QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF T
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
|THE QUEEN ON THE APPLICATION OF MA
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
|THE QUEEN ON THE APPLICATION OF A
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr Steven Kovats QC appeared on behalf of the Defendant
Hearing dates: 14 and 15 December 2010
Crown Copyright ©
MR JUSTICE DAVIS:
"(1) Schedule 3 (which concerns the removal of persons to countries known to protect refugees and respect human rights) shall have effect."
Schedule 3 in Part II sets out a list of those safe countries, being European Union Member States and of course including Italy and the Netherlands. In part, it provides as follows:
"3 (1) This paragraph applies for the purposes of the determination by any person tribunal or court whether a person who has made an asylum claim or a human rights claim may be removed —/BLOCKQUOTE>
(a) from the United Kingdom, and
(b) to a State of which he is not a national or citizen.
(2) A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place —
(a) where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion,(b) from which a person will not be sent to another State in contravention of his Convention rights, and(c) from which a person will not be sent to another State otherwise than in accordance with the Refugee Convention.
4 Section 77 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (no removal while claim for asylum pending) shall not prevent a person who
has made a claim for asylum from being removed —
(a) from the United Kingdom, and(b) to a State to which this Part applies;
provided that the Secretary of State certifies that in his opinion the person is not a national or citizen of the State.
5 (1) This paragraph applies where the Secretary of State certifies that —
(a) it is proposed to remove a person to a State to which this Part applies, and(b) in the Secretary of State's opinion the person is not a national or citizen of the State.
(2) The person may not bring an immigration appeal by virtue of section 92 (2) or (3) of that Act (appeal from within United Kingdom: general).
(3) The person may not bring an immigration appeal by virtue of section 92 (4) (a) of that Act (appeal from within United Kingdom: asylum or human
rights) in reliance on —
(a) an asylum claim which asserts that to remove the person to a specified State to which this Part applies would breach the United Kingdom's obligations under the Refugee Convention, or.(b) a human rights claim in so far as it asserts that to remove the person to a specified State to which this Part applies would be unlawful
under section 6 of the Human Rights Act 1998 because of the possibility of removal from that State to another State.
(4) The person may not bring an immigration appeal by virtue of section 92 (4) (a) of that Act in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly
(5) Sub-paragraph (4) applies to a human rights claim if, or in so far as, it asserts a matter other than that specified in sub-paragraph (3) (b)."
It is by reference to these statutory provisions that the Secretary of State in the present cases certified and then set removal directions.
"(3) The Tampere conclusions also stated that this system should include, in the short term, a clear and workable method for determining the Member State responsible for the examination of an asylum application.
(4) Such a method should 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.
(6) Family unity should be preserved in so far as this is compatible with the other objectives pursued by establishing criteria and mechanisms for determining the Member State responsible for examining an asylum application.
(8) The progressive creation of an area without internal frontiers in which free movement of persons is guaranteed in accordance with the Treaty establishing the European Community and the establishment of Community policies regarding the conditions of entry and stay of third country nationals, including common efforts towards the management of external borders, makes it necessary to strike a balance between responsibility
criteria in a spirit of solidarity.
(9) The application of this Regulation can be facilitated, and its effectiveness increased, by bilateral arrangements between Member States for improving communications between competent departments, reducing time limits for procedures or simplifying the processing of requests to take charge or take back, or establishing procedures
for the performance of transfers.
(11) The operation of the Eurodac system, as established by Regulation (EC) No 2725/2000 and in particular the implementation of Articles 4 and 8 contained therein should facilitate the implementation of this Regulation."
This 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 2 contains various definitions. The definitions relating to "application for asylum", "applicant" or "asylum seeker", "unaccompanied minor" and "family member" may be particularly noted for present purposes. "Withdrawal of the asylum application" is stated to mean -
"the actions by which the applicant for asylum terminates the procedures initiated by the submission of his application for asylum, in accordance with national law, either explicitly or tacitly."
1 Member States shall examine the application of any third-country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.
2 By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility. Where appropriate, it shall inform the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of or take back the applicant.
3 Any Member State shall retain the right, pursuant to its national laws, to send an asylum seeker to a third country, in compliance with the provisions of the Geneva Convention.
4 The asylum seeker shall be informed in writing in a language that he or she may reasonably be expected to understand regarding the application of this Regulation, its time limits and its effects."
