CK (Afghanistan) v Secretary of State for the Home Department

LADY JUSTICE SHARP: This is a renewed application for permission to appeal against the order made by Geraldine Clark, sitting as a Deputy High Court Judge, on 13th July 2014. The case concerns the refusal of the respondent Secretary of State to consider in the United Kingdom the asylum claims of CK, his wife and their two daughters.

The applicants are nationals of Afghanistan. They are Sikhs to wish to claim asylum in the United Kingdom on the ground that they were victimised by the Taliban because of their religion. However, they arrived in France in August 2012 before making their claim here and France has accepted responsibility for considering their asylum claims.

CK has an adult brother and sister who are British citizens and the applicants made representations to the Secretary of State, asking her to exercise her discretion under Articles 3.2 and 15.2 of Dublin II to consider their claims in the United Kingdom. They also relied on Article 8 of the European Convention on Human Rights.

The Secretary of State declined to exercise her discretion to consider their claims here. The applicants' application for judicial review was dismissed on the papers as totally without merit, but they were granted permission to challenge the decision of the Secretary of State to remove them to France under Dublin II on two grounds: first that the definition of "family member" in Article 7 of Dublin II may extend more broadly than the definition of "family member" in Article 2, and it may include CK's brother and his family; and, secondly, that the family were dependent relatives of CK's brother and his other family for the purposes of Article 15 of Dublin II.

The applicants challenge was dismissed however. First and principally it was held that their challenge to the decision of member states under Dublin II was not justiciable and this was a complete defence to their claim and, secondly, on the merits. Though the Deputy High Court Judge was satisfied that the Secretary of State's approach to the exercise of her discretion under Article 15.2 was based on an error of law, namely the belief that she was only required to consider exercising her discretion if a request had been received from another member state, she held that it was inevitable that, had the Secretary of State considered the matter herself, she would have refused to consider the applicants' asylum applications because, in summary, it was inconceivable on the information available to her, which led to the rejection of the Article 8 claim, that she would have been satisfied that the applicants were dependent even if she had considered dependency for the purposes of Article 15.2. As the dependency criteria were not met, the submission that the Secretary of State was required by the regulations to take responsibility for the applicants' claims went nowhere; it simply did not arise. The Deputy High Court Judge held further that the Secretary of State's exercise of her discretion under Article 3.2 was not irrational on the basis that the applicants' submission that the United Kingdom was plainly in a better position to consider the applications than France was misconceived since it cut across the entire scheme of the Dublin II regulations and the purpose for which they were enacted.

So far as the Article 8 argument is concerned, the judge recorded that it was accepted that the decision that the claim for asylum could be dealt with in France was not a disproportionate interference with the applicant's Article 8 rights and that the claims stood or fell with the case on Article 15.2. If, however, the decision under Article 15.2 was unlawful, it followed, so the applicants argued, that there was a breach of Article 8. The judge rejected this argument, holding that the Secretary of State's failure to consider exercising her discretion under Article 15.2 could only give rise to a breach of Article 8 if it interfered with the applicants' family life. It did not do so because the Secretary of State would still have refused to exercise her discretion in the applicants' favour even if there had been no error of law.

The central submission now made by Mr O'Ceallaigh for the applicants is this. First, that the judge erred in law in concluding that the decisions made under the Dublin II regulation are never justiciable except insofar as they concern Article 3 of the ECHR. Secondly, that the judge applied the wrong test for a breach of Article 8 of the ECHR, a test of "flagrant denial" - see paragraph 54 of her judgment, where she says as follows:

Mr O'Ceallaigh submits that the judge wrongly conflated the test which arises under regulation 15.2 with that arising under Article 8. He says that it does not follow because a claim would not meet the relevant test for the purposes of Article 8, that it would also not meet the test under regulation 15.2. He further says that there is no case law on what "dependency" means for the purposes of regulation 15.2. It follows that the judge erred in concluding that it was inevitable, given the Secretary of State's conclusions on Article 8, that she would have reached the same conclusion under regulation 15.2. His third submission is that the judge failed to apply the correct test in a certification challenge, which is to establish whether the respondent could lawfully certify the claim as "clearly unfounded", and instead decided for herself whether Article 8 of the ECHR had been breached.

I am satisfied that the application has a reasonable prospect of success in respect of each of the three grounds that have been identified and accordingly I give permission to appeal.

There is a case which is currently before the court in which permission to appeal has been given on the Dublin II justiciability issue: Jayaipan Jeyasuthan. Since the central issue in that case is the same as the first issue arising in this one, I will order that the cases be linked. It does not follow that the appeals will be heard together because a decision may be made in due course that it will be more convenient for this case, for example, to follow on and be heard later than the case of Jeyasuthan, which raises a number of issues with which this case is not concerned, but that is for the future. For the moment these appeals shall be linked and that will remain the case until further order.

I understand that the application for permission to appeal was made out of time. It follows from what I have already said that an extension of time is granted.