Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2013] CSOH 89
P729/12	OPINION OF LORD ARMSTRONG in Petition of R F Petitioner; For Judicial Review of decisions by the Secretary of State for the Home Department ________________

Petitioner: K Forrest; Drummond Miller LLP

Respondent: McIlvride; Office of the Solicitor for the Advocate General

7 June 2013

[1] The petitioner is a national of Iran. His date of birth is 14 November 1980. The respondent is the Secretary of State for the Home Department. She is responsible for matters relating to immigration and nationality. She is represented in this petition by the Advocate General for Scotland.

The facts

[2] The petitioner maintains that he obtained a passport in Iran on 19 July 2011 and left Iran without it on 3 November 2011, that he entered Switzerland on 12 December 2011, where he stayed for a number of days, and that he then travelled by lorry to France, thereafter to Belgium and then back to France. On 6 June 2012, he entered the United Kingdom and claimed asylum. He was detained and a EURODAC fingerprint check indicated that he had claimed asylum in Switzerland. Under the provisions of Council Regulation (EC) No 343/2003 ("the Dublin II Regulation"), the respondent made a formal request to the immigration authorities in Switzerland to take him back so that his request for asylum could be examined there. By a letter dated 28 February 2012, the Swiss authorities rejected that request but confirmed that the Austrian authorities had accepted a Swiss request, under the Dublin II Regulation, that the petitioner be transferred to Austria in order that the authorities there could examine his asylum application. By a letter, dated 28 June 2012, the Austrian authorities confirmed to the UK Border Agency that they accepted the transfer of the petitioner to Austria for determination there of his asylum application. The Austrian authorities accepted responsibility to examine the petitioner's claim for asylum because his passport was stamped by the Austrian authorities at Vienna Airport on 2 December 2011. The passport was found in a litter bin, having been torn into separate pieces, on or after that date.

[3] On 3 July 2012, the respondent issued a third country certificate, declining to examine the petitioner's claim for asylum, maintaining that Austria is the Member State responsible for doing so under the Dublin II Regulation and certifying the petitioner for removal to a safe third country, namely Austria, in terms of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004. Also on 3 July 2012, the respondent issued a decision directing that the petitioner be removed from the UK to Austria on 13 July 2012.

[4] In terms of the petition, reduction is sought of both decisions. However, following the presentation of the petition, the removal directions comprising the second decision have been cancelled. Accordingly, before me, it was confirmed that the remedy sought was limited to the decision comprising the third country certificate, issued on 3 July 2012.

The Dublin II Regulation

[5] This regulation provides a system for allocating responsibility for assessing asylum claims among Member States. Article 10(1) provides:

"Where it is established, on the basis of proof or circumstantial evidence as described in the two lists mentioned in Article 18(3), including the data referred to in Chapter III of Regulation (EC) No 2725/2000, that an asylum seeker has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State entered shall thus be responsible for examining the application for asylum. ..."

[6] Article 18(3), part of Chapter V under the heading "Taking charge and taking back", provides:

"3. ....... two lists shall be established and periodically reviewed, indicating the elements of proof and circumstantial evidence in accordance with the following criteria:

(a) Proof:

(i) This refers to formal proof which determines responsibility pursuant to this Regulation, as long as it is not refuted by proof to the contrary.

(ii) The Member States shall provide the Committee provided for Article 27 with models of the different types of administrative documents, in accordance with the typology established in the list of formal proofs.

(b) Circumstantial Evidence:

(i) This refers to indicative elements which while being refutable may be sufficient, in certain cases, according to the evidentiary value attributed to them.

(ii) Their evidentiary value, in relation the responsibility for examining the application for asylum shall be assessed on a case-by-case basis."