1 The process of determining the Member State responsible under this Regulation shall start as soon as an application for asylum is first lodged with a Member State.
2 An application for asylum shall be deemed to have been lodged once a form submitted by the applicant for asylum or a report prepared by the authorities has reached the competent authorities of the Member State concerned. Where an application is not made in writing, the time elapsing between the statement of intention and the preparation of a report should be as short as possible.
3 For the purposes of this Regulation, the situation of a minor who is accompanying the asylum seeker and meets the definition of a family member set out in Article 2, point (i), shall be indissociable from that of his parent or guardian and shall be a matter for the Member State responsible for examining the application for asylum of that parent or guardian even if the minor is not individually an asylum seeker. The same treatment shall be applied to children born after the asylum seeker arrives in the territory of the Member States without the need to initiate a new procedure for taking charge of them.
4 Where an application for asylum is lodged with the competent authorities of a Member State by an applicant who is in the territory of another Member State, the determination of the Member State responsible shall be made by the Member State in whose territory the applicant is present. The latter Member State shall be informed without delay by the Member State which received the application and shall then, for the purposes of this Regulation, be regarded as the Member State with which the application for asylum was lodged.
The applicant shall be informed in writing of this transfer and of the date on which it took place.
5 An asylum seeker who is present in another Member State and there lodges an application for asylum after withdrawing his application during the process of determining the Member State responsible shall be taken back, under the conditions laid down in Article 20, by the Member State with which that application for asylum was lodged, with a view to completing the process of determining the Member State responsible for examining the application for asylum.
This obligation shall cease, if the asylum seeker has in the meantime left the territories of the Member States for a period of at least three months or has obtained a residence document from a Member State."
1 The criteria for determining the Member State responsible shall be applied in the order in which they are set out in this Chapter.
2 The Member State responsible in accordance with the criteria shall be determined on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State.
Where the 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 interest of the minor.
In the absence of a family member, the Member State responsible for examining the application shall be that where the minor has lodged his or her application for asylum."
Where no Member State responsible for examining the application for asylum can be designated on the basis of the criteria listed in this Regulation, the first Member State with which the application for asylum was lodged shall be responsible for examining it."
"1 The Member State responsible for examining an application for asylum under this Regulation shall be obliged to:
(a) take charge, under the conditions laid down in Articles 17 to 19, of an asylum seeker who has lodged an application in a different Member State;(b) complete the examination of the application for asylum;(c) take back, under the conditions laid down in Article 20, an applicant whose application is under examination and who is in the territory of another Member State without permission;(d) take back, under the conditions laid down in Article 20, an applicant who has withdrawn the application under examination and made an application in another Member State;(e) take back, under the conditions laid down in Article 20, a third-country national whose application it has rejected and who is in the territory of another Member State without permission.
4 The obligations specified in paragraph 1 (d) and (e) shall likewise cease once the Member State responsible for examining the application has adopted and actually implemented following the withdrawal or rejection of the application, the provisions that are necessary before the third-country national can go to his country of origin or to another country to which he may lawfully travel."
1 Where a Member State with which an application for asylum has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any case within three months of the date on which the application was lodged within the meaning of Article 4(2), call upon the other Member State to take charge of the applicant.
Where the request to take charge of an applicant is not made within the period of three months, responsibility for examining the application for asylumshall lie with the Member State in which the application was lodged.
2 The requesting Member State may ask for an urgent reply in cases where the application for asylum was lodged after leave to enter or remain was refused, after an arrest for an unlawful stay or after the service or execution of a removal order and/or where the asylum seeker is held in detention.
The request shall state the reasons warranting an urgent reply and the period within which a reply is expected. This period shall be at least one week.
3 In both cases, the request that charge be taken by another Member State shall be made using a standard form and including proof or circumstantial evidence as described in the two lists mentioned in Article 18(3) and/or relevant elements from the asylum seeker's statement, enabling the authorities of the requested Member State to check whether it is responsible on the basis of the criteria laid down in this Regulation.
The rules on the preparation of and the procedures for transmitting requests shall be adopted in accordance with the procedure referred to in Article 27 (2).
1 Where the requested Member State accepts that it should take charge of an applicant, the Member State in which the application for asylum was lodged shall notify the applicant of the decision not to examine the application, and of the obligation to transfer the applicant to the responsible Member State.
3 The transfer of the applicant from the Member State in which the application for asylum was lodged to the Member State responsible shall be carried out in accordance with the national law of the first 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 or of the decision on an appeal or review where there is a suspensive effect."
