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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> Musaj, Re Application for Judicial Review [2004] ScotCS 119 (25 May 2004) URL: http://www.bailii.org/scot/cases/ScotCS/2004/119.html Cite as: [2004] ScotCS 119 |
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OUTER HOUSE, COURT OF SESSION |
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P1307/03
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OPINION OF LADY SMITH in the Petition of PETRIT MUSAJ Petitioner; for Judicial Review of a decision of the Secretary of State for the Home Office to remove the Petitioner from the United Kingdom.
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Petitioner: Bovey QC , Devlin; Drummond Miller W. S
Respondent : Lindsay ; H.F .McDiarmid , Solicitor to the Advocate General
25 May 2004
The Facts and Pleadings
[1] The petitioner is a national of Albania . He is married and has two children aged six and four. He is a restaurateur. The petitioner left Albania on 7 September 2002 and, using a visa which bore to have been issued by the German authorities, entered the European Union and arrived in the United Kingdom on 23 March 2003. He did not enter Germany. He claimed asylum in the United Kingdom on 23 March 2003 . [2] The petitioner avers that the visa used by him "was in fact invalid". No further explanation is given in the averments but, in submissions on his behalf, it was stated that his brother-in-law attended at the German consulate in Tirana, presented false documentation, falsely represented that he was the petitioner and that he wished to visit Germany to attend a car fair (something that the petitioner did not want to do), for the purposes of obtaining the visa. He was, however, aware that the German Consul had asserted that the petitioner did attend at the consulate in person and make the application. [3] By letter dated 28 April 2003, the Home Secretary requested of Germany that they accept transfer of the petitioner for determination of his application for asylum. By letter dated 4 July 2003, Germany acceded to that request. By letter dated 23 July 2003, the Home Secretary wrote to the petitioner advising him that his application for asylum was refused in respect that he certified under section 11(2) of the Immigration and Asylum Act 1999 that:"(a) the authorities in Germany have accepted that, under standing arrangements, Germany is the responsible state in relation to your claim for asylum; and
(b) you are not a national or citizen of Germany".
Legislative and Treaty Background
[6] The background to the present case is to be found in both legislative and treaty provisions. Claims for asylum may be made in the United Kingdom by foreign nationals under and in terms of the United Nations Convention relating to the Status of Refugees executed at Geneva in 1951 (Cmnd. 9171) as amended by the New York Protocol of 1967 (Cmnd. 3906). In accordance with rules promulgated thereunder, asylum will be granted to a claimant in the United Kingdom if returning him to a country in breach of the Convention and Protocol would involve a threat to his life or freedom on account of his race, religion, nationality, membership of a particular social group or political opinion. If the appropriate criteria are not met then the application for asylum can be refused and the respondent would be entitled to give directions for the claimant's removal from the United Kingdom under section 10 of the Immigration and Asylum Act 1999 (c.33). Also, the Convention and Protocol do not prevent removal of potential refugees to safe third countries for determination of their claims. The 1999 Act provides:"15. 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...........
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 -
(b) the certificate has not been set aside on an appeal under section 65".
" Having regard to the objective, fixed by the European Council meeting in Strasbourg on 8 and 9 Dec 1989, of the harmonisation of their asylum policies;
Determined , in keeping with their common humanitarian tradition, to guarantee adequate protection to refugees .....................
Considering the joint objective of an area without internal frontiers in which the free movement of persons shall, in particular, be ensured, in accordance with the provisions of the Treaty establishing the European Economic Community, as amended by the single European Act ;
Aware of the need, in pursuit of this objective, to take measures to avoid any situations arising, with the result that applicants for asylum are left in doubt for too long as regards the likely outcome of their applications and concerned to provide all applicants for asylum with the guarantee that their applications will be examined by one of the member states and to ensure that applicants for asylum are not referred successively from one member state to another without any of these states acknowledging itself to be competent to examine the application for asylum;"
Its provisions include :
" Article 3
1. Member states undertake to examine the application of any alien who applies at the border or in their territory to any one of them for asylum.
