Scottish Court of Session Decisions

Ali v. Secretary State Home Department [2003] ScotCS 27 (6 February 2003)

OUTER HOUSE, COURT OF SESSION

P409/02

OPINION OF LADY COSGROVE in the Petition of AHMAD NOOR ALI (OTHERWISE KNOWN AS MOHAMMED YUSSUF KARIMI) Petitioner; against THE SECRETARY OF STATE FOR THE HOME DEPARTMENT Respondent for Judicial Review of (1) a Decision of the Secretary of State for the Home Department dated 27 March 2002 to issue a Notice for Removal Directions and (2) a Decision of the Secretary of State for the Home Department dated 17 March 2002 in terms of Section 72(2)(a) of the Immigration and Asylum Act 1999 ________________

Petitioner: M. Bovey, Q.C., Blair; Lindsays, W.S.

Respondent: Ms. A. Carmichael; H.F. Macdiarmid, Solicitor to the Advocate General

6 February 2003

The Facts

1. The petitioner is an Afghani national. He is married and has a four year old child. The petitioner fled Afghanistan in or around August 2001 along with his wife and son. En route they stopped in Germany, where the petitioner completed an application for asylum. He avers that he did so on the advice of an agent who made travel arrangements for him and that he spent less than a day in Germany. On arrival in the United Kingdom the petitioner made a claim for asylum. He avers that he has family connections in the United Kingdom and that he has no friends or relations in Germany and does not speak German. On 13 December 2001 the respondent asked the German authorities if they would accept responsibility for the determination of the petitioner's asylum claim in terms of Article 8 of the Convention determining the state responsible for examining applications for asylum lodged in one of the member states of the European Communities signed at Dublin on 15 June 1990 (The Dublin Convention). By letter dated 5 February 2002, and received by the respondent on 18 February 2002, the German Immigration Authority confirms that the respondent's take over request has been approved in accordance with Article 8 of the Convention and that the petitioner and his family are to be taken over by the Federal Republic of Germany. In a letter to the petitioner dated 19 February 2002, the respondent certifies:

"That the conditions mentioned in Section 11(2)(a) of the Immigration and Asylum Act 1999 are satisfied, namely that;

The authorities in Germany have accepted that, under standing arrangements, Germany is the responsible State in relation to your claim for asylum; and you are not a national or citizen of Germany."

2. Removal Directions were fixed for 12 March 2002. Agents for the petitioner made an allegation under Section 65 of the 1999 Act that removal of the petitioner and his family would breach their human rights. Removal Directions were cancelled to enable the respondent to respond to that allegation. By letter dated 17 March 2002, the respondent certified that the allegation was manifestly unfounded in terms of Section 72(2)(a) of the said Act. Removal Directions were set for 4 April 2002. The petitioner then made the present application for Judicial Review.

The Legislative and Convention Background

3. Claims for asylum in the United Kingdom by foreign nationals may be made in terms of the United Nations Convention Relating to the Status of Refugees 1951 (The Geneva Convention). Asylum is to be granted to a claimant if returning him to a country in breach of the Convention would involve a threat to his life or freedom on account of his race, religion, nationality, membership of a particular social group or political opinion. But the Convention does not prevent removal of potential refugees to safe third countries for determination of their claim elsewhere.
4. A person who is unlawfully in the United Kingdom may, in terms of Section 10 of the Immigration and Asylum Act 1999, be removed in accordance with directions given by an immigration officer. The 1999 Act also provides:

"15. During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom.

11(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 has to be sent;

(b) the certificate has not been set aside on an appeal under Section 65."

There is also an appeal under Section 71(2) against the issue of a certificate on the ground that any of the conditions applicable to it was or is not satisfied.

Section 11(4) of the 1999 Act provides:

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

5. The "standing arrangements" mentioned in the Act are those contained in the Dublin Convention. That Convention laid down the criteria for determining which Member State of the European Communities should have responsibility for the determination of the claim to asylum of an alien who has entered the Member States. Article 8 of the said Convention 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 of asylum is lodged shall be responsible for examining it."

