AA (Afganistan), R (on the application of) v Secretary of State for the Home Department

This is the Secretary of State’s appeal, with permission granted by Pill LJ on 26 May 2006, against the order of Bean J made in the Administrative Court on 1 March 2006 when he granted the respondent’s application for judicial review of the Secretary of State’s decision of 8 June 2005 to issue removal directions for his removal to Austria. The case raises an issue about executive or administrative delay by the Home Office in the context of the application of the provisions of the Convention determining the State responsible for examining Applications for Asylum lodged in one of the Member States of the European Community, more commonly and more shortly known as Dublin I.

The factual background is crisply summarised by the judge below at paragraph 1-4 of his judgment. I see no purpose in producing a revised version myself. The judge said this:

“1

The Claimant, who was born on 1 July 1980, is a citizen of Afghanistan. In November 2002 he arrived in Austria and claimed asylum there. Before the Austrian authorities had decided his claim he left Austria for the United Kingdom, arriving here on 1 December 2002, and immediately claimed asylum in the UK. He was released from temporary detention but was required to report three times weekly.

2

On 2 April 2003, the UK requested Austria, pursuant to the Dublin Convention [viz Dublin I], to accept responsibility for dealing with Mr AA asylum claim. Austria did so with commendable promptness the following day. On 3 June 2003 the Secretary of State certified Mr AA’s UK asylum claim under section 25 of the Immigration and Asylum Act 1999; and on 23 March 2005 he certified it once more under the Asylum and Immigration (Treatment of Claimants) Act 2004. But, apart from the certificates being issued, nothing else appears to have occurred during a period of more than two years either to progress Mr AA’s asylum claim in the UK or to return him to Austria.

3

On 8 June 2005 Mr AA’s reported as he had so often before, but this time he was detained and served with a notice that directions had been given for his removal to Austria on 10 June. The next day Goldring J granted a stay and on 10 June an application was issued for judicial review. On the 11 July 2005 Sullivan J granted permission adding:-

‘The delay in this case from June 2003 to June 2005 when the Claimant was detained (well over two years after Austria had accepted responsibility) requires some explanation. Is there no time limit whatsoever (even a reasonable time by implication) upon Austria’s acceptance in April 2003?’

4

On 10 August 2005 the Austrian authorities confirmed that they were still willing to accept responsibility. In October the Claimant was granted bail and continued to report for some three weeks, but in November 2005 he absconded. He was rearrested and detained in January 2006. It has not been suggested that this unfortunate lapse on his part affects the answer to the point of law identified by Sullivan J.”

In a witness statement signed on 13 February 2006 (the day before the hearing before Bean J) the respondent said:

“7

I have established a life in the United Kingdom. I have made several friends of varying nationalities. I have learned the language and settled here. I am also involved with a relationship with a British citizen. I want to live in the United Kingdom and make a family here.”

In fact the respondent has since Bean J’s judgment voluntarily returned to Austria to have his asylum claim determined there. This court was so informed by letter from the Treasury Solicitor on 28 April 2006. So the proceedings are moot or academic so far as the particular asylum claimant is concerned. However the issue of the effect of administrative delay in cases like this is said to be an important one, and there has been some difference of view about it among judges of the Administrative Court. On the other hand Dublin I (whose provisions are material in this case) is now itself historic, or at least passing into history: asylum applications made since a date in late 2003 fall to be considered under Dublin II, whose provisions are such that the problem which has surfaced in this case would not arise.

It is plainly open to the court to hear and decide the appeal although it has become academic on its facts. Mr McCullough for the Secretary of State draws attention to the observations of Lord Slynn in Ex parte Salem [1999] AC 450, 456-457, which with respect I need not cite: it is common ground between the parties not only that the court has the power in a public law case like this to decide the appeal although it is moot on the facts, but also that in the present instance the court should do so. My Lord May LJ indicated at the outset of the argument that we would indeed entertain the case.

Dublin I is at the heart of the case. The preamble recites that the States Parties are:

“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 a 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 Member States acknowledging itself to be competent to examine the application for asylum”.

Each Member State shall have the right to examine an application for asylum submitted to it by an alien, even if such examination is not its responsibility under the criteria defined in this Convention, provided that the applicant for asylum agrees thereto.”

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 Members State to take charge of the applicant.

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.

The State responsible in accordance with those criteria shall be determined on the basis of the situation obtaining when the applicant for asylum first lodged his application with a Member State.

The Member State 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.

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 transfer decision if the proceedings are suspensory.

Measures taken under Article 18 may subsequently determine the details of the process by which applicants shall be taken in charge.”

