Petition Of Servet Temel For Judicial Review
| Jurisdiction | Scotland |
| Judge | Lady Smith |
| Neutral Citation | [2005] CSOH 4 |
| Date | 14 January 2005 |
| Docket Number | P982/03 |
| Court | Court of Session |
| Published date | 14 January 2005 |
| OUTER HOUSE, COURT OF SESSION [2005] CSOH 4 | |
| P982/03 | OPINION OF LADY SMITH in the Petition of SERVET TEMEL Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Department to remove the Petitioner from the United Kingdom Respondent: ________________ |
Petitioner: Bovey, Q.C.; Wilson Terris & Co
Respondent: Lindsay; H.F. Macdiarmid, Office of the Solicitor to the Advocate General
14 January 2005
The Background Facts:
[1]The petitioner is a national of Turkey. He is married and has three children aged five, three and one, the youngest of which was born since his arrival in the United Kingdom. The petitioner and his family left Turkey and travelled to Germany, where he claimed asylum on 2 January 2002. They left Germany some time thereafter, arrived in the United Kingdom on 5 July 2002 and claimed asylum here on the same day.
[2]The petitioner was interviewed in the usual way when he claimed asylum and stated that he had travelled directly from Turkey. He said that he had not made any previous asylum applications in the United Kingdom or elsewhere. He said that he did not know which countries he had travelled through to get to the United Kingdom. He was in possession of a German receipt dated 17 April 2002. His wife stated that the receipt had been in a box containing shoes that had been sent to her from Germany for her sons. In these circumstances, the respondent's office wrote to the relevant authority in Germany by letter dated 16 July 2002, enclosing a set of the petitioner's fingerprints and asking whether he was known in Germany (see: 7/10 of process). The petitioner was re-interviewed on 14 November 2002 and repeated that he did not know which countries he had travelled through before arriving in the United Kingdom.
[3]The German authorities were unable to respond immediately to the request contained in the letter of 16 July 2002 as they were, apparently, having problems with a new computer system. A response was received from them on 10 March 2003 which contained a notice dated 6 February 2003 confirming that the petitioner's fingerprints had been matched positively and that he in fact had an outstanding asylum application in Germany. The respondent's department reacted to that by issuing a formal request dated 24 March 2003 to Germany to accept responsibility for the petitioner's asylum application under article 8 of the Convention determining the state responsible for examining the applications for asylum lodged in one of the member states of the European Communities signed at Dublin on 15 June 1990 ("the Dublin Convention"). That request was, accordingly, made more than six months after the date when the petitioner's application was lodged in the United Kingdom but within two weeks of the United Kingdom first becoming aware that the petitioner had gone to Germany prior to arriving in the United Kingdom and had claimed asylum there. Their ignorance of the petitioner having first applied for asylum in Germany was due to the petitioner having misled the authorities by his false statement that he had travelled directly to the United Kingdom from Turkey. The problem was compounded by the fact that it took Germany so long to process and respond to the United Kingdom's prompt request for information as to whether the petitioner was known to them.
[4]By notice dated 1 April 2003, Germany accepted that it was, under article 8 of the Dublin Convention, the state responsible for examining the petitioner's asylum application and the respondent issued a certificate which was contained in a letter to the petitioner dated 27 May 2003 and was in the following terms:
"The Secretary of State certifies that the conditions mentioned in section 11(2) of the Immigration and Asylum Act 1999 are satisfied, namely that:
(a)the authorities in Germany have accepted that, under standing arrangements, Germany is the responsible State in relation to your claim for asylum; and
(b)you are not a national or citizen of Germany."
[5]The petitioner and his family were accordingly detained on 24 June 2003 with a view to their being transferred to Germany. The respondent became aware, at that point, that the petitioner had a third child and so a copy of his birth certificate was obtained and sent to Germany with a request that responsibility for him be accepted also. That request was acceded to by notice dated 11 July 2003 following upon which the present proceedings were begun and the transfer arrangements suspended.
