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OUTER HOUSE, COURT OF SESSION
[2008] CSOH 9
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OPINION OF LORD EMSLIE
in the Petition of
S.A.
Petitioner;
for
Judicial Review of
Decisions by the Secretary of State for the Home Department dated 5 November 2002 and 20 and 24 October 2005 relative to the
removal of the Petitioner and his family to Germany
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Petitioner: Bovey, QC; Wilson
Terris & Co, SSC
Respondent: Drummond, Lindsay; Office of
the Solicitor to the Advocate General for Scotland
17 January 2008
[1] In
these proceedings the petitioner, an Iraqi national, seeks judicial review of
certain decisions by the Secretary of State for the Home Department which, if
implemented, would involve his being transferred to Germany for determination
of his claim to asylum. Many of the
issues arising between the parties are as yet unfocused in written pleadings;
others will admittedly require proof before they can be resolved; but I have
now heard parties' submissions on certain limited issues of law which they
conceive to be capable of determination at this stage. These disputed issues concern the
construction and application of the 'Convention, signed in Dublin on 15 June
1990, determining the State responsible for examining applications for asylum
lodged in one of the Member States of the European Communities' ("the Dublin
Convention"). In particular questions
arise as to whether that Convention can lawfully be operated by the respondent
against the petitioner in the circumstances of this case.
[2] In
broad terms the Dublin Convention contains provisions designed to allocate
responsibility for determining asylum claims to the appropriate member state
within the EU. It does so by inter alia prescribing various
situations in which that responsibility is laid upon the first EU state to
grant the asylum-seeker an entry visa or residence permit (whether current or
expired), and also others in which responsibility rests with the state in which
a relevant asylum claim has been made.
Where transfer of an asylum claim to a different member state is called
for under the Convention, that constitutes an express exception to the normal
rule precluding deportation of an asylum-seeker while his claim remains in
dependence.
[3] In
that latter connection, Sections 11 and 15 of the Immigration and Asylum
Act 1999 provide inter alia as
follows:
"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; ...
(4) 'Standing arrangements' means arrangements in force as between member
states for determining which state is responsible for considering applications
for asylum.
...
15(1) 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."
[4] For
present purposes the following provisions of the Dublin Convention are
relevant:-
"Article 1
1. ...
(d) 'Examination of an application
for asylum' means: all the measures for
examination, decisions or rulings given by the competent authorities on an
application for asylum, except for procedures to determine the State
responsible for examining the application for asylum pursuant to this
Convention;
(e) 'Residence permit' means: any authorization issued by the authorities
of a Member State authorizing an alien to stay in its territory with the
exception of visas and 'stay permits' issued during examination of an
application for .... asylum; ...
Article 5
1. Where the applicant for asylum
is in possession of a valid residence permit, the Member
State which issued the permit shall
be responsible for examining the application for asylum.
...
4. Where the applicant for asylum
is in possession only of one or more residence permits which have expired less
than two years previously ..., the provisions of paragraphs 1, 2 and 3
of this Article shall apply for such time as the alien has not left the
territory of the Member States.
Article 10
1. The Member State responsible for examining an
application for asylum according to the criteria set out in this Convention
shall be obliged to:
(a) take charge under the conditions laid down in Article 11 of
an
applicant who has lodged an application for asylum in a different Member
State,
(b) complete the examination of the application
for asylum,
...
(e) take back, under the
conditions laid down in Article 13, an
alien whose application it has rejected and who is illegally in another Member
State.
3. The obligations specified in paragraph 1(a)
to (d) shall cease to apply if
the alien concerned has left the
territory of the Member States for a period
of at least three months.
4. The obligations specified in
paragraph 1(d) and (e) shall cease to apply
if the State responsible for examining the application for asylum, following
the withdrawal or rejection of the application, takes and enforces the
necessary measures for the alien to return to his country of origin or to
another country which he may lawfully enter.
Article 11
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.
2. If the request that charge be
taken is not made within the six-months time limit, responsibility for
examining the application for asylum shall rest with the State in which the
application was lodged.
3. The State responsible in
accordance with (the criteria laid down in this Convention) shall be determined
on the basis of the situation obtaining when the applicant for asylum first
lodged his application with a Member State.
4. The Member State 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
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
...".
