R CK (Afghanistan) & Others v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Laws LJ,Lord Justice Davis,Sir Timothy Lloyd |
| Judgment Date | 22 March 2016 |
| Neutral Citation | [2016] EWCA Civ 166 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 March 2016 |
| Docket Number | Case No: C4/2014/2829 |
[2016] EWCA Civ 166
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
Ms GERALDINE CLARK (SITTING AS A DEPUTY)
HIGH COURT JUDGE
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Lord Justice Davis
and
Sir Timothy Lloyd
Case No: C4/2014/2829
Mr Greg Ó Ceallaigh (instructed by Samars Solicitors) for the Appellant
Miss Catherine Rowlands (instructed by The Government Legal Department) for the Secretary of State for the Home Department
Hearing date: 9 February 2016
INTRODUCTION
This is an appeal, with permission granted by Sharp LJ on 17 June 2015, against the decision of Ms Geraldine Clark sitting as a Deputy High Court Judge in the Administrative Court on 30 July 2014. The Deputy Judge dismissed the appellants' applications for judicial review brought to challenge the refusal of the Secretary of State to exercise her discretion (as the Deputy Judge put it) under the Dublin II Regulation to allow their asylum claims to be examined in the United Kingdom.
The appellants are Sikhs of Afghan nationality. The first and second appellants, born in the 1980s, are man and wife. The third appellant is one of their daughters. Her attributed date of birth is 1 January 2009. They claim to have been victimised by the Taliban in Afghanistan on account of their religion. It is said in particular that the second appellant was raped by members of the Taliban in front of her husband and mother-in-law. The first appellant's father is said to have been murdered, and the first appellant himself kidnapped and only released after payment of a bribe. The Deputy Judge summarised their fortunes after leaving Afghanistan as follows:
"2… Following a long and difficult journey from Afghanistan, they arrived in France in August 2012 where they were briefly detained and fingerprinted as asylum seekers.
3. However they chose not to remain in France. The First Claimant had an adult brother and sister living in London who had come to the United Kingdom as refugees some 16 years ago and who are now British citizens. The First Claimant entered the United Kingdom using a false passport and, when his presence in London was discovered on 23 September 2012, he claimed asylum here. He was subsequently joined by the Second and Third Claimants who entered the United Kingdom on 29 October 2012 and immediately claimed asylum here. Around November 2012 the Second Claimant became pregnant with her second child, who was born on 19 August 2013. She discovered that she was pregnant in mid-December 2012. On 16 December 2012 the Claimants moved to accommodation in Bolton."
DUBLIN II
The Dublin II Regulation ( Council Regulation (EC) No. 343/2003) laid down, in the words of Article 1, "the criteria and mechanism for determining the Member State [of the European Union] responsible for examining an asylum application lodged in one of the Member States by a third-country national". A hierarchy of criteria for determining the responsible Member State is set out in Chapter III (Articles 5 – 14). While the overall aim of the Regulation was to establish an effective regime constituted by these criteria (see in particular Recitals (1), (3) and (4)), provision was made for departures from the regime in certain circumstances. Thus Article 3, which appears in Chapter II ("General Principles"), provides:
"1. Member States shall examine the application of any third country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State, which shall be the one that the criteria set out in Chapter III indicate is responsible.
2. By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility…"
Chapter IV is headed "Humanitarian Clause". Its only content is Article 15, paragraphs (1) and (2) of which provide:
"1. Any Member State, even where it is not responsible under the criteria set out in this Regulation, may bring together family members, as well as other dependent [ sic] relatives, on humanitarian grounds based in particular on family or cultural considerations. In this case, the Member State shall, at the request of another Member State, examine the application for asylum of the person concerned. The persons concerned must consent.
2. In cases in which the person concerned is dependent on the assistance of the other on account of pregnancy or a new-born child, serious illness, severe handicap, or old age, Member States shall normally keep or bring together the asylum seeker with another relative present in the territory of one of the Member States, provided that family ties existed in the country of origin."
THE APPELLANTS' REPRESENTATIONS AND THE SECRETARY OF STATE'S DECISION
Under the ranked criteria set out in Chapter III of Dublin II it was France, where the appellants had first entered the European Union, which was responsible for examining their asylum claims. In those circumstances the appellants were liable to be removed to France under powers conferred by the Asylum and Immigration (Treatment of Claimants etc.) Act 200On 1 October 2012 in the case of the first appellant and 31 December 2012 in the case of the second and third appellants, France accepted responsibility for examining their claims. Directions for their removal to France were issued on 26 February 2013.
On 28 February 2013 the appellants' solicitors made written representations to the Secretary of State. They sought a decision that their clients' asylum claims be dealt with in this jurisdiction, having regard to Articles 3 and 15 of Dublin II. They relied also on Article 8 of the European Convention on Human Rights, and on s.55 of the Borders, Citizenship and Immigration Act 2004. They stated that the second appellant was then 16 weeks pregnant and had been suffering from "severe symptoms of stress and anxiety". The solicitors' letter continued:
"[The first appellant] has a brother… and a sister… in the United Kingdom. Both are British citizens who were originally recognised as refugees… Our clients have received considerable comfort from their family members in the United Kingdom and are anxious not to be returned to a country in which they know no one and have no familial support."
The appellants' applications were refused by the Secretary of State on 15 March 2013. As regards Article 3.2 of Dublin II, the Secretary of State considered that there were no "exceptional circumstances" to justify an exercise of discretion in the appellants' favour. Article 15 did not arise because it only fell for consideration upon a request being made by the State that would otherwise be responsible. As for Article 8, the Secretary of State observed that the first and second appellants had "only been in the UK since September 2012 and in such a short time it is not accepted that your client[s have] established any meaningful or significant private life in the UK". I should also set out this passage cited by the Deputy Judge at paragraph 43 of her judgment:
"Your client [has] not been financially, physically, or emotionally dependant on her brother in law and sister in law as they had clearly been apart for a considerable time. There is not any evidence of anything beyond what is usually expected of adult relatives. Your client can maintain contact with her brother in law and sister in law by way of telephone calls and emails. Your client's brother in law and sister in law can also visit your client in France as they are British Citizens."
The Secretary of State certified the human rights claims as clearly unfounded, with the consequence that the appellants might not appeal against the decision while they remained in the United Kingdom.
THE JUDGMENT BELOW
The Deputy Judge concluded, in light of authority which she summarised, that "decisions taken under the Dublin II Regulation are not susceptible to challenge by judicial review proceedings save where the enforcement of the decision would lead to inhuman or degrading treatment, which is not alleged in this case" (paragraph 17). However, in case she was wrong about that, she proceeded (paragraphs 31 ff) to consider the merits of the case. She accepted that the Secretary of State had made a legal error in concluding that Article 15 of Dublin II only fell for consideration upon a request being made by the State that would otherwise be responsible: the decision of the Court of Justice of the EU in K v Bundesasylamt [2013] 1 WLR 883 (to which I will come) showed that that was so as regards Article 15.2. However, the Deputy Judge concluded (paragraph 38) that even if the Secretary of State had proceeded to a decision under Article 15.2 it was "inevitable" that she would still have declined to examine the asylum claims in the UK; and as I have indicated the Judge cited (paragraph 43) the passage from the decision letter which I have set out above. Overall the Deputy Judge concluded that had the appellants been entitled to bring a judicial review claim, it would have failed on the merits. She addressed Articles 3.2 and 15.2 of Dublin II, ECHR Article 8 and s.55 of the 2009 Act.
THE ISSUES IN OUTLINE
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