QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of Asif Ahmadzai
|- and -
|Secretary of State for The Home Department
Smith Bernal WordWave Limited
190 Fleet Street, London EC4A 2AG
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Official Shorthand Writers to the Court)
Mr Jeremy Johnson (instructed by the Treasury Solicitor) for the Defendant
Crown Copyright ©
Mr Justice Bean:
"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?"
The Dublin Convention
"...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 States acknowledging itself to be competent to examine the application for asylum."
"(1) If a Member State [in this case the UK] with which an application for asylum has been lodged considers that another Member State [Austria] 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 Member State [Austria] to take charge of the applicant.
If the request that charge be taken is not made within the six month time limit, responsibility for examining the application for asylum shall rest with the State in which the application was lodged....
(4) The Member State [Austria] shall pronounce judgment on the request within three months within receipt of the claim. Failure to act within the period shall be tantamount to accepting the claim.
(5) Transfer of the applicant for asylum from the Member State where the application was lodged [the UK] to the Member State responsible [Austria] 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 Member State responsible. If the asylum applicant is subsequently found, the Member States concerned should duly consult and agree on a case-by-case basis on the time limit within which the transfer must take place."
"...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."
"(19) The appellant lodged his application for asylum in the transitional period between the entry into force of the Regulation and the six month period set out in Article 29 of the Regulation which requires the Member State during that period to determine the application 'in accordance with the criteria set out in the Dublin Convention'. It is common ground between the parties and settled law that prior to the coming into force of the Regulation the Dublin Convention had not been incorporated into domestic law and gave no rights to an individual claimant. Mr Bedford [counsel for the appellant] submitted to the Judge and to this court that the Dublin convention is given direct effect in its entirety during the transitional period, that, accordingly Article 11 (5) was given direct effect, and because the arrangements to transfer the appellant were not made within the one month period, he is entitled to have his claim to asylum determined in this country.....
(22) I do not accept those submissions. Both the Convention and the Regulation draw a clear distinction between criteria and mechanism, and both provide for the circumstances in which consequences follow a breach. The distinction between criteria and mechanisms is drawn in the preamble. Article 3(2) defines the criteria as set out in Articles 4 to 8. Article 8 refers to the criteria that precede that Article. Article 13 of the Regulation similarly refers to the criteria which precede that Article, and then in subsequent Chapters provision is made for the carrying into effect of the Regulation (the equivalent of the mechanisms) with consequences to follow where consequences are intended to follow. There is a stark contrast between the transfer provisions in the Convention and in the Regulation concerning transfer from the requesting State to the requested State, the Convention not providing for consequences to follow a breach, whereas the latter does provide for consequences, but with quite different time limits.
(23) Mr Bedford relies for his submission on the wording of Regulation [sic] 29, the transitional provision. But the Article requires that the Member State shall determine the application in accordance with the criteria set out in the Dublin Convention. There is no reference in Article 29 to the mechanisms. In my judgment, it would be extraordinary if Article 29 were construed as meaning that a breach of any of the mechanisms contained in the Dublin Convention (and in fact it would have been impossible for the United Kingdom to comply with the time requirements of Article 11(5) in this case) resulted in an applicant having the right to have his asylum claim resolved in the requesting Member State. The Regulation does not so state, the ordinary construction of the Regulation does not so suggest, and in my view, it would require clear wording to produce such a strange result. Mr Bedford's construction, if correct, would have very odd results. For example, if an applicant suffered from acute appendicitis and could not travel for a month after acceptance of the acceptance of the request, it would follow that the responsibility for determining his application would shift from one State to the other......
(25) However, even if that should be wrong, it would not avail the appellant who wishes to have his application for asylum resolved in this country. As I have already said, Article 11(1) of the Convention provides for consequences to follow if there is a breach of that provision. Article 11(5) does not. Accordingly if Article 11(5) gave rights to the applicant, his right would be to insist that he should be transferred within the time limit to Italy for his claim to be dealt with in that country. Article 11(5) could not possibly be construed so that if there is a breach of the time requirements the effect is to transfer the responsibility for resolving the claim from the requested to the requesting Member State, in this case Italy to the United Kingdom."
