Scottish Court of Session Decisions

Khairandish, Re Judicial Review [2003] ScotCS 116 (23 April 2003)

OUTER HOUSE, COURT OF SESSION

P589/02

OPINION OF LORD DRUMMOND YOUNG in the petition of HEDAYATULLAH KHAIRANDISH     for Judicial Review of (1) a Decision of the Secretary of State for the Home Department dated 11 May 2002 to issue a Notice for Removal Directions and (2) a Decision of the Secretary of State for the Home Department dated 28 February 2002 in terms of section 11(2) of the Immigration and Asylum Act 1999     ________________

 

 

Act: Mitchell, QC; Blair; Lindsays WS

Alt: Lindsay; H. F. Macdiarmid, Office of the Solicitor to the Advocate General

23 April 2003

1. The petitioner is a national of Afghanistan. He and his child have sought asylum in the United Kingdom in terms of the Convention relating to the Status of Refugees, 1951. The petitioner arrived in the United Kingdom on 21 August 2001, and on the same day made a claim for asylum in terms of the 1951 Convention. On his way to the United Kingdom the petitioner had made a claim for asylum in Austria. By letter dated 28 February 2002 the Home Secretary wrote to the petitioner advising him that he had certified the claim for asylum made by the petitioner and his son under section 11(2) of the Immigration and Asylum Act 1999, and that the Home Secretary accordingly intended to remove the petitioner and his child to Austria in order that his application for asylum could be examined there. Removal directions were issued on 11 May 2002, to take effect on 17 May 2002. The petitioner now seeks declarator that the removal directions are unlawful and unreasonable, and that the continued actings of the Home Secretary in reliance on the section 11(2) certificate are unlawful. He further seeks reduction of the section 11(2) certificate.

Treaty provisions and legislation

2. It is first necessary to set out the treaty provisions and legislation that form the background to the present case. The most significant treaty provision is the Convention Determining States Responsible for Examination of Applications for Asylum lodged in one of the Member States of the European Communities, generally referred to as the Dublin Convention. The purposes of this Convention are set out in its preamble. This refers first to the objective, fixed by the European Council, of the harmonisation of member states' asylum policies; secondly to the determination of the Council to guarantee adequate protection to refugees under the Geneva Convention; and thirdly to the joint objective of an area without internal frontiers in which the free movement of persons is to be ensured under the primary European Community treaty provisions. It continues:

"Aware of the need, in pursuit of this objective, to take measures to avoid any situations arising, with the result that applicants for asylum are left in doubt for too long as regards the likely outcome of their applications and concerned to provide all applicants for asylum with a guarantee that their applications will be examined by one of the member states and to ensure that applicants for asylum are not referred successively from one member state to another without any of these states acknowledging itself to be competent to examine the application for asylum".

The purposes of the Convention accordingly include the protection of applicants for asylum. It should be noted, however, that the protection that it provides is directed towards ensuring that an application will be examined by one of the member states, and will not be the subject of successive references from one member state to another. Thus the certainty that the Convention provides is that one state will examine the application, not that any particular state will do so.

3. Article 3 of the Convention provides as follows:

"1 Member states undertake to examine the application of any alien who applies at the border or in their territory to any one of them for asylum.

2 That application shall be examined by a single member state, which shall be determined in accordance with the criteria defined in this Convention....

4 Each member state shall have the right to examine an application for asylum submitted to it by an alien, even if such examination is not its responsibility under the criteria defined in this Convention, provided that the applicant for asylum agrees thereto".

Articles 4-7 deal with a number of specific cases where one state is allocated the responsibility of examining an application for asylum. None of these is applicable to the present case. Article 8 and then provides:

"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, the first member state with which the application for asylum is lodged shall be responsible for examining it".

Thus, if none of the specific allocations of competence applies in a particular case, the rule followed by the Convention is that the first member state in which an application for asylum is made is to be responsible for its examination. Article 10(1)(c) of the Convention provides that a member state responsible for examining an application for asylum shall be obliged to re-admit an applicant whose application is under examination and who is irregularly in another member state. Article 11 then provides a series of procedures for the transfer of an applicant for asylum from one state to another, if that appears to be required by the substantive provisions of the Convention. These provisions are subject to time limits, and some contain statements of the consequences if a time limit is not met. The article is as follows:

"1 If 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 the six months following the date on which the application was lodged, call upon the other member state to take charge of the applicant.

If the request that charge be taken is not made within the six-month time limit, responsibility for examining the application for asylum shall rest with the state in which the application was lodged.

2 The request that charge be taken shall contain indications enabling the authorities of that other state to ascertain whether it is responsible on the basis of the criteria laid down in this Convention..............