2. That application shall be examined by a single member state, which shall be determined in accordance with the criteria defined in this Convention.....
5. Any member state shall retain the right ...to send an applicant for asylum to a third state in compliance with the provisions of [ the refugee convention]
Article 5.....
2. Where the applicant for asylum is in possession of a valid visa, the Member State which issued the visa shall be responsible for examining the application for asylum ....
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.
If the request that charge be taken is not made within the six-month time limit, responsibility for examining the application for asylum shall rest with the state in which the application was lodged.
2. The request that charge be taken shall contain indications enabling the authorities of that other state to ascertain whether it is responsible on the basis of the criteria laid down in this Convention.............
4. The member state [to which the request has been made] 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 or one month after the conclusion of any proceedings initiated by the alien challenging the transferred decision if the proceedings are suspensory."
It is evident that, in contradistinction to the provisions of Article 11(1) and (4) there is no specified consequence or sanction for a failure to comply with the one month period specified in Article 11(5).
[9] A committee was set up under article 18 of the Convention for the purpose of reviewing procedures to achieve effective implementation. Decision 1/97 of that Committee provided, in terms of its Article 21(4) :" Where the transfer of the asylum applicant has to be postponed due to special circumstances such as sickness, pregnancy, criminal detention, etc, and it is therefore not possible to carry out the transfer within the normal period of one month, the Member States concerned shall duly consult and agree on a case-by-case basis on the time limit within which the transfer must take place."
Submissions
[a] PETITIONER:
[11] Junior counsel for the petitioner confirmed that the only decision attacked was the decision to order the transfer of the petitioner. His principal submission was to the effect that the respondent's decision to transfer him was unreasonable because he had a legitimate expectation that he would be transferred within one month of Germany's acceptance of the United Kingdom's request. That legitimate expectation arose from the terms of Article 11(5) of the Dublin Convention. It arose because of three matters which gave rise to a legitimate expectation that the criteria for determining responsibility for examining the petitioners asylum application contained in the Convention and the time limits referred to in it, would be complied with. Firstly, the United Kingdom had ratified the Dublin Convention. Secondly, it was referred to in the 1999 Act. Thirdly, it had been referred to and relied on by the respondent in his letter to the petitioner of 23 July 2003. [12] In developing the argument, junior counsel submitted, under reference to Ministry of State for Immigration and Ethnic Affairs v Teoh (1995) 183 Comm LR 273; R v Secretary of State for the Home Department ex parte Ahmed & Patel [1998] INLR 570; R v Secretary of State for the Home Department ex parte Behluli [1998] INLR 594; Hilaire v Baptiste UKPC 13 (17 March 1999); R v Uxbridge Magistrates Court ex parte Adimi [2001] QB 667; and Khairandish v Secretary of State for the Home Department 2003 SLT 1358 that ratification of a treaty can give rise to a legitimate expectation. That was not a submission which was challenged. It was accepted that some treaties do not give rise to legitimate expectation but there were, it was said, no hard and fast rules. Although it had been held by the Court of Appeal in the case of Behluli, that ratification of the Dublin Convention did not amount to a positive statement that the government would act in accordance with it so as to give rise to a legitimate expectation, matters had moved on. The Convention was now referred to in the 1999 Act and so Behluli could be distinguished, as seemed to be expected by the authors of MacDonald on Immigration Law and Practice who comment, at para.12.149 under reference to Behluli and other authorities which are to similar effect:"This jurisprudence is now overtaken by the Immigration and Asylum Act 1999, section 11 of which incorporates the Dublin Convention...".