Article 11(5) provides:

"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 Pleadings and the Submissions

6. The petitioner seeks inter alia declarator that the respondent's decision to issue Directions for his removal is in breach of his legitimate expectation that his asylum claim would be dealt with in accordance with the Dublin Convention and is accordingly unlawful. He also seeks reduction of the Secretary of State's certificate under section 11(2) of the 1999 Act and suspension and reduction of the Removal Directions. In a Minute of Amendment lodged on behalf of the petitioner at the first hearing, declarator is sought that the respondent's decision to issue Directions for the removal of the petitioner is ultra vires of section 11(2) of the 1999 Act.
7. In presenting his submission for the petitioner, Mr Bovey Q.C., focused primarily on the challenge to the validity of the certificate issued under Section 11(2) of the 1999 Act. The essential question was said to be whether the respondent's assertion in that certificate that the petitioner was accepted by Germany under the "standing arrangements" was a correct one. It was submitted that the requirements of section 11(2) had not been met in this case and it followed that the purported transfer of the petitioner was ultra vires of the Secretary of State. The matter was said to be one of statutory construction and to turn on the requirement on the respondent to be satisfied that Germany is, as a matter of fact, the responsible state in relation to the claimant's claim in terms of the standing arrangements. That fact was said to be a precedent fact that required to be proved to exist before any power was exercisable by the respondent. Reference was made in this connection to Khera and Khawaja v Secretary of State for the Home Department [1984] AC 74. The essence of Mr Bovey's submission was that compliance with the provisions of the Dublin Convention, including those relating to time limits, was a condition precedent of the validity of the respondent's decision.
8. Mr Bovey explained that, in the matter of compliance with the Convention time limits, parties were not in agreement as to the date of acceptance by Germany of the petitioner's claim. That acceptance was dated 5 February 2002, the date contended for by the petitioner, but was not received until 18 February, the date argued for by the respondent. It was, however, common ground that the appeal lodged by the petitioner under Section 65 of the 1999 Act was a suspensive appeal within the meaning of Article 11(5) of the Dublin Convention. Removal Directions were issued on 27 March 2002 and these set the removal date for 4 April. The contention for the petitioner was that the time limit of one month prescribed in Article 11 as the period after acceptance of the request to take charge of the applicant during which his transfer must take place had been exceeded. And that was so even if the later date, 18 February, was taken as the relevant date.
9. It was said to be clear from the preamble to the Dublin Convention that it is concerned with guaranteeing adequate protection to refugees and that its purpose is to avoid any situation arising in which applicants are left in doubt for too long as to the likely outcome of their applications, or are passed from one state to another and back again without having their applications determined. Rules are therefore set out for determining the state responsible for considering asylum applications, as well as time limits within which transfer from one state to another must take place. The time limits are, it was submitted, mandatory. It followed that having failed to comply with them, the respondent's actions were ultra vires. Reference was made in this connection to R v Secretary of State for the Home Department ex parte Gashi and Gjoka unreported, (15 June 2000).
10. Mr Bovey also presented a short submission is support of the first and second pleas in law in the Petition to the effect that the respondent's decision to issue Directions for the Removal of the petitioner to Germany was in breach of the petitioner's legitimate expectation that his claim for asylum would be determined in accordance with the Dublin Convention. It was contended that all the English authorities on this point pre-date the coming into effect of the 1999 Act, and ought, therefore, to be distinguished. The 1999 Act introduced, for the first time, the reference in the statutory provisions to the "standing arrangements". It followed that the petitioner's legitimate expectation now encompassed compliance with the Convention time limits. I was urged to follow the approach of Lord Carloway in Ibrahim v Secretary of State for the Home Department 2002 SLT 1150 in this regard.
11. In response, Ms Carmichael for the respondent submitted that the certificate issued under Section 11(2) of the 1999 Act was in relation only to the matter of the acceptance by Germany of its responsibility in terms of the provisions of the Dublin Convention in relation to the petitioner's claim for asylum. In the present case it was not disputed that Germany did accept its responsibility under the Convention. That fact was not challenged in any way, nor was it suggested that the acceptance of responsibility was not properly made under the "standing arrangements". That being so, the certificate proceeded upon a factually sound basis and was not open to challenge.
12. Ms Carmichael went on to argue that, in any event, the respondent had, as a matter of fact, complied with the Convention time limits. As a matter of law, 18 and not 5 February should be taken as the relevant date: it was unreasonable that the respondent should be held to a time limit on the basis of an acceptance of which he was unaware. In any event, Article 11(5) of the Dublin Convention provides that transfer of the applicant for asylum 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." In the present case, it had been accepted that the appeal proceedings were suspensory. The calculation of the one month time limit therefore began only on 17 March, being the date of the issue by the respondent of his decision in relation to the appeal. There was nothing in the terms of Section 11(5) to suggest that because the original Removal Directions were set only for 12 March (a date outwith the one month period if 5 and not 18 February were to be taken as the relevant date), the respondent could not rely upon the suspensory nature of the appeal proceedings to bring him within the ambit of the latter part of the section.
13. In response to Mr Bovey's submission as to the existence of a legitimate expectation arising out of the provisions of the Dublin Convention, Ms Carmichael argued that the 1999 Act did not make the difference contended for. The idea that an individual can have any rights or expectations under the Dublin Convention was rejected in the case of Gashi and Gjoka (supra), where the argument that delay by itself could found a challenge to a decision to send an applicant to another Member State in accordance with the Dublin Convention was rejected. Approval by the Court of Appeal of this approach was found in the case of Zeqiri v Secretary of State of the Home Department [2002] IMM AR 42. Reference was also made in this connection to R v Secretary of State for the Home Department ex parte Ahmed Shah [2001] IMM AR 419 and Hamid Akhbari v Secretary of State for the Home Department [2000] IMM AR 436.
14. Ms Carmichael submitted that Lord Carloway went too far in concluding that the reference to the Dublin Convention in the 1999 Act altered the situation from what it had been in the context of the earlier legislation. The reference to the "standing arrangements" did not alter the fact that the Dublin Convention was about arrangements between States and did not confer any rights on an individual. Reference was also made to R v Secretary of State for the Home Department ex parte Ahmed and Patel 1998 INLR 570, Lord Woolf MR at 583; Hilaire v Baptiste [1999] UKPC (17 March 1999); and R v Secretary of State for the Home Department ex parte Behluli [1998] INLR 594.

