Biruk Habte v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | MR Justice Lewis |
| Judgment Date | 30 October 2013 |
| Neutral Citation | [2013] EWHC 3295 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 October 2013 |
| Docket Number | (1) Case No: CO/3439/2012 |
[2013] EWHC 3295 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre,
33 Bull Street, Birmingham, B4 6DS
Mr Justice Lewis
(1) Case No: CO/3439/2012
(2) Case No: CO/12528/2012
David Chirico (instructed by TRP Solicitors) for the Claimant in the first case
S. Chelvan (instructed by Lawrence Lupin Solicitors) for the Claimants in the second case
Alan Payne (instructed by Treasury Solicitors) for the Defendant
Hearing date: 15th, 16th October 2013
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Introduction
The Claimants in these two cases both raise issues concerning the lawfulness of action taken by the United Kingdom authorities to remove them from the United Kingdom to other Member States of the European Union in order to enable those states to deal with their claims for asylum. In brief, both cases involve situations where an asylum claim had first been made and rejected in another EU Member State (Germany in the first case and Belgium in the second). In each case, a subsequent asylum claim was made in the United Kingdom. Following requests by the United Kingdom, the respective authorities of Germany and Belgium accepted that they were responsible for dealing with the asylum claim and agreed to take back the relevant Claimant.
In each case, however, the Claimants contend that they had spent more than 3 months outside the territory of the EU and that, therefore, Germany and Belgium could have contended that their obligation to take back the Claimants had ceased by reason of Article 16(3) of Council Regulation (EC) 343/2003 of 18 February 2003 establishing the criteria and the 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 Dublin II Regulation").
In the first case, the Claimant, Biruk Alamayehu Habte, contends that various actions of the Defendant were unlawful as a common law duty of procedural fairness, or certain provisions of the Dublin II Regulation, or Article 41 of the Charter on Fundamental Rights of the European Union ("the Charter"), required the Defendant to make further enquiries, or offer him the opportunity to provide further evidence or to take legal advice, before requesting Germany to take him back. In addition, the Claimant contends that the decision of the Defendant, certifying his claim that removal would violate his right to respect for family and private life under Article 8 of the European Convention on Human Rights ("ECHR") as clearly unfounded, was unlawful.
In the second case, the first Claimant contends that the decision of the Defendant either to request the Belgian authorities to take the first Claimant back, or to continue with that request following an initial refusal by Belgium to accept responsibility, was irrational as a matter of domestic public law.
The Defendant contends that no procedural obligations of the sort claimed by Mr Habte were owed. More fundamentally, the Defendant contends that, once the requested state has accepted responsibility for dealing with the asylum application, transfer to that Member State is lawful and cannot be challenged on domestic public law grounds. The Defendant also contends that the material provisions of the Dublin II Regulation regulate relations between Member States and do not give rise to directly effective rights enforceable by individuals in national courts. Further, the Defendant contends that Article 41 of the Charter does not apply to decisions relating to the allocation of responsibility for dealing with asylum claims and the removal of asylum seekers to another Member State for that purpose. In relation to RH, the Defendant contends that the process followed was that laid down in the Dublin II Regulation and acting in accordance with that process cannot be said to be irrational.
THE FACTS
Biruk Habte
Mr Habte is an Ethiopian national born on 5 April 1990. In 2006, he, together with a brother and a sister, arrived in Germany. He claimed asylum on the basis that he feared persecution in Ethiopia because of his family's, and subsequently his own, involvement with the Oromo Liberation Front which is a banned organisation in Ethiopia. Their asylum claims were refused.
The Claimant says that he returned to Ethiopia. He does not say in his witness statement when he says he returned to Ethiopia. He contends that he attended a bible study course in Ethiopia between the 1 March 2007 and 20 May 2007 and his lawyers have inferred that he claims to have returned to Ethiopia some time in February 2007. In any event, he contends that he spent more than three months in Ethiopia between the refusal of his asylum claim in Germany and leaving Ethiopia again on 6 July 2007.
On 6 July 2007, Mr Habte says that he left Ethiopia and flew first to France, then went to Belgium and then came by air to the United Kingdom. He was 17 at the time. In Belgium, Mr Habte obtained a visa to come to the United Kingdom using a false name and claiming that he was the son of a person who was, in fact, his brother-in-law. He entered the United Kingdom with that visa and with a passport again in a false name. In 2008, when he was 18, he went again to France and obtained another visa in a false name and returned to the United Kingdom using false documents. That visa was valid from 23 January 2008 until 23 July 2008. In interview, he explained his actions on the basis that he was following the instructions of his brother-in-law.
On 3 January 2012, Mr Habte claimed asylum. An interview, referred to as a screening interview, was conducted on that day. Mr Habte admitted that he had used an alias to enter the United Kingdom and had used a false passport. He gave some details of the route by which he had arrived in the United Kingdom. He said that he had been fingerprinted in Germany in 2006. He said that he had applied for asylum under a false name in Germany in 2006 but that application had been refused. He said he then went back to Ethiopia. He was not asked how long he spent in Ethiopia. He was asked "do you have any evidence to prove you returned to your own country of your own accord". Mr Habte replied "No".
Mr Habte's fingerprints were taken and were checked against a computerised central database of fingerprints known as "Eurodac". That revealed that Mr Habte had claimed asylum in Germany in 2006 as he had said in interview.
On 12 January 2012, the United Kingdom authorities requested Germany to take back Mr Habte using the standard form prescribed by Article 2 and Annex II to the Commission Regulation (EC) 1560/2003 of 2 September 2003 laying down detailed rules for the application of the Dublin II Regulation ("the Commission Regulation"). Question 12 of that form asked whether the applicant had stated that he had left the territory of the Member States. The request says, incorrectly, "no". However, there was a box headed "Comments" which said this:
"The applicant is a EURODAC hit with Germany on 01/06/2006, EURODAC hit attached. The applicant claimed asylum in the UK on 03/01/2012.
During the screening interview, the applicant claimed that he left Ethiopia on 16/07/2007 by air and went to France. On 24/07/2007 he claimed to have left France hidden in a lorry and entered the UK on the same day. He then states in the same interview that he left Ethiopia on 06/07/2011 and flew to France before taking a flight to Belgium and then a further flight to the UK, arriving in the UK on 24 th or 25 th July 2011.
The applicant later admitted to being fingerprinted in Germany and that he claimed asylum there in 2006. He claims that his German asylum claim was refused and that he went back to Ethiopia, but has not supplied any evidence of this.
The applicant has been vague about his travel route to the UK, and has travelled on a false passport for at least part of the journey. He initially didn't mention his time in Germany, and has failed to provide any evidence to support his claims that he returned to Ethiopia. All of this casts doubt on the validity of the applicants claims."
On 3 February 2012, the German authorities replied stating that the request for them to take back Mr Habte was accepted and he would be taken back by the Federal Republic of Germany.
On 7 February 2012, the Defendant certified that she proposed to remove Mr Habte to Germany and that he was not a national of that state, pursuant to section 33 and part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants) Act 2004 ("the 2004 Act"). On 23 March 2012, the Defendant determined to remove Mr Habte to Germany. Both the decision to certify and the decision to remove are challenged by the Claimant. Initially, removal directions were fixed and the Claimant was detained. The removal directions were cancelled and the Claimant was released. Although initially the subject of challenge, the removal directions and detention decisions are not now challenged in these proceedings (the underlying decision to remove Mr Habte from the United Kingdom to Germany is, of course, still challenged).
When Mr Habte was interviewed...
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