"36. The overriding requirement under the Convention is that an asylum seeker shall have his application examined by a single Member State, to be determined in accordance with the hierarchy of criteria set out in Articles 4 to 8. Article 8 places that responsibility on 'the first Member State on which the application for asylum is lodged' in a case, but only in a case, where "no Member State responsible for examining the application for asylum can be designated on the basis of the other criteria listed in this Convention." Failure by one Member State (State A) to transfer an asylum seeker (within the prescribed time) to a Member State (State B) which is responsible for examining his application on the basis of criteria set out in Articles 4 to 7 does not have the effect that (at the end of the prescribed time) State B is no longer responsible for examining the application on the basis of those criteria. Nor does failure to transfer within the prescribed time have the effect that, at the end of that time, responsibility for examining the application passes to State A. There is nothing in Article 11 – or elsewhere in the Convention – which corresponds to Article 19.4 of the Regulation.
37. It may well be (as I am inclined to think) that the appellant has a directly effective right, confirmed by Article 11(5) of the Convention read with Article 29 of the Regulation, to be transferred to Italy. But that, of course, is not a right which he seeks to enforce. What he does not have, in my view, is a right, conferred by Article 11(5) or any other Article of the Convention, not to be transferred to Italy against his wishes. "
"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."
MR JUSTICE BEAN: For the reasons contained in the judgment which the parties have been given in draft, I am quashing the decision of the Secretary of State.
There is one aspect of the judgment in relation to what concession was made by counsel for the Home Secretary on one aspect of the case on which I am going to hear argument now. It does not affect the result, but it does affect one or two paragraphs of the judgment. I am therefore not going to hand down the judgment this morning, but I will make it available within the next 24 hours with that paragraph resolved one way or the other and release it publicly.
There is, of course, no objection, if anyone is interested, in it being publicly stated that the decision has been quashed. The reason, in a sentence, is the delay of more than 2 years in deciding that Mr Ahmadzai should be transferred against his wishes for his asylum claim to be dealt with in Austria rather than it being dealt with here.
There are two matters to be dealt with this morning. One is the terms of the Secretary of State's concession and the other is permission to appeal. Let us do them in that order. Mr Payne, you are substituting for Mr Johnson this morning?
MR PAYNE: My Lord, yes.
MR JUSTICE BEAN: Yes.
MR PAYNE: I did the original detailed grounds of defence I should be of some assistance in the case other than on this aspect.
MR JUSTICE BEAN: Yes.
(Submissions on the Secretary of State's concession)
MR JUSTICE BEAN: The other matter is permission to appeal. I have the written submissions of Mr Johnson. Is there anything you would like to add?
MR PAYNE: My Lord, yes. I realise Mr Johnson has touched on this issue, but I would like to just emphasise the wider ramifications of this case. It is likely to affect a huge number of cases that are currently going through the system. At the moment a large number of cases do not actually refer to delay on the basis, I think, of the principle that was derived from Omar. The Dublin Convention which, as you refer to in your judgment, was signed in 1990, provides a very tight timetable of one month for effecting removal. As you may be aware, my Lord, between 1998 and 2001 the number of asylum seekers who claimed asylum in the UK increased from 40,000 to 120,000. You will have also noticed, and it is reflected in your judgment, that the regulations provide for a far longer period of 6 months in which to effect removal, perhaps reflecting the reality of the way things have moved.
So this decision, which effectively establishes that delay of itself, with slight prejudice, can prevent removal, is likely to be relevant to a huge number of cases. I am certainly dealing with at least two or three of them where the time limits have not been complied with and the whole issue of whether or not the delay of itself is sufficient to preclude removal is going to be very relevant. So it is the wider implications of the case that is the first basis on which the Secretary of State asks for leave to appeal.
The second basis, my Lord, is really your finding that the United Kingdom is not obliged to transfer the claimant. In your judgment, my Lord, you quote, at page 9, the case of Omar. Paragraph 36 of Omar refers to the overriding requirements under the Convention that asylum seekers shall have their application determined by a single member state in accordance with the criteria set out in Articles 4 and 8. In this case that is Austria. Referring to that as being the overriding requirement, Article 3, which is phrased in mandatory terms, in other words that it shall be in terms -- and I accept that there is an exception in Article 3, but, in my submission, the exception needs to be construed in light of the overriding objective. In those circumstances the exception merely provides for the United Kingdom not effecting removal where, in those circumstances, there are truly exceptional circumstances which justify going away from the overriding objective. In practical terms, the truly exceptional circumstances are where there is a breach, or a real risk of a breach, of the Human Rights Act.
