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
		1st March 2006

Mr Justice Bean:

1. The Claimant, who was born on 1st 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 1st 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 2nd April 2003, the UK requested Austria, pursuant to the Dublin Convention, to accept responsibility for dealing with Mr Asif Ahmadzai asylum claim. Austria did so with commendable promptness the following day. On 3rd June 2003 the Secretary of State certified Mr Ahmadzai's UK asylum claim under section 25 of the Immigration and Asylum Act 1999; and on 23rd 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 Ahmadzai's asylum claim in the UK or to return him to Austria.
3. On 8th June 2005 Mr Ahmadzai 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 10th June. The next day Goldring J granted a stay and on 10th June an application was issued for judicial review. On 11th 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 10th 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.

The Dublin Convention

5. This Convention, known to immigration lawyers as "Dublin I" but more officially the "Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities", was signed on 15th June 1990. The preamble, having referred to the objective (fixed by the European Council in 1989) of the harmonization of Member States' asylum policies; to their common humanitarian tradition to guarantee adequate protection to refugees in accordance with the terms of the Geneva Convention of 1951 as amended by the New York Protocol 1967; and to the joint objective of an area without internal frontiers ensuring the free movement of persons in accordance with the Treaty as amended by the Single European Act, continues by recording that the signatories are:-

"...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."

6. The procedural scheme of Dublin I is not in dispute. Article 3 requires an application for asylum to be examined by a single Member State determined in accordance with the criteria set out in Articles 4 to 8. The Member State responsible on the application of those criteria in the present case was Austria. The time limit provisions of Article 11 provide as follows:-

"(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."

7. Article 18 provides for a Committee to be set up which, among other things, is to determine the measures referred to in Article 11 (6). On 9th September 1997, eight days after the Convention entered into force, the Committee reached a Decision (1/97) which made more detailed provision for transfers under Article 11 (5), in particular by providing in Article 21 of the Decision as follows:-

"(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."

8. In the present case the UK complied with the six month time 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.
9. Asylum applications made since late 2003 are governed by European Council Regulation number 343/2003 ("Dublin II"), which replaces the Convention. Dublin II provides by Article 19(4) and Article 20(2) that where transfer from State A to State B does not take place within a time limit of six months after State B has accepted responsibility (with extensions where the asylum seeker is imprisoned or has absconded), responsibility shall lie with State A. So if the present case were governed by Dublin II, the UK would be bound to deal with Mr Ahmadzai's asylum application on its merits. Dublin I, however, does not contain an equivalent provision setting out what is to happen where the Article 11(5) time limit has been ignored.
10. In R v SSHD ex parte Simba [1998] EWHC Admin 799 the applicant was challenging his proposed removal to France, the country in which he had first arrived from Tanzania, pursuant to Dublin I. On the oral application for leave before Laws J, counsel applied for an adjournment and, when this was refused withdrew the application for leave. Laws J said at paragraph 12:-

"...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."

11. Any dictum of Laws J (as he then was) is, of course, entitled to great respect. But the impromptu observations of a judge, however eminent, on the withdrawal of an application for permission have very limited value as a precedent, let alone a binding authority; and it does not even appear that there was any time limit issue in the Simba case.
12. The next authority relied upon by Mr Johnson for the Secretary of State, Omar v SSHD [2005] EWCA Civ 285, is of far greater significance. Mr Omar, a Somali, had arrived in Italy in April or early May 2003. On 9th June 2003 he claimed asylum in the UK. On 1st July 2003 the UK sent a request to Italy to accept responsibility for Mr Omar's case. Under Article 11(4) of Dublin I, Italy was supposed to reply in three months, but it failed to do so. On 22nd December 2003 the UK sent a chasing letter to Italy giving it one more week to accept. On 22nd January 2004 Italy accepted the UK's request to take charge of the case. On 29th February 2004, the Secretary of State gave Mr Omar notice of his proposed removal, and on 5th March 2004 removal directions were given. The notice was only one week outside the time limit laid down in Article 11(5), and unsurprisingly no argument was advanced about the delay being so great as to cause prejudice.
13. The case was one to which, by virtue of the transitional provisions set out in Article 29 of the Dublin II Regulation, the provisions of Dublin I applied. Sir Swinton Thomas, giving the leading judgment, said:-

"(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."

14. Latham LJ agreed, observing that the only "right" which could be relied upon by the appellant, even if the Convention did have direct effect, was that Italy should determine his claim, which was of no assistance to him in seeking to have his asylum application dealt with in the UK. Chadwick LJ, also agreeing, said:-

"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. "

