England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2A 2LL
		24 April 2012

1. MR JUSTICE MITTING: This begins as an application for permission to apply for judicial review of a decision of the Secretary of State notified by letter of 14 April 2011 to decline to examine the claimant's asylum claim and to certify that the conditions mentioned in paragraph 4 and 5 of Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 were satisfied. I have heard extensive submissions by Mr Southey QC and shorter submissions by Mr Waite for the Secretary of State. I am in a position, they both agree, to decide this matter substantively. It raises an issue of some interest and importance. It does not turn to any extent on disputed or further evidence. I accede to the submission that I should determine substantively. I give permission and now proceed to do so.
2. The claimant is a national of Iran, born on 23 August 1977. He arrived in Belgium in 2003 and claimed asylum. His claim to asylum was refused by Belgium in early 2005. The claimant says that he left Belgium in 2004 and travelled through Italy, Greece and Turkey back to his home country Iran, where he remained for several years. He says that during his renewed stay in Iran he took part in political protests, was detained and seriously ill-treated.
3. On 19 March 2011, he arrived in the United Kingdom. He claimed asylum on 21 March. The Secretary of State consulted the Eurodac records, which revealed that he had claimed asylum in Belgium on 18 December 2003. A formal request was made to the Belgian authorities to accept responsibility for dealing with his asylum claim under the Dublin II Regulation ((EC) No 343/2003) on 23 March 2011. The Belgian authorities initially refused responsibility. That prompted a further letter from the British authorities of 11 April 2011, in which, it is common ground, the history claimed by the claimant was summarised. The letter concluded:

"Applicant's accounts do not seem credible. There is no evidence to suggest that he left the territory of the Member States. He was only encountered when he went to the asylum screening unit in Croydon to claim asylum."

4. That prompted an acceptance by the Belgian authorities on 14 April of its obligation to deal with his asylum claim under the Dublin II Regulation. On the same date, 14 April, the Secretary of State notified the claimant that she was not going to examine his asylum application and certified that the conditions mentioned in paragraphs 4 and 5 of Part 2 of Schedule 3 to the 2004 Act were satisfied and told him that it was proposed to remove him to Belgium. He challenged that decision. The removal directions were set. It is unnecessary for me to set out the procedural history of this claim. Ultimately, removal directions were stayed pending determination of this application and claim.
5. Mr Southey accepts, as he must, that the Dublin II Regulation does not, in principle, give rise to rights to an individual but regulates the responsibility for dealing with asylum claims as between states. As Morris Kay LJ observed in R(G) v Secretary of State [2005] EWCA Civ 54, paragraph 25:

"The effect of Article 15 [of the Dublin II Regulation] is not to confer a free-standing substantive right on individual applicants. Rather it is to regulate the relationship between two or more Member States."

6. Mr Southey mounts what is I believe to be a novel principled challenge to the Secretary of State's decision. It is founded upon what is known as the Procedure Directive, Council Directive 2005/85/EC of 1 December 2005. Article 6.2 provides:

"Members States shall ensure that each adult having legal capacity has the right to make an application for asylum on his/her own behalf."

7. The remaining provisions of Chapter 2 deal with the manner in which such applications must be determined by the state to whom the application is made. Chapter 3 deals with procedures at first instance. Article 25 deals with "inadmissible applications". Article 25.1 provides:

"In addition to cases in which an application is not examined in accordance with Regulation (EC) No 343/2003, Member States are not required to examine whether the applicant qualifies as a refugee in accordance with Directive 2004/83/EC where an application is considered inadmissible pursuant to this Article."

8. Article 25.2 sets out a number of circumstances in which Member States may consider an application for asylum to be inadmissible. Article 25.1 proceeds on an assumption that "cases in which an application is not examined in accordance with Regulation (EC) No 343/2003" are not admissible. That assumption reflects Recital 29:

"This Directive does not deal with procedures governed by Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by the third-country national."

9. Mr Waite, for the Secretary of State, submits that that puts the point raised by Mr Southey beyond argument. (EC) No 343/2003 provides in Article 3.1:

"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 indicates is responsible."

10. By way of derogation, Article 3.2 permits Member States to examine applications which would otherwise be required to be examined by the Member State responsible under the criteria set out in Chapter 3. Chapter 3 contains a hierarchy of responsibilities. In this case, Article 13 applies:

"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."

11. Article 16.3 deals with one set of circumstances in which that obligation ceases to apply:

"The obligation specified in paragraph 1 shall cease where the third-country national has left the territory of the Member States for at least 3 months unless the third-country national is in possession of a valid residence document issued by the Member State responsible."

12. On the facts of this case, the Belgian authorities have accepted that Article 16.3 is not in play because the circumstances were outlined to them by the British authorities and, despite that, they decided expressly that they were responsible for determining the claimant's application.
13. Mr Southey's argument, in a nutshell, is that when an asylum seeker in one Member State who has made a claim to asylum in another Member State maintains that that other state is no longer responsible for determining his claim because he has departed the Member States for more than 3 months, the Member State in which he has made his second claim to asylum is required to determine whether the exclusion applies. He relies on Article 47 of the Charter of Fundamental Rights:

"Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article."