Commission Regulation (EC) No 1560/2003

[7] This regulation provides detailed rules for the implementation of the Dublin II Regulation. Article 1, paragraph 1, provides:

"Preparation of requests for taking charge

1. Requests for taking charge shall be made...

The requests shall also include:

(a) a copy of all the proof and circumstantial evidence showing that the requested Member State is responsible for examining the application for asylum, accompanied, where appropriate, by comments on the circumstances in which it was obtained and the probative value attached to it by the requesting Member State, with reference to the lists of proof and circumstantial evidence referred to in Article 18(3) of Regulation (EC) No 343/2003, which are set out in Annex II to the present Regulation;"

[8] Paragraph 7of List A of Annex II to the Regulation provides:

"Illegal entry at an external frontier (Article 10(1))

Probative evidence

...

- entry stamp or similar endorsement in passport. "

Submissions for the petitioner

[9] As the argument developed it became clear that the issues between the parties were twofold:

(1) Whether, on grounds of irrationality, it was open to the petitioner to challenge the decision of the respondent on the basis of her acceptance of the position of the Austrian authorities.

(2) On the assumption that it was open to him to do so, whether the respondent had acted irrationally by taking into account evidence for the purposes of Article 10(1) which should not have been taken into account.

[10] On the second issue, the petitioner's submission was that paragraph 7 of List A of Annex II to Regulation (EC) No 1560/2003 should be interpreted as identifying probative evidence in the form of an entry stamp in a passport only in relation to a whole passport which was entire in its form. In this case, the passport in question had been torn into pieces, was no longer entire and therefore no longer met the criterion of probative evidence set out in paragraph 7 of List A of Annex II. On the basis that the respondent had considered the entry stamp to be probative evidence for the purposes of the acceptance of responsibility under Article 10(1) by the Austrian authorities, she had erred since, on that basis, it was not evidence sufficient to meet the requirements of Article 10(1). She had, by doing so, taken into account a matter which should not have been taken into account.

[11] On the first issue, it was accepted on behalf of the petitioner that, as a general rule, the Dublin II Regulation is concerned with obligations of Member States inter se and does not confer the rights on an asylum seeker to insist that one Member State rather than another determines his claim. Reference was made to Petition of W K R for Judicial Review [2012] CSOH 188, per Lord Stewart at paragraph 18. It was submitted, however, that there were exceptions to that general proposition where an individual asylum seeker brought a challenge based on human rights grounds or irrationality. Reference was made to Yong Qing Chen v Secretary of State for the Home Department [2008] EWHC 437 (Admin) at paragraph 35:

"There is a further difficulty for the claimant which would also mean that the case for the claimant is doomed to failure and that is because the allocation of responsibility between Member States under the Dublin Regulations cannot be challenged by an individual save on human rights grounds and perhaps on the basis of irrationality, neither of which are relevant to the present case. The matter was made clear by Laws LJ who said when giving the only substantive judgment of the Court of Appeal in R (AA Afghanistan) v Secretary of State for the Home Department [2006] EWCA Civ 1550.

'13...I certainly accept in general terms that an asylum claimant cannot challenge (save perhaps on human rights grounds) the allocation of responsibility between states for the determination of the claim that has been effected by the proper application of [the Dublin Regulations II]'".

[12] Reference was also made to the case of R (AA Afghanistan) v Secretary of State for the Home Department, per Laws LJ at paragraphs 12 and 13 (in full):

"12...Reliance was placed on a dictum of mine at first instance in Simba [1998] EWHC Admin 799:

'...once it is plain that there has been an agreement for the purposes of dealing with an asylum claim following application of the provisions of Article 5.2 the approach of the court must be simply to accept that that has been agreed to on the international plane and the matter is thereby closed.'

13... I certainly accept in general terms that an asylum claimant cannot challenge (save perhaps on human rights grounds) the allocation of responsibility between States for the determination of his claim where that has been affected by proper application of Dublin I or II. But it by no means follows that where as here there has been a gross breach of the time limit given by Article 11(5) of Dublin I yet the receiving State continues to accept responsibility for the claim, there can be no challenge on Wednesbury grounds to the Secretary of State's decision to send the claimant back. I refer to Simba only in order to emphasise (if emphasis were needed) that what I said there should not be read as suggesting the contrary."