15. In the light of Omar, Mr Christopher Jacobs, for the Claimant, accepted that Article 11(5) of Dublin I does not confer a statutory right on his client to remain in the UK. Mr Jacobs' point on this application is a different one. He submits that after an unexplained delay of two years it is, as he put it, "Wednesbury unreasonable" of the Secretary of State to transfer his client to Austria rather than deal with the asylum claim (together with the ECHR Article 8 claim) in this country.
16. The Acknowledgment of Service was framed in absolute terms, implying that no delay, however lengthy and prejudicial could be relied on to resist transfer pursuant to Dublin I. But Mr Jeremy Johnson for the Secretary of State conceded, in my view rightly, that there may be cases where a combination of delay and the Human Rights Act 1998 will make removal unlawful. Mr Johnson gave the example of an applicant who has been in the UK for several years, is married to a British citizen and has a child too sick to travel. Such an applicant might have a "truly exceptional" Article 8 claim (so as to satisfy the requirements of Huang [2006] QB 1) which would be violated by an enforced removal to another EU Member State under Dublin I, let alone removal to his country of origin. Mr Johnson submits that this case, by contrast, is clearly not a truly exceptional Article 8 claim, and accordingly that the delay, which he concedes to be serious and unexplained, has caused Mr Ahmadzai no prejudice, and gives him no right to remain in the UK.
17. Mr Ahmadzai would indeed have difficulty, on the face of it, in crossing the high threshold set by Huang: 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 the lawyers who have been acting for him in recent months.
18. The real questions in the present case are (a) whether Dublin I requires the UK to transfer the Claimant to Austria even after a substantial and unexplained 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 in Omar.
19. Mr Johnson placed great emphasis on the title of Dublin I, a "Convention determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities" [emphasis added]. The scheme of the Convention, he submits, is that only one State can be responsible, which in this case is Austria; and that position cannot be altered by delay. But I do not think that Mr Johnson can derive any legitimate support from the official title of the Convention. The Dublin II Regulation of 2003 with its strict and enforceable time limits, has effectively the same title, describing itself as a measure "establishing the criteria and mechanisms of determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third country national", with the same reference to "the" Member State responsible.
20. Both sides referred to the preamble to Dublin I. It identifies three areas of concern; (a) that applicants for asylum should not be left in doubt for too long as regards the likely outcome of their applications; (b) that all applicants for asylum should have a guarantee that their applications will be examined by one of the Member States; and (c) that they should not be referred from one Member State to another without any State accepting responsibility for examining the application. The first of these is in Mr Ahmadzai's favour, since to accept the Defendant's argument would be to encourage the stance that delay does not matter; the second and third are neutral in the present case since Austria remains willing (or at any rate was willing in August 2005, and there is no evidence of a change of heart) to deal with Mr Ahmadzai's case; while if this litigation is resolved in Mr Ahmadzai's favour, the Secretary of State will, of course, comply with his responsibilities.
21. Prevention of delay appears to me to be a significant objective of Dublin I. I note that the 1997 Committee Decision contains a section on the "means of proof in the framework of the Convention", in which Article 23(3) warns against imposing excessive evidential requirements to establish a case:-

"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."

22. "Refugee in orbit" is an apt description of Mr Ahmadzai's position by the first half of 2005. It is clear that the framers of the original Dublin Convention were seriously concerned by the possibility of delays leaving applicants for asylum in limbo. That policy hardened in 2003 with the enactment of Dublin II, with its strict time limits; but the Committee Decision of 1997 shows that by then it was already a major concern. The Secretary of State's concession through counsel, that there can be cases in which a combination of delay and the Human Rights Act 1998 makes transfer unlawful, accords with those policy objectives. I conclude that Dublin I did not require the Secretary of State to transfer the Claimant to Austria in June 2005, and does not require him to do so now.
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 Ahmadzai 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.
24. After paragraphs 1 to 23 of this judgment were sent to the parties in draft, the Secretary of State made submissions, in written form drafted by Mr Johnson and orally through Mr Alan Payne, seeking permission to appeal. The written submissions cite a decision of Lightman J, in R (Mosari) v Secretary of State for the Home Department [2005] EWHC 1343 (Admin), which was not referred to at the hearing, It was a Dublin II case in which the learned judge held that a failure by the UK to provide information to Hungary as required by the Regulation, coupled with an allegation (which the judge held to be unfounded) that Hungary had failed in some way to comply with its duties to make proper inquiries, could not "justify a breach by the UK of its obligation under the Regulation to respect the exclusive right of Hungary to make the determination". That is interesting, but it covers somewhat different ground (and under a different instrument) from that debated before me at the hearing.
25. Mr Payne, in his oral submissions, argued that the effect of my decision is to create a more favourable regime for Dublin I cases than that applicable in ordinary asylum or human rights cases, where delay of itself does not, save in exceptional cases, create a substantive right. But the comparison, with respect, is incorrect. I have not decided that Mr Ahmadzai has a right to asylum in the UK, nor a right to remain here on humanitarian grounds. All I have decided is that he has a right to make these claims here. What the outcome of those applications will be is not for me to say.
26. I bear in mind that that Dublin II came into force on 1 September 2003 and that cases such as the Claimant's still outstanding under Dublin I are (one hopes) a diminishing class. I refuse permission to appeal. It must be for the Court of Appeal to say, if application is made to them, whether the Defendant's prospects of success on appeal are such as to justify the grant of permission.
27. The direction for the Claimant's removal to Austria is quashed. It is accepted that in those circumstances the Defendant must pay the Claimant's costs. I make the usual order for detailed assessment of the Claimant's costs for Community Legal Service funding purposes.
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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.