The Queen (on the application of (1) CK, (2) AK, (3) BK) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Geraldine Clark |
| Judgment Date | 30 July 2014 |
| Neutral Citation | [2014] EWHC 2635 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 30 July 2014 |
| Docket Number | Case No: CO/3639/2013 |
[2014] EWHC 2635 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Geraldine Clark
(Sitting as a Deputy High Court Judge)
Case No: CO/3639/2013
Mr Greg Ó Ceallaigh (instructed by Messrs Samars, Solicitors) for the Claimants
Mr Rory Dunlop (instructed by Treasury Solicitor) for the Defendant
Hearing date: 10 July 2014
Approved Judgment
Can asylum seekers bring judicial review proceedings to challenge the Secretary of State for the Home Department's refusal to exercise her discretion under the Dublin II Regulation to permit their asylum claims to be examined in the United Kingdom?
The Claimants are a family of Sikh asylum seekers of Afghan nationality. The First and Second Claimants are husband and wife respectively and the Third Claimant is their daughter who was born in 2009. 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.
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.
The European Union member states have a Common European Asylum System. Council Regulation (EC) No. 343/2003 ("the Dublin II Regulation") establishes 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. As may be seen from the preamble to the Regulation, it is intended to establish objective fair criteria and make it possible to determine rapidly the member state responsible for examining an asylum application while preserving family unity so far as this is compatible with other objectives.
Under the ranked criteria set out in Chapter III of the Dublin II Regulation it was France, where the Claimants had first irregularly entered a member state, which was responsible for examining the Claimants' asylum applications pursuant to Article 10.
Article 7 of the Regulation, which provides for asylum seekers who have family members who have been allowed to reside in a member state as refugees to have their asylum applications dealt with in the same member state, did not apply to the Claimants because the First Claimant's brother and sister did not fall within the limited definition of "family members" contained in Article 2.
On 1 October 2012 in the case of the First Claimant and 31 December 2012, in the case of the Second and Third Claimants, France accepted responsibility for examining the Claimants applications for asylum.
Section 77 of the Nationality, Immigration and Asylum Act 2002 establishes the general rule that a person may not be removed from the United Kingdom, or required to leave the United Kingdom while their claim for asylum is pending. However, there is an exception under section 33 and schedule 3 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 which permits persons who are the subject of a decision under the Dublin II Regulation to be removed to a safe country. France is one of the countries listed in schedule 3 as a country known to protect refugees and to respect human rights. Consequently, on 8 November 2012, in the case of the First Claimant, and 7 January 2012 in the case of the Second and Third Claimants, the UK Border Agency informed the Claimants that they would be removed to France. This was followed by the issue of directions for removal to France on 26 February 2013.
On 28 February 2013, the Claimants' solicitors made written representations to the Secretary of State asking that she exercise her discretion under Article 3.2 and Article 15 of Dublin II to consider the Claimants' asylum claims in the United Kingdom. Those articles provide:
"Article 3
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. …."
"Article 15
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 dependant 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 Claimants also relied in on their right to a private and family life under Article 8 of the European Convention on Human Rights 1950 ("Article 8 ECHR") and the Secretary of State's obligations towards the Third Claimant as a child under s.55 of the Borders, Citizenship and Immigration Act 2009 ("Section 55").
The representations referred to the First Claimant's adult brother and sister in the United Kingdom and stated:
"Our clients have received considerable comfort from their family member 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."
They quoted both limbs of Article 15 and invited the Secretary of State to exercise her discretion to consider the Claimants' asylum claims in the United Kingdom because the Second Claimant was "plainly dependent on her relatives in the United Kingdom as a result of her pregnancy" and state that there are cultural considerations which militate towards the protection of wider family relationships in this case. An enclosed doctor's letter dated 20 February 2013 stated that the Second Claimant had attended his surgery on 20 February 2013 with "severe symptoms of stress and anxiety" having been "feeling dizzy, sickly with intermittent headaches last few days with "severely disrupted sleeping" caused by worries about her immediate future. He noted that she was then 14 weeks pregnant but found no physical cause for the symptoms.
The representations assert that the Claimants' private and family life rights were engaged by the decision that they should be moved to France in the light of their reliance on their family members and the "precarious situation of [AK]" presumably her pregnancy and anxiety. They remind the Secretary of State that she is obliged to consider the best interests of the Third Claimant under Section 55 stating "on any view she would be better off with the family associations available to her in the United Kingdom that would not be available to her in France."
On 15 March 2013, the Secretary of State declined to exercise her discretion to examine the Claimants' asylum applications in the United Kingdom. The UK Border Agency set out full reasons for that decision in two letters of that date in materially identical terms one regarding the First Claimant and the other regarding the Second and Third Claimants.
The Claimants issued an application for judicial review of the decision on 26 March 2013. They contend that the Secretary of State's decision as illegal relying on Article 15.2 and Article 3.2 of the Dublin II Regulation, Article 8 ECHR and Section 55 and ask the court to quash the decision.
HHJ Inglis, sitting as a Deputy High Court Judge, refused permission to seek judicial review and stated that the claim was totally without merit on 18 June 2013. However, permission was subsequently granted on 3 October 2013 by Elizabeth Cooke QC, sitting as a Deputy High Court Judge, following an oral hearing.
Summary of this Judgment
For the reasons I shall give, I have concluded that the claim must fail because 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. Further, even if judicial review were available, the error of law which I have found led the Secretary of...
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