Omar v Secretary of State for the Home Department

This is an appeal against the judgment of Mitting J given on the 9^th June 2004, whereby he dismissed the appellant’s claim for Judicial Review of a decision by the Respondent, the Secretary of State for the Home Department dated 13^th January 2004 certifying as unfounded the Appellant’s claim for asylum on third country grounds and his directions dated 5^th March 2004 to remove the appellant to Italy on 19^th March.

The appellant is a Somalian national. On a date earlier than the 2^nd May 2003, he left Somalia and arrived in Italy on that date and his fingerprints were taken. There is a dispute as to whether at that time he claimed asylum in Italy. However that is not of importance in this case because Italy is the first country within the European Union in which he arrived.

The appellant said that he arrived in the United Kingdom on 6^th June 2003, having left Somalia on 20^th May. That, again, is a matter of dispute but it is conceded that it is probable that he came directly from Italy to the United Kingdom. On 9^th June 2003 he claimed asylum in this country.

On 1^st July 2003, the United Kingdom, acting under the provisions of the Dublin Convention to which I will refer to in some detail below, sent a request to the Italian authorities inviting them to accept responsibility for the appellant’s asylum claim. Further letters were sent on 5^th August and 8^th September, but there was no immediate reply to any of the letters. Under Article 11.4 of the Convention, Italy had three months from 1^st July, 2003, in which to reply the request. That period expired on 1^st October 2004. The Article provides that:

As I have said, on 13^th January 2004 the appellant’s application for asylum was certified as unfounded on third country grounds. On 22^nd January acceptance of responsibility for the appellant’s claim was received from the Italian authorities.

Article 11.5 of the Dublin Convention provides that:

The Dublin Convention, known as Dublin 1, is headed:

Article 11 provides:

Article 3 provides:

The criteria referred to in Article 3(2) are then set out in Articles 4 to 8, dealing with issues such as family members, valid residence permits or visas and other special circumstances. Article 10 lays down the obligations of the Member State responsible for examining the application for asylum.

It was and is common ground between the parties that until the coming into force of Council Regulation (EC) No. 343/2003 of 18^th February 2003 the Dublin Convention had not been incorporated into domestic law. In Zequiri v Secretary of State for the Home Department (CA) [2002] IMM AR 42 Lord Phillips MR summarised the position as follows:

On behalf of the appellant it is submitted that the Dublin Convention was given direct effect in domestic law by the Regulation, that he is entitled to rely upon Article 11(5) and that, accordingly, the responsibility for determining his asylum claim rests with the United Kingdom.

The Regulation of 18^th February 2003, is headed as

Chapter II sets out General Principles, and Article 3 provides:

Chapter V is headed: “Taking charge and taking back”, and Article 17 provides

Article 19 lays down various requirements placed on both the requested Member State and the requesting Member State, such as notification to the applicant of the decision, setting out grounds upon which the decision is based, details of the time limit for carrying out the transfer, and means of travel. Article 19(2) provides that the decision may be subject to an appeal or review. Article 19(3) provides that the transfer of the applicant from one State to the other shall be carried out “as soon as practicably possible and at the latest within six months of acceptance of the request that charge be taken or of the decision on an appeal or review where there is a suspensive effect”.

Article 19(4) provides:

Chapter VII is headed:

The Appellant lodged his application for asylum in the transitional period between the entry into force of the Regulation and the six month period set out in Article 29 of the Regulation which requires the Member State during that period to determine the application “in accordance with the criteria set out in the Dublin Convention”. It is common ground between the parties and settled law that prior to the coming into force of the Regulation the Dublin Convention had not been incorporated into domestic law and gave no rights to an individual claimant. Mr Bedford submitted to the Judge and to this Court that the Dublin Convention is given direct effect in its entirety during its transitional period, that, accordingly, Article 11(5) was given direct effect, and because the arrangements to transfer the Appellant were not made within the one month period, he is entitled to have his claim to asylum determined in this country.

Mitting J rejected the claim. In his judgment he said:

Mr Bedford criticises the Judge’s reasoning. He says, correctly, that it is common ground that Articles 4 – 8 (the criteria) have direct effect, and that in certain circumstances (for example Articles 11(1) and 19(1) consequences follow a failure by the receiving State and give rights to an Applicant. He submits, therefore, that it would be illogical if consequences did not follow from a breach of Article 11(5), and give rights to the asylum seeker. Otherwise, Mr Bedford submits, he is deprived of his rights.

