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
		22/05/2013

Mr Justice Stadlen :

1. The Claimant is an Iranian asylum seeker. The Defendant declined to examine her asylum application on the ground that Germany had accepted that it was the State responsible for examining her application for asylum under the provisions of the Council Regulation (EC) No 343/2003 of 18 February 2003 ("the Dublin II Regulation"). The claim raises the question whether an asylum seeker is entitled to require the United Kingdom Government to apply the provisions of the Dublin II Regulation so as to accept responsibility for considering her application for asylum. The Claimant's case is that the Dublin II Regulation is of direct effect so that the answer to the question is yes. The Defendant's case is that the Dublin II Regulation was not intended to confer rights on asylum seekers to insist on which Member State should consider their application for asylum but rather to provide a convenient mechanism by which Member States could identify as between themselves which Member State is responsible for considering an application for asylum in any given case. Accordingly the answer to the question is no. Alternatively where, as in this case, a Member State has accepted responsibility the answer is no. In any event the question does not arise in this case because there was no breach of the provisions of the Dublin II Regulation.

The Facts

2. The Claimant is an Iranian national. According to her witness statement dated 31 January 2012 she resided in Germany from around 2002 with her two children and her husband who had lived there since the 1990s when he was granted asylum. They separated in 2005 after the Claimant was subjected to domestic violence by her husband. While she and her husband were together the Claimant had a residence permit which permitted her to reside in Germany. The permit had to be renewed every two years. After she separated from her husband her residence permit had to be renewed every four months.
3. According to information sent to the Defendant by the German authorities on 20 January 2012, on 11 July 2005 the Claimant was granted a permanent residence permit in Germany. According to the Claimant her husband left Germany to return to Iran in around 2007. She and her children remained in Germany but she returned to Iran in the first week of September 2011 due to her father's illness and to seek to formalise her divorce from her husband which the Iranian embassy in Germany had refused to accept. On discovering her return the Claimant's husband made a claim of adultery against her. The Claimant stated that she fled from Iran and entered the United Kingdom on 24 November 2011 via Turkey.
4. On 26 November 2011 the Claimant was arrested on suspicion of illegal entry to the United Kingdom, after police were called to an address in Nottingham where a man was arrested on suspicion of domestic violence against her. The Claimant stated in a taped interview under caution that she entered the UK in the back of a lorry without seeking permission to enter from an immigration officer. She stated that she had valid leave in Germany, that it was not her intention to come to the UK to claim asylum and that she wished to travel to Germany, but she was prevented from flying back to Germany because to do so she required the permission of her husband and she would have been arrested by the authorities.
5. On 27 November 2011 the Claimant claimed asylum. In a screening interview she said that she left Iran in October 2011 and arrived in the United Kingdom in early November 2011 and that she wished to return to Germany due to an existing relationship and that she had been granted a valid visa for Germany since 2002. Before the interview she asked the interpreter if she could go to Germany.
6. In her witness statement dated 31 January 2012 the Claimant said that on 7 or 8 September 2011 she returned to Iran for the first time in almost ten years travelling on her own Iranian passport which she had renewed in 2009 while living in Germany. She left Iran fearing the consequences of the allegation of adultery made by her husband against her. In fact she had since 2009 been in a relationship with a German man called Dieter. She said that she had asked before getting on the lorry to be taken to Germany. Once she realised, having got out of the lorry, that she was in the United Kingdom she said that she called Dieter in Germany and asked him to come and get her and take her to Germany.
7. It appeared to be common ground between the parties that on 6 December 2011 in a further interview the Claimant said in answer to questions 47 and 48 (which were not before the court) that she left Germany for Iran in 2011 and that she had a German visa which expired on 15 December 2011.
8. Mr Jagadesham, who appeared on behalf of the Claimant and to whom I am indebted for the thoroughness and erudition of his oral and written submissions, told me that his instructions were that the Claimant still believed that her visa expired on 15 December 2011 but that in his submission it was probable that she was wrong in that belief. That was because no evidence was adduced by the Defendant emanating from the German authorities which suggested that she had a valid unexpired visa as at 27 November 2011.
9. The significance of the question whether the Claimant did or did not have a valid unexpired visa or residence permit at the date of her application for asylum on 27 November 2011 is that if on that date she had a valid residence document, the definition of which under Article 2(i) in my judgment includes both a visa, and a residence permit, Germany would have been responsible for examining her application for asylum under Article 9(1) of the Dublin II Regulation and if on that date she had only a valid unexpired visa Germany would have been responsible for examining her application under Article 9(1) and/or Article 9(2) irrespective of whether she had left Germany to go to Iran. If she did not then if, as she herself admitted, she had left Germany to go to Iran Germany would not have been the Member State responsible under Article 9(4) even if she had a visa which had expired less than six months previously or a residence document which expired less than two years previously. Ms Busch, who appeared on behalf of the Defendant at the resumed hearing of the application, submitted that it was unlikely that the Claimant would have left Germany without an unexpired valid document.
10. On 11 January 2012 a request was made on behalf of the Defendant to the German authorities pursuant to Article 21 of the Dublin II Regulation which obliges Member States to communicate to any Member State that so requests such personal data concerning the asylum seeker as is appropriate, relevant and non-excessive for the determination of the Member State responsible for examining the application for asylum. The request, which was on a standard form, stated that among the matters which it concerned were visas. In that box it stated that the Claimant stated that she had been living in Germany since 2002 and that she had been granted a German visa which expired on 15 December 2011.
11. In a standard form response to the request for information from the German authorities dated 20 January 2012 which was headed "Answer the following Art. 21 Dublin II," under the heading "Permit of Stay" it was stated: "Permanent residence permit in accordance with the Residence Act granted on 11 July 2005; Application for a residence permit made on 28 July 2011." Under the heading "Registration of Abscondering of" it was stated "Left for unknown destination on 16 May 2005." Under the heading "visa of" there was no entry. Under the heading additional information was written: "Issued on 18 October 2007 under paragraph 31(1), (2), (4) of the Residence Act (independent residence permit for spouse) valid until 30 December 2008. Central register of foreign nationals number 02725016630." I note that there was no reference in that response to the Claimant having been issued with a visa which was valid as at 27 November 2011 and/or was due to expire on 15 December 2011. (In a letter to the Claimant's solicitors dated 19 October 2012 the Treasury Solicitor on behalf of the Defendant confirmed that the above entries were the result of a translation from the original German which was also before the Court).
12. On 22 February 2012 there was sent to the German authorities on behalf of the Defendant a standard form for determining the Member State responsible for examining an application for asylum. In the Immigration Factual Summary dated 6 July 2012 which subsequently accompanied notice of removal directions also dated 6 July 2012 the form was described as a formal request made to Germany under Article 9.4 of the Dublin II Regulation. The form stated that a request for taking charge was being presented on the ground of: "Article 9(4) residence document which expired less than two years previously or visa which expired less than six [sic]." In answer to question 20: "Does the asylum applicant possess a residence document/visa for the country of residence?" an entry was made in the yes box and the residence permit box. No entry was made in the visa box. That is curious in that, as appears below, in the box headed "other useful information", there was no reference to a residence permit but only to a visa.
13. In the box headed "Other useful information" appeared the following:

"The above named subject claimed asylum in the UK on 27 November 2011. The subject stated that she entered the UK hidden in the back of a lorry without seeking permission to enter from an immigration officer. Following an Article 21 request made by the UK to Germany on 11 January 2012 a response from Germany revealed that the subject was granted permanent residency there on 11 July 2005. The subject's permit expired on 15 December 2011.

The subject was interviewed on 27 November 2011 and on 06 December 2011. She stated that she left Iran by car and travelled to Turkey. From there, she claimed to have been blindfolded and handcuffed and placed in a lorry. She claimed that the handcuffs were taken from her, and that she got out from the lorry when she arrived in the UK three or four days before claiming asylum in the UK. The subject said that she had her own passport but claimed that an agent took it from her. The subject confirmed that she has been issued with a visa in Germany.

In her second interview on 06 December 2011, the subject stated that she arrived in Germany legally in 2002 with her husband and two children. She stated that her husband returned to Iran in 2007; at that time she stated that [sic] and her husband were living separately. The subject then stated she left Germany and returned to Iran by car on 08 September 2011, although she claimed not to know the exact date of departure. She then stated that she travelled to the UK (though not via Germany).

The subject had previously attempted to travel to the [sic] on VAFF55696 refusal dated 24 March 2011; this had a copy of the subject's Iranian passport. Subject stated that she had valid leave in Germany until 15 December 2011, and that it was not her intention to come to the UK and claim asylum, but wished to travel to Germany. The subject claimed that she was prevented from flying back to Germany as she had to get her husband's permission and that the German authorities would have arrested her.

The subject claims she is married to an Iranian male and has two sons living in Iran. She claims that her husband has accused her of committing adultery, and that he has informed the Iranian police who she fears will arrest her and stone her to death. The subject has admitted to having a boyfriend while she was in Germany, but they are noted to be just friends now. …

All relevant details relating to the subject are now attached below". (emphasis added)

14. In the letter dated 19 October 2012 the Treasury solicitor stated that the Defendant had confirmed that the reference to "all relevant details relating to the subject are now attached below" referred to the substantive information contained in the standard form.
15. At the first hearing of this claim for judicial review Mr Karim, who on that occasion appeared on behalf of the Defendant, submitted that it is to be inferred that the information contained in the 22 February 2012 document, which he said was a formal request made to Germany that they should accept responsibility for the consideration of the Claimant's asylum claim, and in particular the reference to the Claimant's permit having expired on 15 December 2011, had been confirmed by the German authorities in additional documents beyond the response dated 20 January 2012 to the request for information dated 11 January 2012 to both of which I have referred above.
16. Mr Jagadesham's response to that was that the contrary inference should be drawn from the fact that the Treasury solicitor's letter dated 19 October 2012 stated that it was enclosing "the remainder of the communications between my client and the German authorities". There was no reference either in the response dated 20 January 2012 or the documents enclosed with the letter dated 19 October 2012 to the Claimant having had as at 27 November 2011 a valid visa or residence permit which was due to expire on 15 December 2011. He submitted that if there had been any reference to such a visa in any information coming from the German authorities to the Defendant it would have been in one of the documents referred to above.
17. Based on the material to which I have referred it is not clear to me what was the basis of the statement in the box headed "other useful information" in the 22 February 2012 document that "the subject's permit expired on 15 December 2011". The initial request dated 11 January 2012 referred only to the Claimant having stated that she had been granted a visa which expired on 15 December 2011 and made no reference to a residence permit. The response from the German authorities to that request dated 20 January 2012 referred to a permanent residence permit having been granted on 11 July 2005 and an application for a residence permit having been made on 28 July 2011 and to an independent residence permit for spouse having been issued on 18 October 2007 valid until 30 December 2008 but made no reference to any permit having expired on 15 December 2011. The only reference to any document having expired on 15 December 2011 prior to the statement in the Defendant's document dated 22 February 2012 that the Claimant's permit had expired on 15 December 2011 was the statement apparently given by the Claimant in the further interview dated 6 December 2011 in answer to questions 47 and 48 that she had a German visa which expired on 15 December 2011. There was in any event no reference in the Article 21 response from Germany dated 20 January 2012 to any entitlement to remain in Germany or to any document, whether a visa or a residence permit, having expired on 15 December 2011.
18. There was no response to the Defendant's formal request to Germany to take charge of the Claimant before when 26 April 2012 a letter was sent from the UK Border Agency on behalf of the Defendant to the German authorities in the following terms:

"The United Kingdom made a formal request to Germany to take charge of the above named applicant under the terms of the Dublin II Regulation on 23/02/2012. It has now been more than one month since our original formal request was made and no response has been received. I attach electronic confirmation of receipt of our request.

Article 18(7) of the Dublin II Regulation states:

Failure to act within the two month period mentioned in paragraph 1 and the one month period mentioned in paragraph 6 shall be tantamount to accepting the request, and entail the obligation to take charge of the person, including the provisions for proper arrangements for arrival."

In accordance with Article 10 of Commission Regulation (EC) No. 156O/2003, the United Kingdom hereby requests that you confirm in writing without delay that you acknowledge Germany's responsibility for the above named applicant, due to the failure of the German office to reply within the time limit.

Transfer arrangements will now be made to return the above named to Germany…"

19. In a letter dated 27 April 2012 headed "Dublin-Procedure Your request for takeover/takeback" the German authorities wrote to the Defendant as follows:

"Dear Sirs,

Your request for takeover/for takeback from 22/02 2012 is met according to Article 9 Abs.4 Dublin II Council Regulation (EC) No 343/2003.

The petitioner mentioned above will be accepted by the Federal Republic of Germany.

All information concerning the modalities of transfer is enclosed"

20. In the Immigration Factual Summary dated 6 July 2012 it was stated:

"Acceptance received from Germany under Article 9.4 of the Dublin II Regulation."

21. In a letter dated 26 April 2012, and thus written before receipt of Germany's letter dated 27 April 2012 purporting to accept responsibility under Article 9(4), the United Kingdom Border Agency on behalf of the Defendant informed the Claimant that the German authorities had accepted that Germany was the State responsible for examining her application for asylum. There were no grounds for departing from the Defendant's normal practice of normally declining to examine the asylum application substantively if there is a safe third country to which the applicant can be sent. By virtue of Schedule 3 Part 2 paragraph 3(2) of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 Germany was to be treated as a place (a) where the Claimant's life and liberty would not be threatened by reason of her race, religion, nationality, membership of a particular social group or political opinion; (b) a place from which she would not be sent to another State in contravention of her Convention rights; and (c) from where she would not be sent to another State otherwise than in accordance with the Refugee Convention. It was certified that it was proposed to remove the Claimant to Germany and that in the Defendant's opinion she was not a national or citizen of Germany.
22. On 28 June 2012 removal directions were set for the Claimant's removal to Germany on 6 July 2012.
23. On 5 July 2012 Hickinbottom J refused an application for permission to apply for a judicial review and an application to restrain the Claimant's removal to Germany.
24. Among his reasons he stated that the Claimant's claim is misconceived. The Claimant's contention that because she returned to Iran after leaving Germany the United Kingdom and not Germany is responsible for her asylum claim was to misunderstand the Dublin II Regulation which sets out a process for determining which country within the scope of the Convention will deal with an application for asylum. It is binding on the states to which it applies. In the Claimant's case that process had been gone through and under the Dublin II Regulation Germany had positively accepted responsibility for the application. Human Rights claims which had been asserted for the first time after removal directions were set were not supported by any evidence on which an independent tribunal could conceivably find a breach of Article 3 or Article 8. He held that the claim was unarguable and totally without merit.
25. At an oral hearing on 12 July 2012 HH Judge Stephen Davies sitting as a Judge of the High Court gave the Claimant permission to bring her claim for judicial review.

The Claimant's claim.

26. Mr Jagadesham summarised the Claimant's claim as follows. Germany accepted responsibility for examining the Claimant's application for asylum under the criterion set out in Article 9(4) of the Dublin II Regulation. That followed a request by the Defendant that Germany accept responsibility by reference to that criterion in the 22 February 2012 document. There is no or no reasonable dispute that the criterion in Article 9(4) does not apply to the Claimant's case because she "left the territories of the Member States", that account having been provided to the Defendant at the time of the enquiries which were made of the Claimant. The Defendant had never disputed the Claimant's account of having left the territories of the Member States. The basis for the request for and acceptance of responsibility was thus erroneous. Article 13 of the Dublin II Regulation expressly specifies the consequence of the non-applicability of any of the other criteria, namely that the first Member State in which the asylum-seeker lodged their application for asylum shall be responsible for examining it. The United Kingdom is that Member State.
27. Mr Jagadesham submitted that the effect of the binding decision of the Court of Appeal in the case of Omar v SSHD [2005] EWCA Civ 285 is that criteria within the Dublin II Regulation, having direct effect, can be relied on by individuals. Thus if a criterion indicates that the United Kingdom is responsible for examining an asylum claim that result can be insisted on by an application to the court. He submitted that Carnwath LJ also envisaged that as a possibility in R (MK (Iran)) v SSHD [2010] EWCA Civ 115 at paragraph 42.
28. Further or alternatively he submitted that no authority has dealt with the case where, based on the undisputed facts provided at the time of the Defendant's enquiries, the acceptance of responsibility and proposed transfer were erroneous i.e. not being based on any of the criteria contained in the Dublin II Regulation as alleged and/or where the acceptance and proposed transfer were actually contrary to a criterion or provision within the "hierarchy of criteria" chapter of the Regulation (in this case Article 13) and thus also contrary to the direction in Article 3(1) that it is the Member State which the criteria indicate to be responsible that should examine the asylum application.
29. He submitted that to transfer to Germany in the circumstances of this case would plainly be unlawful, being contrary to the criteria within the Dublin II Regulation and being irrational. The Claimant thus insisted on the correct application of Dublin II Regulation based on what Mr Jagadesham called the original facts, that is to say the undisputed facts provided at the time of the Defendant's enquiries.

