England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		29 June 2005

Mr Justice Lightman:

INTRODUCTION

1. This is an application made with the permission of Hughes J granted on the 9^th March 2005 for judicial review of the decisions of the defendant dated the 27^th January 2005 to remove the claimant Mohamad Mosari to Hungary pursuant to schedule 3 of the Asylum and Immigration (Treatment of Claimants) Act 2004 ("the Act") and dated the 1^st June 2005 that the claimant's claim of breach of Article 8 of the ECHR was clearly unfounded.

FACTS

2. The claimant is a citizen of Afghanistan. Together with his cousin (who is of full age) in January 2004 the claimant left Afghanistan and on the 9^th February 2004 clandestinely entered Hungary where he applied for asylum. (This application was refused at first instance on the 1^st December 2004.) On the 10^th May 2004 he was granted a temporary residence permit entitling him to remain in Hungary until the 10^th August 2004.
3. At some date prior to the 10^th June 2004 the claimant (with his cousin) left Hungary and clandestinely entered Austria where on the 10^th June 2004 he also made an asylum application. At some date prior to the 14^th July 2004 the claimant (with his cousin) clandestinely entered the United Kingdom and made here his third application for asylum. He is now living with his maternal uncle. The cousin's application for asylum was refused and he was returned to Hungary. The claimant's application for asylum led the defendant pursuant to Article 16.1(c) of Council Regulation (EC) No 343/200 of 18^th February 2003 ("the Regulation") to request Hungary to take back the claimant and Hungary agreed to do so. The defendant thereupon decided to remove the claimant to Hungary. The claimant challenges that decision on this application.
4. The claimant's removal was due to take place on the 28^th January 2005 pursuant to a certification under paragraphs 4 and 5 of Part 2 of Schedule 3 of the Act. On the 27^th January 2005 the directions for removal were reset for the 1^st February 2005. On the 1^st June 2005 the defendant certified the claimant's human rights application as clearly unfounded pursuant to paragraph 5(4) to Schedule 3 of the Act.
5. There is an issue between the parties whether the claimant is a minor, as he alleges. The defendant is however content to proceed on the basis (in accordance with evidence served on behalf of the claimant) that he is probably 17 years old though he may be 16 years old.
6. It is clear that under the Regulation in this case examination of the claimant's application for asylum is a matter for Hungary which is the Member State where the claimant made his first application for asylum and where he was when that application was made.
7. The clandestine journey from Afghanistan via Hungary and Austria to the United Kingdom took its toll on the claimant's physical and mental health. He has received treatment since his arrival and his doctor Dr Michie has provided evidence expressing the view that the claimant afforded "no evidence of disturbance of moods, memory, concentration or mental state" and was "reasonably independent and self caring".

ISSUES

8. The issue in this case focuses upon the application of the Regulation. As stated in Article 1 (in Chapter 1) of the Regulation, the Regulation lays down the criteria and mechanisms for determining the Member State responsible for examining an application for asylum lodged in one of the Member States by a third country national. Article 4 provides that the determination of the Member State responsible shall be made by the Member State in which the applicant made his first application for asylum if the applicant was at the time of such application in the territory of that State, and that this application should start as soon as the application for asylum is lodged. The determination of the Member State responsible is accordingly on the facts of this case to be made by Hungary.
9. Article 5-14 sets out the criteria to be applied by Hungary in determining the Member State responsible for examining the claimant's claim. Amongst these Articles is Article 6 which reads as follows:

"Where an 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 interests of the minor."

For this purpose "Family Member" is defined in Article 2 as meaning (in short) a spouse, a minor child or "the father, mother or guardian when the applicant or refugee is a minor and unmarried." It will accordingly be for Hungary to determine whether the United Kingdom is the Member State responsible for examining the application for asylum on the ground that Article 6 applies. Article 6 cannot (as submitted on behalf of the claimant) operate to divest Hungary of responsibility to make this determination and vest the responsibility in the United Kingdom. I should add that contrary to the submissions of the claimant in my view Article 6 affords no support for the view that the United Kingdom is the Member State responsible for determining the claimant's asylum claim and can have no application on the facts of this case because: (a) for the purposes of the Regulation the relevant date is the date of the application for asylum in Hungary; and (b) on that date (1) the claimant was not an unaccompanied minor: he was accompanied by his adult cousin; and (2) the claimant's uncle living in the United Kingdom was in no sense his guardian, let alone externally invested with formal responsibility (whether by law or custom) with formal responsibility for him: see R on the application of G v. Secretary of State CO/2052/2004 Wilson J at para 33.

10. The claimant goes on to maintain that the United Kingdom can and should, notwithstanding the exclusive jurisdiction conferred on Hungary by the Regulation, determine the Member State responsible for two reasons. The first is that the United Kingdom has failed in its duty under Article 20 of the Regulation on the application to Hungary to take back the claimant to provide all the available information regarding the claimant. But it is clear from Article 20 that the only information that the defendant was obliged to provide was that the claimant had made the application for asylum in Hungary and was unlawfully in the United Kingdom and there can have been no default in this regard. The second is that Hungary has failed to fulfil its duty under the Regulation in determining the Member State responsible. The alleged breach of duty is a failure to make the proper inquiries. This contention is hopeless for two reasons. The first is that there is no basis for the suggestion of any such breach of duty by Hungary: the presumption of regularity clearly applies and there is no evidence in rebuttal. The second is that any breach by Hungary of its duties could in nowise justify a breach by the United Kingdom of its obligation under the Regulation to respect the exclusive right of Hungary to make the determination. The appropriate recourse would be legal proceedings in Hungary or the European Court.
11. I turn now to the challenge to the defendant's decision that the claimant's claim that the proposed removal of the claimant to Hungary interfered with his human rights under Article 8 of the ECHR was clearly unfounded. I am prepared to assume for this purpose that the proposed removal will be an interference with the exercise of the claimant's right to respect to family life and will have such gravity as potentially to engage the operation of Article 8. It is clear that the interference is in accordance with law, and in particular (as I have held) with the provisions of the Regulation and is necessary for one of the reasons identified in Article 8(2).
12. The critical issue debated before me is whether the interference is proportionate. It is well established that only in exceptional cases will decisions taken pursuant to the lawful operation of immigration control be disproportionate. The case of R on the application of Lekestaka v. IAT ("Lekestaka") is a solitary example of the exceptional case where it was held on the facts that it was arguable that the decision was disproportionate. It is sufficient however to say that the facts of that case are far removed from the present. In this case: (1) the removal is to Hungary (a member of the European Community), not Afghanistan or (as in Lekestaka) to Kosovo; (2) the claimant has already been to Hungary, applied for asylum, obtained a resident's permit and stayed several months there; (3) the claimant has his cousin living there; (4) the claimant will be able to remain in contact with his uncle in the United Kingdom from Hungary; (5) if the claimant's asylum application is successful (on a rehearing or appeal) he will be able to apply for his refugee status to be transferred to the United Kingdom and for a visa to visit the United Kingdom; (6) the claimant is 17 years old, in reasonable health and able to care for himself; (7) Hungary will merely be his interim home pending finalisation of his asylum claim: the return there does not involve (as was involved in Lekestaka) a final determination of his claim to asylum and a final closure of the door to his eventual return here; and (8) there was in this case a series of clandestine entries into Member States: there was no such entry in Lekestaka.

CONCLUSION

13. Accordingly for the reasons which I have given I dismiss this application.