I note your finding, my Lord, in relation to delay, but it is the Secretary of State's position that the approach in relation to delay affords a greater protection to the claimant than the approach that would be taken under Article 8. In asylum law it is now well-established that Article 8 provides the guidance or the criteria against which to assess whether a decision to remove is unreasonable. The reason that it does it is because it carries out the balancing act between the delay, the prejudice to the claimant, and the requirements of the immigration controls.
My Lord, the approach that you have taken, which is to look at prejudice, and which is to look at delay, omits, in the Secretary of State's submission, consideration of the Immigration Rules or the requirement to maintain immigration control, because, my Lord, at paragraph 18, you have identified the factors, namely whether Dublin: (1) requires the UK to transfer the claimant; and (2) whether it is nevertheless entitled to transfer the claimant against his wishes despite the delay.
In considering the second aspect, where the Secretary of State is entitled to, my Lord you have focused on the prejudice to the claimant, but, in our submission, not attached any or sufficient weight to the requirements of the immigration controls which, under Article 8, you would be required to. So, in effect, this approach to Wednesbury unreasonableness provides an applicant, or a claimant, greater protection than he would be afforded under Article 8, because under this approach all the applicant has to show is delay and prejudice.
My Lord, in the bundle that was placed before you there is ample case law that establishes that delay of itself cannot give rise to a substantive right in immigration cases. In this case, my Lord, what we would say is that this claimant, under the 1951 Convention and the European Convention on Human Rights, has an entitlement to have his claim for international protection determined by a signatory state. The Dublin Convention introduced a procedure whereby that entitlement is limited to having his claim considered by one member state. The Secretary of State, in attempting to effect removal to Austria, is giving effect to the claimant's entitlement to have his claim for international protection determined. Austria is in the process of dealing with his substantive claim for asylum which the UK is not. The past delay is not contrary to his claim for international protection, because obviously during the period of interim delay the claimant has been able to remain in a safe third country. Insofar as the claimant wishes to have his claim for international protection determined as quickly as possible, the quickest step to achieving that is for him to be returned to Austria which is the country which has already started and is processing his claim. Having it dealt with in England does not further benefit his entitlement to have his claim determined for international protection, and whilst the family or private life that accrued during the delay may give rise to an Article 8 claim, it is difficult to see why the delay itself, looking forwards, should preclude the claimant being returned to Austria where his claim for international protection will be determined more quickly than it would be determined were he to be allowed to remain in England, because he would be starting the process from the outset, whereas in Austria he would be going back to a country which has already started the process.
My Lord, you have read Mr Johnson's submissions, these are just additional points over and above the written submissions made by Mr Johnson. We do say, in particular, that there is a tension between Omar and this decision, because whilst I entirely accept, my Lord, that while Omar has not specifically addressed the extent and circumstances of delay as significant as in this case, the practical effect of your judgment is to give people a substantive right to apply for asylum in England because they cannot be removed back to the responsible member state.
My Lord, unless I can be of further assistance, those are my submissions.
MR JUSTICE BEAN: Thank you very much, Mr Payne. I am not persuaded I am afraid. The Secretary of State's argument that unexplained delay, however gross, is irrelevant unless a clear breach of the Human Rights Act is established, is irrelevant to the question of whether an applicant for asylum, to whom the Dublin Convention applies, should be transferred against his will. It is not, in my view, an argument which has a real prospect of success on appeal. It must be for the Court of Appeal to decide whether they wish to hear an appeal and of course an application for leave can be made to them in the usual way. I will incorporate my decision on the application for permission to appeal as a final paragraph in the judgment. I think it will make it easier for you when you go to the Court of Appeal if you do, to have a single document. I will also deal with the point that we were discussing earlier.
MR PAYNE: Thank you, my Lord.
MR JACOBS: I am grateful.
MR JUSTICE BEAN: Thank you very much.