[5] The circumstances in
which the present dispute arises are somewhat unusual, and only limited details
are agreed. In late 1998/ early 1999 the
petitioner left Iraq
and travelled to Germany. There he immediately claimed asylum under the
Refugee Convention, asserting on various grounds that he would be at real risk
of persecution if he were to be returned to his country of origin. On 18 September
2001, that claim was finally rejected by the German authorities,
and arrangements were made to have the petitioner returned to Iraq. In early 2002, however, before he could
actually be deported, the petitioner unlawfully absconded from Germany. It is possible (though not agreed) that he
briefly revisited Iraq at that time, but in any event he turned up as an
illegal immigrant in the United Kingdom on 22 March 2002, claiming to have
arrived here by means of lorry transport through several countries which he
could not identify. On the following day
he made a claim to asylum in this country, this time founding on the European
Convention on Human Rights as well as on the Refugee Convention. At this point steps were taken by the UK and
German Governments pursuant to the Dublin Convention, and the questions argued
before me concern the validity of (i) the respondent's request of
24 September 2002 (production 7/2.1) for the petitioner's asylum claim
to be transferred to Germany, and correspondingly (ii) the German Government's
acceptance of that transfer request on 1 October 2002 (Production 7/9,
translated as 7/10).
[6] Subsequent to the
foregoing request and acceptance in the latter part of 2002, matters have not
exactly moved at a rapid pace. Initial
arrangements for the physical transfer of the petitioner and his family to Germany
were thwarted by the petitioner's failure to appear for removal on 27 January 2003. Thereafter, matters were further delayed by
the pregnancy of the petitioner's wife and the birth of their second child on 11 June 2003. On or about 24 October 2005, further steps by
the respondent to complete the agreed transfer of the petitioner to Germany
were blocked by the lodging of the present petition.. The petitioner now maintains inter alia that the continuing delay is
fatal to any reactivation of procedures under the Dublin Convention.
[7] In the debate which has
now taken place before me, both parties made it clear that there were important
factual disputes between them which might not be capable of resolution without
proof. In particular, the respondent did
not accept the petitioner's claim to have returned to Iraq
in early 2002, maintaining instead that the petitioner had remained in Germany
and applied for a work permit at that time.
For his part the petitioner did not accept the respondent's claim,
founded on the apparent terms of the document translated as Production 7/18, that on 5 November 2001 the German
Government had granted him (the petitioner) temporary leave to remain until
3 May 2002 or until the issue of documentation for travel home. These continuing disputes, it was said, could
have a material bearing on the outcome of the present petition
proceedings. If the petitioner did
indeed visit Iraq for a period in early 2002, that might be a relevant and
material consideration for the purposes of Article 5.4 or
Article 10.3 of the Dublin Convention.
Significantly, it was in purported reliance on Article 5.4 that the
German Government had accepted transfer of the petitioner's asylum claim in
October 2002. Equally, the status of the
purported temporary leave to remain (production 7/18) was important
because it was only this document which could apparently constitute a "residence
permit" within the definition in Article 1.1(e) and thereby bring
Article 5.4 into play. Moreover the
duration of any such "residence permit" would be of importance in determining
whether Article 5.1 might possibly apply in place of Article 5.4 on which
the German Government had purported to rely.
[8] Against the background of
these unresolved factual disagreements, the legal issues which have been raised
for my decision are as follows:-
1. If, as maintained by the
respondent and apparently accepted by the German Government, production 7/18
constituted or evidenced a grant of temporary leave to the petitioner to remain
in Germany, did that amount to a "residence permit" as defined for the purposes
of Article 5.4 of the Dublin Convention?
2. If, as maintained by the
petitioner, he temporarily revisited Iraq
in early 2002, did that preclude the purported operation against him of
Articles 5.4 and 10.1 of the Convention?
3. If, as was indisputable,
the respondent had failed to transfer the petitioner to Germany within the
one-month time limit specified in Article 11.5 of the Convention, was such
failure justiciable at the instance of the petitioner and, in particular, did
it thenceforth entitle him to remain in the United Kingdom free of any further threat
of transfer?
[9] In my view none of these
questions can be answered in the petitioner's favour at this stage, and my
reasons for reaching that conclusion may be shortly stated. In the first place, for the purposes of
Article 5.4 of the Convention, I cannot positively uphold the petitioner's
contention that production 7/18 did not constitute or evidence a "residence
permit" at all. According to the
petitioner, the document was not a residence permit because it bore to have
been granted " ... during examination of an application for .... asylum" and thus
fell within the scope of the exception to the definition of "residence permit"
in Article 1.1(e).
