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

MR JUSTICE BEAN: The claimant is from Eritrea. The history of how he came to the United Kingdom and his date of birth were at one stage but are no longer in dispute. He was born on 7th May 1988 and on 24th March 2004 made a claim for asylum in Italy. However in July 2004 he flew from Italy to the United Kingdom, arriving at Stansted Airport on 24th July, where he made a claim for asylum in the United Kingdom.

Italy was asked to take him back, but at the stage of a letter from the Secretary of State of 23rd November, Italy was deemed to have agreed but had not in fact agreed to take the claimant back. By a letter of 23rd November 2004, the Secretary of State wrote as follows:

Regulation EC 343/2003, generally known in the community of immigration lawyers as 'Dublin II', begins with a preamble from which I will read only four paragraphs:

Article 3 of the regulation provides, so far as material:

Article 5:

Article 6:

Reading Article 5.2 and Article 6, second paragraph together, it is quite clear and indeed has not been disputed, that Italy was the Member State responsible in accordance with the criteria set out in the regulation in the present case.

Finally on statutory or quasi-statutory material, I should refer to Rule 345 of the Immigration Rules, which provides that in a case where the Secretary of State is satisfied that certain conditions set out in the 2004 Act are fulfilled (in particular that it is proposed to remove the asylum seeker to a safe country of which he or she is not a citizen), the Secretary of State will normally decline to examine an asylum application substantively and will instead issue a certificate under the appropriate part of schedule 3 to the 2004 Act.

Rule 345(2) provides that the Secretary of State shall not issue such a certificate unless:

Returning to the chronology, on 17th December the authorities in Italy were notified of the proposed transfer arrangements. Removal directions which had been set five days earlier were cancelled at the request of the Italian authorities due to the holiday period.

On 20th January 2005, Italy formally accepted responsibility under the regulation and accordingly on 31st January further removal directions were set for 10th February.

The claimant's solicitors made representations challenging the lawfulness of the decision to set removal directions and when the Secretary of State declined to give way, proceedings were issued on 9th February.

The mainstay of the claimant's case is the asylum policy construction, API, on discretionary leave to remain, a public document readily obtainable on the Home Office website.

In paragraph 1 it says:

Paragraph 2 is headed "Criteria for Granting Discretionary Leave", and subparagraph 2.1 reads:

Paragraph 2.2 deals with cases of removal of the ECHR. Paragraph 2.3 deals with cases where removal would be contrary to Article 3 of the ECHR. The relevant paragraph for present purposes is 2.4, headed:

The second paragraph is not relevant for the present purposes.

Miss Abigail Smith for the claimant submits that the removal of the claimant to Italy as the Secretary of State proposes, would be contrary to the defendant's published policy as set out in paragraph 2.4 of the API on discretionary leave. If that is wrong, she submits that removal would be in breach of the claimant's Article 8 rights and finally, alternatively, that the Secretary of State ought to have excercised his discretion in her client's favour. It was the first point on which permission was granted by Crane J.

As Miss Smith correctly observes, the API on discretionary leave makes no mention of the Dublin II regulation. If Miss Smith is right, the fact that paragraph 2.4 in particular contains no qualification relating to removal to safe countries, has very far-reaching implications. There is, as I see it, nothing exceptional about the facts of the present case by comparison with other cases where an unaccompanied teenager aged under 18 has made a claim or had the opportunity of making a claim in another EU country to which the regulation applies and has then come to the United Kingdom and made a further claim.

In other words, Miss Smith's argument is that since API paragraph 2.4 is not qualified, it must be taken exactly as it is read and in effect to override the general policy of the regulation in cases of unaccompanied minors.

There is no dispute between the parties that the Home Office defendant, in Miss Smith's words, sees itself as having an obligation to look after vulnerable minors who come to this country seeking asylum. As a general proposition that is not controversial. The question in the present case is how that is to be applied in the case of a person under 18, who on the face of it falls within the provisions of the Dublin II regulation.

Miss Eleanor Grey for the Secretary of State adduced in evidence a witness statement of Lesley Beadle, on behalf of the Secretary of State. She makes it clear in paragraphs 10 and 11 of her witness statement that Italy makes special provisions for dealing with unaccompanied minors who seek asylum and has established a specialised reception and processing centre in Crotone, which deals with unaccompanied minors and families with young children who seek asylum in Italy. It is therefore not in dispute that Italy is not only a safe country within the terms of schedule 3 to the 2004 Act but is also a country which has appropriate facilities for receiving unaccompanied minors seeking asylum.

In another part of her witness statement, Miss Beadle states what the purpose of the asylum policy instruction concerned was. For the moment I will set out what she says and consider later what weight should be given to it. She says, paragraph 7:

In Gangadeen & Khan v Secretary of State for the Home Department[1998] Imm AR 116 and 113 Hirst LJ, with the agreement of Swinton Thomas LJ and Sir Brian Neill, said:

This observation has not been contradicted in any subsequent case. Miss Smith submits that it must be viewed in the light of the subsequent coming into force of the Human Rights Act.