Legislative and Treaty Background:
[6]The background to the present case, as in the similar cases of Ali v Secretary of State for the Home Department 2003 SLT 674, Ibrahim v Secretary of State for the Home Department 2002 SLT 1150, Khairandish v Secretary of State for the Home Department 2003 SLT 1358 and Musaj v Secretary of State for the Home Department 2004 SLT 623, is to be found in the legislative and treaty provisions of the Immigration and Asylum Act 1999 ("the 1999 Act") and the Dublin Convention. Whilst the former enables claims for asylum to be made in the United Kingdom by foreign nationals in furtherance of the United Kingdom's obligations under the United Nations Convention Relating to the Status of Refugees 1951 ("the Geneva Convention"), that Convention does not prevent the removal of claimants to safe third countries for the determination of their applications. The Dublin Convention sets out a scheme for determining which member state should have responsibility for doing so where an alien has entered the member states of the European Communities.
Section 11(2) and (4) of the 1999 Act provides:
"11.- ... (2) Nothing in section 15 prevents a person who has made a claim for asylum ("the claimant") from being removed from the United Kingdom to a Member State if -
(a)the Secretary of State has certified that -
(i)the Member State has accepted that, under standing arrangements, it is the responsible State in relation to the claimant's claim for asylum; and
(ii)in his opinion, the claimant is not a national or citizen of the Member State to which he is to be sent;
(b)the certificate has not been set aside on an appeal under Section 65 ...
(4)" Standing arrangements" means arrangements in force as between Member States for determining which State is responsible for considering applications for asylum ...".
Section 15 provides:
" 15. During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom."
Articles 8 and 11(1) of the Dublin Convention provide:
"Article 8
Where no member state responsible for examining the application for asylum can be designated on the basis of the other criteria listed in this Convention, the first member state with which the application for asylum is lodged shall be responsible for examining it. ...
Article 11
1.If a member state with which an application has been lodged considers that another member state is responsible for examining the application, it may, as quickly as possible and in any case within the six months following the date on which the application was lodged, call upon the other member state to take charge of the applicant.
If the request that charge be taken is not made within the six-month time limit, responsibility for examining the application for asylum shall rest with the state in which the application was lodged."
In Ali, Khairandish and Musaj, it was held that the Dublin Convention did not give rise to any legitimate expectation on the part of individual claimants that the United Kingdom would act only accordance with its terms, in its dealings with such applicants. It was not, accordingly, open to such claimants to seek to found on any non-compliance with the terms of the Dublin Convention. At the beginning of the hearing in the present petition, senior counsel for the petitioner made a motion that I should decline jurisdiction because I had been the judge who decided the case of Musaj and he proposed, in the present case, to challenge that decision. In those circumstances there would, he submitted, be an appearance of partiality. Having pointed out to senior counsel that it was open to him to seek to persuade me, in the course of the hearing to accede to whatever argument he sought to advance, I did not accept that his submission was well founded and did not decline jurisdiction. Nor did I accept a subsidiary submission that the matter should be made the subject of a report to the Inner House. However, in the event, the determination in Ali, Khairindish and Musaj, that the Dublin Convention does not give rise to a legitimate expectation in the minds of claimants that its terms will not be departed from, was not challenged in the course of the debate that ensued.
Pleadings and Submissions:
Petitioner -
The petitioner seeks declarator in the following terms:
"(a)that in certifying in the case of the petitioner the requirements mentioned in Section 11(2) of the Immigration and Asylum Act 1999 (c.33) are satisfied the respondent erred in fact et separatim law et separatim reached an unreasonable decision et separatim failed to give adequate et separatim comprehensible reasons ....
(c)declarator that the requirements of section 11(2) not having been met the proposed transfer of the petitioner to Germany is accordingly ultra vires of the respondent."
He also seeks reduction of: "the decision wherein the respondent certified that in the case of the petitioner the requirements mentioned in Section 11(2) of the Immigration and Asylum Act 1999 (c33) are satisfied."
[7]Senior counsel for the petitioner submitted that section 11(2) of the 1999 Act imposed as a precondition to the valid exercise of the power to certify that the member state purporting to accept responsibility is in fact doing so in terms of the standing arrangements. For the respondent to call...
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