1 An asylum seeker shall be taken back in accordance with Article 4 (5) and Article 16 (1) (c), (d) and (e) as follows:
(a) the request for the applicant to be taken back must contain information enabling the requested Member State to check that it is responsible;(b) the Member State called upon to take back the applicant shall be obliged to make the necessary checks and reply to the request addressed to it as quickly as possible and under no circumstances exceeding a period of one month from the referral. When the request is based on data obtained from the Eurodac system, this time limit is reduced to two weeks;(c) where the requested Member State does not communicate its decision within the one month period or the two weeks period mentioned in sub-paragraph (b), it shall be considered to have agreed to take back the asylum seeker;(d) 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;(e) the requesting Member State shall notify the asylum seeker of the decision concerning his being taken back by the Member State responsible. The decision shall set out the grounds on which it is based. It shall contain details of the time limit on carrying out the transfer and shall, if necessary contain information on the place and date at which the applicant should appear, if he is travelling to the Member State responsible by his own means. This decision may be subject to an appeal or a review. Appeal or review concerning this decision shall not suspend the implementation of the transfer except when the courts or competent bodies so decide in a case-by-case basis if the national legislation allows for this.
If necessary, the asylum seeker shall be supplied by the requesting Member State with a laissez passer of the design adopted in accordance with the procedure referred to in Article 27 (2).
The Member State responsible shall inform the requesting Member State, as appropriate, of the safe arrival of the asylum seeker or of the fact that he did not appear within the set time limit.
2 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 eighteen months if the asylum seeker absconds.
3 The rules of proof and evidence and their interpretation and on the preparation of and the procedures for transmitting requests, shall be adopted in accordance with the procedure referred to in Article 27 (2).
4 Supplementary rules on carrying out transfers may be adopted in accordance with the procedure referred to in Article 27 (2)."
(1) First, by its recitals, it stresses the need for a clear and workable method of determining responsibility for the examination of an asylum application, with co-operation between Member States being expected.
(2) Second, the desirability of a rapid determination of responsibility is also stressed.
(3) Third, in terms of the stated purpose, as evidenced by the recitals, the position is, as it were, stated generically. While emphasis is placed on the need to safeguard family unity, no specific or separate purpose or treatment so far as the operation of the regulation is concerned with regard to children is stated.
(4) Fourth, Article 3.2 expressly confers a right of derogation empowering a State in its discretion to examine an asylum application even if that is not its responsibility under the criteria set out in Dublin II. That indeed is precisely what the Secretary of State has here done in the cases of BT and MA.
(5) Fifth, Article 4 and in particular Article 4.4 and Article 4.5 demonstrate an intention to have enforceable anti-avoidance provisions. Thus Article 4.5 in general terms has the effect that where an asylum seeker lodges an application in one State and then makes a further application in another State responsibility remains with the first State.
"24 The Dublin II Regulation, pursuant to which the Secretary of State proposes to remove Mr Nasseri, is part of an attempt by the European Union to co-ordinate its asylum laws with the eventual objective of having a Common European Asylum System, under which there will be a common procedure and uniform status, valid throughout the Union, for those granted refugee status: see recitals (2) and (5) of the Regulation. A key provision of the Regulation is that whichever Member State an asylum seeker first enters, whether by land, sea or air, is responsible for examining his application. If he moves on to another Member State, he may be sent back without substantive consideration of his case. There is a fingerprinting system ('Eurodac') to enable the authorities of Member States to detect multiple applications.
25 In addition to the Dublin II Regulation, the Council of Ministers has issued several directives intended to introduce greater uniformity into the treatment of asylum seekers. Directive 2003/9/EC ('the Reception Directive') lays down minimum standards for the reception of asylum seekers: the information with which they should be provided, documentation they must be given, material reception conditions and so on. Directive 2004/83/EC ('the Qualification Directive') concerns the minimum standards for the qualification and status of applicants as refugees and Directive 2005/85/EC ('the Procedures Directive') prescribes minimum standards for the procedures for granting and withdrawing refugee status."
