Case No: CO/12528/2012
QUEEN'S BENCH DIVISION
33 Bull Street, Birmingham, B4 6DS
B e f o r e :
| BIRUK HABTE
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
- and -
THE QUEEN on the application of
(1) RH (ERITREA)
(2) DY (ERITREA) (A MINOR)
SECRETARY OF STATE FOR THE HOME DEPARTMENT
S. Chelvan (instructed by Lawrence Lupin Solicitors) for the Claimants in the second case
Alan Payne (instructed by Treasury Solicitors) for the Defendant
Hearing date: 15th, 16th October 2013
Crown Copyright ©
Mr Justice Lewis:
"The applicant is a EURODAC hit with Germany on 01/06/2006, EURODAC hit attached. The applicant claimed asylum in the UK on 03/01/2012.
During the screening interview, the applicant claimed that he left Ethiopia on 16/07/2007 by air and went to France. On 24/07/2007 he claimed to have left France hidden in a lorry and entered the UK on the same day. He then states in the same interview that he left Ethiopia on 06/07/2011 and flew to France before taking a flight to Belgium and then a further flight to the UK, arriving in the UK on 24th or 25th July 2011.
The applicant later admitted to being fingerprinted in Germany and that he claimed asylum there in 2006. He claims that his German asylum claim was refused and that he went back to Ethiopia, but has not supplied any evidence of this.
The applicant has been vague about his travel route to the UK, and has travelled on a false passport for at least part of the journey. He initially didn't mention his time in Germany, and has failed to provide any evidence to support his claims that he returned to Ethiopia. All of this casts doubt on the validity of the applicants claims."
"This is certifying that Biruk Alemayehu was born in 05/04/1990. While he was here in Ethiopia he was an active member and took a short term BIBLE study course from March 01 May 20, 2007. He had good approach to the church ministers and all members. I would like to thank you for your cooperation."
RH and DY
"Subject and her son, [DY], date of birth 06/07/2005, claimed asylum in the UK.
The Eurodac search revealed Subject claimed asylum in Brussels, on 30/12/2004.
During Subject's interview she claimed that she left Eritrea on 20th December/25th December 2002, which took 6 to 7 days, to reach the border at Sudan, crossing in early 2003. Subject claimed she was concealed in a lorry Subject claimed she stayed in Sudan for about 1 year and 11 months, until November 2004.
Subject claimed she then travelled to Turkey, where she stayed until 2006. Subject then travelled to Greece, where she stayed for 5 years, then to Italy exact location not know but was one hours drive from Milan.
Subject arrived in the UK with her son, [DY], 06/07/2005, on 17th August 2011 at Stansted Airport on a Brasilian passport which the agent had given to her, but she disposed of this on the plane. Subject claimed she did not have her fingerprints taken whilst in Europe.
On further questioning regarding her Eurodac fingerprints in Belgium on 30/12/2004, Subject admitted she was caught at the border in Belgium, was fingerprinted and then stayed for about a month and a half in a camp because she was pregnant. Subject claimed she then left on her own. Subject claimed her son was born in Turkey.
The UK has no proof to substantiate this claim and no account be relied upon as credible. From the account given by applicant, shows total disregard for the UK Immigration rules."
"The alien and her child [DY], 06/07/2005 applied for asylum on 30/12/2004. On 28/04/2005 they got a negative decision.
As we have no traces of the alien and her son since 04/2005 and the alien declared he [sic] went outside the Schengen Territory, we can not accept to take them back.
Please provide us all information about the aliens whereabouts since 2005."
THE LEGAL FRAMEWORK
"(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.
"(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.
"(15) The Regulation observes the fundamental rights and principles which are acknowledged in particular in the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure full observance of the right to asylum guaranteed by Article 18."
"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.
"3.2. 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 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 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."
"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;
(c) take back, under the conditions laid down in Article 20, an applicant whose application is under examination and who is in the territory of another Member State without permission;
(d) take back, under the conditions laid down in Article 20, an applicant who has withdrawn the application under examination and made an application in another Member State;
(e) take back, under the conditions laid down in Article 20, a third-country national whose application it has rejected and who is in the territory of another Member State without permission.
"16.2 Where a Member State issues a residence document to the applicant, the obligations specified in paragraph 1 shall be transferred to that Member State.
"16.3 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.
"16.4 The obligations specified in paragraph 1(d) and (c) shall likewise cease once the Member State responsible for examining the application has adopted and actually implemented, following the withdrawal or rejection of the application, the provisions that are necessary before the third-country national can go to his country of origin or to another country to which he may lawfully travel. "
"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 in its territory. The transfer shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request that charge be taken by another Member State or of the decision on an appeal or review where there is a suspensive effect;
(e) the requesting Member State shall notify the asylum seeker of the decision concerning his being taken back by the Member State responsible. The decision shall set out the grounds on which it is based, it shall contain details of the time limit on carrying out the transfer and shall, if necessary, contain information on the place and date at which the applicant should appear, if he is travelling to the Member State responsible by his own means. This decision may be subject to an appeal or a review. Appeal or review concerning this decision shall not suspend the implementation of the transfer except when the courts or competent bodies so decide in a case-by-case basis if the national legislation allows for this.
If necessary, the asylum seeker shall be supplied by the requesting Member State with a laissez passer of the design adopted in accordance with the procedure referred to in Article 27(2).
The Member State responsible shall inform the requesting Member State, as appropriate, of the safe arrival of the asylum seeker or of the fact that he did not appear within the set time limit.
"20.2 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.
"20.3 The rules of proof and evidence and their interpretation, and on the preparation of and the procedures for transmitting requests, shall be adopted in accordance with the procedure referred to in Article 27(2).
"20.4 Supplementary rules on carrying out transfers may be adopted in accordance with the procedure referred to in Article 27(2)"
"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."
