QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|- and -
|Secretary of State for the Home Department
Sam Karim and Lisa Busch (instructed by Secretary of State for the Home Department) for the Defendant
Hearing dates: 23 October 2012, 06 November 2012 & 19 December 2012
Crown Copyright ©
Mr Justice Stadlen :
"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)
"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…"
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"
"Acceptance received from Germany under Article 9.4 of the Dublin II Regulation."
The Claimant's claim.
The Defendant's Case
The Dublin II Regulation
What I refer to in this judgment as the Dublin II Regulation is
COUNCIL REGULATION (EC) No 343/2003
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
(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
(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
(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
SUBJECT-MATTER AND DEFINITIONS
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.
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
[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).]
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.
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.
HIERARCHY OF CRITERIA
1. The criteria for determining the Member State responsible shall be applied in the order in which they are set out in this Chapter.
2. The Member State responsible in accordance with the criteria shall be determined on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State.
Where the applicant for asylum is an unaccompanied minor, the Member State responsible for examining the application shall be that where a member of his or her family is legally present, provided that this is in the best interest of the minor. In the absence of a family member, the Member State responsible for examining the application shall be that where the minor has lodged his or her application for asylum.
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.
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.
Where no Member State responsible for examining the application for asylum can be designated on the basis of the criteria listed in this Regulation, the first Member State with which the application for asylum was lodged shall be responsible for examining it.
1. 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.
TAKING CHARGE AND TAKING BACK
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.
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.
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.
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.
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
(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
(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.
The Travaux Preparatoires and The Recitals
"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).
"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).
"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 ).
" 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
The English Authorities
"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  EWCA Civ 285 . In Case C-253/00 Munoz y Cia SA v Frumar Ltd and Redbridge Produce Marketing Ltd  ECR 1-7289 at , 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  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  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  EWCA Civ 1150 ,  and , 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)  EWCA Civ 1540 at , 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  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 ) 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  – . 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  EWHC Admin 2848 and  EWCA Civ 546 In the Court of Appeal in G's case, Maurice Kay LJ stated (at ) 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  – ) 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  and ) 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)  EWCA Civ 1550 , Laws LJ, with whom May and Gage LJJ agreed, stated at :
"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  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 ) 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  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 ) 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  EWCA Civ 1380. When refusing permission to appeal, Pill LJ (with whom Moses LJ agreed) took the same approach. Burton J had decided ( 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  EWHC 437 (Admin) at  and , and of Christopher Symons QC in R (Haedare) v Secretary of State  EWHC 3444 (Admin) are to the same effect.
65. Finally, I come to the decision in R (J) v Secretary of State  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 ) 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 . 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 ) 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  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 ( EWHC 1182 (Admin) at  – ) and the ECJ (judgment, ) 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  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."
"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". .
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.
"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.
"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.
"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).
"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."
"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."
"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 ".
"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)
"This Regulation shall be binding in its entirety and directly applicable in the Member States in conformity with the Treaty establishing the European Community."
"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).
"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).
"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).
"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).
"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)).
"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).
"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).
"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).
"Dublin II gives rise to obligations between Member States; it does not confer claims on individual asylum seekers" (at ).
"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."
"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).
" 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  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]:
 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  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."
"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.
"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  EWCH 2250 (Civ) per Laws LJ). That same case suggests that a challenge to allocation may also be brought on rationality grounds…"
"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"
"Member States shall ensure that each adult having legal capacity has the right to make an application for asylum on his/her own behalf."
"….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.
Conclusion on the English Authorities
"This Regulation shall be binding in its entirety and directly applicable in the Member States in conformity with the Treaty establishing the European Community. "
"…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).
"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…"
"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."
"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."
"A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States."
"…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]."
"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."
"(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."
"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."
"(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).
"(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".
Conclusion on whether The Dublin II Regulation confers rights on individuals and renders breaches of its provisions actionable at their suit.