Lord Hoffmann went on to say at paragraph 41:
"41 The KRS case appears to me to confirm the validity of the conclusions reached by Laws LJ in the Court of Appeal, which rested principally upon the fact that there was no evidence that anyone returned under the Dublin II Regulation had been removed to Iran, Afghanistan, Iraq, Somalia or Sudan. The ECHR also appears to have been of the opinion that there are limits to the extent to which one Member State of the European Union can be expected to police the asylum policy of another. The European Commission is responsible for enforcing the obligations of Member States under the Dublin II Regulation to process asylum applications which are their responsibility and to give effect to the asylum directives. Other Member States are entitled to assume - not conclusively presume, but to start with the assumption - that other Member States will adhere to their treaty obligations. And this includes their obligations under the European Convention to apply article 3 and give effect to the Rule 39 indications. There is no evidence that in respect of applicants returned under the Regulation, Greece has not done so."
Reference may also be made to paragraphs 49 and 50 of Lord Scott's opinion.
The First Issue
"If the claimant was under 18 she should not have been removed at all."
Thereafter Mr Justice Collins granted permission. He said that the point was "clearly arguable".
"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."
It is not clear if the point was substantively argued before Mr Justice Lightman, and, in any event, the case was primarily directed at other matters. Whilst it is persuasive, I of course agree with Mr Knafler that it is not binding on me.
(1) The actual hierarchy of criteria is to be found in Articles 6 to 14 of Dublin II. Article 5 is not itself part of such hierarchy but rather sets out how applications are to be treated by the Member State responsible.
(2) The wording of the second paragraph of Article 6, in particular the phrase "has lodged", is to be contrasted with the wording of the immediately preceding Article 5.2. Article 5.2 expressly uses the phrase "first lodged": exactly reflected also as a phrase in Article 4.1 and, in effect although not exactly, reflected also in Article 13.2. The second paragraph of Article 6 however - and conspicuously so, he says - does not use the phrase "first lodged". That, he says, connotes an intended distinction.
(3) The second paragraph of Article 6 is thus to be read as connoting that the responsible Member State is the one where the unaccompanied minor has most recently lodged his or her asylum application. That, it is submitted, accords with the language used and would be consistent with the purpose stated in the recitals: since such a conclusion is clear and workable and makes it possible rapidly and easily to determine the Member State responsible.
(4) Such an interpretation can be read consistently with other provisions found in Dublin II such as Articles 16.1, 19.3 and 20.2.
(5) To the extent that the unaccompanied minor has previously lodged an application in another Member State, the procedures for that earlier application can be taken as "tacitly" terminated as contemplated by the definition in Article 2 (a). (I note however that in this context Mr Knafler did not explain how the first Member State could always necessarily know that.)
(6) Mr Knafler acknowledged that such an interpretation gives rise to an approach very different from that applicable under Dublin II to an adult asylum seeker who has previously made an asylum application in another Member State. But he submits that that is not surprising: just because unaccompanied minors are unaccompanied minors. One would expect, he submits, the regulation to promote the best interests of unaccompanied children and, in the absence of family unity cases, to seek to avoid a "pass the [human] parcel" situation. The paramountcy given to unaccompanied minors, he submits, is borne out by the very fact that unaccompanied minors feature first in the hierarchy under Chapter III and Article 6.
(7) In this regard he also draws attention to the lack of any proviso relating to the best interests of the minor contained in the second paragraph of Article 6 in contrast with the first paragraph. The lack of such proviso in the second paragraph, he suggests, is to be explained by the fact, as he asserts it to be, that such application is to be examined by the Member State where it was most recently lodged.
(8) While the provisions of Article 4 are clearly designed, at least in part, to prevent abuse, that cannot be readily thought to apply to children who, by virtue of their age and vulnerability are not to be taken as persons falling within an abusive category of manipulative applicants.
(9) So to interpret Article 6 would accord with the spirit of international conventions such as, for example, the UN Convention on the Rights of the Child.
(1) Dublin II, on any view, contemplates that unaccompanied minors may be returned to another Member State (see, for example, the first paragraph of Article 6 and see Article 15.3). That is also confirmed by Article 12 of Regulation 1560/2003.
(2) Article 5.2 is consistent with Article 4.1. Those provisions mandate ("shall") that the application is to be examined by one Member State and the process of determining the Member State responsible starts as soon as an asylum application is first lodged.
(3) The claimants' interpretation of the second paragraph of Article 6 is not consistent with Article 4.1 or Article 5.2.
(4) Article 4.5 is a clear restriction designed to prevent the operation of Article 4.1 being avoided by the making of a second or further application in another Member State. There is nothing, either in the Recital or in Article 4 to restrict the application of such "general principles" to adults.