I accept that it is not to be treated as holy writ and must be taken to have been amended to some extent by the Human Rights Act. but it seems to me still to be good law that in construing a policy (as opposed to a statute or statutory instrument) considerable weight should be given to what the policy maker believes that the policy means, subject to the construction placed on it not being one which is plainly unreasonable, nor one which would mean that the decision maker would be acting contrary to domestic law, directly applicable European Union law or the obligations of the decision maker (if a public authority) under the Human Rights Act and the Strasbourg Convention. The United Kingdom's obligations under the Dublin II Regulation are quite clear. The general rule is that where an asylum seeker has made an application or had the opportunity of doing so in the country where he goes first, which I shall describe as 'the first port of call', that country is responsible for determining the application. There is no exception for unaccompanied minors.

Indeed, on the contrary, Article 6 of the regulation it is quite categorical that in the case of unaccompanied minors with no family members present in the relevant member states, it is the first port of call where the application should be determined. It would be extraordinary if the Home Secretary's policy on discretionary leave to remain or indeed on asylum generally were to ignore or contradict this obligation of the United Kingdom contained in a directly applicable and binding European Union regulation.

I agree that it would make matters much clearer if the API on discretionary leave to remain made reference to the Dublin II regulation and the principle of asylum applications being determined in the country which was the first port of call, where there was one. Read in isolation, the API ignores the existence of those principles, but in my judgment it cannot and should not reasonably be read in isolation from the 2004 Act, Immigration Rule 345 and the Dublin Regulation.

Discretionary leave to remain is, as the API makes clear, a status available to certain applicants, including unaccompanied minors whose claims for asylum and/or humanitarian protection have been substantively considered and rejected. Miss Smith says that in practice consideration of asylum claims by minors is often deferred until the young person concerned reaches the age of 18 and in the meantime he or she is given discretionary leave to remain until the eighteenth birthday. That is indeed sometimes done in cases different from the present one, for example cases where the applicant is a minor who has not come via a safe country or one who has done so but has particularly strong ties with the United Kingdom.

Miss Smith could not point to, and there is no evidence of, a pattern of the Secretary of State granting discretionary leave to remain to unaccompanied minor asylum seekers to whom the Dublin Regulation applies. On the contrary, the evidence of Miss Beadle is that the practice is otherwise. I therefore reject the argument based on alleged inconsistency.

Miss Smith further argued that API 2.4 must be interpreted "through the prism of Article 8 of the ECHR," but it does not seem to me that that suggestion advances her case. The Dublin II Regulation says, in paragraph 15 of the preamble to which I have referred, that it seeks to have regard to the principles of the Charter of Fundamental Freedoms and the Charter of Fundamental Rights of the European Union, and in paragraph 6 of the preamble that family unity should be preserved in so far as is compatible with other objectives assumed by the criteria and mechanisms of the regulation.

I am unable to see that the Dublin principle of asylum applications being determined at the first port of call, save where other considerations not applicable in the present case are present, is destructive of private and family life, either as a general proposition or in this particular case.

I therefore consider that the API on discretionary leave, properly interpreted, does not amount to a policy of the Secretary of State that asylum claims by accompanied minors will be substantively determined irrespective of whether the asylum seeker has come via a first port of call and thus falls within the provisions of the Regulation, nor that such a person will be granted discretionary leave to remain until he or she reaches the age of majority.

As to the separate argument on Article 8 in the present case, Miss Smith points to the private and family life established by the applicant with those who have looked after him and cared for him since he arrived in this country in July. He does not have family in the United Kingdom as such. Miss Grey on the other hand points out that he had spent four months in Italy before flying to the United Kingdom in July of 2004 and it was only another four months before the Secretary of State certified the claim under the 2004 Act.

It can be seen from this that the claimant's family ties and his Article 8 arguments fall far short of being truly exceptional as required by the decisions of the House of Lords in Razgar and the Court of Appeal in Huang.

Finally, as to the exercise of discretion, I accept the argument of Miss Gray that this is not really a separate argument. If Miss Smith's submissions as to the proper interpretation of the discretionary leave API had been correct, as I have found that they were not, the claimant would have succeeded on that basis. Since the policy does not mean what the claimant submitted it meant, there is no obligation arising under the policy to give substantive consideration to the claimant's case, still less to grant asylum or discretionary leave in this country.

All that the Secretary of State was obliged to do in the present case was to consider (1) whether the applicant was a person to whom the Dublin regulation applied; the answer is "yes"; and (2) whether nevertheless the case should exceptionally be considered substantively here; the answer is "no". It does not seem to me that that decision-making process, given my interpretation of the API, can be successful by impugned. Accordingly, while I am grateful to Miss Smith for her helpful submissions, I do not consider that any grounds of attack on the lawfulness of the Secretary of State's decisions in this case have been made out and I therefore reject the application.

MISS GRAY: My Lord, in the circumstances can I say that I am informed that the applicant is in receipt of public funding, and if that is right, we would ask for no order for costs save a detailed legal service assessment.

MR JUSTICE BEAN: Yes, If you require a community legal service detailed assessment Miss Smith --

MISS SMITH: Please.

MR JUSTICE BEAN: -- certainly you will have that. Thank you both very much for your assistance.