The Decision

(a) The Validity of the Respondent's Certificate

15. The petitioner's primary contention that the certificate issued by the respondent was not made under "standing arrangements" is, in my view, without merit. There is no dispute in this case that, as a matter of fact, Germany is the responsible state in terms of the "standing arrangements", that is to say the rules set out in the Dublin Convention for the allocation of responsibility amongst Member States for dealing with asylum applications; nor is there any dispute that Germany has accepted that fact. The respondent having acted in accordance with the Dublin Convention, there can be no challenge to the issue by him of a certificate asserting that fact. The obstacles facing a challenge to such a certificate are evident from two authorities, neither of which was referred to in the course of the argument before me: Ayman Ibrahim v Secretary of State for the Home Department [2001] IMM AR 430 and R v Secretary of State for the Home Department ex parte Hatim [2001] IMM AR 688.
16. I consider that the fact of acceptance of responsibility to which the certificate relates is a discrete issue, wholly unconnected with any consideration of the time limits set out in the Convention: the certification necessarily takes place before any issue of removal, or the time limits within which that is to occur, arises. That being the case, I consider that the suggestion that the issue of subsequent adherence to the time limits can have any bearing whatsoever on the validity of the certificate is quite without merit and falls to be rejected.

(b) The Time Limit

17. The reason for the delay in the receipt of the acceptance by Germany of responsibility for the applicant's claim was not explained, and it was a matter of agreement that, if this was considered to be an issue of fact rather than law, the matter should be put out for further hearing. The argument in favour of regarding 5 and not 18 February as the relevant date lies in the wording of Article 11(5) which provides for the transfer taking place not later than one month "after acceptance" of the request to take charge. The effect of adopting that approach would of course be that the transferring state could, through no fault of its own, be left with a considerably foreshortened period within which to transfer the applicant. On the other hand, it is arguable that the applicant should not be prejudiced by inefficiency or defective procedures for communicating decisions and that the matter is one to be resolved between the Member States. I find however that I do not, in the circumstances, require to reach a concluded view on this matter. The latter part of Article 11(5) of the Dublin Convention provides for transfer 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". It was conceded in this case that the appeal proceedings taken under section 65 of the 1999 Act were suspensory, and it follows, in my view, that the effective date is 17 March 2002, the date when these proceedings concluded. The removal date of 4 April is clearly within the period of one month from that date, and accordingly there was in fact no breach of the Convention time limit.
18. As I understood his submission, Mr Bovey's calculation of the time limit involved including the time elapsing between acceptance of responsibility to take charge and the lodging of an appeal. I can see no basis for qualifying the application of the latter part of Article 11(5) in that way. The provision refers to "any proceedings" initiated by the alien challenging the transfer decision, and there is no qualification as to the time within which such proceedings must be initiated. It can only be once the transfer decision has been intimated to him that an appeal against that decision can reasonably be expected to be taken. Further, it is an appeal against the transfer decision to which the provision refers and it is nowhere suggested that Removal Directions require to be in place before such proceedings can be taken.