(b) THE RESPONDENT:
[16] Counsel for the respondent, in seeking dismissal of the petition, submitted that it lacked proper focus. It was necessary to be clear as to which decision was being attacked and that was not clear from its terms. The respondent had made three decisions namely , the decision to call on Germany to accept transfer of the petitioner, the decision to refuse the petitioner's application for asylum and issue a certificate under section 11(2) of the 1999 Act, and the decision to issue directions for the removal of the petitioner. It seemed that the petitioner, as had been clarified in the course of oral submission, only sought to attack the third of these. That led him to pose the question: "what then can the petition achieve"? The reduction of the decision to issue directions for removal would not put him into the position of being able to claim asylum in the United Kingdom because his application had been refused by the respondent and neither that decision nor the section 11(2) certificate had been appealed against nor were they the subject of attack in the present petition. The result would, accordingly, be that the petitioner would, even if successful, have no right to remain in the United Kingdom. [17] It was also submitted on behalf of the respondent that the petitioner had no legitimate expectation that he would act in accordance with the provisions of the Dublin Convention, for the reasons expressed by Lord Drummond Young in Khairandish. Even if one had been created, it had been fulfilled because the United Kingdom had requested an extension of time from Germany. Whilst there had not been any specific response from Germany to that request, it was in accordance with normal practice that requests for extensions of time between member states were tacitly acceded to. Further, the time limits in the Dublin Convention were not designed for the benefit of applicants for asylum and it was always open to member states to waive them. In any event, it was questionable whether a transfer within those time limits could properly be characterised as being for the benefit of an applicant for asylum when it would have the effect of sending him where he did not want to go. [18] Regarding the visa argument, it was submitted that the law was very clear. It was not open to the petitioner to seek to go behind Germany's evident acceptance of the visa as being valid, an inference which arose from their having acceded to the request to accept a transfer of the petitioner. Reference was made, in support of that submission to Ibrahim , R v Secretary of State for the Home Department ex parte Ganidagli [2001] Imm AR 202, and R v Secretary of State for the Home Department ex parte Ahmed Shah [2001] Imm AR 419.DISCUSSION :
[19] It is a fundamental principle that there must be some measure of legal protection in domestic law against arbitrary interference by public authorities with rights that are safeguarded by international conventions and the operation of the doctrine of legitimate expectation may result in protection being afforded even where the convention in question has not been incorporated into domestic law. That, however, begs the question of what rights, if any, the convention is intended to protect and what, if any, governmental intention as to the affording of those rights, can be gleaned from the facts and circumstances surrounding the particular case.Legitimate Expectation:
[20] The core of the petitioner's argument in this case was that legitimate expectation arose because not only had the Dublin Convention been ratified but it was also referred to in section 11(2) of the 1999 Act and in the respondent's letter intimating refusal of the petitioner's application for asylum and certification under section 11(2). I do not consider that these factors either singly or together constitute evidence of a representation that the United Kingdom government intended, in its dealings with individual applicants for asylum or in its particular dealings with the petitioner, to be bound by its terms. I accept that the fact that ratification does not have the effect of incorporating the treaty into domestic law so as to confer rights on individuals (J.H.Rayner (Mincing Lane) Ltd v Department of Trade & Industry [1990] 2AC 418 (The International Tin Council case)) is not the whole answer. That does not, however, mean that treaties necessarily give rise to legitimate expectation on the part of individuals. There may be treaties which are of such a nature or give rise to such governmental representations when ratified, that the facts and circumstances surrounding ratification can be relied upon as giving rise to a legitimate expectation on the part of individuals that the government will act in accordance with its terms. Hence, it seems, the approach that was taken in the Australian case of Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. The treaty that was under consideration there was the United Nations Convention on the Rights of the Child. It articulates a set of fundamental principles regarding child welfare and it was said that by ratifying the treaty, the Australian government were to be seen as having made a statement to the national and international community that it recognised and accepted the principles of the convention, those being principles which dealt with basic human rights affecting families and children. There being no statutory or policy indicators to the contrary, it had created a legitimate expectation that it would act in conformity with the convention. [21] Teoh did not however, determine that the act of ratification always gives rise to