The Defendant's Case

30. The Defendant was represented first by Mr Karim and subsequently by Ms Busch. To some extent the Defendant's position on whether this case on the facts fell within Article 9(1) or Article 9(4) of the Dublin II Regulation evolved. However in summary the Defendant's case was that this claim is misconceived for a number of reasons.
31. First it was submitted that Germany's acceptance of responsibility for determining the Claimant's asylum application and the Defendant's decision did not involve a breach of the Dublin II Regulation and was in accordance with giving "proper effect" to it. Whatever may have been the position under Article 9(4) having regard to the Claimant's claim to have left Germany for Iran, the Claimant herself admitted or asserted when she made her asylum application on 27 November 2011 that she had a valid visa which did not expire until 15 December 2011 so that the case fell within Article 9(1).
32. In his opening Skeleton Argument Mr Karim supported this submission by submitting that the information contained in the Defendant's standard form dated 22 February 2012 and the statement that the Claimant's permanent residence leave expired on 15 December 2011 had been confirmed by the Article 21 response from Germany dated 20 January 2012 which confirmed that she was issued with a permanent residence permit on 11 July 2005 "and that the residence entitlement expired on 15 December 2011." In fact the words which I have put in quotation marks did not appear in the latter document.
33. Nonetheless Mr Karim submitted in oral argument that the Claimant never disputed the statement twice made by the Defendant to the German authorities (in the Article 21 request for information dated 11 January 2012 and the 22 February request for Germany to accept responsibility) that she had a residence permit which did not expire until 15 December 2011. Indeed that assertion originated from the Claimant herself. (In fact, as I have pointed out, the statement in the 11 January 2012 request for information referred to a visa and not a residence permit having expired on 15 December 2011.) That being so even if Article 9(4) was not complied with because the Claimant had left Germany for Iran, Article 9(1) was complied with. Thus in fact there was no breach of the Dublin II Regulation. Alternatively Germany having accepted responsibility it was too late for the Claimant to challenge the decision of Germany to consider her asylum application. Alternatively even if the decision of the Defendant to decline to consider the Claimant's asylum application were quashed on the ground that Article 9(4) was not complied with, the decision as to which Member State was responsible for considering her asylum application would fall to be made by reference to Article 9(1) which would still point to Germany.
34. At the first hearing Mr Karim appeared to accept that Article 9(4) did not apply because the Claimant had asserted that she had left Germany for Iran and that assertion had not been challenged by Germany. Ms Busch did not accept that Article 9(4) did not apply. Whether it did or did not apply, however, she submitted was irrelevant for the reasons referred to below but in addition because if the Claimant wished to challenge the decision of Germany to accept responsibility under Article 9(4) her only recourse would be to challenge the decision of the German authorities. The relevant decision in relation to Article 9(4) was that of Germany not that of the Defendant who was perfectly within her rights, having passed on the Claimant's assertion that she had left Germany for Iran, to leave the ball in Germany's court. If Germany, in knowledge of the Claimant's assertion, nonetheless accepted responsibility, whether under Article 9(4) or Article 9(1), that was a matter for Germany and not for the Defendant.
35. In supplemental written submissions Ms Busch made the alternative submission that Article 9(4) applies paragraph 1 (as well as paragraphs 2 and 3) of Article 9 in circumstances in which the conditions comprised by Article 9(4) are satisfied so that both Article 9(4) and Article 9(1) (by virtue of Article 9(4)) apply with respect to the Claimant and they are not mutually exclusive. (That was on the basis that she submitted that the Claimant's residence permit (as distinct from visa) expired on 15 December 2011). In fact that is correct as regards the first paragraph of Article 9(4) if the Claimant had a residence document which expired less than two years or a visa which expired less than six months before she applied for asylum on 27 November 2011, but not if she left Germany for Iran. As regards the second paragraph of Article 9(4) if the Claimant had a residence document which expired more than two years or a visa which expired more than six months before she applied for asylum then the United Kingdom would be responsible either pursuant to Article 9(4) paragraph 2 if she had not left Germany for Iran or, if she had left Germany for Iran, because, even though Article 9(4) would not apply, the United Kingdom would be responsible by reason of Article 13. Under Article 13 where no Member State responsible for examining the application for asylum can be designated on the basis of the criteria listed in the Dublin II Regulation the first Member State with which the application was lodged shall be responsible for examining it.
36. The Defendant had a more root and branch objection to the claim as a matter of principle. Although it was accepted that the Dublin II Regulation is directly applicable in the United Kingdom, in that domestic legislation is not required in order to give it the force of law in the domestic context, the Defendant submitted that it does not confer rights on individuals, including in particular rights which are enforceable in the domestic Courts.
37. Further the Defendant submitted that alleged breaches of the Dublin II Regulation are not actionable by an individual asylum seeker. The purpose and effect of the Dublin II Regulation is confined to regulating the relationship between two or more Member States and providing as between them a speedy mechanism for allocating responsibility for considering asylum applications.
38. Reliance was placed on a considerable number of domestic authorities which were said to provide overwhelming support for these propositions. By contrast no decision of the European Court of Justice requires a contrary conclusion.

The Dublin II Regulation

What I refer to in this judgment as the Dublin II Regulation is

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 a third-country national

39. Among the recitals are the following:

Whereas:

(1) A common policy on asylum, including a Common European Asylum

System, is a constituent part of the European Union's objective of

progressively establishing an area of freedom, security and justice open

to those who, forced by circumstances, legitimately seek protection in

the Community.

(2) The European Council, at its special meeting in Tampere on 15 and 16 October 1999, agreed to work towards establishing a Common European Asylum System, based on the full and inclusive application of the Geneva Convention relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967, thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non-refoulement. In this respect, and without affecting the responsibility criteria laid down in this Regulation, Member States, all respecting the principle of non-refoulement, are considered as safe countries for third-country nationals.

(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.

(16) Since the objective of the proposed measure, namely the establishment of

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, cannot be sufficiently achieved by the Member

States and, given the scale and effects, can therefore be better achieved at

Community level, the Community may adopt measures in accordance

with the principle of subsidiarity as set out in Article 5 of the Treaty. In

accordance with the principle of proportionality, as set out in that Article,

this regulation does not go beyond what is necessary in order to achieve

that objective.

40. The Dublin II Regulation contains the following relevant provisions

SUBJECT-MATTER AND DEFINITIONS

Article 1

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

For the purposes of this Regulation:

(j) 'Residence document' means any authorisation issued by the authorities of a

Member State authorising a third-country national to stay in its territory,

including the documents substantiating the authorisation to remain in the territory

under temporary protection arrangements or until the circumstances preventing a

removal order from being carried out no longer apply, with the exception of visas

and residence authorisations issued during the period required to determine the

responsible Member State as established in this regulation or during examination

of an application for asylum or an application for a residence permit;

(k) 'visa' means the authorisation or decision of a Member State required for

transit or entry for an intended stay in that Member State or in several Member

States….

[As mentioned in paragraph 9 of this judgment in my judgment the definition of

'residence document' in Article 2(j) includes a visa. That is because it is implicit

in the need to except from the definition a particular kind of visa, namely one

issued that is issued during the period required to determine the responsible

Member State or during examination of an application for asylum or an

application for a residence permit, the implication being that otherwise visas are

considered to fall within the definition of residence document. I appreciate that

Article 9(1) and Article 9(2) deal separately with the position of an asylum seeker

who is in possession of a valid residence document and one who is in possession of a valid visa, which might suggest that a visa is not a residence document. However the two may be reconcilable on the basis that a residence document includes but is not confined to a visa and that where an asylum seeker is in possession of a valid visa Article 9(2) applies if and insofar as it identifies a different Member State to that identified under Article 9(1).]

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 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.

Article 4

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….

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.

CHAPTER III

HIERARCHY OF CRITERIA

Article 5

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.

Article 6

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.

Article 9

1. Where the asylum seeker is in possession of a valid residence document, the Member State which issued the document shall be responsible for examining the application for asylum.

2. Where the asylum seeker is in possession of a valid visa, the Member State which issued the visa shall be responsible for examining the application for asylum, unless the visa was issued when acting for or on the written authorisation of another Member State. In such a case, the latter Member State shall be responsible for examining the application for asylum. Where a Member State first consults the central authority of another Member State, in particular for security reasons, the latter's reply to the consultation shall not constitute written authorisation within the meaning of this provision.

3. Where the asylum seeker is in possession of more than one valid residence document or visa issued by different Member States, the responsibility for examining the application for asylum shall be assumed by the Member States in the following order:

(a) the Member State which issued the residence document conferring the right to the longest period of residency or, where the periods of validity are identical, the Member State which issued the residence document having the latest expiry date;

(b) the Member State which issued the visa having the latest expiry date where the various visas are of the same type;

(c) where visas are of different kinds, the Member State which issued the visa having the longest period of validity, or, where the periods of validity are identical, the Member State which issued the visa having the latest expiry date.

Where the asylum seeker is in possession only of one or more residence documents which have expired less than two years previously or one or more visas which have expired less than six months previously and which enabled him actually to enter the territory of a Member State, paragraphs 1, 2 and 3 shall apply for such time as the applicant has not left the territories of the Member States.

Where the asylum seeker is in possession of one or residence documents which have expired more than two years previously or one or more visas which have expired more than six months previously and enabled him actually to enter the territory of a Member State and where he has not left the territories of the Member States, the Member State in which the application is lodged shall be responsible.

Article 10

1. Where it is established, on the basis of proof or circumstantial evidence as described in the two lists mentioned in Article 18(3), including the data referred to in Chapter III of Regulation (EC) No 2725/2000, that an asylum seeker has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State thus entered shall be responsible for examining the application for asylum. This responsibility shall cease 12 months after the date on which the irregular border crossing took place.

Article 13

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.

Article 15

1. Any Member State, even where it is not responsible under the criteria set out in this Regulation, may bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. In this case that Member State shall, at the request of another Member State, examine the application for asylum of the person concerned. The persons concerned must consent.

CHAPTER V

TAKING CHARGE AND TAKING BACK

Article 16

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;

2. Where a Member State issues a residence document to the applicant, the obligations specified in paragraph 1 shall be transferred to that Member State.

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

Article 17

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.

2. Where the request to take charge of an applicant is not made within the period of three months, responsibility for examining the application for asylum shall lie with the Member State in which the application was lodged.

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.

Article 18

1. The requested Member State shall make the necessary checks, and shall give a decision on the request to take charge of an applicant within two months of the date on which the request was received.

2. In the procedure for determining the Member State responsible for examining the application for asylum established in this Regulation, elements of proof and circumstantial evidence shall be used.

7. Failure to act within the two-month period mentioned in paragraph 1 and the one-month period mentioned in paragraph 6 shall be tantamount to accepting the request, and entail the obligation to take charge of the person, including the provisions for proper arrangements for arrival.

Article 20

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 subparagraph (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;

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.

Article 21

1. Each Member State shall communicate to any Member State that so requests

such personal data concerning the asylum seeker as is appropriate, relevant and

non-excessive for:

(a) the determination of the Member State responsible for examining the application for asylum;

(b) examining the application for asylum;

(c) implementing any obligation arising under this Regulation.

2. The information referred to in paragraph 1 may only cover:

(b) identity and travel papers (references, validity, date of issue, issuing authority,

place of issue, etc.);

(c) other information necessary for establishing the identity of the applicant,

including fingerprints processed in accordance with Regulation (EC) No

2725/2000;

(d) places of residence and routes travelled;

(e) residence documents or visas issued by a Member State;

(f) the place where the application was lodged;

(g) the date any previous application for asylum was lodged, the date the present application was lodged, the stage reached in the proceedings and the decision taken, if any.

3. Furthermore, provided it is necessary for the examination of the application for asylum, the Member State responsible may request another Member State to let it know on what grounds the asylum seeker bases his application and, where applicable, the grounds for any decisions taken concerning the applicant. The Member State may refuse to respond to the request submitted to it, if the communication of such information is likely to harm the essential interests of the Member State or the protection of the liberties and fundamental rights of the person concerned or of others. In any event, communication of the information requested shall be subject to the written approval of the applicant for asylum.

4. Any request for information shall set out the grounds on which it is based and, where its purpose is to check whether there is a criterion that is likely to entail the responsibility of the requested Member State, shall state on what evidence, including relevant information from reliable sources on the ways and means asylum seekers enter the territories of the Member States, or on what specific and verifiable part of the applicant's statements it is based. It is understood that such relevant information from reliable sources is not in itself sufficient to determine the responsibility and the competence of a Member State under this Regulation, but it may contribute to the evaluation of other indications relating to the individual asylum seeker.

5. The requested Member State shall be obliged to reply within six weeks.

41. The concluding words of the Dublin II Regulation are as follows:

This Regulation shall be binding in its entirety and directly applicable in the Member States in conformity with the Treaty establishing the European Community.

Discussion

41. Mr Jagadesham was under no illusion as to the formidable obstacles in his path in the form of the authorities relied on by Mr Karim and Ms Busch. Nonetheless with erudition, subtlety and no little persuasiveness he energetically set about the task of seeking to overcome the obstacles. I have considered his oral and written submissions with great care but, despite the attractive and persuasive manner in which they were advanced, I find myself unable to accept them for the reasons which I now set out.

The Travaux Preparatoires and The Recitals

42. Before turning to the provisions of the Dublin II Regulation and the English and European authorities it is convenient to look to the recitals of the provisions of the Regulation and the travaux preparatoires in search of clues as to whether it was intended to confer rights on individual asylum seekers or others, as Mr Jagadesham submitted, or whether, as Mr Karim and Ms Busch submitted, it was intended to be confined to providing a mechanism, binding on the Member States, for the Member States conveniently and speedily to allocate the responsibility, as between themselves, for examining asylum applications.
43. As to the travaux preparatoires, in COM(2001) 447 Final, issued on 26^th July 2001, the European Commission set out the purposes of what became the Dublin II Regulation. Those included:

"to ensure that asylum seekers have effective access to procedures for determining refugee status to prevent abuse of asylum procedures in the form of multiple applications; to close loop holes in Dublin Convention; to ensure that the Member State responsible will be ascertained as quickly as possible; and to increase the system's effectiveness." (See paragraph 2.1).

44. Paragraph 2.2 of COM (2001) 447 Final stated that, in order to take the lessons of the past on board, the proposal included:

"new provisions emphasising each Member State's responsibility vis a vis all its partners… when it allows illegal residents to remain on its territory" (emphasis added).

and that the provisions on Member States' obligations:

"are being examined with a view to determining which Member State is responsible only insofar as those provisions affect the course of proceedings between Member States or are necessary to ensure consistency with the proposal for a directive on procedures for granting and withdrawing refugee status" (emphasis added).

45. In R (J) v Secretary of State [2009] EWHC 1182 (Admin) Cranston J concluded that

"It is clear from the background material and from Dublin II itself that there is no intention that individual asylum seekers should derive rights from Article 20" (at [21]).

