Upper Tribunal (Immigration and asylum chamber), 2017-04-12, JR/02203/2016
| Jurisdiction | UK Non-devolved |
| Date | 12 April 2017 |
| Published date | 12 May 2017 |
| Hearing Date | 01 December 2016 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/02203/2016 |
Case Number: JR/2203/2016
IN THE UPPER TRIBUNAL
JR/2203/2016
Field House,
Breams Buildings
London
EC4A 1WR
1st December 2016
IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
Before
UPPER TRIBUNAL JUDGE REEDS
Between
THE QUEEN (ON THE APPLICATION OF)
MA
(ANONYMITY ORDER MADE)
Applicant
and
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Mr T. Bahja, Counsel, instructed by OTS Solicitors appeared on behalf of the Applicant.
Mr R. Harland, instructed by the Government Legal Department appeared on behalf of the Respondent.
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
JUDGMENT
(TO BE HANDED DOWN on 12th April 2017)
‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑ ‑
UPPER TRIBUNAL JUDGE REEDS:
Introduction
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This is an application for judicial review of the decisions made by the Secretary of State (“the Respondent”) on 21st January 2016 and the decision of the 26th February 2016; the application having been lodged on 26th February 2016 and permission having been granted at a oral permission hearing by order of Upper Tribunal Judge Kebede on the 2nd August 2016. At that hearing permission was granted to amend the grounds to include a challenge to the decision of the 26th February 2016.
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269 as amended) I make an anonymity order. Unless the Upper Tribunal or court directs otherwise, no report of these proceedings shall directly or indirectly identify the applicant or her family members. For the avoidance of doubts, this order also applies to both the applicant and to the Respondent. The failure to comply with this order could lead to contempt of court proceedings.
Background
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The applicant is a national of Somalia born on the 1st December 1991. She arrived in the United Kingdom via Heathrow on the 19th December 2015 and claimed asylum. Upon arrival she claimed not to know anyone in the UK. She underwent an asylum interview relating to the substance of her claim and at that time made reference to a sister living in the UK. A Eurodac check revealed that she had been fingerprinted in Germany on the 2nd November 2015. On the 18th January 2016 Germany accepted responsibility for the claim under Regulation 604/2013 (“the Dublin III Regulation”).
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On the 21st January 2016, the Secretary of State declined to examine the applicant’s asylum claim substantively in the light of the German authorities having accepted responsibility for the claim and Germany being a safe third country. Thus a decision was made to refuse and to certify her case. In accordance with schedule 3, part 2, paragraph 5(3) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004(“the 2004 Act”), if the Respondent proposes to remove the applicant to a safe third country (and she is not a national of that country) she cannot bring an appeal in her asylum claim.
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On the 22nd February 2016 a pre-action protocol letter was received by the Home Office seeking to challenge the lawfulness of the decision made on the 21st January 2016 under Article 17 of the Dublin Regulation and gave details of her relatives in the UK, including her sister, aunts and cousins with accompanying witness statements.
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On the 23rd February 2016 removal directions were set for her removal to Germany.
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On the 26th February 2016 the applicant lodged proceedings for permission to apply for judicial review of the decision of the 21st January 2016 on the grounds that the Secretary of State was in breach of Article 17(2) of the Dublin Regulation.
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On the same day, the 26th February 2016 the Secretary of State refused the applicant’s representations and a decision was made on Article 8 grounds, and also under the Dublin Regulation. The decision was not certified and thus the applicant had an in-country right of appeal. The removal directions were duly cancelled and the applicant lodged an appeal against the decision of the 26th February 2016.
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On 20th April 2016, Upper Tribunal Judge Chalkley refused permission on the papers but upon oral renewal, Upper Tribunal Judge Kebede granted permission to apply for judicial review as follows:-
“1. The Applicant seeks to challenge the Respondent’s decision of 21st January 2016 certifying her asylum application on third country grounds under paragraphs 4 and 5 of Part 2 of Schedule 3 of the Asylum and Immigration (Treatment of Claimants) Act 2004.
2. Permission is granted to the Applicant to amend her grounds to include a challenge of the Respondent’s decision of 26th February 2016 refusing an Article 8 claim.
3. It is arguable, given the Respondent’s arguable concession at paragraphs 16 to 19 of the decision of 26th February 2016, that limiting the Applicant’s grounds of appeal to Article to article 8 grounds, is contrary to the provisions of the Dublin III Regulation and that the Applicant is arguably entitled to challenge the transfer decision of 21st January 2016 on that basis”.
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The decision of Upper Tribunal Judge Kebede then set out a number of Case Management directions. Those Case Management directions included a requirement for the Respondent to lodge and serve detailed grounds within 35 days of the date of the order and an extension of time was sought and was granted. As can be seen from the decision of the UT Judge, the Secretary of State had not been represented at that hearing and thus was not aware of the amended grounds that had been referred to in the oral renewal grounds.
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On the 23rd November 2016 the Respondent served a supplementary letter on the applicant.
The Parties’ Respective Submissions:
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Both parties have provided skeleton arguments setting out their submissions on the relevant issues and supplemented their written arguments with oral submissions. It is not necessary to set out in detail all of those submissions but the relevant points made by each party in advancing their respective submissions. I shall deal in detail with those submissions when considering the relevant issues as identified by the parties.
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Mr Bahja’s submissions can be summarised as follows:-
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The Appellant is entitled to challenge a transfer decision under Article 27 (alongside Recital 19) by alleging a breach of Article 17 which is justiciable.
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He relies on the CJEU decisions of Ghezelbash and Karim and that those decisions are not confined to Chapter III but extend to discretionary criteria in Chapter IV.
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He places reliance on the decisions made by other Member States relating to justiciability.
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He places significant weight and reliance upon the dicta of Beatson LJ in the decision of ZAT.
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Therefore he submits the discretionary clause of Article 17 is subject to judicial review when considering an exercise of discretion on humanitarian and compassionate grounds to bring together family reunification.
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Mr Harland on behalf of the Secretary of State takes the opposite view that Article 17 is not justiciable either on its own or when read with Article 27 and Recital 19. Thus he submits:-
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The cases in respect to Dublin II are still applicable and the exercise of discretion set out in Article 17(2) is not justiciable because it confers discretion on a state to act in a certain way rather than bestowing a right upon individuals.
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The CJEU decisions only go so far as finding that under Article 27 an asylum seeker can challenge the incorrect application of one of the criteria for determining responsibility laid down by Chapter III of the Regulations (and following Karim the way in which the criteria are assessed under Article 19). Thus he submits it does not extend to a challenge to a discretionary clause in Chapter IV.
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The decisions of other Member States are of limited value.
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The decision of ZAT was not a case concerning Dublin III and that the comments of Beatson LJ are obiter dicta and they should not be followed.
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Each party sought to raise other grounds but I have distilled the main arguments relied upon by each of the advocates as set out above.
The Dublin Regulation:
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The European Union Regulation 604/2013, commonly known as Dublin III, establishes the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person. Dublin III replaced Dublin II. It sets out a hierarchy of criteria for determining which member state is responsible for determining an asylum claim and sets out procedures for that to take place.
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The stated aim of the Dublin III regulation is to provide a process based on:-
“objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so...
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