legitimate expectation. Rather, it seems that when the question is raised as to whether ratification itself gives rise to a legitimate expectation, upon consideration of the various authorities on the matter to which I was referred, including Teoh, it is simply a matter of assessing whether, in the whole circumstances, the act of ratification gives rise to an inference that the government thereafter intends to afford to individuals, the benefit of its terms. In short, it is a matter of evidence. [22] Similarly, when assessing whether any other acts or representations by the government give rise to a legitimate expectation on the part of the individual, it is a matter of examining them as a whole and determining whether they give rise to the necessary inference of intention. Then, as was commented in Teoh,, it must be recognised that even where legitimate expectation does arise , it is not a rule of law and the government may be justified in declining to meet it. It is not necessarily compelled to act in accordance with the expectation. [23] Having considered the terms of the Dublin Convention and the circumstances in which it was entered into, in common with Lord Drummond Young in Khairandish, the Court of Appeal in Behluli, Hooper J in R v Secretary of State for the Home Department ex parte Hamid Akhbari & ors [2000] Imm AR 165, Collins J in Ahmed Shah and Lord Phillips MR in Zequiri v Secretary of State for the Home Department [2001] EWCA Civ 342, I am satisfied that the nature of the Dublin Convention is not such that ratification would of itself give rise to any legitimate expectation on the part of the individual applicant for asylum. Nor was there anything about the circumstances of its ratification which did so. It is clear that its purpose was not that of affording benefit to such individuals. There was no need for it to do so since their interests had been taken care of elsewhere. Whilst the preamble makes reference to the need to guarantee that their applications will be considered and to take measures to avoid them being left too long in doubt as to the likely outcome of their applications, that is in the context of the establishment of an administrative scheme to identify, within a reasonable time, which state is responsible for considering the application. That is as far as it goes and that, it seems is the furthest that international agreement was able to go in terms of this Convention. It does not, for instance , go on and provide that the state responsible for considering the application must reach a determination within a specified time scale. Nor is the context that of making an international statement of agreed fundamental principle to be applicable when foreign nationals seek asylum. Those are set out elsewhere, in the Geneva Convention and in the European Convention on Human Rights. Much stress was laid, on behalf of the petitioner, on the preamble, but it was not written in the context of affording the applicant for asylum the right to refugee status in appropriate circumstances, which is where his essential interest lies. That is because that is a right which is already secured to him in terms of the Geneva Convention. For some applicants, it may seem important to be made aware of the likely outcome of their application sooner rather than later and to that extent, some indirect benefit to them may arise from the operation of the Dublin Convention although that will only be to the extent that he will know, within a reasonable time, which state has accepted responsibility for considering his application. However, it is clear that the operation of its provisions can, in a transfer case, result in imposing on the applicant for asylum something which he does not want, namely a move to a member state to which he does not want to go, which he is hardly likely to perceive as being in his interest. [24] There then arises the question of whether the introduction of section 11(2) of the 1999 Act was of such weight or significance as to have given rise to the legitimate expectation for which the petitioner contends. I do not see that it was. The provisions of that subsection concern not what the United Kingdom has done or will do but certification of what another member state has done, namely that, because of its obligations under the Dublin Convention, it has accepted responsibility for considering the applicant's application for asylum. The point of doing so is not to put the respondent into a position of having assumed any new responsibilities towards individual applicants for asylum. Rather, its point and effect is that the respondent is put into the position of being entitled to decline to take any further responsibility for considering the individual's application. The reference to the Dublin Convention does not amount to an incorporation of the treaty into domestic law, as was accepted by the petitioner. Nor does the mere mention of the treaty amount to a clear or precise statement by the United Kingdom government of an intention to be bound, in favour of individual applicants for asylum, by its terms. To spot the reference to the Dublin Convention in section 11(2) and thereby assume that all prior authoritative determinations as to its effect in domestic law are of no validity, seems, with all due respect to the authors of MacDonald ( Immigration Law & Practice), to be a superficial approach. It appears to me that the earlier statements as to the nature and effect of the Dublin Convention when questions of legitimate expectation are under consideration are as apt post section 11(2) of the 1999 Act as they were before it. [25] Moving then to the question of the significance, if any, of the terms of the respondent's letter to the petitioner. I have no doubt that the letter adds nothing to the assessment of the position of the UK government as regards the Dublin Convention. All that the letter does is explain to the petitioner that his application was refused because there was another country responsible, under the Dublin Convention, for considering his application. It certainly does not contain any representation that would justify the petitioner in having the expectation for which he argues.The Dublin Convention and Time Limits