46. In YZ and others v The Secretary of State for the Home Department [2011] EWHC 205 (Admin) Beatson J, as he then was, having quoted a passage from Cranston J's judgment in R (J) v Secretary of State which included the extract cited above, said that he respectfully agreed with Cranston J's analysis of both the scope of the decision in the Migrationsverket case considered by Cranston J and the effect of agreements between Member States to reassign responsibility. He said that the judgment of the ECJ in that case did not suggest that the approach taken in the courts of England and Wales had been put into question. That approach he had earlier described as being based on the proposition that, absent Wednesbury unreasonableness or a breach of an individual's human rights, alleged breaches of the Dublin II Regulation are not actionable by an individual claimant. Moreover, in those cases, it is not the breach of the Regulation in itself which gives rise to the claim, but the breach of a norm of domestic public law (the Wednesbury principle) or of the European Convention on Human Rights. ([70] and [58]).
47. I respectfully agree with both Cranston J and Beatson J as he then was. In particular the words "only insofar as those provisions affect the course of proceedings between Member States" in paragraph 2.2 of Com (2001) 447 final are to my mind powerful support for the proposition that the intention was that the Dublin II Regulation should not confer rights on individuals and that it was not intended that alleged breaches of the provisions of the Dublin II Regulation should be actionable at the suit of asylum seekers or other individuals.
48. As to the Regulation itself, it is described as "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." That is on its face in my judgment an essentially administrative function, which is, as appears from the Recitals, designed to promote and facilitate the speedy and efficient allocation as between the Member States of responsibility for examining applications for asylum.
49. The third recital identifies the objective of providing for a "clear and workable method for determining the Member State responsible for the examination of an asylum application." Again in my judgment that is not suggestive of an intention to create new rights on individuals to insist on their application for asylum being examined by a particular Member State.
50. The fourth recital states that "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 compromise the objective of the rapid processing of the asylum application." Although it is true that there is there reference to the need for criteria to be objective and fair not only for the Member State but also for the persons concerned, in my judgment it does not follow from that that the intention was to confer rights on persons concerned to insist upon the application of the criteria set out in the Regulation. Rather the fourth recital again emphasises the policy and administrative purpose of the Regulation, namely to enable the rapid determination of the Member State to be responsible in any particular case.
51. Recital 16 identifies the objective of the Regulation as being the establishment of 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. Again that is not an objective in my judgment suggestive of the creation of new enforceable rights on asylum seekers or other individuals. The preamble further explains that since that objective cannot be sufficiently achieved by the Member States and, given the scale and effects, can therefore be better achieved at Community level, the Community may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty and in accordance with the principle of proportionality as set out in that Article the Regulation does not go beyond what is necessary in order to achieve that objective. Again in my judgment the latter sentence argues against any intention to create or confer on asylum seekers or other individuals new rights or to render actionable at the suit of such individuals alleged breaches of provisions of the Regulation. Had the Regulation done so that might well have gone beyond what was necessary in order to achieve the stated objective.
52. In R(Chen) v Secretary of State [2008] EWHC 437 (Admin) Silber J outlined the purpose of the Dublin II Regulation as follows:

" 2. Before members of the European Community made the Dublin Regulations II (sic) and its predecessor treaty, there were untold problems in the United Kingdom about which country should be responsible for handling the asylum claim of a person who had been refused asylum previously in another European country before applying for asylum in the United Kingdom. The objectives of the Dublin Regulation II and its predecessor treaty were to remedy this disturbing state of affairs and this is shown in the full title of the Dublin Regulation II which explains that its purpose is of "establishing the criteria and mechanism for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third country national." "

The Provisions of the Dublin II Regulation

53. Article 1 of the Dublin II Regulation provides that the 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. I repeat that in my judgment on its face that is descriptive of an instrument whose purpose, function and effect is confined to laying down an administrative system to enable the Member States as between themselves easily and rapidly in any particular case to identify and determine which Member State should be responsible for examining a particular application for asylum. It is not in my judgment suggestive of an instrument whose purpose or effect was to confer or create new rights on asylum seekers or other individuals.
54. Article 3 provides that an application made at the border or in the territory of any Member State for asylum shall be examined by a single Member State which shall be the one which the criteria set out in Chapter III indicate is responsible.
55. Article 3(2) provides by way of derogation from paragraph 1 that 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 the Regulation. In that event that Member State shall become the Member State responsible within the meaning of the Regulation and shall assume the obligations associated with that responsibility. I observe in passing that Mr Jagadesham made the point that Article 3(2) is the only provision in the Regulation which makes explicit provision for a Member State voluntarily to assume responsibility for examining an application for asylum even where such examination is not its responsibility under the criteria laid down in the Regulation and that it applies only in the case of the Member State with which an asylum application is lodged. In this case that is the United Kingdom and not Germany. Thus he submitted with force that there is no explicit provision in the Regulation for a Member State with whom an asylum application is not lodged (Germany in this case) voluntarily to assume responsibility where such responsibility does not arise under the criteria laid down in the Regulation.
56. Chapter III of the Regulation which is headed "Hierarchy of Criteria" sets out the criteria for determining the Member State responsible for examining asylum applications. Article 13 provides that where no member state can be designated on the basis of the criteria listed in the Regulation the first Member State with which the application for asylum was lodged shall be responsible for examining it. Taken together with the limited provision for the voluntary assumption of responsibility set out in Article 3(2), Mr Jagadesham submitted that Article 13 shows that the criteria set out in Chapter III and the default position set out in Article 13 exclude the possibility of a Member State other than that with which an asylum application is first lodged voluntarily assuming responsibility where such responsibility is not prescribed by the hierarchy of criteria. Thus, he submitted, if Germany did not acquire responsibility by reason of Article 9(1) or Article 9(4) it could not, even by voluntary act, assume responsibility for dealing with the Claimant's application for asylum consistently with the provisions of the Regulation.
57. While I see the logical force of that submission, it does not in my judgment address the critical questions whether in such a circumstance an asylum seeker in the position of the Claimant has a right under the Convention to insist that her application is determined by the Member State identified by the application of the hierarchy of criteria and/or Article 13 and whether a failure by the Member State so identified to accept responsibility and a decision by that Member State to decline to consider her application for asylum is actionable at the suit of the asylum seeker.

The English Authorities

58. In R(YZ) and others v Secretary of State Beatson J conducted a thorough examination of the authorities under the rubric: "Can individuals rely on breaches of Dublin II, and if so, in what circumstances?" Since most of the authorities to which he referred were relied on by either the Claimant or the Defendant in this case it is, I hope, convenient to start by setting out that review in extenso and then to comment on particular points arising in particular authorities relied on by the parties:

"53 I first address what Mr Mandalia referred to as a preliminary point. Although preliminary, it is in a sense fundamental. It is whether the claimants' cases fall within the limited situations in which alleged breaches of the Dublin II Regulation are directly actionable by an individual. Mr Bedford submitted that, notwithstanding the approach taken in the cases, they do. He has made similar submissions in a number of the cases to which I will refer. His starting point is the direct applicability of the criteria in the Dublin II Regulation : on which see Omar v Secretary of State for the Home Department [2005] EWCA Civ 285 . In Case C-253/00 Munoz y Cia SA v Frumar Ltd and Redbridge Produce Marketing Ltd [2002] ECR 1-7289 at [27], the European Court of Justice (hereafter "ECJ) stated:

"…regulations have general application and are directly applicable in all Member States. Accordingly, owing to their very nature and their place in the system of sources of Community law, regulations operate to confer rights on individuals which the national courts have a duty to protect."

54 Mr Bedford relied on the only decision of the ECJ on the Dublin II Regulation, C-19/08 Migrationsverket v Petrosian [2009] 2 CMLR 33, in which the judgment of the Fourth Chamber was handed down on 29 January 2009. He recognised that the case, a reference for a preliminary ruling by the Kammarräten I of the Migrationsöverdomstolen (the Court of Appeal in Immigration Matters) in Stockholm, was primarily concerned with the point from which a suspension pursuant to Article 20 of the Regulation began for the purposes of the timetable for a transfer under the Regulation. But he submitted that the ECJ's judgment proceeded on the basis that the Regulation does have direct effect and give individual rights. In doing so, he argued that the decision of Cranston J in R (J) v Secretary of State [2009] EWHC 1182 (Admin), to which I shall return, was wrong.

55 The next stage in Mr Bedford's argument was the submission that, since it has been contemplated, for example, by Laws LJ in R (AA (Afghanistan)) v Secretary of State [2006] EWCA Civ 1150 [14], [16] and [21], that a challenge by an individual on Wednesbury or Human Rights grounds might lie where the provisions of the Dublin II Regulation have been applied properly, the position where there has been a breach of those provisions is a fortiori. Article 20(1)(e) requires the requesting Member State to inform the applicant for asylum of the decision, and to set out the grounds on which the decision is based and details of the time limit on carrying out the transfer. It also expressly contemplates an appeal or review of the Member State's decision concerning his being taken back by the Member State responsible and provides for the effect of such appeal or review on the timetable. That provision, Mr Bedford submitted, assumes the individual may have rights. Why, he asked, should there be an appeal or review at all if the individual has no rights.

56 He illustrated this submission by reference to AA (Somalia) [2006] EWCA Civ 1540 at [21], decided three weeks before AA (Afghanistan). In AA (Somalia) consideration was given to the point in time by reference to which the question under Article 6 of the Dublin II Regulation whether an unaccompanied minor has a family member present in a particular Member State was addressed. The consequence of finding a family member present at the relevant time is to make that State responsible for examining the minor's application for asylum. Laws LJ stated that consideration of this point in time may be logically prior to consideration of whether a family member is present in that State. Mr Bedford accepted the issue that arose in AA (Somalia) does not arise in the present case, but asked how the position of an unaccompanied minor would be protected against transfer contrary to the provisions of Article 6 without a right to institute proceedings.

57 Mr Bedford also relied on the fact that the Eurodac regulation confers rights on the individual whose fingerprints are said to be matched with fingerprints taken in another Member State. Those rights include the right to request that factually incorrect data are corrected. In YI (Previous claims – fingerprint match – Eurodac) Eritrea v Secretary of State for the Home Department [2007] UKAIT 00054, the Asylum and Immigration Tribunal stated that an Immigration Judge hearing an appeal needs to be satisfied on the specific evidence in the particular case, including, if available, evidence of a match on the Eurodac system, whether the appellant has made a previous claim. The Tribunal (Hodge J and Batiste SIJ) stated (at [15]) that an Immigration Judge will, as a matter of fairness, need to be satisfied that the appellant has had the facility to access information about the assertion against him that would enable him "to make a meaningful forensic rebuttal beyond mere denial". Mr Bedford submitted that without direct rights to the information the individual is not able to do so.

58 I reject these submissions. The statement in YI (Previous claims – fingerprint match – Eurodac) Eritrea was made in an entirely different context and the Asylum and Immigration has since taken a different view on the particular issue: see [100] – [102]. Moreover, there is a formidable body of case law, including a number of decisions of the Court of Appeal, which is contrary to them. Those cases proceed on the basis that, absent Wednesbury unreasonableness or a breach of an individual's Human Rights, although the Dublin II Regulation is directly applicable in Member States, alleged breaches of it are not actionable by an individual claimant. Moreover, in those cases, it is not the breach of the Regulation in itself which gives rise to the claim, but the breach of a norm of domestic public law (the Wednesbury principle) or of the European Convention on Human Rights.

59 In AA (Somalia) the court rejected the submission that a claimant was entitled to a second screening process in which hierarchy criteria in the Regulation are considered. It did so in the light of the decisions of Wilson J and the Court of Appeal in R (G) v Secretary of State [2004] EWHC Admin 2848 and [2005] EWCA Civ 546 In the Court of Appeal in G's case, Maurice Kay LJ stated (at [25]) that "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". In AA (Somalia) Laws LJ, who gave the main judgment, stated (at [29] – [30]) that was the context in which the Regulation "advisedly located consideration of new found or lately discovered facts" (in that case a possible family member of an unaccompanied minor in the United Kingdom). The remedy was not a direct right but the ability to submit to the Member State first approached that it make a request to the United Kingdom pursuant to Article 15. Maurice Kay LJ gave a concurring judgment.

60 In AA (Somalia) the court (at [53] and [59]) did grant permission to challenge removal directions on a ground based on expiry of the time limit under Article 20. This ground, however, emerged only on the morning of the hearing and counsel for the Secretary of State was not in a position to deal with it. In giving permission on that single ground Laws and Maurice Kay LJJ said nothing to qualify what was said about directly actionable personal rights in the earlier part of their judgments.

61 In AA (Afghanistan) [2006] EWCA Civ 1550 , Laws LJ, with whom May and Gage LJJ agreed, stated at [13]:

"I certainly accept in general terms that an asylum claimant cannot challenge (save perhaps on Human Rights grounds) the allocation of responsibility between states for the determination of his claim where that has been effected by proper application of Dublin I or II."

He qualified this statement by recognising that there might be a challenge on Wednesbury grounds where there had been, as there was in that case, a gross breach of the time limit for completing a transfer but the receiving state continued to accept responsibility for the claim. His Lordship was thus dealing not only with the situation where there had been a proper application of the Dublin process but also with a breach. Nevertheless, and contrary to Mr Bedford's a fortiori submission, he only contemplated a direct challenge on Wednesbury and Human Rights grounds.

62. The third Court of Appeal decision is that in R (MK (Iran)) v Secretary of State [2010] EWCA Civ 115 . In that case it was submitted, also by Mr Bedford, that MK had derived an unconditional right pursuant to Article 16(1)(b) of the Dublin II Regulation to the completion of the examination of his asylum application by the Secretary of State. The submission was rejected. Carnwath LJ stated (at [42]) that "the Regulation is concerned with the allocation of responsibility as between States, not the creation of personal rights". His Lordship recognised that "it may be" that "a claimant threatened with removal from the country which has responsibility under the Regulation, has an enforceable right to prevent his removal to another country before his claim is determined". But, he continued, "there is nothing in the Regulation…which can be said to create a personal right to have the claim determined within any particular time. That is not its purpose."

63. Mr Bedford submitted that Carnwath LJ's statement was per incuriam because the decision in Omar v Secretary of State [2005] EWCA Civ 285 was not considered. In Omar 's case the Court of Appeal held that the criteria but not the mechanisms in the Dublin I Convention, had direct effect during the transitional period before the Dublin II Regulation was fully in force. Chadwick LJ stated (at [35]) that he would have been prepared to hold that Article 29 of the regulation gave an asylum seeker a direct right to require State A to call upon State B to take charge and, if State B accepted the obligation to take charge, to transfer him to State B. But the point did not arise in that case and there is no inconsistency between the decision and Carnwath LJ's statement in (MK (Iran))'s case. Carnwath LJ's statement is, moreover, entirely consistent with the approach in AA (Somalia) and AA (Afghanistan).

64. The last Court of Appeal case is Mota v Secretary of State [2006] EWCA Civ 1380. When refusing permission to appeal, Pill LJ (with whom Moses LJ agreed) took the same approach. Burton J had decided ([2006] EWHC 1182 (Admin) that once there

had been acceptance of a transfer application the applicant for asylum is not entitled to challenge the transfer and that the Dublin II Regulation conferred no rights upon individuals to challenge decisions between States, notwithstanding that the Regulation is directly applicable in Member States. The decisions of Silber J in R

(Chen) v Secretary of State [2008] EWHC 437 (Admin) at [30] and [35], and of Christopher Symons QC in R (Haedare) v Secretary of State [2009] EWHC 3444 (Admin) are to the same effect.

65. Finally, I come to the decision in R (J) v Secretary of State [2009] EWHC 1182 (Admin) and its consideration of the ECJ's judgment in Migrationsverket v Petrosian. By the time J's case came before Cranston J, it was largely academic because the claimant had not been removed and had indeed been granted asylum in the United Kingdom. Cranston J (at [19]) rejected the submission that, in the light of the ECJ's decision, after the six month period in Article 20 of the Dublin II Regulation had passed, it was unlawful for the Secretary of State to remove a claimant.

66 In the Migrationsverket case members of the Petrosian family applied for asylum in Sweden. On examination of their application it became apparent to the relevant Swedish authority (the Migrationsverket) that the family had earlier applied for asylum in France: see ECJ judgment at [16]. The Migrationsverket requested the French authorities to take back the members of the family. The family appealed against the decision of the Migrationsverket and claimed that their asylum claim should be examined in Sweden. On 23 August 2006 a County Administrative Court stayed the transfer pending its final decision, which it made on 8 May 2007. It dismissed the family's appeal and ordered that the suspension should no longer apply.

67 The family appealed to the Kammarräten I of the Migrationsöverdomstolen (the Court of Appeal in Immigration Matters). On 10 May that court stayed execution pending its final decision, which it gave on 16 May, when it set aside the judgment of the County Administrative Court. It did so on the ground of procedural error relating to the composition of the bench, and referred the case back. It also ordered that the decision to transfer the family was not to be carried out before the County Administrative Court had given its final judgment.

68 The County Administrative Court made a fresh decision on 29 June 2007. It annulled the decision of the Migrationsverket on the ground that the six month period in Article 20 of the Dublin II Regulation had expired. The County Administrative Court held that time ran from the time of the provisional judicial decision suspending the implementation of the transfer procedure and not from the time of the judicial decision on the merits. The Migrationsverket appealed against that decision and the Court of Appeal in Immigration Matters referred the issue for a preliminary ruling to the ECJ. The ECJ held that Article 20 was to be interpreted as meaning that the time for implementation of a transfer ran from the time of the judicial decision which ruled on the merits of the procedure.

69 Cranston J rejected the submission made on behalf of J on the basis of the Migrationsverket case. He considered that the ECJ had directed itself only to the issue of how the time limits in the Dublin II Regulation are to be calculated and did not question the annulment decision of the County Administrative Court. He stated (at [21]) that:

"The time limits in Article 20 are applicable as between the States concerned. A country's obligations are discharged once the six month period has elapsed subject to any extension. It is clear from the background material and from Dublin II itself, that there is no intention that individual asylum seekers should derive rights from Article 20…If [the requested State] had refused to accept the claimant on the basis that time periods had lapsed and the United Kingdom demurred, that would have been a matter of dispute between [the requested State] and the United Kingdom. Conversely, if [the requested State] agreed to process the claimant's claim, notwithstanding the time limits were exceeded, that was a matter for [the requested State], notwithstanding the normal application of the provisions. Indeed, as indicated, Article 3(2) enables a Member State to accept responsibility to deal with an asylum claim, notwithstanding that it has no obligations to do so. In neither case could the claimant have objected. Dublin II gives rise to obligations between Member States; it does not confer claims on individual asylum seekers."

He reiterated at [32] that the time limits in the Dublin II Regulation "do not confer any individual right on the claimant: rather, they give rise to claims between Member States of the European Union".