4 The member state [to which the request has been made] shall pronounce judgment on the request within three months of receipt of the claim. Failure to act within that period shall be tantamount to accepting the claim.

5 Transfer of the applicant for asylum from the member state when the application was lodged to the member state responsible must take place not later than one month after an 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".

Article 13(1) then provides:

"An applicant for asylum shall be taken back in the cases provided for... in Article 10 as follows:

(a) the request for the applicant to be taken back must provide indications enabling the state with which the request is lodged to ascertain that it is responsible in accordance ... with Article 10;

(b) the state called upon to take back the applicant shall give an answer to the request within eight days of the matter being referred to it. Should it acknowledge responsibility, it shall then take back the applicant for asylum as quickly as possible and at the latest one month after it agrees to do so".

4. The domestic legislation relevant to the present petition is found principally in the Immigration and Asylum Act 1999. Section 15 of the Act provides a general prohibition on the removal of claimants for asylum from the United Kingdom during the period when the Home Secretary is adjudicating on the claim. Section 11 of the Act is in the following terms:

"(1) In determining whether a person in relation to whom a certificate has been issued under subsection (2) may be removed from the United Kingdom, a member State is to be regarded as --

(a) a place where a person's life and liberty is not threatened by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and

(b) a place from which a person will not be sent to another country otherwise than in accordance with the Refugee Convention.

(2) Nothing in section 15 prevents a person who has made a claim for asylum ('the claimant') from being removed from the United Kingdom to a member State if --

(a) the Secretary of State has certified that --

(i) the member State has accepted that, under standing arrangements, it is the responsible State in relation to the claimant's claim for asylum; and

(ii) in his opinion, the claimant is not a national or citizen of the member State to which he is to be sent;....

(4) 'Standing arrangements' means arrangements in force as between member States for determining which state is responsible for considering applications for asylum".

Section 11 thus relates to directly to member states of the European Union, and the reference to "standing arrangements" in subsection (4) includes the arrangements set up under the Dublin Convention for the transfer of applicants for asylum. Apart from the 1999 Act, Schedule 2 to the Immigration Act 1971 is relevant to the present case. Paragraph 8 of that Schedule permits an immigration officer to give directions to the captain or owners or agents of a ship or aircraft for the removal of an illegal immigrant from the United Kingdom. Paragraph 10(1) permits the Secretary of State to give similar directions where the immigration officer has failed to do so. Paragraph 10(2) then provides that the Secretary of State may, instead of acting under sub-paragraph (1), give directions for the removal of any illegal immigrant in accordance with arrangements to be made by the Secretary of State to any country or territory to which he could be removed under sub-paragraph (1). In the present case, two decisions by the Home Secretary are under challenge. The first is his decision to certify the petitioner's case under section 11(2) of the Immigration and Asylum Act 1999. The second is the removal directions issued under paragraph 10(2) of Schedule 2 to the Immigration Act 1971.

Facts

5. The material facts are as follows. The petitioner, who was born in 1968, is a widower. He has one child, a son, who is five years of age. He and his son left Afghanistan during 2001. The petitioner claims that they had been the subject of persecution by the Taliban, and that his wife and other son were killed in a Taliban raid. The petitioner alleges that he and his son fled the risk of further violence, and that both were traumatised by the deaths. He avers that they wanted to flee to Britain, and that an agent made travel arrangements for them. He further avers that en route they stopped in Austria, spending less than a day there. He was, however, interviewed by the Austrian authorities at a refugee centre. Although it is not averred in the petition, it was accepted by his counsel that when in Austria he had made a claim for asylum there, that claim being dated 12 June 2001. He subsequently arrived in the United Kingdom on 21 August 2001, and made the claim for asylum that is the subject of the present proceedings. He and his son were moved to Glasgow, and he avers that he has settled there; that is not, however, relevant for the purposes of the present application.
6. On 20 February 2002 the United Kingdom made a request to Austria that it should accept the transfer of the petitioner in order that his application for asylum might be determined in Austria. This request was made under article 8 of the Dublin Convention, and it was made in accordance with the six-month time limit specified in article 11(1) of the Convention. The petitioner was notified of the request on the same date. On 28 February 2002 the Austrian Federal Asylum Office accepted the transfer, their acceptance being in terms of articles 8 and 13 of the Convention. The Austrian acceptance was made within the three-month time limit specified in article 11(4) of the Convention. On the same date the petitioner was notified that the Secretary of State certified that the conditions mentioned in section 11(2)(a) of the Immigration and Asylum Act 1999 were satisfied, as the authorities in Austria had accepted that, under standing arrangements, Austria was the responsible state in relation to his claim for asylum. Thereafter, article 11(5) of the Convention would normally have applied, with the result that the petitioner should have been transferred to Austria not later than one month after the Austrian acceptance of 28 February 2002. That did not happen, however. On 14 March 2002 the Immigration and Nationality Directorate of the Home Office wrote to the Austrian Federal Asylum Office to intimate as follows:

"We have been informed by our immigration services that due to operational difficulties the removal cannot be effected in the usual month, we are therefore asking for extra time. We will advise you of the new arrangements for transfer as soon as possible".