(5) The claimants' interpretation, he says, involves writing in words (viz, "most recently"). The defendant's interpretation, he says, does not. The words "has lodged" read in context mean what they say and naturally relate to the Member State where the unaccompanied minor had first lodged his application. That accords precisely with the overarching provision as to the treatment of applications contained in Chapter III in Article 5.
(6) Such an interpretation as advanced by the Secretary of State is itself clear and workable and capable of rapid determination just as with adults.
(7) There is nothing in the Recitals or General Principles to indicate that so different a position as advanced by the claimants is intended to apply to unaccompanied minors (without family present in a Member State) as compared to adults: and such a situation could give rise to complexity.
(8) So far as the interests of the unaccompanied minors are concerned, that is capable of being addressed as a matter of generality by operation of directives such as the Reception Directive and as a matter of particularity in an appropriate case by exercise of the derogation power in Article 3.2. Further, if there is to be removal of an unaccompanied minor then, as Recital 8 connotes, there can be presumed to be the appropriate degree of co-operation by the receiving State. It is for those reasons that there was no need to provide a requirement of "best interests" in the second paragraph of Article 6.
(9) If the claimants were right, an unaccompanied minor or individual claimant to be an unaccompanied minor could make several applications in Member States, each of which would be required to examine it, at all events until and unless it was established that it was withdrawn.
Disposition on the First Issue
"21 In the case of a child applicant, it would seem to be difficult for a decision-maker to carry out a proper assessment of the effect of removal on the child's right to a private life without considering the circumstances which would await that child upon removal. Those circumstances must surely include in most cases the adequacy of reception and care arrangements for the child in the receiving country. If they were inadequate, there might be serious consequences for the child's physical and mental well being. It seems to me to be impossible for that aspect of the assessment to be taken away from the Immigration Judge and left to the Secretary of State, since the judge would then be having to decide the Article 8 claim on only some of the facts and with only part of the picture."
"Every child matters even if they are someone subject to immigration control,"
and that, in accordance with the Convention on the Rights of the Child,
"the best interests of the child will be a primary consideration."
Paragraph 2.18 contains provisions relating to work with individual children, including a situation where an unaccompanied minor is being escorted to a port for removal.
"Removal of unaccompanied children
During the course of their consideration, NAM case owners may, establish the likelihood of removal should the asylum claim fail. 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;• consider the need for escorts to accompany the child."
"73 I accept that the decision maker in this case was entitled to expect that Belgium would comply with its obligations towards an unaccompanied child seeking asylum under the EU Instruments specified above, the UN Convention on the Rights of the Child and the ECHR. I appreciate that the defendant has adduced no evidence in these proceedings to demonstrate that the decision maker had any actual knowledge of how the claimant would be treated upon his removal to Belgium. However the decision maker asserts that UKBA knew that Belgium had at least the equivalent health care service to that available in the United Kingdom. I have no reason to doubt what he says. Accepting that factual premise, it was open to him to conclude that the claimant would receive appropriate medical treatment for his psychiatric illness (whatever its state of severity) upon arrival in Belgium.
74 There is no basis to conclude that the claimant's welfare would not be appropriately safeguarded during the process of removal so far as reasonably possible - although I accept, of course, that the evidence before the decision maker was that removal in itself would impact adversely on the claimant's psychiatric health.
75 I am more concerned about the apparent failure to address the social and educational aspects of the claimant's welfare upon his arrival in Belgium. There is no evidence before me to show that UKBA had any specific knowledge of how these aspects of the claimant's welfare would be catered for in Belgium. This is not a theoretical point in this case. I assume that a decision under the Dublin II Regulation is normally made within weeks or at most a few months. In the instant case the claimant had spent about a year in England becoming more and more fluent in the English language and becoming more and more integrated into an English community. In my judgment on the particular facts of this case, at least, some attention was necessary on the part of the decision maker as to what would occur in relation to schooling and the wider aspects of the claimant's welfare upon his arrival to Belgium.
76 In my judgment in the one respect identified in the paragraph immediately above this ground of challenge probably has some substance. That said, I regard my finding under this ground of challenge not as a freestanding criticism of the decision in this case but rather an aspect of the decision maker's failure to have regard to the need to safeguard and promote the welfare of the clamant. Consequently, my finding under this ground is inextricably bound with my finding on ground a)."
Disposition on Second Issue