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

1. 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.

2. 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:

"You have applied for asylum in the United Kingdom on the grounds that you have a well-founded fear of prosecution in Eritrea for reasons of race, religion, nationality, membership of a particular social group or political opinion.

"However, Eritrea is not the only country to which you can be removed. Under the provisions of the Council Regulation (EC) No 343/2003 of 18th February 2003, the authorities in Italy have accepted that Italy is the State responsible for examining your application for asylum. By virtue of paragraph 3(2) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, Italy shall be treated as a place --

"(a) Where your life and liberty will not be threatened by reason of your race, religion, nationality, membership of a particular social group, or political opinion; and

"(b) A place from which you will not be sent to another State in contradiction of your Convention rights; and

"(c) From where you will not be sent to another State otherwise than in accordance with the Refugee Convention.

"You are, under paragraph 8(1)(c) of Schedule 2 of the Immigration Act 1971, returnable to Italy.

"The Secretary of State will normally decline to examine the asylum application substantively if there is a safe third country to which the applicant can be sent. There are no grounds for departing from this practice in your case.

"It is hereby certified that the conditions mentioned in paragraphs 4 and 5 of Part 2 of Schedule 3 of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 are satisfied, namely that:

"(a) It is proposed to remove you to Italy; and

"(b) In the Secretary of State's opinion you are not a national or citizen of Italy."

3. 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:

"(1) A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union's objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community.

"(4) Such a method should be based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum applications.

"(6) Family unity should be preserved in so far as this is compatible with the other objectives pursued by establishing criteria and mechanisms for determining the Member State responsible for examining an asylum application.

"(15) The Regulation observes the fundamental rights and principles which are acknowledged in particular in the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure full observance of the right to asylum guaranteed by Article 18."

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

"1. Member States shall examine the application of any third country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.

"2. By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility ..."

5. Article 5:

"1. The criteria for determining the Member State responsible shall be applied in the order in which they are set out in this chapter.

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

6. Article 6:

"Where the applicant for asylum is an unaccompanied minor the Member State responsible for examining the application shall be that where a member of his or her family is legally present, provided that this is in the best interest of the minor.

"In the absence of a family member, the Member State responsible for examining the application shall be that where the minor has lodged his or her application for asylum."

7. 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.

8. 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.

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

"(i) The asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity at the border or within the third country or territory to make contact with the authorities of that third country or territory in order to seek their protection ..."

10. 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.

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

12. 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.

13. 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.

14. In paragraph 1 it says:

"The system of granting leave to people exceptionally outside the rules has been changed. The new system applies to all decisions taken on or after 1st April 2003. Exceptional leave has been replaced by leave granted on the basis of Humanitarian Protection, details of which are set out in the API on Humanitarian Protection and by Discretionary Leave for a limited number of cases which do not qualify for Humanitarian Protection but qualify for a period of leave. This instruction explains the limited circumstances in which it would be appropriate to exercise this discretion to grant leave outside the Rules."

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

"Before considering whether it would be appropriate to grant Discretionary Leave, it will first be necessary to determine whether a grant of asylum or Humanitarian Protection is warranted. Where an asylum application has been substantively considered and it has been decided that (1) asylum should be refused and (2) a grant of leave on Humanitarian Protection grounds is not warranted, caseworkers must then consider whether a grant of Discretionary Leave is appropriate.

"Discretionary Leave is only to be granted on the basis of the individual facts of a case.

"A person whose asylum claim is refused and who does not qualify for Humanitarian Protection should be granted Discretionary Leave only if they meet any of the categories set out in paragraph 2 below."

16. 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:

"Unaccompanied Asylum Seeking Children:

"Where an unaccompanied child applies for asylum caseworkers should, as with any other applicant, first consider whether they qualify for asylum and if they do not, whether they qualify for Humanitarian Protection. If they do, leave should be granted accordingly. If they do not they would qualify for Discretionary Leave if there are not adequate reception arrangements available in their own country."

18. 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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:

"The API on discretionary leave was drafted with caseworkers making substantive decisions in mind. The section relating to Unaccompanied Asylum Seeking Children (UASCs) states that asylum caseworkers should first decide whether an applicant qualifies for asylum (see paragraph 2.4); and it is only if they do not qualify for asylum or Humanitarian Protection that they would qualify for Discretionary Leave if there are not adequate reception arrangements available in their own country. In other words, the substantive claim must be determined first; otherwise return to the country of origin would not be under consideration.

"8. In the Claimant's case it is not necessary for a caseworker in the United Kingdom to consider whether he qualifies for asylum as the Italian authorities are responsible for considering his asylum application. It is therefore also not necessary to consider whether the Claimant qualifies for Humanitarian Protection or Discretionary Leave within the context of this guidance because no decision will have been made in the UK about the merits of his asylum application. Furthermore, it is clear that this policy only applies to those who would be returned to their country of origin, unless there were inadequate reception arrangements in place. Only in these circumstances would a grant of Discretionary Leave be given consideration."

24. 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:

"In R v Secretary of State for the Home Department ex parte Ozminnos [1994] Imm AR 287, the exercise of the Home Secretary's discretion under the Policy [not the policy I am considering] was directly in issue. Auld J (as he then was) held that it was a matter for the Home Secretary to construe his own policy and apply it, subject always to the power of the court to intervene on Wednesbury grounds, tested by the approach indicated by the well-known decision of the House of Lords in R v Secretary of State for the Home Department ex parte Brind [1991] 1 AC 696 that the European Convention has at least some role as a relevant factor in the taking of a decision by the Home Secretary."

25. 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.

26. 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.

27. 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.

28. 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.

29. 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.

30. 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.

31. 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.

32. 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.

33. 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.

34. 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.

35. 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 .

36. 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.

37. 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.

38. 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.

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

40. MISS SMITH: Please.

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