[26] I would add that even if I am wrong and the petitioner did have a legitimate expectation that the respondent would act in accordance with the Dublin Convention, I would not have found that the existence of any such representation required the respondent to effect transfer of the respondent within one month of Germany's acceptance of responsibility which failing to consider the petitioner's asylum application, as seemed to be the logical extension of the petitioner's argument that transfer required to be within one month. The decision to transfer, which is the decision that the petitioner sought to attack, was made in accordance with the provisions of the Convention. It was made on the basis that the respondent had received notification from Germany that it accepted responsibility for considering the petitioner's application and, as such, was a decision that the respondent was entitled to make. I note that the decision to transfer must have been made by the time that the letter to the petitioner of 23 July 2003, was written. That was within one month of Germany having stated that they accepted responsibility for considering the application. At that stage, no date for transfer was specified. [27] The petitioner's argument came to be that the respondent had made a continuing decision to transfer which could be examined at any point including the point at which transfer was ordered to take place later than one month after Germany's acceptance. The terms of the Convention are such as to make it clear that member states regard the three month and six month time scales as important, since they are fenced with sanctions that will ensue if not complied with. They were, in fact, met in this case. It seems clear, though, that there is nothing to stop individual member states waiving those time limits if they choose to do so, and no sanctions attach to any failure to comply with the one month time scale, which casts it in a somewhat different light. For example, the Convention does not provide that the requested state can refuse to accept the transfer if the transferring state seeks to effect it at a date later than one month after the receiving state's acceptance of responsibility. [28] Further, there is evidence that member states accept that there are circumstances when it is not reasonable to expect transfer within one month (see: Decision No. 1/97 of the Committee set up under Article 18 of the Dublin Convention). There was some discussion in the course of the hearing before me as to whether the reason for delay in the present case amounted to special circumstances which would have been covered by Decision No.1/97, rather in line with the discussion that can be seen to have taken place before Lord Drummond Young in Khairandish. It was said on behalf of the respondent that there was ebb and flow in these cases but problems did tend to be experienced in achieving transfer within one month. Indeed, counsel for the respondent advised that transfers simply did not, as a matter of practice, take place within one month after the Dublin Convention came into operation and that that was the position when the petitioner's application was being dealt with. No circumstance particular to the present case was pointed to. It was rather a question of there being a general difficulty with meeting a tight time scale. Hence, no doubt, the amendment to the Convention which I was told came into effect in September 2003, to allow six months for transfer to be effected. On behalf of the petitioner it was said that there were no special circumstances and, accordingly, no justification for failing to comply with the one month time scale. It may well be difficult to accept that a problem that is endemic in a particular operation is a special circumstance but the provisions of Article 21(4) of Decision No.1/97 do not fall to be interpreted as though they were a piece of domestic legislation, which was the petitioner's approach. Indeed, on the conclusion that I have reached regarding the Dublin Convention, namely that it is an international instrument operating, thus far, purely on the plane of international law, it would not be open to me to declare its meaning at all (see: The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom & ors [2002] EWHC 2759 (QB)). Rather, for the purposes of considering the matter of legitimate expectation, the articles of Decision No.1/97 are of interest in showing that the one month period was not regarded as an absolute, that it was recognised that difficulties with meeting the one month time scale could arise and that it was accepted that there would be a need for pragmatic, case-by-case agreement as between member states when difficulties arose. [29] In the above circumstances, even if some legitimate expectation of compliance with the Dublin Convention arose, any expectation of absolute compliance with the one month time scale seems to me to be unjustified, unreasonable and not legitimate. [30] There is also, in the present case, another and simple way of viewing