I do not accept those submissions. Both the Convention and the Regulation draw a clear distinction between criteria and mechanisms, and both provide for the circumstances in which consequences follow a breach. The distinction between criteria and mechanisms is drawn in the preamble. Article 3(2) defines the criteria as those set out in Articles 4 – 8. Article 8 refers to the criteria that precede that Article. Article 13 of the Regulation similarly refers to the criteria which precede that Article, and then in subsequent Chapters provision is made for the carrying into effect of the Regulation (the equivalent of the mechanisms) with consequences to follow where consequences are intended to follow. There is a stark contrast between the transfer provisions in the Convention and in the Regulation concerning transfer from the requesting State to the requested State, the Convention not providing for consequences to follow a breach, whereas the latter does provide for consequences, but with quite different time limits.

Mr Bedford relies for his submission on the wording of Regulation 29, the transitional provision. But the Article requires that the Member State shall determine the application in accordance with the criteria set out in the Dublin Convention. There is no reference in Article 29 to the mechanisms. In my judgment, it would be extraordinary if Article 29 were construed as meaning that a breach of any of the mechanisms contained in the Dublin Convention (and in fact it would have been impossible for the United Kingdom to comply with the time requirements of Article 11(5) in this case) resulted in an Applicant having the right to have his asylum claim resolved in the requesting Member State. The Regulation does not so state, the ordinary construction of the Regulation does not so suggest, and in my view it would require clear wording to produce such a strange result. Mr Bedford’s construction, if correct, would have very odd results. For example, if an Applicant suffered from acute appendicitis and could not travel for a month after acceptance of the request it would follow that the responsibility for determining his application would shift from one state to the other.

Accordingly, I conclude that Mitting J came to the correct conclusion and that Regulation 29 does not give direct effect to the provisions of Article 11(5) conferring rights on the Appellant, and I would dismiss this appeal on that ground.

However, even if that should be wrong, it would not avail the Appellant who wishes to have his application for asylum resolved in this country. As I have already said, Article 11(1) of the Convention provides for consequences to follow if there is a breach of that provision. Article 11(5) does not. Accordingly if Article 11(5) gave rights to the Applicant, his right would be to insist that he should be transferred within the time limit to Italy for his claim to be dealt with in that country. Article 11(5) could not possibly be construed so that if there is a breach of the time requirements the effect is to transfer the responsibility for resolving the claim from the requested to the requesting Member State, in this case Italy to the United Kingdom.

For those reasons I would dismiss this appeal.

I agree. The only concern that I have is that this construction, which seems to me to be inevitable, would appear to result in a lacuna in the sense that if the criteria, which are directly applicable are met, there would appear to be no means of giving effect to the consequences. But that ignores the operation of ordinary principles of administrative law. In the present case the criterion which was met was that Italy was the first country in the European Union which the appellant had entered. Italy was accordingly the state responsible for examining the application for asylum pursuant to Article 6 of the Convention. Accordingly the only “right” which could be relied upon by the appellant as a result of the relevant provisions of the Convention having direct affect was that Italy should determine his claim. A failure on the part of the United Kingdom authorities to give effect to that “right” would justify an application to the court. But that application would be directed to securing his “right” to have the asylum application dealt with in Italy, not in the United Kingdom. It is unnecessary, therefore, to strain the words of the directive in order to give effect to its terms; and in any event, it is of no assistance to the appellant in seeking to have his asylum application dealt with in the United Kingdom, which is the purpose of these proceedings.

Sir Swinton Thomas has set out in his judgment the relevant facts and the applicable provisions of the Dublin Convention of 15 June 1990 and the Council Regulation of 18 February 2003. It is unnecessary for me to rehearse those matters. I gratefully adopt the account which he has given. Like him I would dismiss this appeal. But, because I have reached that conclusion by a somewhat different route, I must add some observations of my own.

Article 29 of Council Regulation (EC) No 343/2003 had the effect that the Regulation came into force on 17 March 2003 and was to be applied to asylum applications lodged as from 1 September 2003. But the article went on to provide transitional provisions:

The Regulation concluded with the sentence:

Counsel for the Home Department had contended before the judge that that final sentence did not give direct effect, during the transitional period, to any of the provisions of the Dublin Convention. The position remained as it was. The judge rejected that contention and – although it was renewed in the respondent’s notice as originally served on behalf of the Department as an additional ground upon which to uphold the judge’s order – it was not pursued in this Court.

In this Court it was accepted on behalf of the Home Department – as the judge had held – that that final sentence in the Regulation did give direct effect, in relation to applications lodged during the transitional period, to the provisions in articles 4 to 8 of the Convention. The basis for that view is that that final sentence in the Regulation requires direct effect to be the last sentence of article 29 - that the Member State responsible for the examination of an asylum application submitted during the transitional period “shall be determined in accordance with the criteria set out in the Dublin Convention”. And, in that context, “the criteria set out in the Dublin Convention” means, and means only, the criteria set out in articles 4 to 8 of the Convention.

