Petrit Musaj For Judicial Review Of A Decision Of The Secretary Of State For The Home Office
| Jurisdiction | Scotland |
| Judge | Lady Smith |
| Date | 25 May 2004 |
| Docket Number | P1307/03 |
| Court | Court of Session |
| Published date | 25 May 2004 |
| OUTER HOUSE, COURT OF SESSION | |
| P1307/03
| OPINION OF LADY SMITH in the Petition of PETRIT MUSAJ Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Office to remove the Petitioner from the United Kingdom. ________________ |
Petitioner: Bovey QC , Devlin; Drummond Miller W. S
Respondent : Lindsay ; H.F .McDiarmid , Solicitor to the Advocate General
25 May 2004
The Facts and Pleadings
[1]The petitioner is a national of Albania . He is married and has two children aged six and four. He is a restaurateur. The petitioner left Albania on 7 September 2002 and, using a visa which bore to have been issued by the German authorities, entered the European Union and arrived in the United Kingdom on 23 March 2003. He did not enter Germany. He claimed asylum in the United Kingdom on 23 March 2003 .
[2]The petitioner avers that the visa used by him "was in fact invalid". No further explanation is given in the averments but, in submissions on his behalf, it was stated that his brother-in-law attended at the German consulate in Tirana, presented false documentation, falsely represented that he was the petitioner and that he wished to visit Germany to attend a car fair (something that the petitioner did not want to do), for the purposes of obtaining the visa. He was, however, aware that the German Consul had asserted that the petitioner did attend at the consulate in person and make the application.
[3]By letter dated 28 April 2003, the Home Secretary requested of Germany that they accept transfer of the petitioner for determination of his application for asylum. By letter dated 4 July 2003, Germany acceded to that request. By letter dated 23 July 2003, the Home Secretary wrote to the petitioner advising him that his application for asylum was refused in respect that he certified under section 11(2) of the Immigration and Asylum Act 1999 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".
[4]The respondent also wrote to Germany on 23 July 2003 explaining that due to "operational difficulties", it would not be possible to transfer the petitioner within the usual one month period and asking for an extension. The letter was not replied to but no reply would, I was advised, have been expected in normal course for states to be able to proceed on the basis that the extension was acceded to.
[5]Removal directions were issued on 20 August 2003 stating that removal would be effected on 27 August 2003. The present petition for judicial review was lodged in court on 27 August 2003 and removal did not, accordingly, proceed. The petition for judicial review is based upon the contention that the respondent ought not to have decided to transfer the petitioner to Germany on 27 August 2003 because he had a legitimate expectation that he would be transferred within one month of Germany's acceptance of the respondent's request and that the respondent ought not to have regarded Germany as an appropriate transfer destination because his visa was not a valid one. The petition seeks reduction of the decision of the respondent to transfer the petitioner to Germany on 27 August 2003. The respondent's decision to certify the petitioner's case under section 11(2) of the 1999 Act is not challenged nor is reduction of that certificate sought.
Legislative and Treaty Background
[6]The background to the present case is to be found in both legislative and treaty provisions. Claims for asylum may be made in the United Kingdom by foreign nationals under and in terms of the United Nations Convention relating to the Status of Refugees executed at Geneva in 1951 (Cmnd. 9171) as amended by the New York Protocol of 1967 (Cmnd. 3906). In accordance with rules promulgated thereunder, asylum will be granted to a claimant in the United Kingdom if returning him to a country in breach of the Convention and Protocol would involve a threat to his life or freedom on account of his race, religion, nationality, membership of a particular social group or political opinion. If the appropriate criteria are not met then the application for asylum can be refused and the respondent would be entitled to give directions for the claimant's removal from the United Kingdom under section 10 of the Immigration and Asylum Act 1999 (c.33). Also, the Convention and Protocol do not prevent removal of potential refugees to safe third countries for determination of their claims. The 1999 Act 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...........
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 -
- the member state has accepted that, under standing arrangements, it is the responsible state in relation to the claimant's claim for asylum; and
- 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".
[7]There is also an appeal under section 71(2) against the issue of the certificate on the grounds that the conditions applicable to it were or are not satisfied. The certificate in the present case has not been set aside or successfully appealed against.
[8]The "standing arrangements" mentioned in section 11(2)(a)(i) are those of the Convention determining the state responsible for examining applications for asylum lodged in one of the member state of the European Community signed at Dublin on 15 June 1990 ("the Dublin Convention"). Its preamble includes the following -
" Having regard to the objective, fixed by the European Council meeting in Strasbourg on 8 and 9 Dec 1989, of the harmonisation of their asylum policies;
Determined , in keeping with their common humanitarian tradition, to guarantee adequate protection to refugees .....................
Considering the joint objective of an area without internal frontiers in which the free movement of persons shall, in particular, be ensured, in accordance with the provisions of the Treaty establishing the European Economic Community, as amended by the single European Act ;
Aware of the need, in pursuit of this objective, to take measures to avoid any situations arising, with the result that applicants for asylum are left in doubt for too long as regards the likely outcome of their applications and concerned to provide all applicants for asylum with the guarantee that their applications will be examined by one of the member states and to ensure that applicants for asylum are not referred successively from one member state to another without any of these states acknowledging itself to be competent to examine the application for asylum;"
Its provisions include :
" Article 3
1. Member states undertake to examine the application of any alien who applies at the border or in their territory to any one of them for asylum.
2. That application shall be examined by a single member state, which shall be determined in accordance with the criteria defined in this Convention.....
5. Any member state shall retain the right ...to send an applicant for asylum to a third state in compliance with the provisions of [ the refugee convention]
Article 5.....
2. Where the applicant for asylum is in possession of a valid visa, the Member State which issued the visa shall be responsible for examining the application for asylum ....
Article 11
1. If a member state with which an application for asylum 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.
2. The request that charge be taken shall contain indications enabling the authorities of that other state to ascertain whether it is responsible on the basis of the criteria laid down in this Convention.............
4. The member state [to which the request has been made] shall pronounce judgment on the request within three months of receipt of the claim. Failure to act within that period shall be tantamount to accepting the claim.
5. Transfer of the applicant for asylum from the Member State where the application was lodged to the Member State responsible must take place not later than one month after acceptance of the request to take charge or one month after the conclusion of any proceedings initiated by the alien challenging the transferred decision if the proceedings are suspensory."
It is evident that, in contradistinction to the provisions of Article 11(1) and (4) there is no specified consequence or sanction for a failure to comply with the one month period specified in Article 11(5).
[9]A committee was set up under article 18 of the Convention for the purpose of reviewing procedures to achieve effective implementation. Decision 1/97 of that Committee provided, in terms of its Article 21(4) :
" Where the transfer of the asylum applicant has to be postponed due to special circumstances such as sickness, pregnancy, criminal detention, etc, and it is therefore not possible to carry out the transfer within the normal period of one month, the Member States concerned shall duly consult and agree on a case-by-case basis on the time limit within which the transfer must take place."
[10]The description of the...
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