QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|THE QUEEN ON THE APPLICATION OF J||Claimant|
|SECRETARY OF STATE FOR THE HOME DEPARTMENT||Defendant|
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MR S KOVATS (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
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MR JUSTICE CRANSTON:
(a) Dublin II
"A Member State which agrees to take back an asylum seeker shall be obliged to readmit that person to its territory. The transfer shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request that charge be taken by another Member State or of the decision on an appeal or review where there is a suspensive effect."
Article 20(2) provides for an extension of the six-months' time limit:
"Where the transfer does not take place within the six-months' time limit, responsibility shall lie with the Member State in which the application for asylum was lodged. This time-limit may be extended up to a maximum of one year if the transfer or the examination of the application could not be carried out due to imprisonment of the asylum seeker or up to a maximum of 18 months if the asylum seeker absconds."
Dublin II makes clear that it does not supersede Member States' obligations under instruments of international law with respect to the treatment of persons falling within the scope of the Regulation.
"If the transfer is not performed within the six-month time limit provided for in paragraph 3, the acceptance of responsibility by the Member State requested lapses, and responsibility lies with the Member State where the application was lodged. This provision, which was not in the Dublin Convention (the latter did not provide for such a consequence if a transfer should fail), is based on the considerations ... that a Member State which has been deficient in implementing the common objectives concerning the control of illegal immigration must assume the consequences vis-a-vis its partners. It also seeks to avoid the creation of a pool of 'asylum seekers in orbit', whose applications are not examined in any Member State."
(b) Public authorities and policy
The second strand of law relevant to this claim relates to the application by public authorities of policy. In broad terms, under the principles of public law, a public authority may adopt a policy for the exercise of its statutory discretion, so long as it does not apply that policy inflexibly. Generally speaking, a public authority will be expected to follow that policy and a decision outwith the ambit of the policy may be regarded as flawed. That is because it is generally a relevant consideration and must be given weight, possibly great weight, in decision-making: see DeSmith's Judicial Review, 6th edition, 2007, 5-121, 5-122.
"Where a case is referred to an enforcement office to effect removal:
- establish with the country to which the child is to be removed that adequate reception arrangements are in place;
- liaise with the Children's services and/or nominated guardian with responsibility for care of the child in the UK to ensure the removal is effected in the most sensitive manner possible."
(c) Public law remedies
The Secretary of State's decision to remove
The Dublin II time limits
Manner of removal
Failure to inform Austria of the claimant's circumstances