MT, YZ & Others (Eritrea) (R) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Beatson |
| Judgment Date | 10 February 2011 |
| Neutral Citation | [2011] EWHC 205 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 10 February 2011 |
| Docket Number | Case No: CO/9992/2009 CO/12776/2009 |
[2011] EWHC 205 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Birmingham Civil Justice Centre
33 Bull Street, Birmingham, B4 6DS
Before :THE HONOURABLE MR JUSTICE BEATSON
Case No: CO/9992/2009
CO/12450/2009
CO/12776/2009
Mr Becket Bedford and Mr Nelson Enonchong (instructed by Sultan Lloyd) for the Claimants
Mr Vinesh Mandalia (instructed by The Treasury Solicitor) for the Defendant
Hearing date: 20 October 2010
Further Submissions 27 October, 3 November 2010
Mr Justice Beatson :
I. Introduction
These three linked claims are before the court following the grant of permission by Richards LJ on 24 February 2010. Their procedural history is summarised in the judgment his Lordship gave when doing so: see [2010] EWCA Civ 275. The claimants are nationals of Eritrea who made applications for asylum in this country. Their applications have not been considered substantively but have been certified pursuant to the power in Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 on the ground that, in different circumstances, Italy has accepted or is deemed to have accepted responsibility for their asylum claims under Council Regulation EC 343/2003 of 18 February 2003, which I shall refer to as the Dublin II Regulation.
In view of the nature of the claims, it will be necessary to set out the factual position of each claimant and the Secretary of State's responses to their positions before proceedings were instituted in some detail. At this stage, it is convenient to summarise a number of features which are common to each of the three claims. The claimants all arrived in the United Kingdom and made a claim for asylum. They did so without disclosing that they had previously been apprehended and claimed asylum in another Member State of the European Union. Two of them, MT and YM, deny that they in fact did so. But the Eurodac automated fingerprint database subsequently matched the fingerprints of all three to a previous illegal entry into Italy. The United Kingdom then made formal requests under the terms of the Dublin II Regulation to Italy to "take-back" the claimants. The authorities in Italy were deemed under the terms of the Dublin II Regulation to have agreed to take the claimants back, and in the cases of MT and YM, formally agreed to do so.
The three claimants applied for permission to seek judicial review of the decision to remove them to Italy in accordance with the Dublin II Regulation. As a result, they were not removed within what would normally be the relevant time limit laid down by the Regulation. The dispute between the claimants and the defendant concerns whether that time limit applied and, if it did, whether it had been validly suspended. At this stage it suffices to state that Richards LJ granted permission, with some hesitation, so that three issues could be examined more fully. I have been assisted in doing so by helpful written and oral submissions by Mr Becket Bedford, on behalf of the claimants, and Mr Vinesh Mandalia, on behalf of the Secretary of State.
II. The Issues
Issue 1: This, which concerns YZ and YM, has two limbs. The first is whether the Secretary of State can suspend the time limit for implementing a person's transfer under the Dublin II system. By Article 20(1)(d) of Regulation 2003/343/EC the transfer of a person to the Member State which has agreed to take that person back must take place within 6 months of the date the Member State has accepted or is deemed to have accepted the request. On 11 May and 8 June 2009 respectively, YZ and YM were served with a "Third Country Certificate" notifying them that Italy was deemed to have accepted responsibility for their asylum claims.
By Article 20(1)(e) of the Regulation (set out at [22]) an appeal or review of the decision to transfer a person "shall not suspend the implementation of the transfer except when the courts or competent bodies so decide on a case-by-case basis if the national legislation allows for this". The Secretary of State is the authority responsible for implementing a transfer. The first limb of this issue is whether the Secretary of State is a 'competent body' within Article 20(1)(e). If she is, she can decide whether to suspend time running under the 6 month transfer period after which responsibility for determining the asylum claim would fall on the United Kingdom as the requesting Member State. It was submitted by Mr Bedford that a decision to suspend must be taken by a court or tribunal independent of the executive, and not by the Secretary of State.