Article 1.1(d) further clarified the position by defining
"examination of an application for asylum" as comprising all the measures for
examination, decisions or rulings given by the competent authorities on such an
application. In November 2001 the
petitioner was still in Germany
following refusal of his claim to asylum; implementation of that refusal had
not yet taken place; and the temporary leave to remain in Germany
was therefore granted at a date when examination of the petitioner's
application for asylum was not yet concluded.
In response, the respondent relied heavily on the definition in
Article 1.1(d), maintaining that "examination of an application for
asylum" could not extend beyond the final refusal of that application. Accordingly, in counsel's submission, the
temporary leave to remain in Germany, granted in early November 2001, came
several weeks too late to fall within the exception identified in
Article 1.1(e). An interesting
contrast could, it was said, be drawn between the wording of
Article 1.1(d) and the reference in Article 10.4 to the taking and
enforcing of "... necessary measures for the alien to return to his country of
origin ... following the withdrawal or rejection of the (asylum)
application". In my judgment the
respondent's argument is clearly to be preferred on this issue. Properly construed, the terms of Article 1.1(d)
are not in my view wide enough to cover any period after final rejection of an
application for asylum, and that conclusion is strongly fortified by the
different terms in which the post-refusal situation is covered in
Article 10.4. In any event,
notwithstanding the apparent width of the definition of "residence permit" in
Article 1.1(e), I think that there is still room for doubt as to what
would constitute a "stay permit" capable of bringing the stated exception into
play.
[10] The petitioner also submitted that
Article 5.4 was disapplied by his disputed return visit to Iraq
in early 2002. This was because
Article 5.4 only extended the effect of Article 5.1, 2 and 3 "... for
such time as the alien has not left the territory of the Member States". According to the respondent, the answer to
this point was simply that Article 5.1, 2 and 3 required no extension
while a residence permit remained valid; that Article 5.4 did not come
into play unless and until a residence permit expired; and accordingly that the
only departure from the EU which could disapply that latter Article was one
occurring subsequent to the expiry of the relevant residence permit. In the present case, the petitioner's claimed
trip to Iraq
took place in early 2002 when ex facie
production 7/18 had not yet expired.
Again, in my judgment, the respondent's position here is to be
preferred, but only on the hypothesis (further discussed in paragraph [12]
below) that as at the date of any relevant trip to Iraq
a valid residence permit remained in force.
As it seems to me, the qualification at the end of Article 5.4
cannot sensibly be read as referring to any departure from the EU during the currency
of a residence permit, since in such a situation Article 5.1, 2 and 3
would apply on their own terms and the Article 5.4 extension would not be
engaged at all. For completeness in this
context I should add that, since the petitioner's claimed trip to Iraq
is said to have taken place between January and March 2002, he cannot in my
view take advantage of the "three month" rule in Article 10.3.
[11] The petitioner also argued
that Article 5.4 could not apply because, as at the relevant tempus inspiciendi, any residence permit
constituted or evidenced by production 7/18 was still in force. The stated expiry date of 3 May 2002 was clearly later than
the date of the petitioner's arrival and related asylum claim in the United
Kingdom in March of that year. In reply, the respondent's position was that
where (as here) responsibility under Article 5.4 had been formally
accepted by the German Government, that acceptance was conclusive in a question
with the petitioner and it would not be competent to look behind it. In any event, it was suggested, the relevant tempus inspiciendi was the date of the
German acceptance in October 2002, by which time there could be no question of
any relevant permit or permission still being extant.
[12] In the absence of fuller
argument, and perhaps proof, on these issues, I am again unable to sustain the
petitioner's contentions at this stage. Prima facie it seems plausible that the validity,
period and mode of expiry of any temporary leave to remain in Germany should,
as the respondent submitted, be matters for determination by the German
Government, or at least by reference to German law, and in that context the
German Government does appear to have accepted responsibility under Article 5.4
in the present case. On the other hand,
if it were possible to go behind that acceptance, I am inclined to think that the terms of
Article 11.3 of the Convention might pose a problem insofar as they appear to
provide for allocation criteria to be judged as at the time of the first
lodgement of the relevant claim for asylum, and not as at the later date for
which the respondent contended. Moreover,
even if deemed expiry of the relevant permission might justifiably be asserted
on the ground of the petitioner's unlawful departure from Germany in or before
March 2002, that might not necessarily assist the respondent on the different
issue, discussed in paragraph [10] above, as to the status of the
permission at the time of the petitioner's alleged earlier visit to Iraq.