Thereafter, on 11 May 2002, the Home Secretary issued directions which provided for the removal of the petitioner and his son to Austria on 17 May 2002. Those directions were issued under paragraph 10(2) of Schedule 2 to the Immigration Act 1971. The date set for removal of the petitioner is obviously outside the time limit provided in article 11(5) of the Dublin Convention.

7. In the foregoing circumstances, the petitioner seeks declarator that the decision of the Home Secretary to issue directions for the removal of the petitioner is in breach of the legitimate expectation of the petitioner that his asylum claim would be dealt with in accordance with the terms of articles 8, 10, 11 and 13 of the Dublin Convention, and is accordingly unlawful and unreasonable. He further seeks declarator that the continued actings of the Home Secretary in reliance on the certificate issued under section 11(2) of the Immigration and Asylum Act 1999 are unlawful, and he seeks reduction of that certificate.

Arguments

8. The argument for the petitioner was that the Dublin Convention created a legitimate expectation in the petitioner that his application for asylum would be dealt with within the time limits set out in the Convention. That applied in particular to the time limit of one month specified in article 11(5). The same time limit was specified in article 13(1)(b), which imposed the obligation on Austria to take back an applicant for asylum. For the proposition that the Dublin Convention gave rise to legitimate expectations on the part of applicants for asylum, reference was made to Ibrahim v Home Secretary, 20 March 2002, unreported, Minister for Immigration and Ethnic Affairs v Teoh, (1995) 183 CLR 273, and R v Home Secretary, ex parte Ahmed and Patel, [1998] INLR 570. Moreover, the passage in the preamble to the Convention quoted in paragraph [2] above indicated that one of the purposes of the Convention was the protection of asylum seekers, so that they would not be left in doubt about the result of their applications for too long. That meant that the Convention should be construed as giving rise to a legitimate expectation that the time limits would be adhered to. In the present case, the transfer of the petitioner to Austria had not taken place within the one-month time limit specified in the Convention. Any transfer after the expiry of that limit was accordingly in breach of the petitioner's legitimate expectations. In reply, counsel for the respondent argued that the terms of the Dublin Convention were such that it did not give rise to any legitimate expectations on the part of individual applicants for asylum; the Convention was a treaty affecting the relationships of member states of the European Union among themselves, and was not conceived in favour of individual applicants for asylum. Reference was made to three English cases, Artan Gjoka and Shefki Gashi, 15 June 2000, unreported, Zeqiri v Home Secretary, [2002] Imm AR 42, and Lika v Home Secretary, 16 December 2002, unreported. In any event, even if the treaty did create legitimate expectations in individual asylum applicants, any expectation that the time limits in article 11 of the Convention would be strictly adhered to was negatived by paragraph 345 of the Immigration Rules (HC 395), quoted in paragraph [17] below. What the petitioner relied on was merely a legitimate expectation, not a rule of law, and such an expectation can be negatived by a contrary declaration of practice by the executive. Counsel for the respondent presented an alternative argument based on Decision Number 1/97 of the Committee set up by article 18 of the Dublin Convention; I deal with this argument at paragraphs [19]-[24] below.

International treaties and legitimate expectations

9. The general question raised in this case is accordingly whether the United Kingdom's entering into the Dublin Convention gives rise to legitimate expectations on which individual applicants for asylum are entitled to rely. The more specific question is whether article 11(5) of the Convention gives rise to such expectations, and in particular whether there is a legitimate expectation that, if the asylum seeker is not transferred within the one month time limit referred to in that paragraph, transfer will not take place. In my opinion neither the Dublin Convention in general nor article 11(5) in particular gives rise to any such legitimate expectations. I reach that conclusion for the following reasons.
10. I accept that, when the United Kingdom enters into an international treaty, that may give rise to a legitimate expectation on the part of individuals that the executive will act in accordance with the terms of the treaty. The reasons for that conclusion are set out by the High Court of Australia in Minister for Immigration and Ethnic Affairs v Teoh, supra, a case in which it was claimed that the United Nations Convention on the Rights of the Child gave rise to legitimate expectations. In that case, Mason CJ and Deane J stated, at 291:

"Moreover, ratification by Australia of an international convention is not to be dismissed as a merely platitudinous or ineffectual act... particularly when the instrument evidences internationally accepted standards to be applied by courts and administrative authorities in dealing with basic human rights affecting the family and children. Rather, ratification of a convention is a positive statement by the executive government of this country to the world and to the Australian people that the executive government and its agencies will act in accordance with the convention. That positive statement is an adequate foundation for a legitimate expectation, absent statutory or executive indications to the contrary, that administrative decision-makers will act in conformity with the convention... and treat the best interests of the children as 'a primary consideration'. It is not necessary that a person seeking to set up such a legitimate expectation should be aware of the convention or should personally entertain the expectation; it is enough that the expectation is reasonable in the sense that there are adequate materials to support it...

"The existence of a legitimate expectation that a decision-maker will act in a particular way does not necessarily compel him or her to act in that way. That is the difference between a legitimate expectation and a binding rule of law. To regard a legitimate expectation as requiring the decision-maker to act in a particular way is tantamount to treating it as a rule of law. It incorporates the provisions of the unincorporated convention into our municipal law by the back door".

That statement was approved by the Court of Appeal in England in an immigration case, R v Home Secretary, ex parte Ahmed and Patel, supra, at [1998] INLR 584 per Lord Woolf MR and at 592 per Hobhouse LJ. It has also been followed in Scotland, by Lord Carloway in Ibrahim v Home Secretary, supra. In my opinion it correctly represents the legal position in Scots law.

11. Nevertheless, the ability of an international treaty to give rise to legitimate expectations is subject to three major qualifications. The first of these is described in the second paragraph of the passage quoted above from Minister for Immigration and Ethnic Affairs v Teoh: even when a legitimate expectation exists, the decision maker is not compelled to act in accordance with it; if there are valid reasons to the contrary, he may decline to do so. That is because a legitimate expectation is not a binding rule of law. The second qualification is also mentioned in Minister for Immigration and Ethnic Affairs v Teoh: even if a legitimate expectation might otherwise emerge from the fact that the executive has concluded a treaty, it may be negatived either by statute or by a contrary indication issued by the executive. The notion that a legitimate expectation may be negatived by statute requires no comment. The possibility that a legitimate expectation may be negatived by a declaration by the executive arises out of the fact that it is not a rule of law. The underlying basis for the recognition of legitimate expectations is the principle that government and public administration should be carried on in a reasonable manner, and that that involves consistency of decision-making. If the executive makes a public statement that it will act in a particular way in a particular category of cases, the principle of consistency requires that it should act in that way unless there are valid reasons to the contrary. That is what creates a legitimate expectation. If, however, the executive makes a statement that in future it will act in a different way, the principle of consistency is not infringed; the executive has simply exercised its right to alter the basis on which it acts, in a situation where it is not bound by legislation or the common law. The treaty itself, of course, is not binding in domestic law unless it is incorporated into legislation.
12. The third qualification on the principle that entering into an international treaty may give rise to legitimate expectations is this: not every treaty will have that effect, and the particular treaty relied upon must be examined to discover whether its nature is such that it can reasonably be supposed to give rise to legitimate expectations on the part of individuals or other legal persons. International treaties and conventions cover a vast range of subject matter. Some are clearly intended to affect the rights or status of individuals; the Geneva Convention relating to the Status of Refugees is a good example. In such cases it will usually, although perhaps not invariably, be appropriate to draw the conclusion that the treaty gives rise to a legitimate expectation that the government, and its ministers, officials and agencies, will act according to its terms. Other treaties are clearly not intended to affect the rights of individuals, but rather to regulate the relations of states or governments among themselves; military, naval and defensive treaties are obvious examples of this category. Treaties of the latter sort will not give rise to legitimate expectations on the part of individuals, because they are concerned with acts of the state or government acting as such at an international level, and acts of that nature are beyond the scope of the domestic law. In yet other cases, a treaty may have some bearing on the rights or status of individuals, but its subject matter or objectives or terms may be such as to negative any implication that it gives rise to legitimate expectations on the part of those individuals. In every case, the terms and objectives of the treaty in question must be examined, and the court must decide the category into which it falls.