The second limb of the first issue is whether, if the Secretary of State is a 'competent body' for the purpose of Article 20(1)(e), she did in fact suspend the implementation of the transfers and whether she can do so by a policy to do so in a class of case rather than by an individual decision. The relevant policy here is that, subject to exceptions not relevant in these cases, the Secretary of State defers removal and thus suspends the implementation of a transfer where judicial review proceedings have been instituted. 1 It was submitted by Mr Bedford that this does not suffice. What is required is a decision in the individual case. Mr Bedford also submitted that both limbs of this question should be referred to the European Court of Justice in Luxembourg.
Issue 2: This only concerns YM. It is whether, in the circumstances of his particular case, the time limit for implementing his transfer was in fact "suspended" for the purposes of the Dublin II Regulation. It is submitted on YM's behalf that in his case: (a) there was no actual suspension of the transfer; (b) on the evidence, he was not notified of any such suspension; and (c) the judicial review proceedings cannot themselves have been effective to give rise to a suspension, not least because a stay was refused: see paragraph [17] of Richards LJ's decision.
Issue 3: This concerns MT and YM, who deny first claiming asylum in Italy. The question here is whether the determination of whether a person has claimed asylum in another member state so as to trigger the application of the relevant provisions of the Dublin II Regulation is one of jurisdictional or precedent fact. If so, would it be wrong to decide it at the permission stage by refusing permission as this would mean the claimant would not have the opportunity to give and to call evidence, or otherwise to test the matters relied on by the Secretary of State, in these cases a comparison of the claimants' fingerprints and fingerprint data supplied by the Eurodac Central Unit. Richards LJ described this ground as based on a claim of procedural unfairness: see [2010] EWCA Civ 275 at [11], [13] and [15].
Underlying the three particular issues is the broader question of whether, and, if so, to what extent, alleged breaches of the Dublin II Regulation are directly actionable by an individual applicant for asylum. A number of authorities have held that its provisions govern responsibility as between Member States, but do not give directly actionable personal rights to the individual asylum seekers unless the Secretary of State acts in a Wednesbury unreasonable manner or in breach of that individual's human rights.
III. The Evidence
At the time of hearing the evidence in support of the claimants consisted of the contents of section 8 of the N461 forms and the documents included with their applications. In the case of YM there is additionally an undated statement by him. At that stage no evidence had been filed by the Secretary of State. After the hearing, pursuant to my direction, on 27 October and 3 November 2010 further written submissions and evidence were filed. These concerned the measures taken by the Secretary of State to comply with the provisions of Council Regulation (EC) 2725/2000 ("the Eurodac Regulation"), the policy of the Secretary of State with regard to deferring removal directions in cases where a claimant has applied for permission to seek judicial review, and the procedure by which a suspension of transfer under the Dublin II process is implemented and was in these cases. The evidence filed on behalf of the Secretary of State is the statement of Lazarus Lebechi, a Senior Caseworker at the Third Country Unit of the UK Border Agency, which is responsible for the certification of asylum cases on third country grounds under the provisions of the Dublin II Regulation. The statement is dated 27 October 2010.
IV. The legislative and policy framework
Since the European Council of Tampere in 1999 the European Union has sought to develop a common asylum system. It is an evolving process. In 2008 the European Commission published a proposal for the recasting of the system which seeks to improve its efficiency and ensure the needs of those seeking international protection are covered by the procedure for determining responsibility.
At present, the legal framework 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" is now contained in the Dublin II Regulation, Council Regulation (EC) 343/2003 of 18 February 2003. Its predecessor was the Dublin Convention 1997, EC 97/C 254. There are differences. For example, Article 15(7) of the Dublin Convention provides that "an applicant for asylum shall have the right to receive, on request, the information exchanged concerning him or her,...
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