R RM v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | O'Connor,O'Connor UTJ |
| Judgment Date | 11 May 2017 |
| Neutral Citation | [2017] UKUT 260 (IAC) |
| Date | 11 May 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
[2017] UKUT 260 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
Judicial Review Decision Notice
Decision of Upper Tribunal Judge O'Connor:
The application for judicial review is GRANTED
On this application for judicial review following consideration of the documents lodged by the parties and having heard Mr R Toal, instructed by Wilson Solicitors LLP, on behalf of the applicant and Ms C Rowlands, instructed by the Government Legal Department, on behalf of the respondent, at a hearing on 24 March 2017.
R (on the application of RM) v Secretary of State for the Home Department (Dublin; Article 27(1); procedure)
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(1) The scope of a challenge to a transfer decision brought, pursuant to art. 27 of Regulation 604/13 (Dublin III), on the basis that the decision infringes the second subparagraph of art. 19(2) of Dublin III is limited to ‘traditional’ public law grounds.
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(2) Section 15(5A) of the Tribunals, Court and Enforcement Act 2007 applies to applications for judicial review, in which the application for permission to bring such proceedings was received by the Upper Tribunal on, or after, 8 August 2016.
I make an anonymity order, pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008. Unless the Upper Tribunal or other appropriate Court or Tribunal orders otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the applicant. This prohibition applies to, amongst others, all parties and their representatives.
(1) This is a decision on an application for judicial review lodged on 5 April 2016 and brought with the permission of Upper Tribunal Judge Coker (23 November 2016).
(2) There are two decisions under challenge. The first (“the transfer decision”) is a decision taken by the Secretary of State for the Home Department (“SSHD”) on 30 November 2015 (but not served until 23 March 2016), which displays the following features:
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(i) Notification to the applicant that the Secretary of State has declined to examine her asylum application;
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(ii) Certification of the aforementioned asylum application, pursuant to paragraphs 4 and 5 of Part 2 of Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004; and
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(iii) Identification of the Secretary of State's intention to remove the applicant to France (the applicant not being a citizen of France, but a citizen of the Democratic Republic of the Congo).
(3) The second decision is dated the 22 March 2016 (served on 23 March 2016) and headed “Removal Directions”. This decision provided notice to the applicant that her removal to France was to take place on the 6 April 2016.
(4) Centre stage in these proceedings is Council Regulation (EC) No 604/2013 (“Dublin III”). The cornerstone of the applicant's challenge is underpinned by two matters:
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(i) The applicant's factual assertion that, having made an application for asylum in France (in April 2013), she subsequently left the territory of the Member States of the European Union (“EU”) and, thereafter, resided outwith the EU for a period exceeding three months prior to re-entering (the point of re-entry being the United Kingdom); and,
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(ii) That the SSHD had misrepresented the position to the French authorities by stating that the applicant had not asserted that she had left the territory of the Member States, subsequent to making her asylum application in France.
(5) The facts underlying the challenge by the applicant are essentially uncontroversial, save in the limited respect identified in paragraph 4(i) above.
(6) The applicant is a national of the Democratic Republic of Congo (“DRC”), born in 1979. She claimed asylum in France on 23 April 2013 and was then fingerprinted. She asserts that she is a victim of trafficking. The applicant claims to have left France and returned to the DRC on 22 December 2014, as a consequence of her asylum claim having been refused. She further asserts that she left the DRC on 10 May 2015 and travelled to the United Kingdom.
(7) The SSHD does not believe the applicant's claim to have left France, travelled to the DRC and to have thereafter travelled from the DRC to the United Kingdom. What is beyond dispute is that the SSHD has no record of the applicant's arrival in the United Kingdom and that the applicant claimed asylum on 27 October 2015 at Bourneville police station.
(8) A check had been undertaken on the EURODAC database and in consequence the SSHD ascertained that the applicant had previously claimed asylum in France.
(9) In an “Initial Interview” which took place around midday on 28 October 2015 the applicant stated, inter alia, that she arrived in the United Kingdom on 25 October 2015, having left DRC on 24 October 2015. She had then travelled from DRC to an unknown destination using Air Ethiopia, changed planes and thereafter travelled to the UK.
