AA (Somalia) v Secretary of State for the Home Department; AH (Iran) v Same
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWS,Lord Justice Maurice Kay,LORD JUSTICE MAURICE KAY,Lord Justice Laws,MR JUSTICE BODEY,LORD JUSTICE HOOPER,LORD JUSTICE CARNWATH,Lord Justice Ward,Lord Justice Richards |
| Judgment Date | 23 November 2007 |
| Neutral Citation | [2006] EWCA Civ 1540,[2007] EWCA Civ 1410,[2007] EWCA Civ 1040 |
| Docket Number | Case No: C5/2007/1517,Case No: C5/2006/1989 + C5/2005/2389,C4/2006/0372 |
| Court | Court of Appeal (Civil Division) |
| Date | 23 November 2007 |
[2006] EWCA Civ 1540
IN THE SUPREME COURT OF JUDICAT
IN THE COURT OF APPEAL (CIVIL DIVISI
ON APPEAL FROM THE HIGH COURT OF JUST
QUEEN'S BENCH DIVIS
ADMINISTRATIVE CO
(MR JUSTICE TOULS
Royal Courts of Justice
Strand
London, WC2
Lord Justice Laws
Lord Justice Maurice Kay
Mr Justice Bodey
C4/2006/0372
MR M S GILL QC & MR E FR (instructed by Messrs South West Law) appeared on behalf of the Appellant.
MR A McCULLOUGH & MR A PA (instructed by Treasury Solicitor) appeared on behalf of the Respondent.
This is an appeal brought with permission granted by Maurice Kay LJ on 5 May 2006 against the refusal by Toulson J on 25 November 2005 to grant the appellant's renewed application for permission to seek judicial review of a decision of the Secretary of State made on 11 May 2005. By that decision, the Secretary of State declined to defer directions he had set on 5 May 2005 for the applicant's removal to Italy, and certified as clearly unfounded the applicant's claim that his removal to Italy would violate his rights under the European Convention on Human Rights. Mr George Bartlett QC sitting as a deputy High Court judge had earlier on 24 August 2005 refused judicial review permission on consideration of the papers.
On 11 April 2006, Keene LJ also on the papers refused permission to appeal Toulson J's order. That application was restored in court before my Lord, Lord Justice Maurice Kay, who granted permission to appeal to this court. My Lord did not exercise the power conferred by Civil Procedure Rule 52.15(3) to grant judicial review permission. It is, however, clear from the terms of my Lord's judgment (see in particular paragraph 15) that he contemplated that this court would deal with the substance of the matter rather than send it back to the Administrative Court in the event that judicial review permission were granted. That is the course we will take.
The case primarily concerns the construction of two provisions contained in Council Regulation 243/2003 of 18 February 2003 establishing the Criteria and Mechanisms for determining the Member State responsible for examining an Asylum Application lodged in one of the Member States by a Third Country National. The regulation is commonly referred to as Dublin II and I shall so refer to it. It replaced an earlier measure, Dublin I, which had addressed the same subject matter. However Dublin I was a treaty or convention, and thus at any rate as a matter of English law only had effect on the international plane. It was not binding and enforceable in domestic law. Dublin II by contrast as a Council Regulation is directly applicable in the legal systems of the Member States. The provisions of Dublin II with which we are concerned are Article 5(2) and Article 2(I) (iii) but it is convenient to set out the facts before coming to the legislation. I should add at this stage that there is a fresh point very recently raised upon a time limit contained in Article 20 of Dublin II. I shall explain that later.
The applicant is a national of Somalia. He claimed asylum in Italy in April 2003. He told the Italian authorities that his date of birth was 23 March 1982. According to the Secretary of State he said nothing about any family members of his living in the United Kingdom. However in a letter of 13 October 2006 his solicitors state, no doubt on instructions, that in fact he told the Italian authorities he had a sister here. The letter also says that after he had applied for asylum in Italy he went to Sweden and applied there but was returned to Italy.
