Masoumeh Kheirollahi-Ahmadroghani v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Stadlen |
| Judgment Date | 22 May 2013 |
| Neutral Citation | [2013] EWHC 1314 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7033/2012 |
| Date | 22 May 2013 |
[2013] EWHC 1314 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Stadlen
Case No: CO/7033/2012
Vijay Jagadesham (instructed by Paragon Law) for the Claimant
Sam Karim and Lisa Busch (instructed by Secretary of State for the Home Department) for the Defendant
The Claimant is an Iranian asylum seeker. The Defendant declined to examine her asylum application on the ground that Germany had accepted that it was the State responsible for examining her application for asylum under the provisions of the Council Regulation (EC) No 343/2003 of 18 February 2003 ("the Dublin II Regulation"). The claim raises the question whether an asylum seeker is entitled to require the United Kingdom Government to apply the provisions of the Dublin II Regulation so as to accept responsibility for considering her application for asylum. The Claimant's case is that the Dublin II Regulation is of direct effect so that the answer to the question is yes. The Defendant's case is that the Dublin II Regulation was not intended to confer rights on asylum seekers to insist on which Member State should consider their application for asylum but rather to provide a convenient mechanism by which Member States could identify as between themselves which Member State is responsible for considering an application for asylum in any given case. Accordingly the answer to the question is no. Alternatively where, as in this case, a Member State has accepted responsibility the answer is no. In any event the question does not arise in this case because there was no breach of the provisions of the Dublin II Regulation.
The Facts
The Claimant is an Iranian national. According to her witness statement dated 31 January 2012 she resided in Germany from around 2002 with her two children and her husband who had lived there since the 1990s when he was granted asylum. They separated in 2005 after the Claimant was subjected to domestic violence by her husband. While she and her husband were together the Claimant had a residence permit which permitted her to reside in Germany. The permit had to be renewed every two years. After she separated from her husband her residence permit had to be renewed every four months.
According to information sent to the Defendant by the German authorities on 20 January 2012, on 11 July 2005 the Claimant was granted a permanent residence permit in Germany. According to the Claimant her husband left Germany to return to Iran in around 2007. She and her children remained in Germany but she returned to Iran in the first week of September 2011 due to her father's illness and to seek to formalise her divorce from her husband which the Iranian embassy in Germany had refused to accept. On discovering her return the Claimant's husband made a claim of adultery against her. The Claimant stated that she fled from Iran and entered the United Kingdom on 24 November 2011 via Turkey.
On 26 November 2011 the Claimant was arrested on suspicion of illegal entry to the United Kingdom, after police were called to an address in Nottingham where a man was arrested on suspicion of domestic violence against her. The Claimant stated in a taped interview under caution that she entered the UK in the back of a lorry without seeking permission to enter from an immigration officer. She stated that she had valid leave in Germany, that it was not her intention to come to the UK to claim asylum and that she wished to travel to Germany, but she was prevented from flying back to Germany because to do so she required the permission of her husband and she would have been arrested by the authorities.
On 27 November 2011 the Claimant claimed asylum. In a screening interview she said that she left Iran in October 2011 and arrived in the United Kingdom in early November 2011 and that she wished to return to Germany due to an existing relationship and that she had been granted a valid visa for Germany since 2002. Before the interview she asked the interpreter if she could go to Germany.
In her witness statement dated 31 January 2012 the Claimant said that on 7 or 8 September 2011 she returned to Iran for the first time in almost ten years travelling on her own Iranian passport which she had renewed in 2009 while living in Germany. She left Iran fearing the consequences of the allegation of adultery made by her husband against her. In fact she had since 2009 been in a relationship with a German man called Dieter. She said that she had asked before getting on the lorry to be taken to Germany. Once she realised, having got out of the lorry, that she was in the United Kingdom she said that she called Dieter in Germany and asked him to come and get her and take her to Germany.
It appeared to be common ground between the parties that on 6 December 2011 in a further interview the Claimant said in answer to questions 47 and 48 (which were not before the court) that she left Germany for Iran in 2011 and that she had a German visa which expired on 15 December 2011.
Mr Jagadesham, who appeared on behalf of the Claimant and to whom I am indebted for the thoroughness and erudition of his oral and written submissions, told me that his instructions were that the Claimant still believed that her visa expired on 15 December 2011 but that in his submission it was probable that she was wrong in that belief. That was because no evidence was adduced by the Defendant emanating from the German authorities which suggested that she had a valid unexpired visa as at 27 November 2011.
The significance of the question whether the Claimant did or did not have a valid unexpired visa or residence permit at the date of her application for asylum on 27 November 2011 is that if on that date she had a valid residence document, the definition of which under Article 2(i) in my judgment includes both a visa, and a residence permit, Germany would have been responsible for examining her application for asylum under Article 9(1) of the Dublin II Regulation and if on that date she had only a valid unexpired visa Germany would have been responsible for examining her application under Article 9(1) and/or Article 9(2) irrespective of whether she had left Germany to go to Iran. If she did not then if, as she herself admitted, she had left Germany to go to Iran Germany would not have been the Member State responsible under Article 9(4) even if she had a visa which had expired less than six months previously or a residence document which expired less than two years previously. Ms Busch, who appeared on behalf of the Defendant at the resumed hearing of the application, submitted that it was unlikely that the Claimant would have left Germany without an unexpired valid document.
On 11 January 2012 a request was made on behalf of the Defendant to the German authorities pursuant to Article 21 of the Dublin II Regulation which obliges Member States to communicate to any Member State that so requests such personal data concerning the asylum seeker as is appropriate, relevant and non-excessive for the determination of the Member State responsible for examining the application for asylum. The request, which was on a standard form, stated that among the matters which it concerned were visas. In that box it stated that the Claimant stated that she had been living in Germany since 2002 and that she had been granted a German visa which expired on 15 December 2011.
In a standard form response to the request for information from the German authorities dated 20 January 2012 which was headed "Answer the following Art. 21 Dublin II," under the heading "Permit of Stay" it was stated: "Permanent residence permit in accordance with the Residence Act granted on 11 July 2005; Application for a residence permit made on 28 July 2011." Under the heading "Registration of Abscondering of" it was stated "Left for unknown destination on 16 May 2005." Under the heading "visa of" there was no entry. Under the heading additional information was written: "Issued on 18 October 2007 under paragraph 31(1), (2), (4) of the Residence Act (independent residence permit for spouse) valid until 30 December 2008. Central register of foreign nationals number 02725016630." I note that there was no reference in that response to the Claimant having been issued with a visa which was valid as at 27 November 2011 and/or was due to expire on 15 December 20(In a letter to the Claimant's solicitors dated 19 October 2012 the Treasury Solicitor on behalf of the Defendant confirmed that the above entries were the result of a translation from the original German which was also before the Court).
On 22 February 2012 there was sent to the German authorities on behalf of the Defendant a standard form for determining the Member State responsible for examining an application for asylum. In the Immigration Factual Summary dated 6 July 2012 which subsequently accompanied notice of removal directions also dated 6 July 2012 the form was described as a formal request made to Germany under Article 9.4 of the Dublin II Regulation. The form stated that a request for taking charge was being presented on the ground of: "Article 9(4) residence document which expired less than two years previously or visa which expired less than six [sic]." In answer to question 20: "Does the asylum applicant possess a residence document/visa for the country of residence?" an entry was made in the yes box and the residence permit box. No entry was made in the...
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