70 I respectfully agree with Cranston J's analysis of both the scope of the decision in the Migrationsverket case and the effect of agreements between Member States to reassign responsibility. The question referred to the ECJ was not whether breach of the Dublin II Regulation conferred rights on individuals, and the judgment of the ECJ does not suggest that the approach taken in the courts of England and Wales has been put into question. Both the written observations of eight Member States and the European Commission ([2009] EWHC 1182 (Admin) at [30] – [31]) and the ECJ (judgment, [41]) focused on the practicality of the periods, the undesirability of national appeal remedies being truncated or having the consequence that requesting States would automatically be responsible, and the risk of abuse by applicants for asylum aiming to produce that consequence. I note that in R (Vatheesan) v Secretary of State [2009] EWHC 3727 (Admin), while HH Judge Bidder QC gave permission to apply for judicial review on the basis of Migrationsverket v Petrosian , he did not refer to the decision in J 's case, which may not have been cited to him."

59. Beatson J concluded his review by setting out the travaux preparatoires to which I have referred which, as I have already said, he held gave no support for what he called "the contrary proposition". ([71] and[72]).
60. In my judgment Beatson J's analysis of the English and European authorities referred to in his review as well as his own conclusions based on his construction of the Dublin II Regulation in the light and with the aid of the travaux preparatoires are entirely at odds with Mr Jagadesham's submissions. In particular I would draw attention to the following points.
61. First Beatson J reached the clear and unequivocal general conclusion that absent Wednesbury unreasonableness or a breach of an individual's Human Rights, alleged breaches of the Dublin II Regulation are not actionable by an individual claimant. [58].
62. Second there is a formidable body of case law including a number of decisions on the Court of Appeal which proceed on that basis. [ibid].
63. Third in reaching those conclusions Beatson J took into account the decisions of the European Court of Justice ("ECJ") in Munozy Cia SA and the statement of the ECJ in that case that regulations operate to confer rights on individuals which the national courts have a duty to protect. [53]. In doing so he plainly concluded that that statement by the ECJ did not compel a contrary conclusion to that which he reached and which in his judgment was the basis on which the English authorities to which he referred proceeded.
64. Fourth in reaching that conclusion he also concluded that the decision of the ECJ in the Migrationsverket case did not compel a contrary conclusion. That is because he concluded that the question referred to the ECJ in that case was not whether breach of the Dublin II Regulation conferred rights on individuals and that the judgment of the ECJ in that case does not suggest that the approach taken in the courts of England and Wales has been put into question. [70].
65. Fifth in R(MK (Iran)) Carnwath LJ held that the Dublin II Regulation is concerned with the allocation of responsibility as between Members States, not the creation of personal rights: see paragraph 40 referred to in paragraph 62 of Beatson J's judgment. Smith LJ at paragraph 68 agreed that the appeal must be dismissed inter alia for the reasons given by Carnwath LJ, which are therefore binding on this court. I would add that, in addition to his particular conclusion that there was nothing in the Dublin II Regulation which could be said to create a personal right to have the claimant's claim in that case determined within any particular time, a conclusion specifically referable to a construction of Article 16(1)(b), Carnwath LJ reached a broader conclusion that the Dublin II Regulation as a whole is concerned with the allocation of responsibility as between Member States and not the creation of personal rights. [62].
66. I would further add that immediately after the passage in his judgment quoted by Beatson J, Carnwath LJ approved the conclusion reached by Cranston J in the judgment under appeal in that case that:

"The system is designed to prevent asylum shopping and at the same time to ensure that each asylum applicant's case is processed by only one Member State". [42].

There is in my judgment a fundamental inconsistency between the proposition that the Regulation is designed to prevent asylum shopping and the proposition that at the same time the Regulation was intended to confer rights on asylum seekers to require a particular Member State to examine their asylum application.

67. Mr Jagadesham pointed to the fact that the Court of Appeal in R (MK (Iran)) was dealing with the limited question of an asserted right on the part of the asylum seeker to have his asylum application dealt with in a particular timeframe and submitted that the conclusions of the court to which I have referred were of no wider application than that narrow context. I do not accept that submission and, as appears from paragraph 62 of Beatson J's judgment, neither did he. It is plain that he read Carnwath LJ's dicta as being intended to lay down a general conclusion that the Dublin II Regulation is concerned with the allocation of responsibility as between Member States and not the creation of personal rights. That emerges too in my judgment from paragraph 63 of Beatson J's judgment in which he explained why in his opinion the decision in Omar v Secretary of State is not inconsistent with Carnwath LJ's statement in R (MK(Iran)). He also expressed the view in that paragraph that Carnwath LJ's statement is entirely consistent with the approach in AA(Somalia) and AA(Afghanistan). In my judgment his reason for expressing those opinions was that in his judgment, with which I respectfully agree, the general proposition enunciated by Carnwath LJ with which Smith LJ agreed, represents the law and is of general application as regards the Dublin II Regulation.
68. Mr Jagadesham relied on the statement by Carnwath LJ that:

"It may be, as Mr Bedford submits, that a Claimant threatened with removal from the country which has responsibility under the Regulation, has an enforceable right to prevent his removal to another country before his claim is determined."

He submitted that Carnwath LJ thus envisaged the possibility of an asylum-seeker resisting removal on the basis of the fact that the current country in which he is located is the country responsible under the Dublin II Regulation for examining his application for asylum. That he submitted is consistent with the judgment in Omar to which I refer below where he submitted that such a "right" was recognised for example by Latham LJ. In my judgment Carnwath LJ was not in that sentence seeking to resile or derogate from the general statement of principle in the sentence immediately preceding it in which he held that the Regulation is concerned with the allocation of responsibility as between states, not the creation of personal rights. That in my judgment follows both from the express wording of that statement and from paragraph 42 of his judgment read as a whole.

69. Ms Busch submitted that the sentence relied on by Mr Jagadesham is only consistent with the immediately preceding statement of general principle if it was intended to be limited to the right to seek interim relief for example because there might be a Human Rights claim. Whether that is so or not in my judgment the general statement of principle that the regulation is concerned with the allocation of responsibility as between Member States and not the creation of personal rights was expressed in clear and unambiguous language and was intended to be a statement of general application.
70. Nor do I accept Mr Jagadesham's suggested explanation for the sentence on which he relied and the immediately preceding one, namely that the applicant in the case sought to claim damages arising out of a breach of an asserted right to have his asylum claim determined within a particular time period. The implication as I understood it of Mr Jagadesham's submission was that Carnwath LJ was distinguishing between personal rights which he held were not created by the Dublin II Regulation on the one hand and the ability of an asylum seeker to enforce provisions of the Regulation on the other, which he contemplated as a possibility. In my judgment it is clear from the contrast which Carnwath LJ made between the Regulation being concerned with responsibility as between Member States on the one hand and the creation of personal rights on the other that he precisely did not contemplate the possibility of alleged breaches of the provisions of the Dublin II Regulation being actionable at the suit of asylum seekers or other individuals.
71. Sixth in (RG) v Secretary of State [2005] EWCA Civ 546 Maurice Kay LJ, in a judgment with which the other two members of the Court of Appeal agreed, held that

"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".

Mr Jagadesham submitted that that statement was confined to a provision (Article 15) of the Dublin II Regulation which provides the Member State with a discretion to take responsibility for someone on humanitarian grounds and that it is in that limited context that Maurice Kay LJ's statement, which he accepted as correct, should be read.

72. It is true that in the next paragraph of his judgment following that containing the statement to which I have referred Maurice Kay LJ held:

"In the context of the present case, Article 15 gives the authorities in this country discretion to deal with the matter following the request from the Italian authorities. What has in fact happened is that the two Members States are in agreement that G's application should be processed in Italy. It would have been possible, no doubt, for G's advisers to have made representations to the Italian authorities inviting them to request the British authorities to process the application, but they did not do so. However the text of the Article contained nothing that would have empowered G or her advisors to do anything more." (Paragraph 26).

73. It is true that Article 15(1) of the Regulation confers a discretion on the Member State even where it is not responsible under the criteria set out in the Regulation to bring together family members as well as other dependent relatives on humanitarian grounds. On the other hand it also provides that in such a case that Member State shall at the request of another Member State examine the application for asylum of the person concerned provided they consent. Article 15(3) also provides that, if the asylum seeker is an unaccompanied minor who has a relative or relatives in another Member State who can take care of him or her, Member States shall if possible unite the minor with his or relative or relatives unless this is not in the best interests of the minor. That led counsel for the asylum seeker in that case to submit that, taken together with Recital 6 to the Regulation, which states that family unity should be preserved insofar as that is compatible with the other objectives pursued by establishing criteria and mechanisms for determining the Member State responsible for examining asylum application, Article 15 gives rise to something akin to a freestanding legal requirement upon which the applicant could rely. (Paragraph 22). Counsel also relied on paragraph 3.1 of the explanatory memorandum accompanying the original Commission proposal, which later gave rise to the Regulation, which stated:

"This proposal adds a criterion for the purpose of uniting an unaccompanied minor whatever the circumstances with an adult member of his family who is already present in a Member State and is able to take charge of him."

74. In my judgment the thrust of Maurice Kay LJ's statement that the effect of Article 15 is not to confer a freestanding substantive right on individual applicants but is rather to regulate the relationship between two or more Member States goes beyond and is not dependent on the fact that Article 15(1) provides an initial discretion on a Member State to bring together family members even if it is not otherwise responsible under the criteria set out in the Regulation. That in my judgment follows from the contrast made by Maurice Kay LJ, which was the same contrast made by Carnwath LJ in R (MK (Iran), between the conferring of a freestanding substantive right on individual applicants and the regulation of the relationship between two or more Member States. There is nothing specifically referable in that statement to a particular characteristic of Article 15 as distinct from other Articles of the Dublin II Regulation.
75. In AA (Somalia) v Secretary of State for the Home Department [2006] EWCA Civ 1540 at paragraph 29 Laws LJ, in a judgment with which the other two members of the Court of Appeal, including Maurice Kay LJ, agreed, cited Maurice Kay LJ's conclusion in G that:

"The effect of Article 15 is not to confer a freestanding substantive right on individual applicants. Rather, it is to regulate the relationship between two or more Member States."

76. He held that that provided the context in which in his judgment the Dublin II Regulation has advisedly located consideration of new found or lately discovered facts. He said that it was open to the appellant to submit to the Italian authorities in that case that they should act under Article 15. (Paragraph 29). This does not add much to Maurice Kay LJ's conclusion in G since the Court of Appeal was of course bound by its previous decision. Insofar however as it was referred to without qualification or any expression of doubt it is in line with the broad approach adopted in the English cases reviewed by Beatson J in R(MK (Iran)).
77. I turn next to the two decisions of the Court of Appeal on which Mr Jagadesham relied, both of which were referred to by Beatson J in his review of the authorities and neither of which in his judgment compelled the conclusion that the Dublin II Regulation confers rights on individuals or renders alleged breaches of its provisions actionable at their suit.
78. Seventh Omar v The Secretary of State for the Home Department [2005] EWCA Civ 285 was the decision upon which Mr Jagadesham placed the most heavy reliance. In that case an asylum seeker had entered Italy and then proceeded to the United Kingdom. Accordingly there was no dispute that, on the application of the criteria within the then Dublin Convention, known as "Dublin I", Italy was the responsible Member State. In a chapter headed "Transitional Provisions and Final Provisions" Article 29 of the Dublin II Regulation provided that the Member State responsible for examination of an asylum application submitted in the transitional period between the entry into force of the Regulation and six months thereafter should be determined in accordance with the criteria set out in the Dublin Convention. The asylum seeker's application was made within the transitional period. However he argued that the assignment of responsibility was in effect vitiated by the United Kingdom's failure to comply with a time limit specified by Article 11(5) of the Dublin Convention which required that the asylum seeker be transferred to the responsible Member State within one month of its acceptance. The Court of Appeal rejected that argument.
79. There is no doubt that there are dicta in the speeches of two members of the Court of Appeal, Sir Swinton Thomas and Chadwick LJ, which lend support to Mr Jagadesham's submission that the Dublin II Regulation conferred rights on asylum seekers to insist on their application for asylum to be considered by the Member State determined by reference to the criterion specified by application of the hierarchy of criteria set out in the Regulation.
80. However Mr Jagadesham submitted that it went beyond mere dicta. He submitted that Omar held that, at the very least, the criteria in the Dublin II Regulation have "direct effect" and give rise to directly effective rights that can be insisted on by individuals in national courts, their Lordships having used such terminology advisedly in accordance with the extensive ECJ and domestic jurisprudence as to what it means for a provision to have "direct effect". Thus he submitted that in the case of Van Gend en Loos [1963] ECR1 the ECJ held that Article 12 of the EEC Treaty was to be construed as producing direct effect "and [so] creating individual rights which national courts must protect". He submitted that it is trite law that provisions which are directly effective, thus including the criteria under the Dublin II Regulation, are enforceable by individuals in their national courts and that that was recognised by the Court of Appeal in Omar. That he submitted was the ratio decidendi of the decision in Omar which could not be undermined by the subsequent domestic cases, not least because they have been either at the level of the High Court or the Court of Appeal.
81. I do not accept those submissions. It is in my judgment clear that the expressions of opinion on which Mr Jagadesham relied were just that. They did not constitute part of the ratio decidendi of the case.
82. In the lead judgment Sir Swinton Thomas stated at paragraph 6 that the Appellant's claim for judicial review was based on a breach of Article 11.5 of the Dublin Convention which provided that:

"Transfer of the applicant for asylum from the Member State where the application was lodged to the Member State responsible 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 ".

83. Sir Swinton Thomas said that there was no dispute that Italy was the state having first responsibility for examining the Appellant's application for asylum because Italy was the first country he entered. (paragraph 7). He also said that it was common ground between the parties that until the coming into force of the Dublin II Regulation the Dublin Convention had not been incorporated into domestic law. He referred in that regard to the decision of Lord Phillips MR in Zequiri v Secretary of State for the Home Department (CA) [2001] EWCA Civ 342 who summarised the position as follows:

"The provisions as to time in the Dublin Convention are designed to govern the relationship between the parties to it, not to confer rights on applicants for asylum. In the second place the Dublin Convention does not form part of our domestic law and cannot govern the manner in which the 1996 Act operates." (Paragraph11)

84. He said that it was submitted on behalf of the Appellant that the Dublin Convention was given direct effect in domestic law by the Dublin II Regulation, that he was in entitled to rely upon Article 11(5) and that, accordingly, the responsibility for determining his asylum rested with the United Kingdom. He said that the distinction made in the Regulation between criteria and mechanisms was relevant to the decision in the case before the court (paragraph 13). He drew attention to the words at the end of the Dublin II Regulation:

"This Regulation shall be binding in its entirety and directly applicable in the Member States in conformity with the Treaty establishing the European Community."

85. Sir Swinton Thomas said that it was common ground between the parties and settled law that prior to the coming into force of the Dublin II Regulation the Dublin Convention had not been incorporated into domestic law and gave no rights to an individual claimant. Counsel for the Appellant submitted that the Dublin Convention was given direct effect in its entirety during its transitional period, that, accordingly, Article 11(5) thereof was given direct effect and that, because the arrangements to transfer the Appellant were not made within the one month period, he was entitled to have his claim to asylum determined in the United Kingdom. Counsel for the Appellant submitted, correctly according to Sir Swinton Thomas, that it was common ground that Articles 4 to 8 of the Dublin Convention (the criteria) had direct effect and that in certain circumstances (for example Article 11(1) and 19(1) thereof) consequences followed a failure by the receiving state and gave rights to an applicant. He therefore submitted that it would be illogical if consequences did not follow from a breach of Article 11(5) and give rights to the asylum seeker. Otherwise he would be deprived of his rights.
86. Sir Swinton Thomas did not accept those submissions. He said that both the Dublin Convention and the Dublin II Regulation draw a distinction between criteria and mechanisms, and both provide for circumstances in which consequences follow a breach. The distinction between criteria and mechanisms is drawn in the preamble to the Dublin Convention. Article 3(2) defines the criteria as those set out in Article 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 follow. He said that 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.
87. Sir Swinton Thomas said that Article 29 of the Dublin II Regulation requires that the Member State shall determine the application in accordance with the criteria set out in the Dublin Convention but that 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 … 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….

Accordingly I conclude that Mitting J came to the correct conclusion and that reg 29 does not give direct effect to the provisions of art 11(5) conferring rights on the Appellant and I would dismiss this appeal on that ground." (Paragraphs 23 to 24).

88. There is in my judgment nothing in the reasoning relied on by Sir Swinton Thomas for rejecting the Appellant's arguments in support of his appeal which concluded, still less relied upon a conclusion, that the Dublin II Regulation confers on asylum seekers or other individuals rights to insist on their application for asylum being determined by the Member State identified by application of the criteria set out in the Regulation or that alleged breaches of those articles in the Dublin II Regulation which prescribe the criteria by which the responsible Member State is identified are actionable at the suit of asylum seekers or other individuals.
89. Sir Swinton Thomas added:

"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, art 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 art 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 within that country. Article 11(5) in 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." (Emphasis added). (Paragraph 25).

