Bahri Mucaj Against Advocate General For Scotland
| Jurisdiction | Scotland |
| Judge | Lord Ericht |
| Judgment Date | 03 February 2017 |
| Neutral Citation | [2017] CSOH 17 |
| Court | Court of Session |
| Published date | 03 February 2017 |
| Date | 03 February 2017 |
| Docket Number | P675/15 |
OUTER HOUSE, COURT OF SESSION
[2017] CSOH 17
P675/15
OPINION OF LORD ERICHT
In the cause
BAHRI MUCAJ
Petitioner
against
ADVOCATE GENERAL FOR SCOTLAND
Respondent
Pursuer: Caskie; Drummond Miller LLP
Defender: Pirie; Office of the Advocate General
3 February 2017
[1] The petitioner seeks reduction of the respondent’s decision to remove him to Belgium on the basis that the United Kingdom is in breach of certain time limits under the Dublin III Convention.
Immigration History
[2] The petitioner is Albanian. With his family, he arrived in Belgium on 15 November 2011. His asylum claim was refused by the Belgian authorities on 15 September 2012.
[3] On 29 December 2014, the petitioner and his family sought entry to the United Kingdom and claimed asylum. The respondent established that he had been in Belgium. The respondent made a “take back” request to the Belgian authorities in terms of the Dublin III Regulations. By letter dated 7 January 2015, the Belgian authorities accepted the transfer of the petitioner according Article 18.1(d) of the Dublin III Regulations. By letter dated 9 January 2015, the respondent declined to examine the asylum application substantively on the basis that there was a safer country to which the applicant could be sent, and certified that the conditions mentioned in paragraphs 4 and 5 of part 2 of schedule 3 to the Asylum & Immigration (Treatment of Claimants, etc) Act 2004 were satisfied. On 1 April 2015, the petitioner’s solicitor wrote to the Secretary of State submitting that to remove the petitioner and his family to Belgium would breach Articles 3 and 8 of the European Convention of Human Rights and Fundamental Freedom. The claim was based on the living conditions which the family had endured while in Belgium, and the risk that they might be subject to similar living conditions on return. That claim was refused by the respondent on 29 April 2015. On 9 June 2015 the respondent issued removal directions.
History of the Case
[4] The petitioner petitioned for Judicial Review seeking reduction of the removal decision, the third party certification, the decision of 29 April 2015 on Article 3 and the certification decision of 29 April 2015. First orders were granted on 30 June 2015. In accordance with her policy, the Secretary of State cancelled the removal directions upon the granting of first orders. At that time a number of Judicial Review petitions had been presented to the court raising issues similar to that of the current petition in relation to Article 3 of the ECHR in the context of returning asylum seekers to European countries under Dublin III. On 17 July 2015, the current petition was sisted until 27 November 2015 pending the decision in the lead cases. That decision was issued on 16 July 2015 (AL v Advocate General for Scotland [2015] CSOH 95; 2015 SLT 507). The Lord Ordinary found in favour of the respondent. The petitioners in the lead cases reclaimed but subsequently abandoned the reclaiming motion.
[5] Thereafter there were amendments and sundry procedure in the present case, in order to take account of the decision of the Lord Ordinary in the lead cases. The petitioner further amended the petition at the bar at the outset of the hearing before me on 3 November 2016.
[6] The result of these amendments was that the petitioner no longer sought reduction on the grounds of Article 3 or Article 8. The sole ground for reduction was breach of time limits under Dublin III.
[7] Accordingly, further to those amendments, the orders sought by the petitioner at the hearing before me in terms of paragraph 3 of the petition were:
“(i) reduction of the decision to remove the Petitioner to Belgium as that decision in unlawful et separatim unreasonable, whilst it is accepted that the removal date has passed the Secretary of State still intends to remove to Belgium and it is that decision and not removal on a specified date the Petitioner seeks reduction of;
(ii) reduction of a decision to certify the decision to remove to Belgium on third country grounds taken on or about 29th January 2015, certification is part of the process of removal and if removal is unlawful so too is taking steps in the process of affecting that (where the certification has no other effect); …
(v) the expenses of the petition;
(vi) such other orders as may seem to the Court to be just and reasonable in all the circumstances of the case.”
[8] At the outset of the hearing, counsel for the petitioner indicated that the following paragraphs of the petition related primarily to orders which were now no longer being sought: 8‑14, 16‑30, 32, and 36.
The Dublin III Regulations (Regulation (EU) No 604/2013 of 26 June 2013)
[9] The relevant parts of the Dublin III Regulations are as follows.
[10] The recitals to the Regulation include the following:
“(1) A number of substantive changes are to be made to Council Regulation (EC) No 343/2003 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. In the interests of clarity, that Regulation should be recast.
(2) A common policy on asylum, including a Common European Asylum System, (CEAS), is a constituent part of the European Union’s objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Union.
(3) The European Council, at its special meeting in Tampere on 15 and 16 October 1999, agreed to work towards establishing the CEAS, based on the full and inclusive application of the Geneva Convention Relating to the Status of Refugees of 28 July 1951, as supplemented by the New York Protocol of 31 January 1967 (‘the Geneva Convention’), thus ensuring that nobody is sent back to persecution, i.e. maintaining the principle of non‑refoulement. In this respect, and without the responsibility criteria laid down in this Regulation being affected. Member States, all respecting the principle of non-refoulement, are considered as safe countries for third-country nationals.
(4) The Tampere conclusions also stated that the CEAS should include, in the short-term, a clear and workable method for determining the Member State responsible for the examination of an asylum application.
(5) 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 to guarantee effective access to the procedures for granting international protection and not to compromise the objective of the rapid processing of applications for international protection. …
(9) In the light of the results of the evaluations undertaken in the implementation of the first-phase instruments, it is appropriate, at this stage, to confirm the principles underlying Regulation (EC) No 343/2003, while making the necessary improvements, in the light of experience to the effectiveness of the Dublin system and the protection granted to applicants under that system. Given that a well-functioning Dublin system is essential for the CEAS, its principles and functioning should be reviewed as other components of the CEAS and Union solidarity tools are built up. A comprehensive ‘fitness check’ should be foreseen by conducting an evidence-based review covering the legal, economic and social effects of the Dublin system, including its effects on fundamental rights.
(19) In order to guarantee effective protection of the rights 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.”
[11] The request for transfer of the petitioner which was accepted by the Belgian authorities on 7 January 2015 was under Article 18.1(d) which is as follows:
“18. The Member State responsible under this Regulation shall be obliged to:
…
(d) take back, under the conditions laid down in Articles 23, 24, 25 and 29, a third-country national or a stateless person whose application has been rejected and who made an application in another Member State or who is on the territory of another Member State without a residence document.”
[12] Article 23 sets out procedures for submitting a take back request when a new application has been lodged in the requesting Member State. It provides that “a take back request shall be made as quickly as possible and in any event within two months of receiving the Eurodac hit …” (Article 23.2). A Eurodac hit is a hit on central database of asylum seekers.
[13] Article 23.3 provides:
“Where the take back request is not made within the periods laid down in paragraph 2, responsibility for examining the application for international protection shall lie with the Member State in which the new application was lodged.”
[14] Article 25.1 provides that the requested Member State shall give a decision as quickly as possible and in any event no later than one month from the date the request was received.
[15] Article 26 provides for the transfer decision to be notified to the applicant or other relevant persons.
[16] Article 27 provides:
“Remedies
1. The applicant or another person as referred to in Article 18(1)..(d) shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal.
2. Member States shall provide for a...
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