[13] I note in passing that, for the respondent, I was referred to the following paragraph which is in these terms:

"14. In the course of his submissions before us Mr McCullough accepted that if in a case such as this the decision to transfer the claimant to the other State were shown to be irrational, then it would be unlawful and open to challenge as such; but he opined that it was difficult (I think he would say impossible) to find an instance where that might be so which did not engage ECHR rights. That may be correct. In any event it is common ground that if the respondent's transfer to Austria would violate his Convention rights, it would be unlawful and the court could interfere."

[14] That aside, the submission for the petitioner on this point was that, on the basis of the cases Yong Qing Chen and R(AA Afghanistan), it was open to the petitioner to challenge the decision of the respondent on grounds of irrationality.

The submissions for the respondent

[15] Insofar as the second issue was concerned, on the assumption that such a challenge was open to the petitioner, what he sought to do was in effect to make two challenges: the first being against the decision of the Austrian authorities to accept responsibility to determine the asylum claim on the basis of the evidence of the entry stamp, and the second being against the decision of the respondent to accept that the position of the Austrian authorities was legitimate. To appreciate properly the context in which the issue should be considered involved an appreciation of the aims and purposes of the Dublin II Regulation. I was referred to paragraphs (1)-(4) of the recital which made it plain that the object of the Regulation was to create a clear, efficient and workable scheme, based on objective, fair criteria, which would make it possible to determine rapidly the Member State responsible for examining any asylum application. Similarly, I was referred to paragraph 1 of the recital of Regulation (EC) No 1560/2003:

"A number of specific arrangements must be established for the effective application of Regulation (EC) No 343/2003. Those arrangements must be clearly defined so as to facilitate co-operation between the authorities in the Member States competent for implementing that Regulation as regards the transmission and processing of requests for the purposes of taking charge and taking back, requests for information and the carrying out of transfers."

[16] The provisions of paragraph 7 of List A of Annex II to that Regulation made it plain that an entry stamp in a passport, far from comprising circumstantial evidence, was to be considered as formal proof. The provisions should be accorded a clear meaning consistent with the purpose of the instrument. There was no provision that only a stamp in an entire passport would amount to proof. The evidence of the entry stamp in the passport, albeit torn into pieces, was rightly considered to be relevant for the purposes of paragraph 7 of List A of Annex II. On that basis, neither the decision of the Austrian authorities nor that of the respondent was irrational.

[17] Insofar as the first issue was concerned, it was accepted in the context of the Dublin II Regulation that a ground based on breach of human rights could provide a basis of challenge by an asylum claimant notwithstanding the general structure of the regulation which was to regulate the relative obligations of Member States. Insofar as reliance was placed on the cases of Yong Qing Chen and R (AA Afghanistan) for the assertion that a ground based on irrationality was also an exception to the general proposition, it was to be noted that in both cases the dicta relied upon were obiter. Further, in Yong Qing Chen, (1) the reference in paragraph 35 to the phrase "on the basis of irrationality" could only be tentative as it was qualified by the word "perhaps" which preceded it and, (2) the cited authority for the inclusion of the phrase, being the quoted comment of Laws LJ in R (AA Afghanistan) made no reference to irrationality. Further, in R (AA Afghanistan) the passages relied upon, paragraphs 12 and 13, were qualified by paragraph 14 to the effect that the context of such a ground of irrationality would necessarily be that of a breach of human rights.

[18] The position, therefore, was that, save for a challenge based on a breach of human rights, the structure of the Dublin II Regulation conferred no right of challenge on an individual asylum seeker.

[19] I was referred to two further authorities. In R (G) v Secretary of State for the Home Department [2005] EWCA Civ 546, the respondent had sought asylum firstly in Italy and then in the UK. On his behalf it was argued, in the context of the application of the Dublin II Regulation, that a challenge by judicial review of a decision of the Secretary of State, based on a set of circumstances which it was said flew in the face of a particular provision of the Regulation, should be allowed. Although the issue concerned Article 15 of the Dublin II Regulation, what the Court of Appeal had to say was relevant to the Regulation generally:

"25. I do not accept this submission. It is based on a misreading of Article 15. The effect of Article 15 is not to confer a freestanding substantive right on individual applicants. Rather, it is to regulate the relationship between two or more Member States.