Requests for taking back shall be made on a standard form in accordance with the model in Annex III, setting out the nature of the request, the reasons for it and the provisions of regulation (EC) No 343/2003 on which it is based.
The request shall also include the positive result (hit) transmitted by the Eurodac Central Unit, in accordance with Article 4(5) of Regulation (EC) No 2725/2000, after comparison of the applicant's fingerprints with fingerprint data previously taken and sent to the Central Unit in accordance with Article 4(1) and (2) of that Regulation and checked in accordance with Article 4(6) of that Regulation.
For requests relating to applications dating from before Eurodac became operational, a copy of the fingerprints shall be attached to the form.
Where a request for taking back is based on data supplied by the Eurodac Central Unit and checked by the requesting Member State, in accordance with Article 4(6) of Regulation (EC) No 2725/2000, the requested Member State shall acknowledge its responsibility unless the checks carried out reveal that its obligations have ceased under the second subparagraph of Article 4(5) or under Article 16(2), (3) or (4) of Regulation (EC) No 343/2003. The fact that obligations have ceased on the basis of those provisions may be relied on only on the basis of material evidence or substantiated and veritable statements by the asylum seeker."
1. Where, after checks are carried out, the requested Member State considers that the evidence submitted does not establish its responsibility; the negative reply it sends to the requesting Member State shall state full and detailed reasons for its refusal.
2. Where the requesting Member State feels that such a refusal is based on a misappraisal, or where it has additional evidence to put forward, it may ask for its request to be re-examined. This option must be exercised within three weeks following receipt of the negative reply. The requested Member State shall endeavour to reply within two weeks. In any event, this additional procedure shall not extend the time limits laid down in Article 18(1) and (6) and Article 20(1)(b) of Regulation (EC) No 343/2003."
(1) Was the Defendant obliged to take further procedural steps to obtain evidence relevant to proving, or disproving that the obligation of Germany to take back Mr Habte had ceased by reason of Article 16(3) of the Dublin II Regulation either (a) as a matter of domestic law relating to procedural fairness (b) the provisions of the Dublin II Regulation or the Commission Regulation or (c) Article 41 of the Charter?
(2) Would the decision to transfer Mr Habte be open to challenge on domestic public law grounds given that Germany had accepted it was responsible for examining Mr Habte's asylum claim and said that it would take back Mr Habte?
(3) Do the material provisions of the Dublin II Regulation confer directly effective rights on individual asylum seekers such as Mr Habte?
(4) Does a decision to remove Mr Habte constitute an individual decision adversely affecting Mr Habte within the meaning of Article 41 of the Charter?
(5) Was the decision to certify Mr Habte's human rights claim as clearly unfounded unlawful?
(1) Whether the decision to request a transfer, and to continue the request, was irrational on domestic public law grounds given that RH claimed to have left the EU for more than 3 months and Belgium initially declined to accept responsibility?
(2) If so, is it open to RH now to challenge the actions of the Defendant on the domestic public law ground of irrationality, given that Belgium has now accepted responsibility for examining RH's asylum claim and has agreed to take RH back?
The Procedural Obligations
"within a speedy timeframe in accordance with the aims of the Dublin II Regulation, the requesting state must take reasonable steps required to obtain the documentary evidence relevant to proving (and, therefore, disproving), each of the facts upon which the mandatory or discretionary allocation of responsibility under the Dublin II Regulation depends."
(1) the nature of the decision in question;
(2) the specific provisions of the relevant EU Regulations and the structure of those Regulations; and
(3) the policy underlying the Dublin II Regulation.
"78. Consideration of the texts which constitute the Common European Asylum System shows that it was conceived in a context making it possible to assume that all the participating states, whether member states or third states, observe fundamental human rights based on the Geneva Convention and the 1967 Protocol, and on the ECHR, and that the member states can have confidence in each other in that regard.
"79. It is precisely because of that principle of mutual confidence that the European Union legislature adopted Regulation No 343/2003 and the Conventions referred to in paras 24-36 of the present judgement to rationalise the treatment of asylum claims and to avoid blockages in the system as a result of the obligation on state authorities to examine multiple claims by the same applicant, and in order to increase legal certainty with regard to the determination of the state responsible for examining the asylum claim and thus to avoid forum shopping, it being the principal aim of all these measures to speed up the handling of claims in the interest of both asylum seekers and the participating member states."
"1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union.
"2. This right includes:
(a) the right of every person to be heard before any individual measure which would affect him or her adversely is taken ."
"29 First, article 41 only applies to measures that would adversely affect the citizen, that is, are sufficiently important to him to justify the obligation imposed on the state party. When we asked Mr Southey how the letter of 11 April 2011 adversely affected the appellant, he said that it led to his case being heard in Belgium when he would prefer it to be heard in the UK: because he had already received a negative decision in Belgium. That will not do. The whole point of the Dublin II arrangements is that they assume that it will not matter to the outcome where in the Community an asylum application is heard. If (see paragraph 11 above) the member states cannot pick and choose amongst themselves as to the validity and reliability of particular state systems, a fortiori an individual applicant cannot do so.
"30 Second, and in any event, in a system such as that of Dublin II, which makes so great a distinction between the full justiciability of the second phase of the asylum process and the threshold allocation of responsibility of the first phase, it is very unlikely that article 41 obligations were intended to apply to that first phase."
THE RATIONALITY CHALLENGE
THE ECHR CLAIM
"24 One has first to bear in mind that in Dublin cases the sole purpose of removal is to enable another state to entertain the same claim as has been made in the United Kingdom. It is not, as it is in the case of other removals, to return to their country of origin someone who has failed to establish any right to be here. The imperative of effective immigration control therefore has little bearing: that lies in the future."