[13] In the course of the
debate before me counsel for the respondent appeared to regard such issues as
somewhat academic because, it was said, Article 5.1 would plainly apply if
the petitioner's residence permit was still in force as at the critical date,
whenever that might be. In that
situation, however, questions might in my view arise as to the validity of the
German Government's acceptance on the ground that it bore to rely, not on
Article 5.1, but on Article 5.4.
Could a transfer now proceed under Article 5.1 where the original
acceptance referred to Article 5.4 alone?
[14] For the avoidance of doubt
I should make it clear that, at this stage, I am not in a position to affirm
the existence of a valid residence permit capable of bringing Article 5 of
the Convention into play. There are
several reasons why I am unable to do so.
For instance production 7/18 does not ex facie relate to the petitioner, although the respondent contends
otherwise; the document is dated in
February 2002, and on its terms may arguably constitute an extension, as
opposed to an initial grant, of leave to remain; the effective date of 5 November 2001 is
not explicitly the date on which the permission was granted for the purposes of
the definitions contained in Article 1.1(d) and (e) of the Convention; and, as already noted, the duration of the
permission remains in dispute.
[15] Moving on to the petitioner's
contention that failure to comply with the one-month time limit in
Article 11.5 precludes any valid transfer under the Dublin Convention, and
entitles him to remain in the United Kingdom, I have come to the conclusion
that this contention is unsound and must be repelled. It proceeds on the basis that the time-limit
in question is "justiciable", in the sense that non-compliance may be founded
on by an affected asylum-seeker as a complete bar to any further Convention proceedings
against him. The respondent's position,
on the other hand, was that the Convention was not intended to confer private
remedies on asylum-seekers, but was an international instrument designed to regulate
arrangements between Member States of the EU.
It had never been incorporated as part of the domestic law of the United
Kingdom, with the result that, at best, any entitlement asserted by an
individual asylum-seeker would require to be founded on "legitimate
expectation" alone. The states concerned
with a particular application could waive time limits if they wished. In any event this particular time limit
carried no express sanction for non-compliance, unlike certain other time
limits in Article 11.1 and 4.
[16] In my opinion the
respondent is well-founded in maintaining that the one-month time limit under
Article 11.5 is not "justiciable" at the instance of the petitioner, and
that non-compliance affords him no available remedy in this case. This conclusion derives strong support from several
Outer House decisions to which I was referred, notably Ali v SSHD 2003
SLT 674; Khairandish v SSHD 2003 SLT 1358; Musaj v SSHD 2004 SLT 623; and Temel
v SSHD 2005 SLT 204. Similarly, it is supported by decisions of
English courts, including the Court of Appeal, in cases such as Akhbari v SSHD 2000 Imm AR 436 and R (on the application of Ahmadzai ) v SSHD 2006 EWHC 318 and 2006 EWCA Civ 1550. The only case cited to me in which a contrary
view appears to have been taken was Ibrahim
v SSHD 2002 SLT 1150, but for
the reasons given in all of the other decisions I think that that contrary view
must now be regarded as unsound. It seems
inevitable that in some cases the necessary transfer arrangements will take
more than one month to complete, and it would be extraordinary if any
overrun beyond the stated time limit, however short and for whatever cause,
were to have the terminal consequence for which the petitioner contended.
[17] No doubt non-compliance
with the one-month time limit may form part of a wider argument on delay to be
advanced by the petitioner along 'Wednesbury
unreasonableness' lines, especially in the context of an alleged violation of
his rights under Article 8 of the ECHR.
However, no such argument is before me at the present time, and my
decision is simply to the effect that non-compliance with the time-limit in
Article 11.5 of the Dublin Convention cannot per se entitle the petitioner to resist a proposed transfer to Germany
under Article 5.
[18] It is hoped that the
foregoing rulings, which are necessarily limited by the extent of the factual
disputes outstanding, will nevertheless be of some assistance to parties at the
present time. With a view to maintaining
progress I shall have this case put out By Order, at a date convenient to both
sides, so that the likely scope, form and duration of future procedure can be
discussed and determined.