26. In the context of the present case, Article 15 gives the authorities in this country discretion to deal with the matter following the request from the Italian authorities. What has in fact happened is that the two Member States are in agreement that G's application should be processed in Italy. It would have been possible, no doubt, for G's advisors to have made representations to the Italian authorities inviting them to request the British authorities to process the application, but they did not do so. However the text of the Article contains nothing that would have empowered G or her advisors to do anything more."

[20] Thus in the present case, it would have been open to the petitioner to make representations to the Austrian authorities inviting them to request the UK authorities to process his application but, that apart, he had no right to challenge the respondent's decision.

[21] I was also referred to R (J) v Secretary of State for the Home Department [2009] EWHC 118 (Admin), at paragraph (21), for authority that on a proper understanding of the background material which led to the Dublin II Regulation and of the Regulation itself, it is clear that, specifically in relation to Article 20, there is no intention that individual asylum seekers should derive rights and, more generally, that the Dublin II Regulation gives rise to obligations between Member States: it does not confer claims on individual asylum seekers.

Discussion

[22] On the question of whether the evidence available for the purposes of Article 10(1) fulfilled the criteria of paragraph 7 of List A of Annex II to Regulation (EC) 1560/2003, I am not persuaded by the argument for the petitioner. It was conceded that the submission was perilled on that fact that the entry stamp marked "WIEN 2.12.11" appeared on part of a torn page amongst the torn remains of the passport found at Vienna Airport, rather than on a page of an entire passport. The torn page on which the entry stamp appears was found together with the covers and other pages of a passport, issued by the Islamic Republic of Iran, which clearly bears to be the petitioner's. It was not suggested to me that the entry stamp was anything other than genuine. It is reasonable to assume that when the stamp was applied to the part of the page of which it now appears, the passport was entire. As a matter of evidence therefore, on these facts, the existence of the entry stamp on the torn page does point to the passport on which it formally comprised part having been stamped on 2 February 2011 at Vienna Airport. That being so, the evidential value of the existence of the entry stamp for the purposes of Article 10(1) is clearly apparent. Against that background, and given the aims of the Dublin II Regulation, it would be to accept an unduly artificial approach to the interpretation of the provision to exclude such evidence from the list set out in paragraph 7 of List A of Annex II simply because the passport itself was no longer entire. On that analysis, I cannot find that it was irrational of either the Austrian authorities or the respondent to take that evidence into account. On the contrary, my conclusion is that in the circumstances prevailing, the actions of the respondent were entirely appropriate and in accordance with those of a reasonable decision maker. On the second issue, for these reasons, therefore, I find against the petitioner.

[23] It was put to me, and I agree, that were I to find against the petitioner on the second issue, that would in effect determine the whole matter.

[24] Had it been necessary for me to determine the first issue, I would have favoured the arguments for the respondent. The authorities recognise that the Dublin II Regulation is concerned with the relative obligations of Member States. It is correct to say that the judicial comments on which the petitioner relies are obiter and in each case qualified. In Yong Qing Chen, at paragraph 35, the quotation from Laws LJ in R (AA Afghanistan) provides no basis for Mr Justice Silber's assertion that "perhaps on the basis of irrationality" a challenge might be open to an individual. Similarly, in R (AA Afghanistan) the dicta at paragraphs (13) and (14), read together, give a clear indication that, in effect, it is only in circumstances involving the engagement of ECHR rights that such a challenge could lie at the hands of an individual. Counsel for the petitioner confirmed that, to his knowledge, there were no other authorities on the point.

[25] In the event, I shall repel the petitioner's pleas-in-law and sustain the respondent's pleas to the effect of refusing the petition, reserving, meantime, all questions of expenses.