Article 18 provided for the establishment of a Committee one of whose functions would be to determine the measures contemplated in Article 11(6). On 9 September 1997 the Committee arrived at a Decision (1/97) which made more detailed provision for transfers under Article 11(5). Article 21 of the Decision contained the following:

“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.

5

Where the asylum applicant avoids implementation of the transfer so that it cannot be carried out, it is irrelevant with regard to responsibility whether the applicant disappeared before or after the formal acceptance of responsibility by the Member State responsible. If the asylum applicant is subsequently found, the Member State concerned should duly consult and agree on a case by case basis on the time limit within which the transfer must take place.

6

The Member States concerned must inform each other a quickly as possible if they learn that one of the situations referred to in paragraphs 4 and 5 has arisen. In both the above cases, the Member State responsible for examining the asylum application under the Convention shall remain responsible for taking charge of or taking back the applicant without prejudice to Article 10(2), (3) and (4).”

If establishment of proof carried excessive requirements, the procedure for determining responsibility would ultimately take longer than examination of the actual application for asylum. In that case, the Convention would fail totally to have the desired effect and would even contradict one of its objectives since the delays would create a new category of ‘refugees in orbit’, asylum seekers whose applications would not be examined until the procedure laid down under the Convention had been completed.”

It is plain (and Mr Jacobs for the respondent would emphasise this) that the avoidance of situations where asylum claimants are left in doubt for too long as regards the likely outcome of their applications is an important aim of the policy of Dublin I. So much is underlined in a Commission of the European Communities staff working paper (SEC (2000) 522) to which counsel has drawn attention but which with respect I need not cite.

The judge below described the bearing of the time limits in Dublin I on the facts of the case as follows:

-“8 In the present case the UK complied with the six month limit under Article 11(1) for submitting a request to Austria; and Austria, by replying the next day, complied comfortably with the three month time limit for responding under Article 11(4). But the UK, far from meeting the one month limit specified by Article 11(5), failed to take action for more than two years. None of the excusing factors provided for by Article 11(5) of the Convention or Article 21 of the Committee Decision – suspensory proceedings, sickness, pregnancy, criminal detention or disappearance of the applicant – applied in this case.”

Notwithstanding this, on 10 August 2005 the Austrian Federal Asylum Office wrote to the respondent’s solicitors as follows:

“According to your fax dated on 24.07.2005, we would like to inform you that the a/m person applied for asylum in Austria on 14.11.2002. The person absconded on 02.12.2002 and the asylum process stopped.

If the person has not left the common territory in the meantime, Austria is still responsible for determining his application for asylum.”

This is the document the judge had in mind in stating (paragraph 4, which I have set out) that the Austrian authorities confirmed “that they were still willing to accept responsibility”. That is, with respect, not an entirely accurate summation. It is of some significance that what the Federal Office actually stated was that ‘Austria is still responsible’ (my emphasis).

Under Dublin II, as the judge noted in paragraph 9, on like facts the United Kingdom would be bound to deal with the respondent’s asylum claim on its merits. The reason is that the analogue of the time limit provided for by Article 11(5) of Dublin I was extended to 6 months, but provision was made to the effect that if the transfer to the receiving State does not take place within that time, then responsibility for deciding the asylum claim is on the shoulders of the sending State.

The essential steps which led Bean J to his conclusion in favour of the respondent were as follows:

At the outset of his submissions Mr McCullough for the Secretary of State confirmed, without cavil, that there was no explanation or excuse for the delay: certainly none before the court. But he submitted that the reasoning of the learned judge below was marred by four principal mistakes, as follows.

This somewhat recasts the appellant’s case in comparison with its formulation in the skeleton argument (which was drafted by other counsel). At that stage it was being submitted that, at least absent a viable human rights claim, in the events which had happened the Secretary of State was not even obliged to consider whether the respondent’s asylum claim should be processed in the United Kingdom. Austria had accepted responsibility. That being so, the question where should the claim be dealt with should be regarded as closed. 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.”

Counsel in the skeleton referred also to a passage in the judgment of Lightman J in Mosari [2005] EWHC Admin 1343, which he submitted was to like effect, though its context was Dublin II.

My observations in Simba were made in circumstances where an application for judicial review permission had actually been withdrawn. I gave a short judgment merely to ‘explain very briefly what has occurred’. What I said has even less persuasive value than a judgment on a live permission application. 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 effected 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.

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.

Mr Jacobs submits that the judge made no error as regards the overriding purpose of Dublin I; that he was right on prejudice; that Article 3(4) of Dublin I plainly entitled the Secretary of State to decide his client’s application albeit that responsibility has been accepted by Austria; that the delay in the case amounted to maladministration and an abuse of the provisions of Dublin I, and gave rise to prejudice just as the judge found.