90. Equally there is nothing in that alternative reason for dismissing the appeal which reaches the conclusion or relies on the conclusion to which I have referred above.
91. In a concurring judgment Latham LJ said that he agreed with Sir Swinton Thomas and gave no additional reasons for rejecting the appeal. It follows that in my judgment what I have said about the ratio decidendi of Sir Swinton Thomas applies equally to Latham LJ.
92. Latham LJ added the following observations:

"The only concern that I have is that this construction, which seems to me to be inevitable, would appear to result in a lacuna in the sense that if the criteria which are directly applicable are met, there would appear to be no means of giving effect to the consequences. But that ignores the operation of ordinary principles of administrative law. In the present case the criterion which was met was that Italy was the first country in the European Union which the Appellant had entered. Italy was accordingly the state responsible for examining the application for asylum pursuant to art 6 of the Convention. Accordingly the only "right" which could be relied upon by the Appellant as a result of the relevant provisions of the Convention having direct effect was that Italy should determine his claim. A failure on the part of the United Kingdom authorities to give effect to that "right" would justify an application to the court. But that application would be directed to securing his "right" to having his asylum application dealt with in Italy, not in the United Kingdom. It is unnecessary, therefore, to strain words of the directive in order to give effect to its terms; and in any event, it is no assistance to the Appellant seeking to have his asylum application dealt with in the United Kingdom, which is the purpose of these proceedings." (Paragraph 27).

93. There is no question but that in that passage of his judgment Latham J said that a failure on the part of the United Kingdom authorities to give effect to what he described as a "right" that Italy should determine the Appellant's claim, which he said was a result of the relevant provisions of the Dublin Convention having direct effect, would justify an application by the Appellants to the court. There is however in my judgment equally no doubt but that that opinion was obiter. It formed no part of the reasons for his decision that the appeal should be dismissed which were the reasons given by Sir Swinton Thomas with which Latham LJ expressly agreed. I would also observe that his remarks were addressed to "rights" which he considered were conferred by the transitional provision of Article 29 of the Dublin II Regulation to require compliance with the criteria for determining the responsible Member State not set out in the Dublin II Regulation but set out in the Dublin Convention. I further observe that there appears to have been no argument addressed to the court on behalf of the Secretary of State, unlike in this case, to the effect that the Articles in Chapter 3 of the Dublin II Regulation and Article 13 which prescribe the criteria by reference to which the responsible Member State is to be identified do not confer rights on asylum seekers or other individuals and that alleged breaches thereof are not actionable at their suit.
94. Chadwick LJ also dismissed the appeal but for different reasons. In the course of his judgment he expressed the view that it is clear that the final sentence of the Dublin II Regulation gives the Regulation direct effect in relation to applications lodged after the end of the transitional period. He also expressed the view that the Dublin II Regulation required direct effect to be given to Articles 4 to 8 of the Dublin Convention:

"Nevertheless, as it seems to me, there is force, also, in the submission, advanced by counsel on behalf of the Appellant, that – if (as the Regulation requires in the case of applications lodged during the transitional period) direct effect is to be given to arts 4 to 8 of the Convention – it is necessary to read art 29 of the Regulation in such a way as to avoid a result in which the asylum seeker is denied directly effective rights by a failure by the Member State (state A) with which the application has been lodged to implement the mechanisms which are intended to lead to the member state responsible for examining the application according to the criteria set out in arts 4 to 8 of the Convention (state B) taking charge. To illustrate the point, suppose an asylum seeker, with relevant family members in state B, who has lodged an application in state A during the transitional period. He is entitled to have his application examined by state B – art 4 of the Convention. But, if that right is to be effective: (i) state A must call upon state B to take charge of the applicant – art 11.1 of the Convention; (ii) state B must accept the obligation to take charge – arts 10.1(a) and 11.4; and (iii) the applicant must be transferred from state A to state B – art 11.5. (emphasis added).

For my part, I would be prepared to hold, in a case in which the point arose, that it is necessary to read art 29 of the Regulation in such a way as to give the asylum seeker a direct right to require state A to call upon state B to take charge; and (if state B accepts the obligation to take charge) to transfer him to state B. That is to recognise that art 29 of the Regulation confers on asylum seekers in transitional cases direct rights – under arts 11.1 and 11.5 of the Convention – which are comparable to those conferred by arts 17.1 and 19.3 of the Regulation itself in post-transitional cases. But that does not lead to the conclusion that, in a transitional case, where the asylum seeker has not been transferred from state A to state B within the period of one month for which art 11.5 of the convention provides, he has, thereafter, every right not to be transferred or a right to have his application examined by state A.

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 arts 4 to 8. Article 8 places that responsibility on "the first Member State with 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 the criteria set out in arts 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 art 11 – or elsewhere in the Convention – which corresponds to art 19.4 of the Regulation.

It may well be (as I am inclined to think) that the Appellant has a directly effective right, conferred by Article 11.5 of the Convention read with Art 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 art 11.5 or any other article of the Convention, not to be transferred to Italy against his wishes. It is for that reason that I would dismiss this appeal." (Paras 34 – 37).

95. Chadwick LJ went further than Latham LJ in expressing the view that it was necessary to read Article 29 of the Dublin II Regulation in such a way as to give an asylum seeker a direct right to require one state to call upon another state which was the responsible Member State under the Dublin Convention to take charge and if the latter state accepted the obligation to take charge to transfer him to that state. He also expressed by implication the view that Articles 17.1 and 19.3 of the Dublin II Regulation confer direct rights on asylum seekers in post-transitional cases. As regards the Dublin Convention he was of the view that an asylum seeker was entitled to have his application examined by the Member State prescribed by the criterion identified in Article 4 of the Convention.
96. However in my judgment, although those opinions undoubtedly support Mr Jagadesham's case, it is clear that they did not constitute a part of the ratio decidendi of the decision in Omar, both because they did not form an essential part of Chadwick LJ's reasons for rejecting the appeal and because those reasons themselves were different from those of the majority of the court. His reason for dismissing the appeal was limited to the narrow point that Article 11.5 of the Dublin Convention, even taken with a broad construction of Regulation 29 of the Dublin II Regulation, did not confer on the appellant a right not to be transferred to Italy (as distinct from a right to insist on being transferred to Italy) against his wishes, and nor did any other Article of the Dublin Convention.
97. It follows that I do not accept Mr Jagadesham's submission that the decision of the Court of Appeal in Omar is authority binding on me for the proposition that the Dublin II Regulation confers a right on an asylum seekers to require the United Kingdom to determine their application for asylum if the United Kingdom is identified by the hierarchy of criteria and/or Article 13 as the Member State responsible and/or that a failure by the United Kingdom to comply with provisions of the Dublin II Regulation are actionable at the suit of an asylum seeker. Although Mr Jagadesham's case on behalf of the Claimant did not depend entirely on that submission it did form a central plank in his case.
98. Eighth there was much discussion about the effect of the judgment of Laws LJ, with which the other two members of the Court of Appeal agreed, in R (AA (Afghanistan)). That was a Dublin Convention case in which the claimant, having arrived in Austria and claimed asylum there, left Austria before the Austrian authorities had decided his claim and arrived in the United Kingdom where he immediately also claimed asylum. The United Kingdom requested Austria pursuant to the Dublin Convention to accept responsibility for dealing with the claimant's asylum claim which Austria promptly did the following day. Article 11(5) of the Dublin Convention thus provided that transfer of the claimant from the United Kingdom to Austria must take place not later than one month after acceptance by Austria of the United Kingdom's request to take charge. In breach of its obligation under Article 11(5) the United Kingdom failed for two years to effect the claimant's transfer to Austria.
99. Bean J allowed the claimant's claim for judicial review of the Secretary of State's decision to issue removal directions for his removal to Austria. However in doing so he accepted that the Dublin I Convention conferred no rights cognizable in domestic law on individual asylum claimants. In particular he held that a violation by the United Kingdom of the obligation to abide by the time limits specified in Article 11(5) of the Dublin Convention as happened in that case conferred no legal right on the claimant to insist that his asylum claim be determined substantively in this country. Laws LJ in his judgment said of that conclusion:

"So much is established by the decision of this court in Omar… Omar is an important case, but with respect I need not cite the text of the judgment. These propositions are common ground and it seems to me incontestable." (Paragraph 10(i)).

100. I note in passing that Mr Jagadesham cited Laws LJ's statement that "these propositions are…it seems to me incontestable" apparently as suggesting that Laws LJ thereby intended to approve or agree with the obiter dicta which I have quoted above from Omar suggesting that the Dublin Convention (and/or the Dublin II Regulation) conferred rights on asylum seekers. In fact, as is apparent from the context of Laws LJ's observation, it is in my judgment clear that the propositions in Omar which he considered to be incontestable were not those obiter dicta but rather the ratio decidendi of that case, namely that a violation by the United Kingdom of the obligation to abide by the time limits specified in Article 11(5) of the Dublin Convention conferred no legal right on a claimant to insist that his asylum claim be determined substantively in this country. Thus that observation of Laws LJ is of no assistance to the Claimant in this case.
101. On the contrary if anything what is striking about Laws LJ's unqualified reference to the correctness of the decision of the Court of Appeal in Omar is that he did not suggest, still less hold, that the obiter dicta of Sir Swinton Thomas or Chadwick LJ which Mr Jagadesham submitted are binding authority for the proposition that the Dublin II Regulation confers a right on an asylum seeker to require that his application be examined by the Member State identified by application of the criteria set out therein were a correct statement of the law.
102. Bean J identified the real question in R AA (Afghanistan) case as being whether the Dublin Convention required the United Kingdom to transfer the claimant to Austria even after a substantial and unexpected delay and if not whether the Secretary of State was nevertheless entitled to transfer the claimant against his wishes despite the delay, neither of which questions was decided by Omar. He concluded that the Dublin Convention did not require the Secretary of State to return the Claimant to Austria despite the delay but held that by reason of a delay some 25 times that permitted by Article 11(5) of the Dublin Convention and significant prejudice resulting therefrom it would be wholly unreasonable for the Secretary of State to transfer the claimant against his wishes to Austria. He was now entitled to have his claim for asylum and a subsidiary claim based on Human Rights grounds heard in the United Kingdom.
103. The Court of Appeal allowed the Secretary of State's appeal against Bean J's decision on the limited ground that on the facts of the case the decision of the Secretary of State to issue removal directions was not Wednesbury unreasonable, there being nothing in his Article 8 of the ECHR argument. (Paras 10, 17, 18, 19, 20, 21, 23).
104. It is thus apparent that the decision of the Court of Appeal in R (AA (Afghanistan)) did not turn on the question whether the Dublin Convention, still less the Dublin II Regulation, confers rights on asylum seekers or renders alleged breaches of the provisions of either the Convention or the Regulation actionable at their suit.
105. As had been held in Omar the failure of the United Kingdom to effect a transfer within the one month period stipulated by Article 11(5) of the Dublin Convention did not displace or vitiate responsibility of Austria to consider the claimant's asylum application or transfer responsibility for considering it to the United Kingdom. Laws LJ observed that under the Dublin II Regulation on like facts the United Kingdom would have been "bound" to deal with the claimant's asylum claim on its merits because provision was made in the Dublin II Regulation to the effect that if the transfer to the receiving State does not take place in the extended six months time period responsibility for deciding the asylum claim is on the shoulders of the sending State (paragraph 9).
106. Mr Jagadesham submitted that, in saying that on like facts the United Kingdom would have been bound to deal with the claimant's asylum claim on its merits under the Dublin II Regulation, Laws LJ was holding that under the Dublin II Regulation the claimant would have had a right to require the United Kingdom to deal with his asylum claim on its merits. I do not accept that submission. In my judgment Laws LJ's reference to the United Kingdom being "bound" to deal with the claim was intended to be no more than a statement that the United Kingdom would be bound to do so as between it and Austria both of which as Member States were bound to adhere to and observe the provisions of the Dublin II Regulations. There is nothing to indicate that he intended to go further and express the view that the Dublin II Regulation confers rights on asylum seekers, or that in the hypothetical case postulated by him, a failure by the United Kingdom to examine the claimant's asylum application would have been actionable at his suit.
107. Laws LJ recorded that the Secretary of State's case had changed by the time of the oral hearing. Originally it had been submitted that, at least absent a viable Human Rights claim, in the events which had happened the Secretary of State was not even obliged to consider whether the respondent's asylum claim should be processed in the United Kingdom. Austria having accepted responsibility the question where the claim should be dealt with should be regarded as closed. Reliance had been placed on a dictum of Laws LJ at first instance in Simba [1998] EWHC Admin 799:

"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." [That was a Dublin Convention case] (paragraph 12).

108. By the time of the hearing Laws LJ recorded that new counsel for the Secretary of State modified the submission in effect to acknowledge that in theory a challenge could lie against the decision to set removal directions on Wednesbury principles (paragraph 11). He then said this:

"My observations in Simba were made in circumstances where an application for judicial review permission had actually been withdrawn. I gave a short judgment merely to "explain very briefly what has occurred". What I said has even less persuasive value than a judgment on a live permission application. I certainly accept in general terms that an asylum claim cannot challenge (save perhaps on Human Rights grounds) the allocation of responsibility between States for the determination of his claim where that has been effected by proper application of Dublin I or II. But it by no means follows that where as here there has been a gross breach of the time limit given by Article 11(5) of Dublin I yet the receiving State continues to accept responsibility for the claim, there can be no challenge on Wednesbury grounds to the Secretary of State's decision to send the claimant back. I refer to Simba only in order to emphasise (if emphasis were needed) that what I said then should not be read as suggesting the contrary.

In the course of his submissions before us Mr McCullough accepted that if in a case such as this the decision to transfer the claimant to the other State were shown to be irrational, then it would be unlawful and open to challenge as such; but he opined that it was difficult (I think he would say impossible) to find an instance where that might be so which did not engage ECHR rights. That might be correct. In any event, it is common ground that if the respondent's transfer to Austria would violate his Convention rights, it would be unlawful and the court would interfere." (Paragraphs 13 and 14).

109. In R(MK) Iran counsel for the claimants submitted unsuccessfully that since it had been contemplated by Laws LJ in R(AA) Afghanistan that a challenge by an individual on Wednesbury or Human Rights grounds might lie where the provisions of the Dublin II Regulations have been applied properly, the position where there has been a breach of those provisions is a fortiori. Rejecting that submission Beatson J pointed out that Laws LJ qualified his statement that in general terms an asylum claimant cannot challenge (save perhaps on human rights grounds) the allocation of responsibility between States for the determination of his claim where that has been effected by proper application of Dublin I or II, by recognising that there might be a challenge on Wednesbury grounds where there had been, as there was in that case, a gross breach of the time limit for completing the transfer but the receiving State continued to accept responsibility for the claims. He said that Laws LJ was thus dealing not only with the situation where there had been a proper application of the Dublin process but also with a breach. Nevertheless, and contrary to counsel for the claimant's a fortiori submission, he only contemplated a direct challenge on Wednesbury and Human Rights grounds.
110. I respectfully agree with Beatson J's analysis of Laws LJ's dicta, which undoubtedly formed a central part of the basis for his conclusion that there is a formidable body of case law, including a number of decisions of the Court of Appeal, which proceed on the basis that, absent Wednesbury unreasonableness or a breach of an individual's Human Rights, although the Dublin II Regulation is directly applicable in the Member State, alleged breaches of it are not actionable by an individual claimant and his further conclusion that in those cases it is not the breach of the Regulation in itself which gives rise to the claim, but the breach of a norm of domestic public law (the Wednesbury principle) or of the European Convention on Human Rights.
111. I would add that in my judgment it does not follow from the proposition accepted in general terms by Laws LJ that an asylum claimant cannot challenge (save perhaps on Human Rights grounds) the allocation of responsibility between States for the determination of his claim where that has been effected by a proper application of Dublin I or II that an asylum claimant can challenge even without Human Right grounds the allocation of responsibility between States for the determination of his claim where that has been effected in breach of the hierarchy of criteria in the Dublin II Regulation. Nor does it in my judgment follow that that is what Laws LJ considered to be the case. I would further observe that if Laws LJ had been of the view that a breach of either the Dublin Convention or the Dublin II Regulation, was actionable ipso facto at the suit of an asylum seeker or that either the Dublin Convention or the Dublin II Regulation conferred rights on asylum seekers or other individuals, it is , in my opinion, unlikely that he would have expressed himself in the way in which he did. Rather than contemplating the possibility of a challenge to a decision to send an asylum seeker back on Wednesbury grounds where there has been a gross breach of the time limit given by Article 11(5) of the Dublin Convention one might have expected him to hold that the asylum seeker could sue to enforce a right conferred on him by Article 11(5) of the Dublin Convention or claiming relief by reason of the breach of that provision. At the very least if he had been of the view that the Dublin II Regulation did confer rights on asylum seekers and render breach of its provisions actionable at their suit, whereas the Dublin Convention did not, one might have expected him to refer to what would on that hypothesis have been a very significant difference.
112. In these circumstances and for these reasons in my judgment the Court of Appeal in R AA Afghanistan did not consider that the Dublin II Regulation confers a right on an asylum seeker to require Member States properly to apply the provisions of the Dublin II Regulation and did not contemplate that alleged breaches of it are actionable by an individual claimant.
113. Mr Jagadesham pointed out that the Court of Appeal in R AA (Afghanistan) was not adjudicating on a claim that there had been a breach of one of the criteria set out in the Dublin II Regulation which was actionable at the suit of the appellant. He submitted that it follows that, whatever else may be the case, the decision in R AA (Afghanistan) cannot be binding authority for the proposition that the Dublin II Regulation does not confer a right on an asylum seeker to insist on or require the examination of his asylum application by the Member State identified as responsible by application of the criteria set out in the Regulation and that an alleged failure to observe the requirements of the relevant criterion is not actionable at his suit. I accept that submission.
114. In my judgment Beatson J's judgment in R(MK) Iran is of particular significance in that his conclusions were reached following express consideration of the submission that the Dublin II Regulation is directly applicable and the judgment of the ECJ in Munoz y Cia SA which held that:

"Regulations have general application and are directly applicable in all Member States. Accordingly, owing to the very nature and their place in the system of sources of Community Law, Regulations operate to confer rights on individuals which the National Courts have a duty to protect." (Paragraph 53).