(c) Legitimate Expectation

19. Although what has been said so far is clearly sufficient for the disposal of this case, I turn now to consider the question of legitimate expectation.
20. The only Scottish case on the subject to which I was referred during the course of the argument before me was Ibrahim (supra). Mr Bovey adopted the approach of Lord Carloway in that case and accepted that ratification alone does not result in the incorporation of the terms of an international treaty into domestic law. What he contended for is the creation of a legitimate expectation arising out of the action of the Government by incorporating an express reference to its "standing arrangements" with other Member States which are contained in the Dublin Convention. Lord Carloway in Ibrahim accepted (at paragraph 14) that the petitioner was entitled to expect that the respondent would abide by the procedural or administrative steps stipulated in the Dublin Convention. He goes on to state (at paragraph 15) in the passage founded on by Mr Bovey:

"Whilst I do not accept that the Dublin Convention has been formally incorporated into domestic law, the effective reference to it in the 1999 Act puts it into a different situation to that when it was looked at the context of the earlier legislation in Zeqiri v Secretary of State for the Home Department (supra); R v Secretary of State for the Home Department ex parte Ahmed Shah (supra); and R v Secretary of State for the Home Department ex parte Akhbari (supra)."

21. Treaty obligations that are assumed by the Executive are capable of giving rise to legitimate expectations which the Executive is not at liberty to disregard (Hilaire v Baptiste (supra) and R v Secretary of State for the Home Department ex parte Behluli (supra)). The incorporation of a specific reference to the "standing arrangements" may well be an indication of a sufficient degree of certainty and clarity of a desire to implement that part of the Treaty provisions. The reference in section 11(2) may, therefore, give rise to an expectation that, so far as the matter with which that section is concerned, namely the certification of acceptance of responsibility for the application by one of the Member States, the respondent will act in accordance with the provisions of the Convention. However, I reject the contention that any requirement or expectation as to general compliance with the Treaty provisions is thereby created. In particular, I do not consider that the reference in the context of section 11(2) to the "standing arrangements" is an adequate foundation for an obligation to comply with any time limits set out in the Treaty. A legitimate expectation of compliance will only arise absent statutory or executive indications to the contrary - a point emphasised by Lord Woolf MR in R v Secretary of State for the Home Department ex parte Ahmed and Patel (supra) at p.584. The legislature has provided a clear statutory framework for dealing with asylum applications in the Asylum and Immigration Act 1999 and the relevant Rules thereunder. It has chosen not to specify any time limits and these cannot be incorporated into the domestic law by the back door. The reasoning of the court in the cases to which Lord Carloway refers in paragraph 15 of his Opinion is that 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. That reasoning, with which I agree, is not, in my view, in any way affected or diluted by the incorporation into the statutory regime of the limited reference in section 11(2) to the "standing arrangements". The provisions as to time in the Convention are not matters that can govern the interpretation of the statutory regime.
22. In any event, I do no consider that Article 11(5) imposes a unilateral obligation on the Member State to which the application for asylum has been made. It is plain that, before there can be a transfer by that state, arrangements must have been made with the other Member State. Article 13 imposes an explicit obligation on that other state to take back the applicant within one month of having agreed to do so. Reading Article 11(5) together with Article 13(1)(b), I consider that the primary obligation lies on the state taking back the applicant. But the actions of another Member State can clearly never be a justiciable issue before the domestic courts. This, in my view, is indicative of the fallacious nature of the petitioner's approach. Article 11(5) is not part of Scots Law and, in my judgment, it is wrong to assert that the petitioner has any legitimate expectation arising out of its terms which has been frustrated by the way in which the respondent has acted.

The Result

23. It follows from what has been said that I uphold the first, second, third, fourth and fifth pleas-in-law for the respondent and dismiss the Petition.