For my part I would not overturn the judge upon Mr McCullough’s first point, which relates to his understanding of the purpose of Dublin I. It is clear from the preamble and from the text as a whole that Dublin I had a composite purpose. It was intended to effect a clear assignment of responsibility for dealing with asylum claims between the Member States, but to do so as speedily as possible. The judge in paragraph 23 of his judgment has laid implicit emphasis on this latter aspect. That is entirely unsurprising, given that a major factual dimension in the case was the gross delay perpetrated by the Secretary of State. The judge in this respect has not misunderstood Dublin I. Nor has he given excessive weight to one feature of its policy over others and thereby been led to a false result. The real question in the case is whether the judge’s finding of Wednesbury perversity or unreasonableness can be sustained.

To that question Mr McCullough’s second and third points, concerning prejudice, are highly material. Now, the essence of Mr Jacobs’ case on prejudice is that the passage of time occasioned by the Secretary of State’s delay has given rise to the basis of an Article 8 claim in the respondent’s hands: he has developed connections and relationships in the United Kingdom, not least with the lady to whom he referred in his statement of 13 February 2006. Mr Jacobs submits that he should not be removed to Austria without those matters being considered. If he were removed to Austria without that being done, he would be in no position to assert an Article 8 claim in that country based on the same facts. Mr Jacobs says that the medium in which his client’s putative Article 8 claim should be adjudged is through a statutory appeal to the Asylum and Immigration Tribunal (“the AIT”).

In my judgment there are fatal difficulties in the way of this argument. I should first notice Mr McCullough’s submission that, taking paragraphs 17 and 23 of the judgment below together, the prejudice which the judge had in mind concerned the respondent’s asylum claim, not any case based on ECHR rights. However I am not sure that paragraph 17 produces so clear-cut a conclusion; though I would accept that it is very difficult to see any prejudice occasioned to the respondent relating purely his asylum claim. In any event Mr McCullough has stronger points.

In particular Mr McCullough submits that there was no human rights claim for the judge to consider. The proceedings before him consisted in a challenge to the removal directions set on 8 June 2005. If the execution of those directions would have involved a violation of the respondent’s rights under ECHR Article 8, it would have been unlawful. Mr McCullough says that if that is the respondent’s case, he should have set it out before Bean J. Albeit he was conducting a judicial review and not a statutory appeal it would then have been the judge’s duty to decide whether the removal directions were on that ground unlawful. But neither the grounds nor skeleton argument at first instance laid the ground for any such argument. There was, in effect, nothing but a bare assertion of Article 8 rights at the hearing before Bean J. That was no basis upon which the judge could somehow have manufactured an opportunity for the respondent to have ventilated the merits of his putative Article 8 claim at a statutory appeal to the AIT, which is what, as I have said, Mr Jacobs claims to be the respondent’s entitlement.

In my judgment Mr McCullough’s submissions are well-founded. There are no ongoing proceedings before the AIT. Any Article 8 point should have been canvassed on its merits before the judge. It was not. In those circumstances it is not in my judgment open to the respondent to urge Article 8 issues in support of a submission that his removal to Austria for determination in that country of his asylum claim would be perverse or unreasonable. For good measure I should add that in light of this court’s judgment in Huang [2006] QB 1, which requires (I summarise very broadly) “truly exceptional” circumstances to be shown if a claimant’s removal to another State is to be condemned on Article 8 grounds, it is in my judgment in the highest degree unlikely that the respondent could, if the matter were gone into, sustain an Article 8 case.

But if Article 8 is taken out of the equation, there is nothing left in the perversity case. Certainly, the Secretary of State’s delay is deplorable and unexplained. However the court cannot quash the removal directions in order to punish or discipline the Home Office. Nor is this remotely a case of a “refugee in orbit”. Austria has consistently accepted its responsibility to examine the claim. There is no question of the respondent being shuttled to and fro.

I should say that I would not fault the judge on Mr McCullough’s fourth argument, viz. failing to accord due deference to the Secretary of State as the primary decision-maker. The challenge does not invite the court to second-guess a judgment of the Secretary of State about the conduct of relations with another sovereign State: certainly not a judgment of any delicacy. It is not, I take it, suggested that any offence might have been occasioned to the Austrian authorities had the Secretary of State decided to process the respondent’s claim himself. Indeed he was as a matter of international law entitled to do so by force of Article 3(4) of Dublin I. This case is best seen as a straightforward domestic law challenge to the exercise of an executive discretion by the Secretary of State.

In the result I conclude for reasons I have given that the judge was wrong to find that the respondent’s transfer to Austria would be unreasonable, and I would allow the Secretary of State’s appeal.

I agree.

I also agree that the appeal should be allowed for the reasons given by Laws LJ.