. Under the State Care Decree any unaccompanied minor receiving state care is housed, after consultation with guardianship authorities, taking into account their age, level of development and any special circumstances."

9. At the hearing today Ms Finch, on behalf of the claimant, submits that permission should be granted to apply for judicial review. She submits that it is arguable that the Secretary of State fell into error in certifying the claimant's human rights claim under section 72(2)(a) of the Immigration and Asylum Act 1999.
10. In my view this claim is not maintainable. The Secretary of State has addressed his mind to the relevant considerations, and he has reached a conclusion which was a decision which was entirely open to him on the facts and the evidence in his letters dated 21st March and 6th April 2002.
11. It should be borne in mind that the claimant did not meet his cousins in this country until January 2002; that is four months after his arrival in this country, and shortly before the Secretary of State's decision. Furthermore, the relationship between the claimant and the individuals concerned is that of cousins, and not a closer one. On top of that, it seems to me that the Secretary of State was quite entitled to attribute the weight which he did attribute to the obligations arising under the Dublin Convention. The Dublin Convention exists for very good reasons, and is in the interests of asylum claimants generally. The purpose is to ensure that each asylum claimant has a specific country which will process his claim to asylum, and prevent asylum seekers being transferred from one country to another with no one assuming responsibility for his claim. With this system in place, it is important that it is operated by member states effectively. The Secretary of State has had proper regard to the facilities which exist in Austria for the accommodation of persons under the age of eighteen claiming asylum.
12. I do not consider that the certification of this human rights claim as manifestly unfounded is amenable to challenge. Accordingly, I refuse permission to apply for judicial review.
13. MS FINCH: The client is in receipt of public --
14. MR JUSTICE JACKSON: Yes.