S.a. For Judicial Review Of Decision By The Secretary Of State For The Home Department
| Jurisdiction | Scotland |
| Judge | Lord Emslie |
| Neutral Citation | [2008] CSOH 9 |
| Court | Court of Session |
| Published date | 17 January 2008 |
| Date | 17 January 2008 |
| Year | 2008 |
| OUTER HOUSE, COURT OF SESSION [2008] CSOH 9 | |
| OPINION OF LORD EMSLIE in the Petition of S.A. Petitioner; for Judicial Review of Decisions by the Secretary of State for the Home Department dated 5 November 2002 and 20 and 24 October 2005 relative to the removal of the Petitioner and his family to Germany ________________ |
Petitioner: Bovey, QC; Wilson Terris & Co, SSC
Respondent: Drummond, Lindsay; Office of the Solicitor to the Advocate General for Scotland
17 January 2008
[1] In these proceedings the petitioner, an Iraqi national, seeks judicial review of certain decisions by the Secretary of State for the Home Department which, if implemented, would involve his being transferred to Germany for determination of his claim to asylum. Many of the issues arising between the parties are as yet unfocused in written pleadings; others will admittedly require proof before they can be resolved; but I have now heard parties' submissions on certain limited issues of law which they conceive to be capable of determination at this stage. These disputed issues concern the construction and application of the 'Convention, signed in Dublin on 15 June 1990, determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities' ("the Dublin Convention"). In particular questions arise as to whether that Convention can lawfully be operated by the respondent against the petitioner in the circumstances of this case.
[2] In broad terms the Dublin Convention contains provisions designed to allocate responsibility for determining asylum claims to the appropriate member state within the EU. It does so by inter alia prescribing various situations in which that responsibility is laid upon the first EU state to grant the asylum-seeker an entry visa or residence permit (whether current or expired), and also others in which responsibility rests with the state in which a relevant asylum claim has been made. Where transfer of an asylum claim to a different member state is called for under the Convention, that constitutes an express exception to the normal rule precluding deportation of an asylum-seeker while his claim remains in dependence.
[3] In that latter connection, Sections 11 and 15 of the Immigration and Asylum Act 1999 provide inter alia as follows:
"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 -
(i) the member state has accepted that, under standing arrangements, it is the responsible state in relation to the claimant's claim for asylum; ...
(4) 'Standing arrangements' means arrangements in force as between member states for determining which state is responsible for considering applications for asylum.
...
15(1) 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."
[4] For present purposes the following provisions of the Dublin Convention are relevant:-
"Article 1
1. ...
(d) 'Examination of an application for asylum' means: all the measures for examination, decisions or rulings given by the competent authorities on an application for asylum, except for procedures to determine the State responsible for examining the application for asylum pursuant to this Convention;
(e) 'Residence permit' means: any authorization issued by the authorities of a Member State authorizing an alien to stay in its territory with the exception of visas and 'stay permits' issued during examination of an application for .... asylum; ...
Article 5
1. Where the applicant for asylum is in possession of a valid residence permit, the Member State which issued the permit shall be responsible for examining the application for asylum.
...
4. Where the applicant for asylum is in possession only of one or more residence permits which have expired less than two years previously ..., the provisions of paragraphs 1, 2 and 3 of this Article shall apply for such time as the alien has not left the territory of the Member States.
Article 10
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 an application for asylum in a different Member State,
(b) complete the examination of the application for asylum,
...
(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.
3. The obligations specified in paragraph 1(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 paragraph 1(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 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.
2. If the request that charge be taken is not made within the six-months time limit, responsibility for examining the application for asylum shall rest with the State in which the application was lodged.
3. The State responsible in accordance with (the criteria laid down in this Convention) shall be determined on the basis of the situation obtaining when the applicant for asylum first lodged his application with a Member State.
4. The Member State 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 ...".
[5] The circumstances in which the present dispute arises are somewhat unusual, and only limited details are agreed. In late 1998/ early 1999 the petitioner left Iraq and travelled to Germany. There he immediately claimed asylum under the Refugee Convention, asserting on various grounds that he would be at real risk of persecution if he were to be returned to his country of origin. On 18 September 2001, that claim was finally rejected by the German authorities, and arrangements were made to have the petitioner returned to Iraq. In early 2002, however, before he could actually be deported, the...
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