R EW v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeMr Justice Hickinbottom
Judgment Date18 November 2009
Neutral Citation[2009] EWHC 2957 (Admin)
CourtQueen's Bench Division (Administrative Court)
Date18 November 2009
Docket NumberCase No: CO/4734/09

[2009] EWHC 2957 [Admin]

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Mr Justice Hickinbottom

Case No: CO/4734/09

Between:
The Queen on the application of EW
Claimant
and
Secretary of State for the Home Department
Defendant

Mark Symes (instructed by Sheona York, Principal Leagl Officer, Immigration Advisory Service) for the Claimant

Mark O'Connor (instructed by Duncan Lewis & Co for BM

Declan O'Callaghan (instructed by Duncan Lewis & Co) for YM

Lisa Giovannetti (instructed by the Treasury Solicitor) for the Defendant

Hearing dates: 28–29 September 2009

Mr Justice Hickinbottom

Introduction

1

The claimant, EW, is an Eritrean national, who arrived in the United Kingdom on 23 February 2009, when he was arrested by the police having been seen exiting the back of a lorry on the M3 motorway. He claimed asylum, and said that he had come from Eritrea via France. He was detained, and his fingerprints taken and sent for comparison against the Eurodac European fingerprint database. That disclosed that he had been fingerprinted in Italy on 22 September 2008 following his irregular entry into that country.

2

On 1 April 2009, a formal request was made by the United Kingdom to Italy inviting the authorities there to accept responsibility for the claimant's application for asylum under the terms of the Dublin II Regulation. Italy did not respond and so, under the terms of that Regulation, on 5 May Italy was deemed to have accepted responsibility for the claimant's application for asylum by default. That day, the claimant's United Kingdom application for asylum was consequently refused, and certified on safe third country grounds.

3

The claimant made representations to the Secretary of State that he should exercise his discretion and allow the claimant to remain in the United Kingdom due to his family ties with the country, namely that he had a brother who had been granted refugee status living here. On 7 May, that was refused, and removal directions were set for 19 May 2009.

4

On 12 May, the claimant by his legal representatives (Immigration Advisory Service, "IAS") made further representations to the Secretary of State to the effect that to remove him to Italy would be in breach of his rights under article 3 of the European Convention on Human Rights ("ECHR") in that the conditions in Italy for asylum seekers were such that they amounted to inhuman and degrading treatment contrary to article 3. An application for judicial review was made on 15 May, most urgently to quash the removal directions. In the face of the judicial review, the removal directions were withdrawn. Further correspondence ensued, and the Secretary of State formally responded to all of the claimant's representations in comprehensive form on 27 August 2009, rejecting his claims under article 8 (which was then still being pursued) and article 3, and certifying the human rights claims as clearly unfounded. It is that decision which the claimant now in substance seeks to challenge.

5

He does so now on two grounds, as follows.

(i) His return to Italy would place the United Kingdom in breach of its obligations under article 3 because, as an asylum seeker, he would face "a real risk of destitution and humiliation" there (Amended Grounds and Skeleton Argument 8 September 2009, paragraph 71). The claimant does not pursue the article 3 ground on the basis of his possible refoulement from Italy to Eritrea.

(ii) In any event, the Secretary of State ought to have considered exercising his discretion to accept responsibility for dealing with EW's asylum claim, because of "patent failures of the Italian authorities" to respect their obligations under article 3 and various European Union Directives as they relate to asylum seekers.

6

At a hearing for directions on 31 July 2009, I ordered that EW's claim be heard with the claims of two others, BM and YM. They too had sought asylum, and were both believed to have had asylum applications pending in Italy when they arrived in the United Kingdom and claimed asylum here. However, upon further investigation, it appeared that BM had been granted a permit to stay in Italy and YM had been granted status in Italy as a recognised refugee. Therefore, in Italy, they each had a different status from EW. As the consequences of their particular status in Italy were still being investigated, those cases were adjourned pending the outcome of EW's claim. However, without prejudice to their being able to present their cases fully in due course, I gave their representatives permission to intervene in the hearing of EW's application to make submissions on issues which are common with their claims: which they did, and for which I am grateful.

7

This claim was, by my order of 31 July 2009, listed as a rolled-up hearing. I formally grant permission to proceed.

The Law

8

It is an objective of the European Union to establish a Common European Asylum System, with a common procedure and uniform status for those granted refugee status valid throughout the Union and fully compliant with the Geneva Convention relating to the Status of Refugees of 28 July 1951, to achieve "an orderly system for dealing with asylum cases in the European Union" ( R (Yogathas) v Secretary of State for the Home Department [2002] UKHL 36 (" Yogathas") at [35] per Lord Bingham). As an early stimulus for the furtherance of that objective, member states worked towards the development of a scheme for ensuring that any application for asylum is dealt with by one member state, and for identifying that state, to avoid multiple claims in different member states.

9

The Dublin Convention of 15 June 1990 (superseded in 2003 by Council Regulation (EC) No 343/2003, "the Dublin II Regulation") established criteria and mechanisms for determining that single responsible state. It is a key provision that the first member state which an asylum seeker enters is responsible for consideration of his application. Article 10 of the Regulation provides that, where an asylum seeker has irregularly crossed the border into a member state from a third (i.e. non-Regulation) country, the member state thus entered "shall be responsible for examining the application for asylum". Chapter V of the Regulation provides that if he moves on to another member state, he may be sent back by the second or any subsequent member state without substantive consideration of his application: although, by article 3(2), any such member state may substantively examine the application and, if it does so, it (and not the first member state) becomes responsible for the application. The Eurodac fingerprinting system assists authorities in detecting multiple applications.

10

In addition to the Dublin II Regulation, several European Directives have been issued with a view to ensuring greater uniformity in relation to asylum seekers, setting minimum standards. Three are of particular importance.

11

Council Directive 2004/83/EC ("the Qualification Directive") sets minimum standards for the qualification and status of applicants.

12

Council Directive 2003/9/EC ("the Reception Directive") concerns the reception of asylum seekers. Member states have to make provision to ensure "a standard of living adequate for the health of applicants and capable of ensuring their subsistence" (article 13(2)). They are required to inform asylum seekers of established benefits to which they are entitled, and of organisations that provide specific assistance and organisations that may be able to help or inform them concerning reception conditions, including healthcare (article 5(1)). That information has to be provided in writing, and in a language that an applicant is reasonably supposed to understand (article 5(2)). Although there are exceptions, generally asylum seekers have a right to move freely within the relevant member state (article 7(1)). In relation to employment, it is for each member state to determine a period of time, beginning with the date of the application for asylum, in which an asylum seeker will not have access to the labour market which cannot in practice exceed one year (article 11(1) and (2)). In relation to the labour market, member states can give priority to European Union citizens and legally resident third-country nationals (article 11(4)).

13

Council Directive 2005/85/EC ("the Procedures Directive") sets minimum standards for procedures for granting and withdrawing refugee status. These include a requirement that anyone who has a claim for asylum has the right to apply for refugee status (article 6(2)): a right to remain in the member state whilst the application is running its course (article 7): a guarantee that the applicant is informed of the procedure and his rights and obligations under it in a language he is reasonable supposed to understand (article 10(1)(a)), and a right to an interpreter (article 10(1)(b)): and a right to an effective remedy before a court or tribunal (article 39).

14

However, like the Dublin II Regulation, the Directives do not stand alone. They seek "fully and inclusively" to apply the Geneva Convention, described in the Directives' Recitals as "the cornerstone of the international regime for the protection of refugees". In their respective Recitals, they also make clear that they "seek to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members", observing the principles recognised in particular by...

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