In his general conclusion that the formidable body of case law proceeded on the basis that alleged breaches of the Dublin II Regulation are not actionable by an individual claimant, Beatson J expressly referred to the fact that they also proceeded on the basis that the Dublin II Regulation is directly applicable in Member States. (Paragraph 58).

115. It follows that he did not consider that it automatically follows that every Regulation which is directly applicable confers rights on individuals which the national courts have a duty to protect or that alleged breaches of them are automatically actionable by an asylum seeker.
116. Mr Jagadesham had an alternative submission that Laws LJ's conclusion that in the absence of any human rights grounds a gross breach of a provision of the Dublin Convention or the Dublin II Regulation sustaining a Wednesbury argument is required to sustain a challenge was limited to cases, such as Omar, R AA Afghanistan and R(MK ( Iran)) where the alleged breach is of an Article constituting a mechanism rather than a criterion for determining responsibility for examining an asylum application. That he said follows from the fact that in all three cases referred to the Article allegedly breached was a mechanism rather than a criterion. I do not accept that submission.
117. Although it is true that in each of the cases referred to the provision allegedly breached was a mechanism rather than a criterion, in my judgment the nature and context of Laws LJ's observations and Beatson J's observations suggest that their conclusions were intended to be of more general application. That is particularly so in relation to Beatson J whose review of all the authorities including R AA Afghanistan led him to conclude that they all proceeded on the basis that, absent Wednesbury unreasonableness or a breach of an individual's Human Rights, although the Dublin II Regulation is directly applicable in Member States, alleged breaches of it are not actionable by an individual asylum seeker. That conclusion was not confined to alleged breaches of mechanisms but was expressed in general terms. I would point out in this context that one of the cases included by Beatson J among those which proceeded on this general basis was the decision of Cranston J in R(J) v Secretary of State in which he concluded with the general holding that:

"Dublin II gives rise to obligations between Member States; it does not confer claims on individual asylum seekers" (at [21]).

118. Mr Jagadesham submitted that because Beatson J was only faced with arguments in relation to mechanisms as well as an argument as to whether the asylum seeker's claim that he had not in fact applied for asylum in another Member State amounted to a precedent fact and was thus not dealing with criteria, his statement that the cases which he reviewed proceed on the basis that absent Wednesbury unreasonableness or a breach of an individual's Human Rights, alleged breaches of the Dublin II Regulation are not actionable by an individual claimant were strictly obiter. I am not convinced that that is correct. The section of his judgment which I have quoted appears under the heading: "Can individuals rely on breaches of Dublin II. And if so, in what circumstances?" and he described the preliminary point which he addressed as in a sense fundamental. It was whether the claimant's cases fell within the limited situations in which alleged breaches of the Dublin II Regulation are directly actionable by an individual. Central to his conclusion that they were not was his general conclusion that the basis on which the cases which he reviewed proceeded represented a correct statement of law.
119. It is true that the three cases decided by Beatson J in R (YZ & ors) did not allege breaches of those Articles of the Dublin II Regulation which have been referred to as criteria as distinct from mechanisms. To that extent it can be said that in so far as he expressed opinions of general application as to the non-actionability at the suit of individual asylum seekers of alleged breaches of the Dublin II Regulation, they were obiter dicta. On the other hand, at the outset of his judgment, having identified the three issues raised in the cases, he said this:

"9. Underlying the three particular issues is the broader question of whether, and if so, to what extent, alleged breaches of the Dublin II Regulation are directly actionable by an individual applicant for asylum. A number of authorities have held that its provisions govern responsibility as between Member States, but do not give directly actionable personal rights to the individual asylum seekers unless the Secretary of State acts in a Wednesbury unreasonable manner or in breach of that individual's human rights."

120. He thus considered that the resolution of the three issues which he had to determine depended at least in part on the answer to the general question which he posed in the first sentence of that paragraph of his judgment.
121. Ninth the final decision of the Court of Appeal considered to by Beatson J was that of Pill LJ (with whom Moses LJ agreed) in Mota v Secretary of State [2006] EWCA Civ 1380. In that case the Court of Appeal refused permission to an asylum seeker to appeal against the refusal of Burton J to grant her permission to apply for judicial review of the Secretary of State's decision to remove her to the Netherlands. There are some similarities with the present case.
122. The applicant came from Sierra Leone. Having arrived in the Netherlands where she made an application for asylum she then travelled to the United Kingdom where she also applied for asylum. She claimed that after leaving the Netherlands but before arriving in the United Kingdom she returned to Sierra Leone for more than three months. She therefore relied on Article 16(3) of the Dublin II Regulation which provides that the obligation on a Member State responsible for examining an application for asylum under the Regulation to take charge of an asylum seeker who has lodged an application in a different Member State shall cease where the third country national has left the territory of the Member States for at least three months.
123. The United Kingdom Immigration Service requested the Dutch Authorities to accept responsibility for the claimant's asylum claim under the provisions of the Dublin II Regulation. Initially the Dutch Authorities rejected responsibility stating that it was possible that the claimant had returned to Sierra Leone before arriving in the United Kingdom. In response to the Immigration Service pointing out that it was highly unlikely that the claimant had returned to Sierra Leone before returning to the United Kingdom, the Dutch Authorities initially maintained that they were not satisfied that the evidence submitted was strong enough to accept responsibility for her claim. Subsequently however, on being provided with more information they accepted responsibility for her claim. Removal directions were then set which the claimant sought to challenge.
124. Burton J held that even though the Dublin II Regulation is directly applicable in this country he could see no basis for a case that gives a claimant the right to complain when, notwithstanding that it may be that the obligation on the original country to retain the responsibility for deciding an asylum application may have ceased, that country nevertheless accepts responsibility, that in some way the claimant has a right to challenge that acceptance of responsibility. (Paragraph 14).
125. Counsel for the applicant submitted that pursuant to Article 21 the United Kingdom should have sent to the Dutch authorities further information, namely tickets supplied by the applicant's solicitors which they claimed corroborated her case that she did indeed return to Sierra Leone through the Netherlands, to give them the opportunity of reconsidering their decision. Burton J rejected that submission holding that there was not, whether in the circumstances of that case or otherwise, any continuing obligation on the United Kingdom to supply such further information. A decision had been taken under the Dublin II Regulation. The receiving country would address the asylum application of the claimant and the only issue, namely as to whether the Netherlands would accept responsibility for the Applicant was resolved by their express acceptance of such responsibility.
126. He held that it would render the operation of the Dublin Convention (by which I take him to have meant the Dublin II Regulation) quite different from what was intended if there were some obligation on a country such as the United Kingdom in those circumstances to continue to supply information to a country which had already accepted responsibility for an applicant after such acceptance had been given. If such information had to be supplied it was difficult to see the issue to which it remained material once the administrative decision to accept responsibility had been made. The reality was that what was needed was speediness and fairness in the operation of the asylum process. If a fellow member of the Dublin Convention, fully governed by the ECHR, was prepared to consider the asylum application he could see no basis for another country, from whom that responsibility had been lifted, to continue to supply further information in case the receiving country might change its mind. (Paragraph 15).
127. Burton J said that the simple basis on which he resolved the application was that the Dublin Convention (by which again in context I take him to have referred to the Dublin II Regulation) had been operated. Whether or not the Netherlands had an obligation under Article 16(3) they had accepted responsibility. That was the country in which the asylum application would now be resolved.
128. Although it is not entirely clear it seems to me that Burton J's reason for rejecting the application was not that he considered that the Dublin II Regulation does not confer on individual asylum applicants a right to insist that their application be considered by the Member State identified by a proper application of the provisions of the Regulation. Rather it was for the separate reason that even if a Member State is not responsible or has ceased to be responsible for considering an asylum application under the provisions of the Dublin II Regulation, nonetheless if it chooses to accept responsibility there is no obligation on the United Kingdom Authorities to continue to send evidence to that Member State with a view to it reconsidering whether it was right to accept responsibility.
129. If that analysis is correct, Burton J's judgment was not decided on the basis of an express conclusion that the Dublin II Regulation does not confer rights on individual asylum applicants to insist on the proper application of the Regulations. Moreover, unlike in this case, it would appear that the derogation in Article 3(2) from the general requirement in Article 3(1) that an 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, did apply. That is because Article 3(2) provides that a 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 criteria laid down in the Regulation. In Mota the applicant had applied for asylum in the Netherlands whereas in this case the Claimant did not apply for asylum in Germany. Thus on Burton J's ruling the acceptance of responsibility by the Netherlands was permitted by Article 3(2) so that there was no breach of the Dublin II Regulation.
130. There is however arguably a different respect in which, if my analysis is correct, Burton J's judgment assists the Defendant in this case. That is because he held that he could see no basis for a case that gave the Claimant the right to complain that a country whose obligation under the Dublin II Regulation to retain the responsibility for deciding an asylum application may have ceased should not have accepted responsibility. It is true that it appears that unlike in this case the voluntary acceptance responsibility by the Netherlands was authorised by Article 3(2) of the Regulation. Nonetheless Burton J expressed his reasons in wider terms than by reference to that specific Article which were based on the general principle that if a Member State is prepared to consider an asylum application then there is no basis for another country from whom that responsibility has been lifted to continue to supply further information in case the receiving country might change its mind.
131. Thus in this case it could be argued on behalf of the Defendant that Germany having accepted responsibility, apparently under Article 9(4), there was no obligation on the Defendant to respond to the German Authorities by asking for confirmation that, contrary to the information which she had supplied suggesting that the Claimant had left Germany for Iran, in fact the conditions precedent for Article 9(4) to apply were met.
132. As against that it could be said that there is a material distinction between a case such as Mota where it was contended that the United Kingdom had an obligation to continue to send information to a Member State after it had accepted responsibility with a view to its reconsidering the position and a case, such as this one, where the allegation is that the acceptance by Germany of responsibility under Article 9(4) was on its face in breach of Article 9(4) on the basis on the information which was already before Germany when it accepted responsibility.
133. On the facts of this case there is a further wrinkle. Although Germany responded by a letter dated 27^th April 2012 to the Defendant's Article 17(1) request that it take charge of the Claimant by saying that the request was met according to Article 9(4) and that the Claimant would be accepted by Germany, the effect of Article 18(7) was that Germany's failure to give a decision on the request within 2 months of the date on which the request was received, as required by Article 18(1), was tantamount to accepting the request and entailed the obligation to take charge of the Claimant.
134. Thus even if, as Mr Jagadesham submitted, there was no criterion set out in Chapter III of the Regulation pointing to Germany as the responsible Member State and even though there is no provision comparable to Article 3(2) entitling a Member State with whom no asylum application has been lodged voluntarily to accept responsibility even where such responsibility is not dictated by Chapter III, it would appear that an obligation to take charge of the Claimant was imposed on Germany by Article 18(7) by reason of its failure to act within the two month period mentioned in Article 18(1).
135. On that basis, even if Germany was not the responsible Member State by reason of Article 9(4) and even if its subsequent purported acceptance of responsibility pursuant to Article 9(4) were actionable at the suit of the Claimant, the provisions of Article 18(7) had already lawfully imposed on Germany the obligation to take charge of the Claimant. I return to this important point in my overall conclusions at the end of this judgment.
136. In the Court of Appeal in Mota Pill LJ summarised Burton J's findings in the following terms:

"In dismissing the application, Burton J found that Article 16(3) did not apply after a Member State had accepted a transfer, even if the Claimant was out of the Union for over three months; then once there had been an acceptance of a 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, notwithstanding that the Regulations are directly applicable in the Member States. Dealing with a further submission, the judge found that, if she made an application in the Netherlands, the Claimant would suffer no prejudice by virtue of the fact that the Netherland's apparent acceptance that she had not left the territory of the Union. It would not mean that, in an application to the Dutch Authorities, she could not rely on the events in Sierra Leone in 2005." (Paragraph 7).

137. In the second sentence of that paragraph Pill LJ clearly held that Burton J had made a general finding that the Dublin II Regulation confers no rights upon individuals to challenge decisions between States, notwithstanding that the Regulations are directly applicable in the Member States. He thus gave a much broader interpretation of Burton J's reasoning than that which I have suggested above. He also found that Burton J had found that once there has been an acceptance of a transfer application the applicant is not entitled to challenge the transfer. Again he framed that conclusion in general terms. Mr Karim submitted in this case that in refusing permission to appeal the Court of Appeal in Mota upheld those parts of Burton J's conclusions which appeared in the second half of the first sentence and in the second sentence of Pill LJ's summary thereof.
138. Thus he submitted that Mota is binding Court of Appeal authority both for the proposition that once there has been an acceptance of a transfer application the applicant is not entitled to challenge the transfer and for the proposition that the Dublin II Regulation confers no rights on individuals to challenge decisions between Member States, notwithstanding that it is directly applicable in the Member State.
139. While he did not say that in refusing permission to appeal the Court of Appeal expressly upheld or approved those conclusions Beatson J in R(MK)(Iran)) did say that when refusing permission to appeal Pill LJ, with whom Moses LJ agreed, took the same approach as Carnwath LJ R(MK)(Iran)) when he said that the Regulation is concerned with the allocation of responsibility as between States not the creation of personal rights, and there is nothing in the Regulation which can be said to create a personal right to have the claim determined within any particular time. (Paragraphs 36, 37).
140. In my judgment a close reading of Pill LJ's judgment suggests that permission to appeal was refused on more limited and grounds which fell short of an outright approval of the two findings of Burton J to which I have referred.
141. Pill LJ identified the following submissions advanced by Counsel for the Applicant. First he submitted that the decision of the Secretary of State that the Applicant had not left the Union was irrational having regard to the material available. It was also submitted that the decision letter was insufficiently reasoned. It was also put and was said by Pill LJ to be part of the same point but put in a different way that the decision of the Dutch Authorities was erroneous. They were in error in finding that the Applicant had not left the territory of the Union. That being so it was submitted that the applicant had a right under the law of England and Wales to have her application considered in this country. Finally it was submitted that any application in the Netherlands would be prejudiced in the manner argued before Burton J. (Paragraph 8).
142. Pill LJ rejected the submissions that the Secretary of State's decision was irrational and insufficiently reasoned on the facts. As to the submission based on the alleged erroneous finding of the Dutch Authorities, Pill LJ stated that that overlapped with the first submission in that if the United Kingdom decision on not leaving the Union was a valid one it would be extremely difficult for the Court of Appeal to hold that the decision of the Dutch Authorities was other than one they were entitled to reach. He then identified a further hurdle which the applicant would need to jump, namely the need to show that an erroneous decision of the Dutch Authorities led to a private law right in the United Kingdom to prevent removal from the United Kingdom and consideration of the asylum claim here. As to that Pill LJ said that in his judgment the point did not arise upon the finding of the first point. Having regard to the finding on the first point it would not be possible for the Court to hold that the decision of the Dutch Authorities was erroneous which he described as a necessary finding before one got to the stage of considering the consequences. The point could well arise if there were conflicting decisions in the two jurisdictions. If for example the Dutch Authorities were denying any leaving of the Union and therefore accepting responsibility whereas the British Authorities declined to make any finding on the point, counsel for the applicant then wished to argue before the English Courts that the decision of the Dutch Authorities was an irrational one and that he had a right under English law to have the application here. Again Pill LJ said that there was no need on the application before the Court of Appeal to decide that point.
143. He did, however, say that he would be prepared to assume for present purposes that the decision of Bean J in Ahmadzai v Secretary of State [2006] EWHC 318 (Admin) was correct and that a private law right may arise upon a breach of duty by the United Kingdom while emphasising that that was no indication as to how the appeal against his decision might be resolved. (The judgments in the appeal against his decision are those reported under the name AA (Afghanistan) v SSHD [2006] EWCA 1150 (Civ) to which I have already referred.)
144. Pill LJ referred to a submission of counsel for the Applicant that a private right is created in Article 16 of the Dublin II Regulation if the circumstances set out in Article 6(3) [I take that to be a misprint for 16(3)] arise and that there may then be facts which entitle an applicant to bring a claim in the courts of this country.
145. He cited without comment brief extracts from the judgments of Sir Swinton Thomas and Chadwick LJ. in Omar including the obiter dictum of the latter that it may well be, as he was inclined to think, that the Appellant had a directly effective right, conferred by Article 11.5 of the Convention read with Article 29 of the Regulation to be transferred to Italy. He also cited Maurice Kay LJ's dictum in G v Secretary of State that the effect of Article 15 of the Dublin II Regulation is not to confer a free-standing substantive right on individual applicants but rather to regulate the relationship between two or more Member States. Pill LJ also observed that Omar as do other cases on the Dublin Convention and the Dublin II Regulation depended on the particular Article in question.
146. There was in my judgment in Pill LJ's judgment no explicit approval of the broad finding which he described Burton J as having made that the Dublin II Regulation confers no rights on individuals to challenge decisions between States, or even that once there has been an acceptance of a transfer application, the applicant is not entitled to challenge the transfer. Indeed his statement that the question whether an erroneous decision of the Dutch Authorities led to a private law right in the United Kingdom to prevent removal from the United Kingdom and [require] consideration of the asylum claim here did not arise on the facts and his readiness to assume for present purposes that the decision of Bean J in Ahmadzaj was correct and that a private law right may arise upon a breach of duty by the United Kingdom, suggest that he considered that both points were at least arguable. The matter is further complicated by his reference to counsel for the applicant wishing to argue before the English Courts not that the decision of Dutch Authorities was wrong such as to give rise to a right on the applicant to insist on a direct application of the Dublin II Regulation but rather that it was an irrational one. Whether there is to be read into that distinction an echo of the distinction drawn by Laws LJ is AA (Afghanistan) it is impossible to say.
147. Having said that it is undoubtedly also the case that Pill LJ nowhere expressed the view that the Dublin II Regulation does confer rights on asylum applicants or other individuals or agreed with the obiter dicta in Omar and the effect of the decision of the Court of Appeal was to uphold a decision of Burton J whose findings, as summarised by Pill LJ included an express finding in general terms that the Dublin II Regulation confers no rights upon individuals to challenge decision between States, notwithstanding that it is directly applicable in the Member States. Thus although it does not in my judgment constitute a binding authority approving that proposition Pill LJ's judgment in Mota is undoubtedly more helpful to the Defendant than the Claimant. It certainly does not approve the obiter dicta to which I have referred in Omar and it does not contain even obiter dicta supporting those views.
148. In R (YZ and others) the Secretary of State for the Home Department [2011] EWHC 2005 (Admin), Beatson J said that the decision of Silber J in R (Chen) v Secretary of State [2008] EWHC 437 (Admin) at [30] and [35] is to the same effect as the decision of the Court of Appeal in Mota which, as we have seen, he considered took the same approach as that of Carnwath LJ in R (AK Iran).
149. In R (Chen) Silber J held that:

"[35] There is a further difficulty for the claimant which would also mean that the case for the claimant is doomed to failure and that is because the allocation of responsibility between Member States under the Dublin regulations cannot be challenged by an individual save on human rights grounds, and perhaps on the basis of irrationality, neither of which are relevant to the present case. The matter was made clear by Laws LJ who said when giving the only substantive judgment of the Court of Appeal in R (AA Afghanistan) v Secretary of Statement for the Home Department [2006] EWCA 1150 (Civ):

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]:

[36] For the purpose of completeness I should point out that further support for this view can be found in Mota v Secretary of State for the Home Department [2006] EWCH 1380 (Civ) because Pill LJ (with whom Moses LJ agreed) refused permission to appeal against a decision to the effect that:

"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 notwithstanding that the regulations are directly applicable in the Member States."

150. As appears from this extract of his judgment Silber J interpreted Laws LJ's judgment in AA (Afghanistan) as holding that as a general matter the allocation of responsibility between Member States under Dublin II Regulation cannot be challenged by an individual save on human rights grounds and perhaps on the basis of irrationality. Although, for the reasons which I have given, the decision of the Court of Appeal in AA (Afghanistan) was not, in my respectful opinion, quite as unequivocal as it was in the opinion of Silber J, it is striking that Silber J held as part of the ratio decidendi of his decision that alleged breaches of the provisions of the Dublin II Regulation which determine which Member State is responsible are not actionable at the suit of an individual. I also draw attention to the fact that he like Beatson J considered that the decision of the Court of Appeal in Mota supported that view. It is also, in my judgment, noteworthy that Silber J in reaching his conclusion twice referred to the origin and purpose of the Dublin II Regulation which was to provide a speedy administrative route map by which Member States could as between themselves identify which Member State is to be responsible in any particular case for considering an asylum application.
151. As appears from Beatson J's summary of Cranston J's decision in R(J) Secretary of State [2009] EWHC 1182 (Admin) and the extract from his judgment which he cited, Cranston J expressed the general opinion that the Dublin II Regulation gives rise to obligations between Member States but does not confer claims on individual asylum seekers. In reaching that conclusion he, as did Beatson J, relied in part on the background material and on the terms of the Dublin II Regulation itself, both of which in his judgment made clear that there is no intention that an individual asylum seeker should derive rights from Article 20 of the Regulation. (Paragraph 21 cited in paragraph 69 of Beatson J's judgment.)
152. It is in my view striking that both Cranston J and Beatson J reached the conclusion that the Dublin II Regulation does not confer rights on individuals and that alleged breaches of its provisions are not actionable at the suit of individuals in part based on their interpretation of the travaux preparatoires and the terms of the Regulation itself, independently of any analysis of what has been held in the authorities on the subject. I respectfully agree with both of them.
153. In R(Haedare) v Secretary of State [2009] EWHC 3444 (Admin) Christopher Symons Q.C. sitting as a Deputy High Court judge cited paragraphs 35 and 36 of Silber J's judgment in Chen and held that:

"The authorities make it clear that it is not open to the applicant to challenge his removal to Greece except where his human rights are breached or on the basis of irrationality." (Paragraphs 16 and 24).

In so far as Mr Symons Q.C. followed the conclusions of Silber J without demur or comment his judgment provides further support for them.

154. Mr Karim relied on the following extract from the judgment of Wyn Williams J in R (Shayanth) v Secretary of State for the Home Department [2009] EWHC 1208 (Admin) at paragraph 47:

"The whole purpose of Dublin II is to provide a mechanism for determining which of the contracting States should determine an application for asylum. It is very difficult to envisage circumstances in which it could be thought to be unfair to an asylum seeker that his application for asylum was determined in one member country as opposed to another. If removal to a third country would involve a breach of the asylum seeker's human rights under the European Convention on Human Rights, of course, the removal can be challenged and it may be that a separate and parallel challenge can also be brought and maintained against the allocation of responsibility under Dublin II (see R AA v Secretary of State for the Home Department [2006] EWCH 2250 (Civ) per Laws LJ). That same case suggests that a challenge to allocation may also be brought on rationality grounds…"

155. Wynn Williams J's observation that it is very difficult to envisage circumstances in which it could be thought to be unfair to an asylum seeker that his application for asylum was determined in one Member country as opposed to another goes to the root of the question whether the purpose and effect of the Dublin II Regulation extends to conferring rights on asylum seekers to have their asylum applications determined by the Member State identified by proper application of the hierarchy of criteria. It strongly supports in my judgment the conclusion that as a matter of construction of the Dublin II Regulation in the context of the travaux preparatoires the answer to that question is no.
156. As against that the last two sentences of the extract of his judgment would appear to suggest that he interpreted the decision of the court of Appeal in AA (Afghanistan) as holding open the possibility that the allocation of responsibility under the Dublin II Regulation may be challenged not only on irrationality grounds but on the ground that the provisions of the Dublin II Regulation have been breached. To that extent they may be said to provide some support for Mr Jagadesham's submissions. However no reasons or explanations were given by Wynn Williams J for that interpretation of Laws LJ's judgment in AA (Afghanistan).
157. In R (Reza) v Secretary of State for the Home Department [2012] EWHC 1207 (Admin) an Iranian National arrived in Belgium where he made an unsuccessful application for asylum. Six years later he arrived in the United Kingdom where he again applied for asylum. He claimed to have travelled to Iran where he stayed for several years after leaving Belgium. After initially refusing to accept the United Kingdom's request for it to accept responsibility under the Dublin II Regulation, Belgium accepted responsibility in response to a subsequent letter from the British Authorities which cast doubt on the applicant's account.
158. Mitting J said that counsel for the applicant "accepts, as he must, that the Dublin II Regulation does not, in principle, give rights to an individual but regulates the responsibility for dealing with asylum claims as between states." He cited in support of the inevitability of that concession, Maurice Kay LJ's dictum in R (G) to which I referred that the effect of Article 15 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. (Paragraph 5). He thereby by implication interpreted Maurice Kay LJ's dictum as not being confined to Article 15 but being of general application to the Regulation.
159. Mitting J refused an application for judicial review of the decision of the Secretary of State to decline to examine the Claimant's asylum claim. The Claimant claimed that he could prove that he had been to Iran so that Belgium was not the responsible Member State pursuant to Article 13, since its obligation to consider his asylum application had ceased under Article 16(3) by reason of his having left the territory of the Member State for at least 3 months.
160. It was submitted on behalf of the Claimant that he had 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 were satisfied. He asserted an entitlement to prove that Belgium was not responsible under Article 16.3 by evidence adduced in an English Court. In so doing he prayed in aid Article 47 of the Charter of Fundamental Rights which provides:

"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"

161. He also relied on Article 6.1 of the Procedure Directive which provides that:

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

162. Mitting J rejected the application, the answer to which he said was to be found in Article 25.1 of the Procedure Directive, which 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 immediate application is made. He held that it covers cases "in which an application is not examined" in accordance with the Dublin II Regulation.
163. For present purposes what is of relevance is Mitting J's observation that if the applicant's argument succeeded 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." (paragraph 15).

That is a clear statement of general principle that the Dublin II Regulation is not designed to confer individual rights and that, ab sent what he described as the novel argument based on Article 47 of the Charter of Fundamental Rights and Article 6 of the Procedure Directive, an individual does not have a right to challenge the apportionment of responsibility between Member States under the Dublin II Regulation.

164. Mitting J also held that it was for Belgium to decide whether or not it accepted its obligation under Article 13 of the Dublin II Regulation and that once it had accepted that obligation the United Kingdom authorities were relieved of any obligation to determine the application for asylum save in two circumstances not relevant for present purposes. It was not permissible for the Claimant to challenge in a British Court the decision of the Belgium authorities to accept their obligation under Article 13. The European legislature did not envisage that such a challenge would be open to an individual and it was difficult to see how it could in practice be litigated. How he asked could an English Court determine whether the Belgium Authorities were or were not justified in accepting responsibility under the Dublin II Regulation? (paragraph 17 and 18).

Conclusion on the English Authorities

165. In my judgment as a matter of construction of the Dublin II Regulation and in the light of the travaux preparatoires, the Regulation does not confer on individuals a right to require Member States to allocate responsibility for examining their asylum application in accordance with the provisions of the Regulation and alleged breaches of those provisions are not actionable at the suit of an individual. Further I do not consider that there is binding Court of Appeal authority which would compel the contrary conclusion. Although I do not consider that there is binding Court of Appeal authority which would compel the conclusion which, as a matter of statutory construction, is in my judgment the correct one, I respectfully agree with Beatson J, as he then was, in R (YZ and others), albeit not for entirely the same reasons, that the weight of English authority supports the construction which in my view is the correct one.
166. Accordingly, unless compelled by binding authority of the ECJ I would, if necessary, dismiss the claim for judicial review in this case on the ground that the Claimant has no right under the Dublin II Regulation to challenge the acceptance by Germany of responsibility for examining her asylum application or the refusal by the Defendant to consider it on the ground that both decisions constituted breaches of the obligation of both countries to identify the responsible Member State by proper application of the criteria set out in the Dublin II Regulation which should have resulted in the United Kingdom being identified as the responsible Member State.

European Authorities

167. The concluding words of the Dublin II Regulation are:

"This Regulation shall be binding in its entirety and directly applicable in the Member States in conformity with the Treaty establishing the European Community. "

168. It was common ground between the parties that the Dublin II Regulation is directly applicable in the Member States including the United Kingdom in the sense that no domestic legislation in any Member State is required before its provisions come into force and have the force of law.
169. The issue between the parties is whether as well as imposing obligations on Member States as between themselves the Dublin II Regulation also confers rights on individuals and whether alleged breaches of its provisions are actionable at their suit.
170. Mr Jagadesham submitted that the only test as to whether a provision of European law has direct effect (as distinct from being directly applicable) is whether it satisfies the requirements established in the case of Van Gend en Loos [1963] ECR1 that it should be clear, precise and unconditional.
171. He next submitted that it is an automatic consequence of a provision of European law having direct effect that it can be invoked or enforced by an individual in a national court. In support of that proposition he relied on the statement in Van Gend en Loos by the ECJ that:

"…Article 12 of the EEC Treaty was to be "interpreted as producing direct effects and creating individual rights which national courts must protect." (Emphasis added). (Page 13).

172. He also relied on the decision of the ECJ in (R) v Secretary of State for Transport, ex parte Factortame Ltd (No2) [1990] EUECJ C-213/89 and [90] where the ECJ pointed out that:

"In accordance with the case-law of the Court, it is for the national courts in application of the principle of cooperation laid down in Article 5 of the EEC Treaty, to ensure the legal protection which persons derive from the direct effect of provisions of community law…"

173. Mr Jagadesham referred to section 2(1) of the European Communities Act 1972 which provides that:

"All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression "enforceable EU right" and similar expression shall be read as referring to one to which this sub section applies."

174. He referred in this context to the text book Craig and Deburca , EU Law (5^th edition OUP, Oxford 2011) at page 286:

"Section 2(1) makes the concept of direct effect a part of the UK legal system. It deems law which under the EU Treaties is to be given immediate legal effect to be directly enforceable in the UK. Accordingly UK courts…are directed by section 2(1) to enforce any directly effective EU measures."

175. Mr Jagadesham submitted that it follows that any directly effective EU measures must be enforceable by an individual and not only by Member States.
176. As regards EC Regulations Article 249 of the EC Treaty provides that:

"A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States."

177. He accepted that not every provision of every Regulation necessarily has direct effect. However he submitted that the only test as to whether any particular provision in a particular regulation does have direct effect is whether it satisfies the three Van Gend en Loos requirements. In that regard he referred to Craig and Deburca at page 190:

"…there is no reason why, so long as their provisions are sufficiently clear, precise, and relevant to the situation of an individual litigant, they should not be capable of being relied on and enforced by individuals before their national courts. The key issue will be whether the particular article of the regulation on which the individual relies is sufficiently clear, precise and certain for direct effect [the Van Gend en Loos conditions]."

178. He submitted that the only ECJ case in which the Court found that a provision of a Regulation was not directly effective turned on the fact that the contested provision was not sufficiently precise and or was conditional: see Azienda Agricola Monte Arcosu Srl v Regione Autonoma Della Sardegna (case C403/98) [2002] 2cmlr 14 [at 26]:

"In the light of the discretion enjoyed by the Member States in respect of the implementation of those provisions, it cannot be held that individuals may derive rights from those provisions in the absence of measures of applications adopted by the Member States."

179. As to the question whether an EC Regulation is enforceable by individuals he submitted that there is no ECJ case which provides that an individual cannot enforce a provision of a Regulation in a national court where that provision meets the Van Gend en Loos conditions.
180. Thus he submitted that the only test for whether a Regulation is enforceable in a national court by an individual is whether the provision has direct effect or not which is to be determined by whether it meets the Van Gend en Loos conditions.
181. He relied on two ECJ cases which he submitted contain clear statements of principle as to the enforceability of EC Regulations by individuals. In Leonesio v Italian Ministry of Agriculture and Forestry (Case 93/71) [1973] CMLR 343 (ECJ), 352 the ECJ said:

"(2) The second paragraph of Article 189 of the Treaty provides that a Regulation shall have "general application" and "shall be …directly applicable in all Member States". Therefore, because of its nature and its purpose within the system of sources of Community law it has direct effect and is, as such, capable of creating individual rights which national courts must protect."

182. He also relied on the statement of the ECJ in Antonio Munoz Y Cia S A and another v Frumar Limited and another (Case C-253/00) [2002] 3CMLR 26 (ECJ) at [27] which was quoted by Beatson J in R (YZ and others) at the outset of his review of the authorities:

"Regulations have general application and are directly applicable in all Member States. Accordingly, owing to their very nature and their place in the system of sources of Community law, regulations operate to confer rights on individuals which the national courts have a duty to protect."