the matter. Even if the petitioner had a legitimate expectation that the Dublin Convention would be operated in his favour so as not to leave him too long in doubt as to the likely outcome of his application, it cannot be ignored that what happened in this case was that he was put into the position of knowing that he was to be transferred to Germany within four months of his application for asylum being lodged and he would in fact have been transferred, had it not been for the raising of these proceedings, within about five months thereof. The time scales mentioned in the Convention when put together, bring out a total of some nine months for the point to be reached by which the applicant will know which country accepts responsibility for considering his application and for some ten months to elapse between the lodging of his application and actual transfer to the responsible state, in a case where transfer is to take place. Accordingly, far from the petitioner knowing that he was to be transferred later than the Convention envisaged, the member states involved in the present case achieved an outcome which made him aware of what was to happen much earlier and transfer would have been effected, similarly, much earlier than the time scale allowed for. It would seem that congratulation rather than condemnation is what is called for. This demonstrates the artificiality of the petitioner's argument that the one month period referred to could be separated out and non compliance with it found to have fatally flawed a procedure which had otherwise been operated quickly and efficiently.Visa
[31] Turning to the petitioner's submission that the respondent erred in regarding Germany as the state responsible for considering his application, I agree with the respondent that it should be rejected. There was no dispute that Germany had had the visa exhibited to them and, on the basis of it, had accepted that they were the responsible state in terms of the Convention. There was no suggestion of them having done other than accept that the visa was a valid one. There was no suggestion that the respondent was not entitled to issue the section 11(2) certificate that he issued. As it was shortly and succintly put by Owen J in R v Secretary of State for the Home Department ex parte Ganidagli [2001] Imm AR 202, where Italy was the member state which had accepted responsibility and the document under consideration was a residence permit:" ...the Italian state accepted it as a residence permit and they ought to know."
Also, in common with Lord Carloway in Ibrahim, I agree with what was said obiter by Collins J in Ahmed Shah where, at paragraph 33, he commented:
" ..the whole purpose behind the Dublin Convention is to ensure that there is a speedy determination as to which country is responsible. If it were necessary to go into the whys and wherefores in relation to the circumstances in which a visa had been obtained, that would serve to defeat one of the objects, indeed, the main object, of the Dublin Convention. The whole point is that investigations and delay should be kept to a minimum. Of course, the British authorities would have to ascertain from the Portuguese authorities whether they accepted that the visa was a valid one. Once they did, there was no need to go further to investigate the circumstances in which it had been obtained".
It is, clearly, not for the respondent to question the acceptance as valid by another member of state of a document which bears to have been issued under the authority of that state.
[32] It follows that I do not consider that the respondent acted under any error when deciding to order the transfer of the petitioner to Germany. Nor do I consider that it was other than entirely reasonable for him to do so once Germany had accepted responsibility and he had issued and intimated the section 11(2) certificate to the petitioner.Remedy:
[33] Separately, the respondent was correct, in my view, to question just what it was exactly that the petitioner could have achieved by securing the orders sought. The respondent's decision in principle to order the transfer of the petitioner, following Germany's acceptance of responsibility, was not attacked. His asylum application had been refused and it was not suggested that that was not something that the respondent was entitled to do. Indeed, it is clear from the Immigration Rules (HC 395) paragraph 345(2)(ii), that the respondent is liable to do so in any case where he is satisfied that there is clear evidence of admissibility to another country, irrespective of whether the date of transfer has , at the point of refusal, been fixed. In these circumstances the outcome for the petitioner, if he had achieved the orders sought would have been that he would have been present in this country with no right to be here , no right to have the substance of his asylum application considered and with the respondent in the position not only of having no right to transfer him to Germany but no right or obligation to transfer him to any other member state. Rather, he would have been left in the position that the respondent would, in terms of the relevant legislative provisions, have been entitled simply to remove him. Whether the fundamental problem with this petition lay in its lack of focus or elsewhere, it could not have produced for the petitioner the remedy which, in reality, he seemed to be seeking, namely the right to have his asylum application considered in the United Kingdom. [34] I shall, accordingly, sustain the respondent's pleas in law, repel the petitioner's pleas in law and refuse the prayer of the petition.