(10) During a “Third country case – travel history interview”, also conducted by the SSHD on 28 October 2015 (starting at 19.00 hours), the applicant was notified of the outcome of the search on the EURODAC database and she subsequently accepted that she had claimed asylum in France. The applicant further asserted that: (i) she had stayed in France for eighteen months having arrived there from Greece, (ii) she had thereafter returned to DRC (arriving on 22 December 2014), (iii) she had left the DRC on 10 May 2015 and (iv) that she had travelled directly to the United Kingdom from the DRC using a red passport that had been provided to her by an agent.
(11) On 9 November 2015, the SSHD made a formal request to the French authorities to ‘take back’ the applicant (pursuant to Article (1)(b) of Dublin III), using the appropriate form (found in Annex III of Commission Implementing Regulation (EU) 118/2014).
(12) The early sections of the completed form are unremarkable, recording the applicant's personal information. However, the same cannot be said of the box headed “Previous procedures”. In answer to the first question therein (question 12 of the form) the SSHD noted the fact of the applicant's international protection claim in France (made on 23 April 2013) and that it was not known whether a decision had been taken by France on that application.
(13) Question 13 then asks: “Does the applicant state that he left the territory of the Member States?” In answer to this the SSHD ticked the box marked “No”. This, of course, was inaccurate.
(14) The form ends with a blank space headed “Other useful information”. As completed, this space contains ten paragraphs (albeit some of them being formed of only one sentence) of information the SSHD presumably thought would be useful to the French authorities. By far the longest of these paragraphs relates to the applicant's travel history. Consistent with the information disclosed in answer to question 13, there is no reference within this section to the applicant's assertion to have left France and to have travelled to the DRC prior to coming to the United Kingdom. The relevant paragraph summarises the travel history provided by the applicant during her “Initial Interview” i.e. that she arrived in the United Kingdom on 25 October 2015 having initially travelled by Air Ethiopia to an underknown destination and thereafter changed planes. However, even this summary omits the applicant's assertion, made during her “Initial Interview” that the aforementioned journey had begun in the DRC.
(15) On 20 November 2015, the French authorities notified the SSHD of their agreement to take charge of the applicant, pursuant to Article 18(1)(d) of Dublin III. Ten days later the SSHD made the decisions under challenge which, as identified above, were not served on the applicant until 23 March 2016.
(16) The applicant's legal representatives served a pre-action protocol on the SSHD, by facsimile on 1 April 2016 (although this letter is dated 4 April the Home Office “GCID Case Record Sheets” confirm receipt on 1 April). They annexed documents purportedly supporting the applicant's contention to have left the territory of the Member States for the period claimed. As already identified, these proceedings were issued on the following day. This led to the cancellation of the directions for the applicant's removal.
(17) A response to the pre-action letter was drafted on 15 April 2016 incorporating, inter alia, a consideration of the applicant's human rights ‘claim’. The following passage of importance is to be found at [11] of this letter:
“You have stated in your letter that the United Kingdom has made no attempt to inform the French authorities that your client claims to have left France to travel back to Kinshasa in 2014. We have been informed by the French authorities that they are satisfied that your client was in France between December 2014 and January 2015. This implies that your client could not have returned to Kinshasa as she claims.”
Immediately thereafter reasons are provided as to why the SSHD maintains the rejection of the applicant's assertion to have returned to Kinshasa as claimed.
(18) It is useful at this stage to set out the file notes made on the SSHD's “GCID – Case Record Sheet” on 4 April and 5 April 2016:
“… 04-Apr-2016
In the correspondence from the legal representatives they have stated that we did not inform the French authorities amount [RM] returning to France (sic).
I have checked her TCU Travel History and she has stated that after being in France she flew to Kinshasa and then went from there to the United Kingdom.
Her asylum claim in France is in 2013 she claims she went to Kinshasa in 2014…
… 05-Apr-2016
The applicant stated in her travel history interview that...
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