MT, YZ & Others (Eritrea) (R) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Richards |
| Judgment Date | 24 February 2010 |
| Neutral Citation | [2010] EWCA Civ 275 |
| Date | 24 February 2010 |
| Docket Number | Case No: C4/2010/0334 C4/2010/0336 |
| Court | Court of Appeal (Civil Division) |
[2010] EWCA Civ 275
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(Mr Justice Hickinbottom)
Before: Lord Justice Richards
Case No: C4/2010/0334
C4/2010/0335
C4/2010/0336
Mr Becket Bedford (instructed by Sultan Lloyd Solicitors) appeared via video conference link on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED.
Lord Justice Richards:
These are renewed applications for permission to appeal against orders of Hickinbottom J refusing permission to apply for judicial review. There are three applicants. The judge considered them in a single judgment, and I will do the same. In all three cases, permission to appeal was refused by Sullivan LJ. The renewals have all been presented by Mr Bedford, who appeared on behalf of all the applicants before the judge. He has presented the cases very well, and has persuaded me that I should allow them to go forward. I shall set out my reasons for that decision.
In the case of YZ there is one issue, which arises in this way. On 20 April 2009 the Secretary of State sent a formal request to the Italian authorities asking them to accept responsibility for the applicant's asylum claim under Article 16(1) of the Dublin II Regulation; that is, Council Regulation (EC) No. 343/2003. In the absence of a reply, Italy was deemed to accept responsibility on 4 May 2009 by virtue of Article 20(1)(c). By Article 20(1)(d), the transfer to Italy was required to take place within six months of that date. There was evidence that on 4 September arrangements were made to remove the applicant to Italy, but on 7 September he filed judicial review proceedings challenging the decision that he was transferable to Italy. On 17 September the Secretary of State notified the Italian authorities that the applicant had filed the judicial review application, and requested an extension of time to effect removal.
By Article 20(1)(e), an appeal or review concerning the decision to transfer “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's position is that he is a competent body who can suspend implementation of the transfer, and he did just that by his notification to the Italian authorities on 17 September. The applicant disputes that proposition and says that the six-month time limit has expired, with the consequence that pursuant to Article 20(2) the Secretary of State is required to accept responsibility for deciding the applicant's claim.
There is an issue as to whether Article 20 confers rights on individuals at all, but the judge found it unnecessary to consider that issue because he was satisfied that the reference to “competent bodies” included the Secretary of State as decision-maker. The expression is not defined in the regulation, nor is it found elsewhere, though “the competent authorities of a Member State” is an expression appearing in Article 4(4) and clearly includes the Secretary of State as the person to whom an asylum claim is made.
Mr Bedford's main submission is that the reference to a “competent body” within Article 20(1)(e) must mean a body independent of the authorities responsible for transfer, because it must be the body responsible for the appeal or review concerning the transfer decision; that is to say, a body in the nature of a court or tribunal. It is also submitted that this is a point of EU law which cannot be decided by this court against the applicant without a reference to the Court of Justice of the European Union, it not having been the subject of a previous ruling and not being acte clair.
As to that point, Sullivan LJ in refusing permission on the papers took the view that the expression “competent body” plainly includes the body responsible for implementation of the transfer, in this case the Secretary of State, given the context, and that there was no need for it to be a body independent of the body responsible for implementation of the transfer.
Whilst there is obvious force in that view, it seems to me that the point ought to be examined more fully. There is some attraction in Mr Bedford's position that it cannot be for the executive to decide for itself whether to suspend transfer, and in that way to deprive an applicant of the right that would otherwise arise under Dublin II to have his asylum claim determined by the requesting Member State on the expiry of the six-month period laid down by Article 20. I can see why it might be said that, for that right to be lost, a decision to suspend must be taken by a court...
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MT, YZ & Others (Eritrea) (R) v Secretary of State for the Home Department
...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 substant......