Dublin Convention and legitimate expectations

13. In my opinion the Dublin Convention cannot be regarded as giving rise to legitimate expectations on the part of individuals, for two reasons. In the first place, it appears to me to be a treaty intended to regulate the relations of states among themselves at an international level. The Convention's subject matter is the allocation of responsibility for examining applications for asylum among the member states of the European Community, now the European Union. That is an allocation of responsibility for a particular public function, and that in itself indicates that the Convention is intended to have an interstate or intergovernmental effect, rather than to affect the substantive rights of individuals. Moreover, the Convention does not state any substantive principles that are to be applied in examining applications for asylum, but merely determines which state is responsible for the task. The signatories to the Dublin Convention have all subscribed to the Geneva Convention relating to the Status of Refugees and the European Convention on Human Rights. Thus all of those states are bound to apply the principles of the Geneva Convention to all applications for asylum, and are obliged to apply certain basic principles of fairness in their dealings with applicants for asylum. All that the Dublin Convention does is to determine the state whose authorities must decide whether a particular application for asylum is justified under the Geneva Convention. In the second place, the detailed rules of the Dublin Convention clearly envisage that it is to have an interstate or intergovernmental effect. Thus article 3(2) provides that an application for asylum is to be examined by a single member state, to be determined in accordance with the criteria defined in the Convention, as set out in articles 4-8. That state is then given the responsibilities set out in article 10 of the Dublin Convention, which include taking charge of the applicant and completing the examination of his application. Article 11 deals with the transfer of applicants among member states. It provides for a series of specific procedures, and includes time limits and in some cases sanctions for non-observance of those time limits. While the individual applicant is obviously affected by those procedures, they are expressed in such a way that they take effect between the authorities of the states concerned. The applicant is given no right under article 11 to challenge these arrangements. The same is true of article 13. Moreover, the time limits found in articles 11(1), (4) and (5) and 13(1)(b) are clearly intended to have effect between member states. Thus the sanction for failing to meet the six-month time limit in article 11(1) is that responsibility for examining the application is to remain with the state in which it was lodged. Likewise, under article 11(4), if the state that receives the transfer request fails to act within three months, the sanction is that that state is deemed to accept the request. Under article 11(5) and article 13(1)(b), the time limits once again relate to the acts of the member states concerned. In these cases there are no sanctions, but the wording of the relevant paragraphs indicates quite clearly that they are dealing with acts of member states as such, in their relationships with one another.
14. I am further of opinion that the objectives of the Dublin Convention as set out in its preamble negative any expectation on the part of an individual asylum seeker that a particular member state will examine his or her case. The crucial objectives are quoted in full in paragraph [2] above. These are to prevent applicants for asylum from being left in doubt as to the outcome of their applications, and to provide all applicants for asylum with a guarantee that their applications will be examined by a single member state, and not passed from one state to another. Those objectives are obviously connected. They require that one member state should be clearly charged with examining an application, and should be obliged to proceed with such examination as rapidly as possible. They do not require, however, that that task should be imposed on one specific member state rather than another; because all member states of the European Union are obliged to observe the principles of both the Geneva Convention and the European Convention on Human Rights, the outcome should be the same whichever state examines the case. Moreover, the preamble to the Dublin Convention refers to the European Union's objective of an area without internal frontiers in which the free movement of persons is ensured. That means that, if an application for asylum is granted, the successful applicant will be free to move among the member states of the European Union. Thus the identity of the state which examines the application is only significant in relation to the applicant's residence while his examination is proceeding.
15. Counsel for the petitioner submitted that the Dublin Convention had important effects on the rights of individual applicants for asylum. He submitted in particular that the passage in the preamble quoted in paragraph [2] above amounted to a clear recognition that the Convention was intended to confer benefits on individual applicants for asylum by identifying the state that could deal with the claim. He developed this proposition by drawing an analogy with provisions governing civil jurisdiction, notably the Civil Jurisdiction and Judgments Act 1982. In my opinion these arguments are not well founded. It is obviously true that the Dublin Convention confers indirect benefits on individual applicants for asylum. Because one state is identified as having responsibility for examining each claim for asylum, applicants cannot be passed around from state to state. As a result claims for asylum should be determined more speedily, and applicants will not be left in a state of uncertainty. Those benefits are recognised in the passage quoted from the preamble. Nevertheless, the benefits are indirect; the Convention itself is concerned with determining the state whose authorities are responsible for examining the claim, and for the reasons discussed in paragraph [13] above I am of opinion that that is a matter between states, which does not confer legitimate expectations upon individuals. The analogy with civil jurisdiction is in my opinion misplaced. The Civil Jurisdiction and Judgments Act 1982 incorporates the terms of the European Judgments Convention. In this case, accordingly, it was considered necessary to incorporate the Convention into domestic law by means of an Act of Parliament. The Convention has been superseded by Council Regulation 45, but this is a piece of European legislation that has direct effect in domestic law; once again, therefore, the substance of domestic law is affected directly. The Dublin Convention has not been incorporated into domestic law. Moreover, it concerns a specific type of claim which involves an administrative decision by the executive rather than adjudication by a court. Because of the direct involvement of the executive in such claims, it is inherently more likely that arrangements for allocating their examination to a particular state will be regarded as arrangements affecting the states themselves, and not individual claimants. The position is clearly different with ordinary civil claims, where the parties will usually be private individuals or corporations.
16. Counsel for the petitioner further submitted that the Dublin Convention gave rise to legitimate expectations of a more limited nature. He submitted, in particular, that the Convention created an expectation that the time limits set out in Article 11 would be adhered to. A crucial purpose at the Convention, as stated in the passage from the preamble quoted in paragraph [2] above, was to ensure that applications for asylum would be dealt with rapidly, and adherence to the specified time limits was necessary to achieve that objective. In my opinion that contention is incorrect. Article 11 contains three time limits. All three are expressed in terms that have effect as between the two member states concerned. The time limit in paragraph 1, relating to the making of a request to take charge of an application for asylum, and that in paragraph 4, relating to the acceptance of such a request, are both followed by statements of the consequences if the time limit is not met. Both of those time limits are expressed so as to affect the rights and obligations of the two member states concerned with the application. The third time limit, that in paragraph 5, contains no such statement of the consequences if it is not met. Nevertheless, that paragraph deals with a transfer from one member state to another, following acceptance by the second state of a transfer request made by the first. In the context of the article, and indeed of the Convention as a whole, I am of the opinion that the time limit in paragraph 5 was only intended to bind the member states concerned as between each other, and could be waived by them if there were any difficulty in meeting the time limit. It was not intended to create any legitimate expectations in the applicant for asylum.
17. For the foregoing reasons I conclude that the Dublin Convention does not give rise to any legitimate expectations on the part of individual applicants for asylum. That is sufficient by itself to refuse the prayer of the petition. I should note that a similar conclusion was reached in three English cases, Artan Gjoka and Shefki Gashi, supra, 15 June 2000, at paragraph 11, Zeqiri v Home Secretary, supra, at [2002] Imm AR, paragraph 49, and Lika v Home Secretary, supra, 16 December 2002, at paragraphs 20-26. In my opinion the conclusions reached in these cases accurately represent Scots law.