14. He submits that the claimant has the right to have his asylum claim made in the United Kingdom determined by the United Kingdom unless the conditions for acceptance of the obligation to process that claim by Belgium are satisfied. He submits, for reasons that it is unnecessary to set out, that he can demonstrate that he left the territory of the Member States in 2004 or 2005 for several years. Accordingly, he submits he is entitled to prove that Belgium is not responsible for determining his application under Article 16.3 of the Dublin II Regulation by evidence adduced in an English court. Accordingly, he submits, that to give effect to his rights under Article 47 and under Article 6.1 of the Procedure Directive, he is entitled to litigate that issue in the courts of England and Wales.
15. The argument is subtle and not without difficulty. If it succeeds then in a significant number of cases the Dublin II Regulation, which is designed to regulate matters as between Member States and not confer individual rights, can be the subject of individual challenge in the courts of the Member State such as to give rise, in effect, even if not in theory, to a right to an individual to challenge the apportionment of responsibility between Member States under that Regulation. As a matter of ordinary statutory construction, that cannot have been the intention of the European legislators when passing into law the Procedure Directive, as they recognised in Recital 29, already cited.
16. The answer to Mr Southey's submission can, in my judgment, be found in the language of Article 25.1. Article 25.1 does not deem inadmissible cases in which an application is, as a matter of obligation, required to be considered by a Member State other than the one to which the immediate application is made. It covers cases "in which an application is not examined" in accordance with the Dublin II Regulation. That refers to a set of facts in the state to which the second application is made.
17. As a matter of fact in this case, the United Kingdom has not examined the claimant's application. It has declined to do so under the Dublin II Regulation. It is not the decision of the United Kingdom to accept or refuse an obligation under Article 13 of the Dublin II Regulation. That is the decision of Belgium. What the claimant would be seeking to do would be to challenge in a British court the decision of the Belgian authorities to accept their obligation under Article 13. Plainly, the European legislature did not envisage that such a challenge would be open to an individual and it is difficult to see how it could in practice be litigated. How could an English court determine whether the Belgian authorities were or were not justified in accepting responsibility under the Dublin II Regulation?
18. Contrary to what Mr Southey says, it is not only the facts as to where the claimant had been which would have to be determined but how the Belgian authorities and their courts would determine such issues. There is no need for such a convoluted procedure. It is for Belgium to decide whether or not it accepts its obligation under Article 13 of the Dublin II Regulation. Once it has accepted that obligation then, under the Dublin II Regulation, the United Kingdom authorities are relieved of any obligation to determine the application for asylum, save in two by now well-established circumstances. First, when the Member State which is obliged to determine the application has systematically failed in its obligations, such that by common European consent it is acknowledged that they have failed to do so, thereby giving rise to an obligation on the Member State in which a second application is made to exercise its discretion under Regulation 3.2 of the Dublin II Regulation to determine the claim for asylum. Secondly, there may be circumstances personal to an individual which may also require the second Member State to exercise its discretion under Regulation 3.2 -- by way of example only, where the risk of suicide, if an individual is removed, is so high that to remove him would put a Member State in breach of its obligation to him under Articles 2 or 3 of the European Convention on Human Rights.
19. I leave to one side, to be determined should the issue ever arise, whether if a claimant maintains that he has been inaccurately identified as having made a claim under the Dublin II Regulation in another state he would be permitted to challenge a decision to remove him to that state on the ground that it is based on a fundamental mistake of fact. For what it is worth, I doubt that such a challenge could be mounted but it does not arise on the current facts and it is unnecessary for me to determine it.
20. Attractively though Mr Southey's argument has been advanced, it does not succeed. The language of the European legislation which governs these issues is plain. On the undisputed facts of this case the United Kingdom authorities have not examined the application for asylum in accordance with the Dublin II Regulation. He cannot challenge that decision. His claim for asylum can be determined only by the Belgian authorities. There is nothing to prevent his lawful removal for that process to occur.
21. MR SOUTHEY: My Lord, I have three applications, the first of which is suspect is uncontroversial, which is that I would seek an assessment of the claimant's publicly funded costs. The second I suspect is controversial, which is permission to appeal. My Lord, my Lord in his judgment indicated, obviously, that this is a claim that does raise issues of some important, they are also novel and, I think my Lord indicated in the judgment, not without difficulty. The importance in particular of the issues, in my submission, does justify consideration of them by the Court of Appeal and so I would seek permission to appeal.
22. MR JUSTICE MITTING: And the third?
23. MR SOUTHEY: The third is to some extent linked but not entirely, which is that there is at the moment a stay on removal. We would seek a stay to enable an appeal to be brought. The terms of that may depend on the second but, obviously, as I say, even if my Lord is not minded to grant permission to appeal then a stay may still be of importance to enable the applicant to make an application to the Court of Appeal.
24. MR JUSTICE MITTING: Mr Waite?
25. MR WAITE: My Lord, a stay is opposed on the basis that this case has gone on long enough, in the defendant's submission, and that there is insufficient merits in the claimant's case either to justify a grant of permission or indeed a stay pending an application to the Court of Appeal. In my submission, notwithstanding the complexity of the law in this area, the answer is clear. So, my Lord, both applications are opposed, apart from my learned friend's application for a detailed assessment, and could I make an application for costs on behalf of the Secretary of State, subject to the usual order?
26. MR JUSTICE MITTING: Thank you.
27. Anything in reply?
28. MR SOUTHEY: No, my Lord.
29. MR JUSTICE MITTING: You can have public funding assessment of your costs. I make an order that the claimant is to pay the costs of the defendant, to be the subject of a detailed assessment if not agreed or subject to section 11 of the Access to Justice Act. I refuse permission to appeal. Although the issue is novel and if you were to succeed it would be of some general importance, I do not think you have any realistic prospect of success. I will grant a stay on removal directions for 14 days to permit you to apply to the Court of Appeal for permission to appeal and, if granted, for a further stay.
30. MR SOUTHEY: Thank you, my Lord.
31. MR JUSTICE MITTING: Thank you both.