QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of Yong Qing Chen
|- and -
|Secretary of State for the Home Department
Alan Payne (instructed by Treasury Solicitor) for the Defendant
Hearing date: 27 February 2008
Crown Copyright ©
The Honourable Mr Justice Silber :
"establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third country national".
II The facts
"shall cease where the third-country national [i.e. the claimant] has left the territory of the Member States for at least three months"
III. The Dublin Regulations II.
"…be based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum applications"
IV The Issues
(a)whether the claimant was in China for more than three months between leaving France and arriving in the United Kingdom in 2006 with the result that the Secretary of State was not entitled or obliged to request France to accept the return of the claimant ;
(b)whether the Secretary of State had an obligation to notify the claimant before a certification was made under the Dublin Regulations II and if so, whether such an obligation has been complied with; and
© what obligation (if any) did the Secretary of State have after France had accepted responsibility for the claimant under the Dublin Regulations II in July 206 in relation to information communicated on behalf of the claimant to the Secretary of State in November 2006 that she had been in China for a period of more than 3 months in 2005 and 2006.
VI Was the claimant in China for more than three months between leaving France and arriving in the United Kingdom in 2006 with the result that the Secretary of State was not entitled or obliged to request France to accept the return of the claimant?
i. the claimant has not referred to the matter of the bank account, the medical visits or the mobile telephone account in her witness statement;
ii. she only raised the claim that she had been in China more than four months after she had arrived and indeed only on the day before her planned removal to France;
iii. When the claimant was interviewed on arrival in the United Kingdom, she failed to mention that she had returned to China and that she had stayed there for 11 months;
iv. The claimant lied when she denied in her screening interview that she had claimed asylum elsewhere as she had not merely claimed it in France but that she had also appealed the decision to refuse her application; and
v. The claimant told a further lie when she was interviewed in the United Kingdom when she said that her fingerprints had not been taken elsewhere as they had been taken in France when she had sought asylum there.
"the fact that the obligations have ceased on the basis of [that provision] may be relied on only on the basis of material evidence or substantiated and verifiable statements by the asylum seeker"...my emphasis)
VI Did the Secretary of State have an obligation to notify the claimant before a certification was made under the Dublin Regulations II and if so, has such an obligation has been complied with?
"asylum seeker shall be informed in writing in a language that he or she may reasonably expected to understand regarding the application of this regulation, it's time limits and it's affects".
VII What obligation (if any) did the Secretary of State have after France had accepted responsibility for the claimant under the Dublin Regulations II in July 2006 in relation to information communicated on behalf of the claimant to the Secretary of State in November 2006 that she had been in China for a period of more than 3 months in 2005 and 2006?
"When a request for taking back is based on data supplied by the Eurodac Central Unit and checked by the requesting member State in accordance with ... the requested Member State shall acknowledge its responsibility unless the checks carried out reveal its obligations have ceased".
"..28...the process must be undertaken by reference to the upshot of an enquiry conducted by the member State with which the application for asylum is first lodged and at the time when it is lodged"
"13…I certainly accept in general terms an asylum claimant cannot challenge (save perhaps on human rights grounds) the allocation of responsibility between states for the determination of the claim that has been affected by the proper application of [the Dublin regulations II]"
"once there had been acceptance of the transfer application the applicant is not entitled to challenge the transfer. The judge found that the regulations confer no rights upon individuals to challenge decisions between states not withstanding that the regulations are directly applicable in the member states"