Mm (ap) Against The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lady Wise |
| Neutral Citation | [2017] CSOH 82 |
| Court | Court of Session |
| Published date | 30 May 2017 |
| Docket Number | P822/15 |
| Date | 30 May 2017 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 82
P822/15
OPINION OF LADY WISE
In the cause
MM (AP)
Petitioner
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Petitioner: Forrest; Drummond Miller LLP
Respondent: Pirie; Office of the Advocate General
30 May 2017
Introduction
[1] This case involves the interpretation of certain articles of Council Regulation (EC) 604/2013 (“Dublin III”), an instrument which sets out the criteria and mechanisms for resolving which Member State will be responsible for determining an application for asylum lodged in one of the Member States concerned by a Third Country National (“TCN”). In essence, Dublin III creates an obligation on the Member State responsible to take back a TCN whose application for asylum is being examined and where that TCN has made a second application for asylum in another Member State.
[2] The petitioner is a national of Iran, born on 5 May 1981. He seeks to reduce decisions of the respondent dated 3 and 28, both of July 2015 that it is safe to remove him to France and that he should be so removed. In summary, the petitioner’s contention is that on a correct interpretation of Article 19(2) of Dublin III the obligation on the part of France to take him back has ceased. There is no longer any challenge to the way in which the Secretary of State exercised her discretion. The respondent has a plea in law to the relevancy of the petition and the hearing before me was restricted to an argument that the petition should be dismissed as being irrelevant in law.
The Respondent’s Argument
[3] Mr Pirie presented his argument that the petition is irrelevant into four sections: (i) the legal and factual background, (ii) the relevant provisions of Dublin III, (iii) the correct interpretation of Articles 19(2) and 27(1) of Dublin III and (iv) a comparison of the respondent’s contended interpretation Articles 19(2) and 27(1) with the petitioner’s averments.
1. Legal and Factual Background
[4] It is uncontroversial that the respondent has a statutory power to remove someone in the UK who was here without leave to enter or remain. An exception that applies where a person claims asylum is contained in section 77 of the Nationality, Immigration and Asylum Act 2002, which renders the respondent unable to remove that person before their claim is determined unless, by virtue of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, removal to one of a list of safe countries is permitted. France is included in the list of safe countries to which an asylum seeker may be removed. Paragraph 4 of Part 2 of Schedule 3 to the 2004 Act provides that section 77 of the 2002 Act shall not prevent removal from the UK to one of the listed states. The background to this case was that the petitioner was found in the UK by immigration authorities in 2015. He was interviewed in relation to his travel history. The transcript of his screening interview (7/2 of process) records him (at para 4.3) as stating: “I claimed asylum in France in 2010, it was refused.” He claimed that he had been returned to Iran by the French authorities.
[5] That information was sufficient for the respondent to make further checks on the position. There was also evidence that the petitioner had been finger printed in France on 20 April 2010. He had offered no supporting documentation relevant to his claim. He said at interview that he had come from Iran in 2015 but that he would not be producing any supporting evidence about that.
[6] On the basis of the available information, the respondent made a “take back” request to France on a standard form, No 7/1 of process. Details of the previous application for asylum in France that the petitioner said he had made in 2010 were inserted together with a note of his claim that he was returned to Iran by the French authorities. However the respondent indicated that she was unclear whether any decision had actually been taken on the application. The French authorities responded to the application on 30 June 2015 by letter to the respondent’s department stating:
“I agree to the request to take back the asylum seeker referred to above, under Article-18-1d of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013.”
Article 18-1d applies to situations where the application has been determined in the country to whom the request has been made.
[7] On 3 July 2015 the respondent wrote to the petitioner certifying that the conditions in paragraphs 4 and 5 of Part 2 of Schedule 3 of the 2004 Act were satisfied and that he would be returned to France. (No 6/2 of process). Removal directions were subsequently issued on 28 July 2015 (No 6/1 of process) although these were cancelled in accordance with the usual policy when this petition was raised. Mr Pirie referred to the decision of the First Division in MIAB (AP) & others v Secretary of State for the Home Department [2016] CSIH 64 in which there is a statement, albeit obiter, that a particular ground of review in that case based on Article 12 of Dublin III did not have a reasonable prospect of success. Mr Pirie submitted that the reasoning in that case included the interpretation of Article 12 which could in turn be read across to Article 19. The only ground of review left in this petition was in terms of Article 19(2) of Dublin III, namely that the claimant says that he left the Member State in question (France) and was then outside the EU for more than three months. He has produced a letter purporting to be from an employer in Iran although it should be noted that the document was not before the Secretary of State when she made her decision. No other information is produced. Mr Pirie stated that from a conventional judicial review perspective the petitioner would necessarily fail because the court can only look at material that was before the decision maker. The petitioner could succeed only if he convinces the court that the scope of Article 27 of Dublin III is wider than the usual judicial review reach, although the scope of judicial review procedure itself would require to be adapted in order to allow that argument. Two concessions are made by the respondent in that respect. First, judicial review can and should be adapted where necessary to provide the effective remedy required by Article 27 and secondly, the correct scope of Article 27 includes the right to challenge the statutory decisions in this case on the basis of an infringement of Article 19(2). Accordingly, if a petitioner had evidence such as a stamp in his passport giving a date of entry into another country, that would be relevant.
2. Dublin III
[8] Reference was first made to some of the recitals to the Regulations. Recital 4 sets out that a common European asylum system should include a clear and workable method for determining the Member State responsible for the examination of an asylum application. Recital 5 narrates that fair criteria both for the State and the person concerned must lie behind any method adopted and in particular the need for rapid processing of applications is emphasised. Recital 18 sets out the need for a personal interview with the applicant to facilitate the determination of the responsible State. Recital 19 is important and states:
“In order to guarantee effective protection of the right of the persons concerned, legal safeguards and the right to an effective remedy in respect of decisions regarding transfers to the Member State responsible should be established, in accordance, in particular with Article 47 of the Charter of Fundamental Rights of the European Union. In order to ensure that international law is respected, an effective remedy against such decisions should cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred.”
[9] So far as the substance of the Regulation is concerned Article 1 makes clear that the purpose of the Regulation is to lay down the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a Third Country National or a stateless person. Article 3 starts to set out the procedure and confirms that the application shall be examined by a single Member State, known as the Member State responsible. Article 3.2 provides that:
“Where no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State in which the application for international protection was lodged shall be responsible for examining it.”
[10] Article 7 provides, inter alia, that the Member State responsible in accordance with the hierarchy of criteria set out in Chapter III of the Regulation shall be determined on the basis of the situation pertaining when the applicant first lodged his or her application for international protection with a Member State. One of the various criteria of Chapter III is contained in Article 12 which provides that where an applicant is in possession of a valid residence document the Member State which issued that document shall be responsible for examining the application for international protection. That article was the subject matter of discussion in the case of MIB v SSHD referred to earlier where the Inner House made clear that any argument that such a residence document was issued on the basis of false information or forgery was a point that could only be raised by a receiving State. Article 18 provides that the Member State responsible under the Regulation is obliged to take charge of an applicant who has lodged an application in a different Member State and take back an applicant whose application is under examination. The responsible Member State must examine or complete the examination of the application for international protection made by the...
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