At all events, while his application in Italy remained undetermined he entered the United Kingdom unlawfully with the help of an agent. He arrived here on 8 May 2004 at Stansted Airport. On the same day he made a claim for asylum. He had no documents. He stated untruthfully that he had never previously claimed asylum and had travelled to the United Kingdom from Ethiopia with a stop-over of one and a half hours in an unknown country. He gave his date of birth to the UK authorities as 21 January 1990. On that basis he would then have been 16 years of age. His fingerprints were taken, and a positive match on what is called the Eurodac Automated Fingerprint Database led to the discovery of his earlier asylum application in Italy. Notwithstanding the discrepancy with the date of birth he had given the Italian authorities, the Secretary of State has dealt with the case and is content that the court deals with the case on the basis that he was in fact born on 21 January 1990 as he claimed on arrival here.
The appellant was granted temporary permission and shortly afterwards was placed by the Essex Social Services with his half-sister Mrs A, who lives in Bristol. It seems he also has an elder full brother, Mr A; he too lives in Bristol, and the appellant has remained in Bristol since being placed there, living either with his half-sister or his brother. Mrs A has made a statement saying she is in charge of caring for him.
On 15 July 2004 the Secretary of State made a request to Italy, as the Member State where the appellant had first claimed asylum, to take him back and continue processing his outstanding application under the material provisions of Dublin II. On 7 August 2004 the Italian authorities were informed that having failed within two weeks to respond to that request, they were deemed under Article 20.1(c) of Dublin II, to which I will come, to have accepted responsibility for the processing of the appellant's asylum claim.
On 16 November 2004 Italy formally accepted responsibility under Dublin II for processing the appellant's claim. Then, as I have indicated, on 5 May 2005 the Secretary of State issued directions for the appellant's return to Italy. On 10 May solicitors wrote on his behalf contending that because the appellant was a minor living with his half-sister, who was a refugee in the United Kingdom and was de facto his guardian, the United Kingdom and not Italy was the Member State responsible for processing the asylum claim.
In further representations it was also asserted that the appellant's removal to Italy would violate his right to respect for his family and/or private life under Article 8 of the European Convention on Human Rights. The Secretary of State responded by the decision letter under challenge dated, as I have said, 11 May 2005. He stated that the half-sister was not the appellant's "legal guardian". That engages one of the provisions of Dublin II which we must scrutinise, namely Article 2(I) (iii) , as I shall shortly explain.
The Secretary of State also rejected the Article 8 claim and issued a certificate under section 93 of the Nationality Immigration and Asylum Act 2002 to the effect that the claim was clearly unfounded. The effect of the certificate, of course, is that the appellant's right of appeal against the decision on Article 8 was only exercisable from abroad. I should say at this stage that on this appeal we are not concerned with the Article 8 claim. Toulson J on 5 May 2006 rejected the proposed challenge to the section 93 certificate stating that he could not:
"… see any basis on which it could rationally be found that a removal of this claimant to Italy for the processing of his asylum claim would be a disproportionate measure and would contravene his Article 8 rights." (paragraph 11)
My Lord, Lord Justice Maurice Kay, held at paragraph 12 of his judgment that Toulson J's view was inevitably right, on the basis that given his rejection of the appellant's arguments on the construction of Dublin II the Secretary of State's decision would stand, so that the appellant would be removed but to Italy and not to Somalia.
Accordingly the appellant has no permission to appeal to this court on the Article 8 part of the case and we are only concerned with the points on Dublin II and the additional point which I have yet to describe.
In order to explain how the points on the construction of Dublin II arise, I should set out the following provisions in Dublin II itself. The second recital recalls the agreement at Tampere:
"… to work towards establishing a common European Asylum System …"
Then:
"3) The Tampere conclusions also stated that this system should include, in the short term, a clear and workable method for determining the Member State responsible for the examination of an asylum application.
"4) Such a method should be based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum applications.
"6) Family unity should be preserved in so far as this is compatible with the other objectives pursued by establishing criteria and mechanisms for determining the Member State responsible for examining an asylum application.
"12) With respect to the treatment of persons falling within the scope of this Regulation, Member States are bound by obligations under instruments of international law to which they are party.
"15) The Regulation observes the fundamental rights and principles which are acknowledged in particular in the Charter of Fundamental Rights of the European Union (3) . In particular, it seeks to ensure full observance of the right to asylum guaranteed by Article 18."
Article 2 of Dublin II is in English law parlance the interpretation section. I should read the...
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