Reclaiming Motions By Miab (ap) And Others Against The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lady Smith,Lord Brodie,Lord President |
| Judgment Date | 27 July 2016 |
| Neutral Citation | [2016] CSIH 64 |
| Court | Court of Session |
| Docket Number | P261/15; |
| Published date | 27 July 2016 |
| Date | 27 July 2016 |
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 64
P261/15; P744/15; P488/14; P915/15; P612/14; P961/14; P682/15; P745/14; P512/14; P289/15; P1264/14; P340/14; P873/14; P1265/14; P487/15; P1255/14; P365/14; P420/15
Lord President
Lady Smith
Lord Brodie
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the reclaiming motions
MIAB (AP) AND OTHERS
Petitioners;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondents;
Petitioners: Dewar QC, Caskie; Drummond Miller LLP
Respondents: McIlvride QC, Pirie; Office of the Advocate General
27 July 2016
Introduction
[1] These are 18 reclaiming motions, which were heard together, against the interlocutors of the Lord Ordinary, dated 29 January 2016, to allow Minutes of Amendment to be received in nine cases and to refuse to do so in nine others. All of the petitioners claim asylum in the United Kingdom. Each first entered the European Union via another Member State. The respondent has refused each claim. She sought to transfer each of the petitioners, back to the Member State which they first entered, under Council Regulation (EC) 343/2003 (“Dublin II”) and Regulation (EU) 604/2013 of the European Parliament and Council (“Dublin III”). All of the petitions sought review of the transfer back decisions. Each removal notice was cancelled by the respondent, in accordance with her normal practice, once first orders had been granted in the relative petition.
[2] The 18 petitions, in their unamended form, relied principally upon the same argument which was determined by Al v Advocate General 2015 SLT 507. The petitions had been sisted pending the decision in Al. Following the decision, which was ultimately not reclaimed, the petitioners sought to amend each petition by deleting the existing case and introducing new grounds of challenge. The petitioners and the respondent reclaim the interlocutors in which they were unsuccessful. The key issues are: the identification of the correct test in deciding whether or not to allow amendment; whether the Lord Ordinary applied that test; and, if not, what the outcomes in the individual cases should be.
Legislation
[3] The Court of Session Act 1988 provides that:
“27B Requirement for permission
(1) No proceedings may be taken in respect of an application to the supervisory jurisdiction of the Court unless the Court has granted permission for the application to proceed.
(2) ... the Court may grant permission ... only if it is satisfied that—
...
(b) the application has a real prospect of success.
...
(4) The Court may grant permission ...
...
(b) only on such of the grounds specified in the application as the Court thinks fit.”
The section 27B requirement for permission was introduced by the Courts Reform (Scotland) Act 2014, and came into force on 22 September 2015. It applies only to petitions lodged after that date. All of the petitions were lodged before that date, when permission was not required.
Dublin II and Dublin III
[4] Dublin II came into force on 1 September 2003. Its purpose was, first, to identify the country responsible for processing asylum applications as quickly as possible, and, secondly, to prevent abuse of asylum procedures. In general terms, it provided that the Member State, which the asylum seeker first entered, would be responsible for determining the application. An asylum seeker had very limited opportunity to challenge a decision to transfer to the responsible Member State.
[5] Dublin II was recast and replaced by Dublin III, which applies to asylum applications and transfer requests made after 1 January 2014. The primary purpose of the new Regulation, and its general scheme, remains the same. However, one significant new feature of Dublin III is Article 27, which provides an asylum seeker with a right to challenge a transfer request “in fact and in law”.
[6] In so far as relevant to the present proceedings, Dublin III provides:
“Article 12
Issue of residence documents or visas
1. Where the applicant is in possession of a valid residence document, the Member State which issued the document shall be responsible for examining the application ...
…
5. The fact that the residence document or visa was issued on the basis of a false or assumed identity or on submission of forged, counterfeit or invalid documents shall not prevent responsibility being allocated to the Member State which issued it. However, the Member State issuing the residence document or visa shall not be responsible if it can establish that a fraud was committed after the document or visa had been issued.
Article 13
Entry and/or stay
1. Where it is established…that an applicant has irregularly crossed the border into a Member State ... the Member State thus entered shall be responsible for examining the application ... That responsibility shall cease 12 months after the date on which the irregular border crossing took place.
2. When a Member State cannot or can no longer be held responsible in accordance with paragraph 1 ... and where it is established … that the applicant ... has been living for a continuous period of at least five months in a Member State before lodging the application ... that Member State shall be responsible for examining the application ...
Article 14
Visa waived entry
1. If a third-country national ... enters into the territory of a Member State in which the need for him or her to have a visa is waived, that Member State shall be responsible for examining his or her application ...
2. The principle set out in paragraph 1 shall not apply if the third-country national ... lodges his or her application ... in another Member State in which the need for him or her to have a visa for entry into the territory is also waived. In that case, that other Member State shall be responsible for examining the application ...
Article 27
Remedies
1. The applicant ... 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.
…
3. For the purposes of appeals against, or reviews of, transfer decisions, Member States shall provide in their national law that:
(a) the appeal or review confers upon the person concerned the right to remain in the Member State concerned pending the outcome of the appeal or review; or
(b) the transfer is automatically suspended and such suspension lapses after a certain reasonable period of time, during which a court or a tribunal, after a close and rigorous scrutiny, shall have taken a decision whether to grant suspensive effect to an appeal or review; or
(c) the person concerned has the opportunity to request within a reasonable period of time a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal or review. Member States shall ensure that an effective remedy is in place by suspending the transfer until the decision on the first suspension request is taken. Any decision on whether to suspend the implementation of the transfer decision shall be taken within a reasonable period of time, while permitting a close and rigorous scrutiny of the suspension request. A decision not to suspend the implementation of the transfer decision shall state the reasons on which it is based.
4. Member States may provide that the competent authorities may decide, acting ex officio, to suspend the implementation of the transfer decision pending the outcome of the appeal or review.
…
Article 29
Modalities and time limits
1. The transfer of the applicant ... from the requesting Member State to the Member State responsible shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request by another Member State to take charge or to take back the person concerned or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3).
…
2. Where the transfer does not take place within the six months' time limit, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State. This time limit may be extended up to a maximum of one year if the transfer could not be carried out due to imprisonment of the person concerned or up to a maximum of eighteen months if the person concerned absconds.
…”
Al v Advocate General 2015 SLT 507
[7] In Al v Advocate General (supra), the petitioners challenged, first, whether the right to an effective remedy contained in Article 27 of Dublin III had been transposed into Scots law, and, secondly, the validity of judicial review as giving effect to that right. The petitioner had submitted that the law did not provide for a transfer decision to be suspended in accordance with Article 27(3). Whilst the policy of the respondent was to cancel any removal directions once first orders had been granted, that policy was unpublished, unknown and the law was unclear. In any event, the policy did not amount to automatic suspension, which was what all three options envisaged by Article 27(3) required.
[8] The petitioner failed in both aspects of the challenge. The Lord Ordinary decided that the language of Article 27(3) was clear. It required a Member State to provide a means by which an asylum seeker could remain in the country for a period of time sufficient to allow him to challenge the transfer decision. This could be by way of: a right to remain pending appeal or review; automatic suspension of the transfer request pending appeal or review; or the opportunity to request suspension pending appeal or review. Judicial review, taken together with the published policy of the respondent, gave the petitioner the...
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