Dublin Convention and executive declaration of practice

18. As mentioned in paragraph [11] above, even if an international treaty is capable of giving rise to legitimate expectations on the part of individuals, the existence of such expectations may be negatived by an executive declaration to the contrary. In my opinion that has happened in the case of the Dublin Convention. The declaration in question is paragraph 345 of the Immigration Rules (HC 395), which is in the following terms:

"(1) In a case where the Secretary of State is satisfied that the conditions set out in either section 11(2) or section 12(7) of the IAA 1999 are fulfilled, he will normally refuse the asylum application and issue a certificate under section 11 or section 12 of the IAA 1999 (as the case may be) without substantive consideration of the applicant's claim to refugee status. The conditions are:

(i) that the applicant is not a national or citizen of the country or territory to which he is to be sent;

(ii) that the applicant's life and liberty would not be threatened in that country by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and

(iii) that the government of that country or territory would not send him to another country or territory otherwise than in accordance with the Convention.

(2) The Secretary of State shall not remove an asylum applicant without substantive consideration of his claim unless:

(i) the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear prosecution and has had an opportunity at the border or within the third country or territory to make contact with the authorities of the third country or territory in order to seek their protection; or

(ii) there is other clear evidence of his admissibility to a third country or territory.

Provided that he is satisfied that the case meets these criteria, the Secretary of State is under no obligation to consult the authorities of the third country or territory before the removal of an asylum applicant to that country or territory".

That provision makes direct reference to section 11(2) of the Immigration and Asylum Act 1999, which in turn refers to "standing arrangements" among the member states of the European Union; those are the arrangements set up under the Dublin Convention. Thus the Home Secretary has specifically indicated that, in cases under the Dublin Convention, he will refuse the application for asylum provided that the three conditions enumerated in paragraph 345(1) are satisfied. That is subject to the provisions of paragraph 345(2); in the present case, however, it was not argued for the petitioner that those conditions were not satisfied. So far as paragraph 345(1) is concerned, it is clear that all of the conditions are satisfied, and no contention was made to the contrary. In these circumstances, the declaration contained in paragraph 345 applies. Consequently, even if the Dublin Convention were regarded as giving rise to legitimate expectations on the part of individual applicants for asylum, paragraph 345 indicates that the Home Secretary will normally refuse an asylum application and issue a certificate for removal of the applicant from the United Kingdom in circumstances such as the present. That in my opinion is sufficient to negative any expectation that an asylum application will be dealt with under the strict terms of article 11 of the Dublin Convention; of the applicant can expect is that paragraph 345 will be applied. A similar conclusion was arrived at by the Court of Appeal in England in Lika v Home Secretary, supra.