183. Finally he submitted that neither Laws LJ in AA (Afghanistan) nor Beatson J in R (YZ) and others addressed head on the question whether a Regulation must confer a right on an individual.
184. Ms Busch, who made submissions on EU law on behalf of the Defendant, accepted that EC Regulations often confer direct rights on individuals which are enforceable by them in national courts. However she submitted that that is not always the case. It does not follow from the fact that a Regulation is, as she conceded is the case with the Dublin II Regulation, directly applicable in the sense of being incorporated into domestic UK law without the need for further statute, that it necessarily confers on individuals enforceable rights.
185. She submitted that there is no decision of the ECJ which holds that all provisions in all Regulations necessarily confer directly enforceable rights on individuals. She referred to the decision of the ECJ in Defrenne v SABENA (No 2) (Equal Pay) [1976] EUECJ C-43/75. The question in that case was whether Article 119 of the Treaty of Rome introduced directly into the national law of each Member State of the European Community the principle that men and women should receive equal pay for equal work and whether it therefore independently of any national provision entitled workers to institute proceedings before national courts in order to ensure its observance.
186. The ECJ held that for the purposes of the implementation of Article 119 a distinction had to be drawn between direct and overt discrimination, which may be identified solely with the aid of the criteria based on equal work and equal pay referred to by the Article in question, and secondly indirect and disguised discrimination which can only be identified by reference to more explicit implementing provisions of a Community or national character. (Paragraph 18).
187. The ECJ held:

"(21) Among the forms of direct discrimination which may be identified solely by reference to the criteria laid down by Article 119 must be included in particular those which have their origin in legislative provisions or in collective labour agreements and which may be detected on the basis of a purely legal analysis of the situation.

(22) This applies even more in cases where men and women receive unequal pay for equal work carried out in the same establishment or service, whether public or private.

(23) As is shown by the various findings of the judgment making the reference, in such a situation the court is in a position to establish all facts which enable it to decide whether a woman worker is receiving lower pay than a male worker performing the same tasks.

(24) In such situation, at least, Article 119 is directly applicable and may thus give rise to individual rights which the courts must protect." (Emphasis added).

188. Ms Busch drew attention to the use of the word "may" as indicating that even as regards an Article of the Treaty the fact that an Article was directly applicable did not necessarily lead to the result that it must give rise to individual rights which the courts must protect.
189. In response to that Mr Jagadesham pointed to the submission of the Government of the United Kingdom that the question must be settled in accordance with criteria evolved by the Court for the purpose of determining whether a provision of the Treaty is directly applicable "so as to confer on individuals rights enforceable by them in the national courts" (page 459). He submitted that implicit in that submission was a recognition that where a provision of the Treaty is directly applicable it automatically confers on individuals rights enforceable by them in the national courts. He also relied on the submission of the government of Ireland (at page 461) that the text of Article 119 did not permit the construction that it produces a direct effect in domestic law "so as to create rights and obligations between employers and employees", implicit in which he submitted was a recognition that an Article that produces a direct effect in domestic law automatically creates rights on the part of individuals.
190. Finally he relied on the submission of the Commission that the EEC Treaty contains two categories of provisions, first those which create individual rights which the national courts must take into account and, secondly, those which simply impose obligations on the Member State. In order to fall within the first category it was submitted that a provision must be complete in itself, subject to no reservation and unambiguous and require no further action for its implementation in the form of national legislative provisions. (page 462) That he submitted recognised that any provision of European law which satisfies the Van Gend en Loos conditions automatically creates individual rights which the national courts must take into account.
191. Ms Busch submitted that whether any particular provision of any particular Regulation confers a direct right on an individual depends on the terms and context of the provision and Regulation concerned. There is no absolute rule.
192. As regards the Dublin II Regulation she submitted that there is nothing in it which could be regarded as creating a new right on the part of individual asylum seekers to have their asylum claim determined in any particular Member State. On the contrary it is obvious from the background against which the Regulation was introduced, the travaux preparatoires and the terms of the Regulation itself that its purpose and effect was confined to creating an administrative system designed to facilitate the speedy consideration of asylum applications by introducing a uniform set of criteria for identifying responsible Members of State and mechanisms for implementing that process.
193. In support of this submission she pointed to the decision of the ECJ in Leonesio. The ECJ in its decision did not say that because of its nature and its purpose within the system of sources of Community law a Regulation has direct effect and as such does create individual rights which national courts must protect but rather that it has direct effect and is, as such capable of creating individual rights which national courts must protect. (Paragraph 5). She submitted that it is implicit in the use of the word "capable" that the ECJ contemplated that there may be Regulations which, even though they are directly applicable in all Member States and even though they have direct effect, do not create individual rights which national courts must protect.
194. Persuasively though they were advanced I do not accept Mr Jagadesham's submissions. To my mind his strongest argument was that based on the decision of the ECJ in Munoz y Cia Sa. On its face the passage cited appears to suggest that Regulations operate to confer rights on individuals which the national courts have a duty to protect. That is plainly not how it was interpreted by Beatson J in R (YZ and others) although he did not elaborate on his reasons. In effect his reason for rejecting the claimant's submissions were based on a combination of his construction of the Dublin II Regulation in the light of the travaux preparatoires and his analysis of the domestic English authorities.
195. However in my judgment it is plain from what the ECJ said in Leonesio that, for the reasons advanced by Ms Busch, the ECJ contemplated that there may be Regulations which, even though they are directly applicable in all Member States and even though they have direct effect do not create individual rights which national courts must protect.
196. Ms Busch relied in this context on the decision of the ECJ in Azienda. That was a case in which the ECJ held that two Regulations did not confer rights on individuals. The question posed for the Court was whether, despite the silence of the Italian legislature, it was in any event possible to apply the Community provisions [Regulations] in question to persons other than natural persons, and in particular companies having legal personality. (Paragraph 17(1)).
197. The ECJ held:

"(26) In this respect, although by virtue of the very nature of Regulations and of their function in the system of sources of Community law, the provisions of those Regulations generally have immediate effect in the national legal systems without its being necessary for the national authorities to adopt measures of application, some of their provisions may none the less necessitate, for their implementation, the adoption of measures of application by the Member States.

(27) That is true of the last subparagraph of Article 2(5) of Regulation number 797/85 and the last subparagraph of Article 5(5) of Regulation number 2328/91 which provides that, on the basis of the criteria used in respect of natural persons, "the Member States are to define what is meant by farmer practising farming as his main occupation" in the case of persons other than natural persons.

(28) In the light of the discretion enjoyed by the Member States in respect of the implementation of those provisions, it cannot be held that individuals may derive rights from those provisions in the absence of measures of application adopted by the Member State.

(29) It follows from the foregoing that the last sub paragraph of Article 2(5) of Regulation number 797/85 and the last sub paragraph of Article 5(5) of Regulation number 2328/91 may not be relied on before a national court by limited companies seeking to obtain status of farmers practicing farming as their main occupation where the legislature of a Member State has not adopted the provisions necessary for their implementation of the national legal system".

198. Mr Jagadesham submitted in relation to Azienda that although the ECJ held that the Regulations in question did not confer rights on individuals that was for a reason not applicable in the current context, namely that the provisions in question did not have immediate effect in the national legal systems without the adoption by the national authorities of measures of application. In addition the Regulation conferred on Member States a discretion as to the implementation of the relevant provisions, another feature not present in the current context.
199. I see the force of those submissions and in my judgment Azienda gives only limited support to Ms Busch's submissions. Nonetheless in my judgment the decision in Leonesio does support them.
200. It is in my judgment instructive to stand back and ask whether it would be consistent or inconsistent with the stated objectives of the Dublin II Regulation for it to confer rights on individuals to insist on proper application of the criteria and mechanisms and to render actionable as their suit breaches of the provisions. As pointed out by Silber J in Chen the objectives of the Dublin II Regulation and its predecessor Convention were to remedy the disturbing state of affairs whereby there were untold problems about identifying which country should be responsible for handling the asylum claims of a person who had been refused asylum previously in one Member State before applying for asylum in another Member State. For the reasons which I have set out earlier it is in my judgment plain that the purpose of the Regulation was to provide a speedy and efficient administrative system to enable Member States as between themselves to identify the Member State responsible.
201. There is in my judgement nothing in that objective which of itself carries with it a legitimate interest on the part of an asylum seeker to ensure that his asylum application is dealt with in the Member State identified as responsible by application of the criteria in the Regulation. On the hypothesis that all Member States would be bound to observe an asylum seeker's human rights set out in the ECHR including not to be sent back to a country in which those human rights would be breached, if the asylum application is found to be meritorious, the protection afforded by the grant of asylum will be available irrespective of which Member State is responsible for considering the application.
202. It might in theory be possible to contemplate a Regulation whose objective and purpose would be to confer on asylum seekers a new right to have their asylum application determined in a particular Member State or a Member State identified by reference to a particular criterion. There is, however, in my judgment nothing, either in the travaux preparatoires or in the terms of the Dublin II Regulation to suggest that this was such a Regulation. Had it been such a Regulation one would have expected to see explicit reference to those new policy objectives in the travaux preparatoires and also in the recitals to the Dublin II Regulation. In fact, as Cranston J said in the passage of his judgment in R (MK (Iran)) quoted by Carnwath LJ with approval in paragraph 42 of his judgment, the system is designed to prevent asylum shopping and at the same time to ensure that each asylum applicant's case is processed by only one Member State. It is in my judgment hard to reconcile the notion of a system designed to prevent asylum shopping with one which confers on asylum seekers a right to insist on their application being considered by a particular Member State, even if that is the Member State identified by proper application of the provisions of the scheme.
203. As Wynn Williams J said in R (Shayanth), it is very difficult to envisage circumstances in which it could be thought to be unfair to an asylum seeker that his application for asylum was determined in one Member country as opposed to another. As he also pointed out if removal to a third country would involve a breach of the asylum seeker's human rights under the ECHR the removal can be challenged on that ground. (Paragraph 47). Indeed it is striking that even in respect of Article 15 which arguably identifies a situation in which asylum seekers or members of their family may be thought to have a legitimate interest in an application being considered by a particular Member State, the Court of Appeal unanimously held that the effect of Article 15 is not to confer a free-standing substantive right on the individual applicant but rather is to regulate the relationship between two or more Member States. (Paragraph 25). The position is in my judgment a fortiori, as regards criteria such as those set out in Articles 9(1) and 9(4) where there is no logical reason why in every case the asylum seeker should have a legitimate interest in their application being determined in the country identified by application of the criterion. Indeed this very case well illustrates the point. The Claimant's own case is that she had no intention of coming to the United Kingdom and initially asked to be allowed to return to Germany. It was only later, apparently because she formed a new relationship with a man in this country that she changed her mind and sought to enforce what she asserted to be her right to have her application examined by the United Kingdom, which, on her case, happened to be the Member State identified by proper application of the hierarchy of criteria in the Dublin II Regulation. It is a classic example of precisely the kind of asylum shopping which Cranston J in R (MK) Iran, in a comment approved by Carnwath LJ, said that the system is designed to prevent.
204. It is a further consideration that, as has been pointed out, it would be contrary to the central objective of the Dublin II Regulation, namely to promote the speedy dealing with applications for asylum, if the Regulation gave asylum applicants the right to challenge decisions made by Member States pursuant to the Regulation, with the foreseeable consequence of delaying the examination of their applications for asylum pending the resolution of litigation between the applicant and a Member State or Member States.
205. The fact that none of the judges in the English authorities reviewed by Beatson J or mentioned in this judgment even raised the possibility that the Dublin II Regulation must confer rights on individuals as an automatic consequence of and merely by reason of the fact that it is a Regulation is very striking. It does not mean that Mr Jagadesham's submissions are wrong but it is, at the very least, not inconsistent with the conclusion which I have reached.

Conclusion on whether The Dublin II Regulation confers rights on individuals and renders breaches of its provisions actionable at their suit.

206. It follows from the above that, were it necessary to do so, I would hold that insofar as it relies on the existence of a right on the part of the Claimant to sue the Defendant for breach of the Dublin II Regulation and/or the actionability at his suit of alleged breaches thereof, the claim for judicial review must fail.

Overall Conclusions.

207. In my judgment the conclusions which I have reached on the absence of any right on the part of the Claimant to sue the Defendant for breach of the Dublin II Regulation are not necessary for the purpose of determining the Claimant's claim for judicial review.
208. In my judgment the Claimant has not demonstrated any Wednesbury unreasonable decision on the part of the Defendant. The sending of the request to Germany to accept responsibility for the examination of her claim was not in my judgment Wednesbury unreasonable. It is true that the Defendant was aware that the Claimant had claimed that she had been out of Germany and in Iran in 2011 which, if true, would have made Article 9(4) inapplicable. Article 17(3) requires a requesting state to include 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. Under Article 18(3)(b) circumstantial evidence refers to indicative elements which while being refutable may be sufficient in certain cases according to the evidential value attributed to them. Their evidentiary value in relation to the responsibility for examining the application for asylum shall be assessed on a case-by-case basis. Article 17(3) provides that it is for the requested Member State to check whether it is responsible on the basis of the criteria laid down in the Regulation.
209. It not uncommonly happens that asylum seekers, with a view to seeking to have their asylum applications determined in the United Kingdom, falsely claim to have left the territory of the Member State. The responsibility for checking such claims and forming a view on their veracity or reliability rests on the requested not the requesting Member State.
210. Once the two month period prescribed by Article 18(1), within which Germany was required to make the necessary checks and give a decision on the request to take charge, elapsed without a decision having been given by Germany, Germany's failure to act was deemed by Article 18(7) to be tantamount to accepting the United Kingdom's request and entailed the obligation to take charge of the Claimant.
211. That in my judgment would in itself have been a sufficient basis for the Defendant to have acted without Wednesbury unreasonableness in declining to examine the Claimant's asylum application and setting removal directions on the basis that Germany had become responsible for considering the Claimant's asylum application. Indeed even if the Claimant did not have an unexpired residence permit or visa on 27 November 2011 when she applied for asylum in the United Kingdom and even if she did leave Germany to go to Iran, Germany would have been the responsible Member State for examining her application as a result of the proper application of the provision of the Dublin II Regulation.
212. Further and in any event even if, which I do not consider to be the correct legal analysis, Germany had not already become the responsible state by reason of Article 18(7) (assuming that the Claimant did not have an unexpired residence permit or visa on 27 November 2011) the subsequent acceptance by Germany in its letter dated 27 April 2012 of responsibility for the Claimant entitled the Defendant both reasonably and in conformity with the Dublin II Regulation to decline to examine her asylum application and to set removal directions on that basis. As held by Mitting J in Reza it would on that hypothesis have been for Germany to decide whether or not it accepted its obligation to consider the Claimant's asylum application as the responsible Member State. In that case the relevant article was Article 13. In this case it was Article 9. In my judgment nothing turns on that. As held by Wilson J and the Court of Appeal in G and the Court of Appeal in AA (Somalia) once a decision has been made there is no obligation to revisit or question it.
213. Mr Jagadesham relied on the acceptance by Mr Karim that in fact there was no evidence to contradict the Claimant's claim that she had gone to Iran in 2011. That does not in my judgment demonstrate that the Defendant acted in a Wednesbury unreasonable manner either in sending the request to Germany or in subsequently relying on Germany's acceptance of responsibility.
214. Last, but in fact very far from least, in my judgment there is a further complete answer to the Claimant's claim in this case which does not depend on my conclusion that the Dublin II Regulation did not confer a right on the Claimant to insist that her asylum application be examined by the Member State identified as responsible by proper application of the hierarchy of criteria and did not render actionable at her suit alleged breaches of the provisions of the Regulation. It lies in the fact that the Claimant herself stated in interview and continued to insist right the way up to the hearing of her claim for judicial review that at the time she made her asylum application in this country on 27 November 2011 she was still in possession of a valid visa which did not expire until 15 December 2011. I am not blind to the force of Mr Jagadesham's submission that if her claim was true it is surprising that there was no reference to the fact that her residents permit or visa did not expire until 15 December 2011 and that there is no confirmation of that fact in any of the documents emanating from Germany which were made available to the Court. There was however reference to a resident's permit having been issued in the initial response to the Defendant's request to Germany for information and there was no challenge in any of the material emanating from Germany to the veracity of the Claimant's assertion that she had a valid visa which did not expire until 15 December 2011, or to the Defendant's statement, in her 22 February 2012 request that Germany take charge of the Claimant, that her residence permit expired on 15 December 2011 and that she had valid leave in Germany until that date.
215. In my judgment there is insufficient evidence to suggest that Germany was not entitled or obliged to accept responsibility for considering the Claimant's claim for asylum under Article 9(1) or Article 9(2). It is true that both the Defendant's request and the ultimate acceptance of responsibility by Germany referred to Article 9(4) and not Article 9(1) or Article 9(2). But if on the available evidence Germany was entitled to accept responsibility under Article 9(1) or Article 9(2) there can in my judgment have been no breach of the Dublin II Regulation so that even if such a breach, contrary to my conclusions referred to above, was actionable at the Claimant's suit, it would fail.
216. For these reasons in my judgment this claim for judicial review must fail and is dismissed.