There is powerful textual support for that view. There is a clear distinction drawn between “criteria” and “mechanisms” in the Regulation. The criteria for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national are set out in Chapter III of the Regulation – see article 5.1, read with article 1 and article 3.1. Chapter III provides a “Hierarchy of Criteria” by which the Member State responsible for examining the application is to be determined. The mechanisms required to ensure that the Member State whose responsibility it is to examine an asylum application “takes charge” of the asylum seeker are set out in Chapter V (Taking Charge and Taking Back). The same pattern is found in the Convention. Article 3.2 requires an asylum application to be examined by a single Member State “which shall be determined in accordance with the criteria defined in this Convention” and “The criteria set out in Articles 4 to 8 shall apply in the order in which they appear”. Article 10 of the Convention requires the Member State “responsible for examining the application for asylum according to the criteria set out in the Convention” to 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. There is obvious force in the judge’s view that the reference in article 29 of the Regulation to “the criteria set out in the Dublin Convention”, is to “the criteria” set out in articles 4 to 8 of the Convention – those being the criteria by which the Member State responsible for examining the asylum application is to be determined for the purposes of the Convention.

Nevertheless, as it seems to me, there is force, also, in the submission, advanced by counsel on behalf of the appellant, that – if (as the Regulation requires in the case of applications lodged during the transitional period) direct effect is to be given to articles 4 to 8 of the Convention – it is necessary to read article 29 of the Regulation in such a way as to avoid a result in which the asylum seeker is denied directly effective rights by a failure by the Member State (State A) with which the application has been lodged to implement the mechanisms which are intended to lead to the Member State responsible for examining the application according to the criteria set out in articles 4 to 8 of the Convention (State B) taking charge. To illustrate the point, suppose an asylum seeker, with relevant family members in State B, who has lodged an application in State A during the transitional period. He is entitled to have his application examined by State B – article 4 of the Convention. But, if that right is to be effective: (i) State A must call upon State B to take charge of the applicant – article 11.1 of the Convention; (ii) State B must accept the obligation to take charge – articles 10.1(a) and 11.4; and (iii) the applicant must be transferred from State A to State B – article 11.5.

For my part, I would be prepared to hold, in a case in which the point arose, that it is necessary to read article 29 of the Regulation in such a way as give the asylum seeker a direct right to require State A to call upon State B to take charge; and (if State B accepts the obligation to take charge) to transfer him to State B. That is to recognise that article 29 of the Regulation confers on asylum seekers in transitional cases direct rights – under articles 11.1 and 11.5 of the Convention – which are comparable to those conferred by articles 17.1 and 19.3 of the Regulation itself in post-transitional cases. But that does not lead to the conclusion that, in a transitional case where the asylum seeker has not been transferred from State A to State B within the period of one month for which article 11.5 of the Convention provides, he has, thereafter, either a right not to be transferred or a right to have his application examined by State A.

The overriding requirement under the Convention is that an asylum seeker shall have his application examined by a single Member State, to be determined in accordance with the hierarchy of criteria set out in articles 4 to 8. Article 8 places that responsibility on “the first Member State with which the application for asylum is lodged” in a case, but only in a case, where “no Member State responsible for examining the application for asylum can be designated on the basis of the other criteria listed in this Convention”. Failure by one Member State (State A) to transfer an asylum seeker (within the prescribed time) to a Member State (State B) which is responsible for examining his application on the basis of criteria set out in articles 4 to 7 does not have the effect that (at the end of the prescribed time) State B is no longer responsible for examining the application on the basis of those criteria. Nor does failure to transfer within the prescribed time have the effect that, at the end of that time, responsibility for examining the application passes to State A. There is nothing in article 11 – or elsewhere in the Convention – which corresponds to article 19.4 of the Regulation.

It may well be (as I am inclined to think) that the appellant has a directly effective right, conferred by article 11.5 of the Convention read with article 29 of the Regulation, to be transferred to Italy. But that, of course, is not a right which he seeks to enforce. What he does not have, in my view, is a right, conferred by article 11.5 or any other article of the Convention, not to be transferred to Italy against his wishes. It is for that reason that I would dismiss this appeal.

Application for extension of time to file a respondent’s notice and to amend the respondent’s notice granted.

Appeal dismissed.

Respondent seeks no order as to costs, save that the appellant’s costs be subject to a detailed community legal services funding assessment.

Application for permission to appeal to the House of Lords dismissed and associated application for a stay of the appellant’s removal to Italy in the meantime refused.