Dublin Convention and section 11 of the Immigration and Asylum Act 1999

19. Counsel for the petitioner submitted that the English cases relied on by the respondent, notably Artan Gjoka and Shefki Gashi, supra, Zeqiri v Home Secretary, supra, and Lika v Home Secretary, supra, could be distinguished because all of them dealt with the United Kingdom legislation in force prior to the Immigration and Asylum Act 1999. Under that legislation, the provision that corresponded to section 11 of the 1999 Act was section 2 of the Asylum and Immigration Act 1996, which permitted the Home Secretary to issue a certificate for removal from the United Kingdom if the conditions set out in subsection (2) of that section were met. These were as follows:

"(a) that the person is not a national or citizen of the country or territory to which he is to be sent;

(b) that his life and liberty would not be threatened in that country or territory by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and

(c) in that the government in that country or territory would not send him to another country or territory otherwise than in accordance with the Convention".

It can be seen that the conditions in section 2, unlike those in section 11 of the 1999 Act, do not make specific reference to the arrangements in force under the Dublin Convention. It follows, counsel argued, that section 11 had brought about a change in the law, and the English authorities based on the earlier legislation could no longer be relied upon; Ibrahim v Home Secretary, supra, was quoted in support. In that case, however, it does not appear to have been argued that the Dublin Convention was, by virtue of its objectives and terms, incapable of creating legitimate expectations in individual applicants for asylum; paragraph [10] of the opinion indicates that the argument presented for the respondent was that no international treaty could create legitimate expectations, and that the approach taken in Minister for Immigration and Ethnic Affairs v Teoh, supra, was accordingly incorrect. Lord Carloway rejected the latter argument, in my respectful opinion correctly. In the present case, however, I have concluded that, although treaties may give rise to legitimate expectations among individuals, the objectives and terms of the Dublin Convention are such as to indicate that it was intended to have effect among states only, and not to create legitimate expectations in individuals. If that is correct, I am of opinion that the result is not affected by the change in the relevant United Kingdom legislation effected by the 1999 Act. Section 11 of the 1999 Act is designed to implement the Dublin Convention, and I am accordingly of opinion that it cannot have any greater effect than the Convention itself in giving rise to legitimate expectations among applicants for asylum.

The effect of Decision No 1/97 of the Committee set up by article 18 of the Dublin Convention

20. The respondent's alternative argument for refusing the prayer of the petition was based on a decision of the Committee set up by article 18 of the Dublin Convention. That Committee was charged with examining questions of a general nature concerning the application or interpretation of the Convention. It was given power to adopt decisions revising or amending the Convention pursuant to articles 16 and 17 of the Convention. On 9 September 1997 the Committee issued a decision, Decision No 1/97, in which it laid down certain provisions for the practical implementation of the Convention. Article 21(4) of Decision No 1/97 is in the following terms:

"Where the transfer of the asylum applicant has to be postponed due to special circumstances such as sickness, pregnancy, criminal detention, etc, and it is therefore not possible to carry out the transfer within the normal period of one month, the Member States concerned shall duly consult and agree on a case-by-case basis on the time limit within which the transfer must take place".

In the present case the petitioner's transfer did not take place within the one-month period specified in article 11(5) of the Dublin Convention. In their fax referred to at paragraph [6] above, dated 14 March 2002 and addressed to the Austrian Federal Asylum Office, the Immigration and Nationality Directorate of the Home Office stated that the transfer could not be effected within one month because of "operational difficulties". The same expression was used in the respondent's answers. I am bound to say that I find the expression "operational difficulties" virtually meaningless, and I hope that in future a proper explanation will be given in any such case. At the hearing, however, counsel for the respondent stated that it had not been possible to effect the transfer of the petitioner to Austria within the one month period because in March 2002 there had been insufficient manpower available to organise and supervise the transfer; the letter ordering removal would normally be served personally on an applicant for asylum, and that had not been possible. The lack of resources resulted from the pressure of work at that time owing to a very large number of asylum applications. Counsel further referred me to a letter from the Immigration and Nationality Directorate dated 15 January 2003 and accompanying e-mail correspondence with the Austrian Federal Asylum Office in June 2002. It appeared from these documents that the United Kingdom was the only member state that took the trouble to request an extension of the one-month period. It further appeared that no problems had been encountered with returning applicants beyond the one-month limit in cases where the United Kingdom had notified the receiving member state that the transfer was to be temporarily suspended.

