R and Another v Secretary of State for The Home Department
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HOOPER |
| Judgment Date | 16 February 2001 |
| Neutral Citation | [2001] EWHC 125 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/1605/2000 |
| Date | 16 February 2001 |
[2001] EWHC 125 (Admin)
IN THE HIGH COURT OF JUSTICE
(ADMINISTRATIVE COURT)
QUEEN'S BENCH DIVISION
MR JUSTICE HOOPER
CO/1605/2000
MISS A SHEEHAN (instructed by Dozie & Co, Rachel House, 214-218 High Road, Tottenham, London N15 4NP) appeared on behalf of the Applicant.
MISS L GIOVANNETTI (instructed by Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) appeared on behalf of the Respondent.
Friday, 16th February 2001
This is an application for judicial review of a decision of the Secretary of State contained in a letter dated 19 April 2000. Permission was refused following an oral hearing by Scott Baker J. A renewed application was made to the Court of Appeal. Buxton LJ, on paper, granted permission on 22 August 2000. He gave the following as his reasons:
"The question needs to be further considered of whether Articles 10(2) and (3) of the Dublin Convention apply. I note the S of S's indication in his letter of 27 July 2000 that he cannot act on the relevant claim without verification. However, it is accepted that the first German application was refused on 20 July 1998. The claimant was presumably shortly thereafter refouled to Turkey. She did not enter the UK until 26 September 1999. These dates would seem to indicate a prima facie case of three months' absence which the S of S should arguably investigate.
There is no arguable merit in any of the other grounds."
At the start of the hearing today, I called for a copy of the grounds so that I understood precisely upon which ground or grounds Buxton LJ had granted permission. A search has been made of the relevant files, both in the Administrative Court and the Court of Appeal, and I am told that no grounds can be found. Miss Sheehan, who appears for the claimant today, was the counsel involved in that renewed application to the Court of Appeal. She has not been able to produce to me the grounds upon which she relied in the application to the Court of Appeal. They could have been the original grounds in the Form 86A or some amended grounds or some quite separate grounds of appeal. There is reason to believe that there was an amendment at some stage to the original grounds because I have been handed a document which contains a number of grounds which are not identical to the original grounds.
It is most unsatisfactory that the grounds are not available. This court cannot consider any grounds upon which the Court of Appeal has not given permission. In the absence of the grounds, I have given the claimant, as I must, the benefit of the doubt.
Buxton LJ refers to Article 10(2) of the Dublin Convention in his reasons for granting permission. It is agreed that Article 10(2) has nothing to do with this case.
Insofar as Article 10(3) is concerned, Buxton LJ wrote, as I have indicated, that the claimant was presumably shortly thereafter refouled to Turkey. That was not the case and has never been so. I have been shown some grounds in the skeleton argument which appears to have been seen by Scott Baker J, and also perhaps seen by Buxton LJ, in which, opposite the date, 31 August 1998, within the chronology, it is written:
"A returns/is returned to Turkey."
Under the heading "Brief facts", in paragraph 6 on the next page, it is said:
"A either returned or was returned to Turkey…"
However, an examination of the interview of this claimant, which can be found at page 14 of the bundle, makes it clear that she had never suggested she had been returned involuntarily to Turkey. Her words were:
"Then I came back on a false passport to Turkey."
Again, it is most unsatisfactory that permission should have been granted on a factual basis which Buxton LJ was apparently led to believe existed when it did not so exist. Nonetheless, being fair to the claimant, I must now consider her application.
The claimant seeks to challenge the notice dated 19 April 2000 to certify her asylum application "on third country grounds". The third country is Germany, which had accepted that it is the state responsible for examining her application for asylum.
I turn to the argument made on her behalf about Article 10(3) of the Convention. Article 10 of the Convention reads as follows:
"1. The Member State responsible for examining an application for asylum according to the criteria set out in this Convention shall be obliged to:
(a) Take charge under the conditions laid down in Article 11 of an applicant who has lodged a application for asylum in a different Member State.
(b) Complete the examination of the application for asylum.
(c) Readmit or take back under the conditions laid down in Article 13 an applicant whose application is under examination and who is irregularly in another Member State.
(d) Take back, under the conditions laid down in Article 13, an applicant who has withdrawn the application under examination and lodged an application in another Member State.
(e) Take back, under the conditions laid down in Article 13, an alien whose application it has rejected and who is illegally in another Member State.
2. If a Member State issues to the applicant a residence permit valid for more than three months, the obligations specified in paragraph 1, points (a) to (e) shall be transferred to that Member State.
3. The obligations specified in paragraph 1, points (a) to (d) shall cease to apply if the alien concerned has left the territory of the Member States for a period of at least three months.
4. The obligations specified in paragraphs 1, points (d) and (e) shall cease to apply if the State responsible for examining the application for asylum, following the withdrawal or rejection of the application, takes and enforces the necessary measures for the alien to return to his country of origin or to another country which he may lawfully enter."
Article 10(1)(a) to (e) sets out a number of criteria. Article 10(3) provides that the obligations specified in paragraph 1(a) to (d) shall cease to apply if the alien concerned has left the territory of the Member State for at least three months. However, that paragraph makes it clear that sub-paragraph (e) is in a different category. If a person comes to this country and his or her application for asylum has been rejected in, say, Germany, and that person is illegally in this country, then the obligation on Germany to take that person back remains subject to Article 10(4).
It was submitted on behalf of the claimant that one of the conditions set out in (e) was not met, and that, furthermore, (e) should be read in such a manner that the claimant fell outside (e).
The claimant was born in Turkey. She went to Germany in 1994, claimed asylum there in 1996. Her asylum application was refused in Germany in 1998. There is an issue between the Secretary of State and the claimant as to whether or not she ever returned to Turkey, an issue to which I shall return briefly later in this judgment. On 26 September 1999 she arrived at Waterloo on Eurostar from France.
On her arrival in Waterloo, she claimed asylum. There is no doubt that the Secretary...
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