21. Against the foregoing background, counsel for the respondent submitted that the expression "special circumstances", as used in article 21(4), should be given a wide meaning; in effect, member states were permitted to agree that a time scale extending beyond the one-month period should apply to any particular case, and if they did so that was the end of the matter. In such a case, there was no breach of any legitimate expectation, because such a procedure was wholly in accordance with article 21(4). Counsel for the petitioner, by contrast, submitted that in the present case there had been no consultation or agreement between the United Kingdom and Austria; consultation and agreement on a case-by-case basis was required by article 21(4). The United Kingdom had merely requested that the transfer should be made late, and Austria had failed to respond. The reason for requiring consultation and agreement on a case-by-case basis was to ensure that the personal circumstances of the particular applicant could be taken into account. Counsel further emphasised the use of the expressions "special circumstances" and "not possible to carry out the transfer" in article 21(4). He submitted that the fact that it was not administratively convenient to carry out a transfer, or that the authorities lacked sufficient manpower, did not mean that the transfer was impossible; nor could it amount to special circumstances in terms of the article. In the present case, however, the only reason for failure to effect the transfer was a lack of sufficient manpower. Thus the respondent could not rely on Decision No 1/97.
22. In my opinion the present case falls within article 21(4). Article 21(4) deals specifically with cases where the transfer of an applicant for asylum has had to be postponed due to special circumstances. Examples are given of such circumstances, but it is clear that these are not comprehensive. It was submitted for the petitioner that special circumstances must relate to the situation of the particular applicant. Subject to one qualification, I am of opinion that that is correct; the word "special" indicates that there is something peculiar to the case under consideration that takes it out of the general rule. The qualification that I would make is this: the peculiar feature of the case that takes it outwith the general rule need not relate to the applicant's personal circumstances, but may relate to the ability of the authorities of the member state concerned to deal with his case. That would include a case where the authorities simply did not have sufficient resources available to deal with the particular applicant within the time scale laid down in the Dublin Convention. The circumstances in such a case are in my opinion "special", at least in the absence of any suggestion that the lack of resources was a permanent feature of the member state's ability to deal with asylum claims. No such suggestion was made in the present case.
23. Article 21(4) further uses the expression "not possible". If there are insufficient resources to effect the transfer, it is clear in my opinion that it is not possible to carry out the transfer in terms of the article. Counsel for the petitioner submitted that the test of impossibility was not met in the present case; the respondent had submitted that there was a lack of sufficient resources to serve the letter ordering removal on the applicant personally, but there was no statutory or other requirement to effect personal service, and the postal service could have been used instead. In my opinion that criticism is not well founded. There are obvious practical reasons for personal service of a letter ordering removal, and in my opinion the respondent is entitled to follow such a practice. Article 21(4) goes on to state that, in cases where it is not possible to carry out the transfer within the normal period of one month, the member states concerned are to consult and agree on a case-by-case basis on the applicable time limit. The petitioner submitted that that had not been done in the present case. Nevertheless, I am of opinion that this requirement must be satisfied in any case where the member states concerned are able to agree when the transfer should take place. If such agreement is reached expressly, in relation to a particular applicant, that amounts to agreement in relation to the particular case under consideration as to when the transfer must take place. Even if one state simply informs the other that the transfer will take place on a particular date, and the second state receives the asylum applicant on that date, that must in my opinion amount to an implied agreement relating to the particular applicant. That would in my view satisfy article 21(4).
24. If the requirements of article 21(4) are satisfied, an applicant for asylum cannot complain that his legitimate expectations are being infringed. Even if the Dublin Convention is regarded as giving rise to such expectations, the most that an applicant for asylum can expect is that the respondent will act in accordance with the Convention together with any decisions of the committee set up under article 18 of the Convention. That is because that committee was expressly given power, by articles 16 and 17 of the Convention, to adopt decisions revising or amending the Convention. In the present case, accordingly, the petitioner could not have any legitimate expectation that the time limit specified in article 11(5) of the Convention would be followed or that, if the time limit could not be followed, the petitioner would be permitted to remain in the United Kingdom. The most that the petitioner could expect is that the procedures in article 21(4) would be followed if special circumstances existed. In a case such as the present, where special circumstances do exist, it is open to the United Kingdom and Austria to agree precisely when the transfer should take place, and in so doing they are not constrained by the one-month limit. In those circumstances article 21(4) would be satisfied. That in my opinion satisfies any legitimate expectations that the petitioner might have had under the Convention.
25. For all of the foregoing reasons, I will refuse the prayer of the petition.