UK - R on the Application of CK (Afghanistan) & Others and The Secretary of State for the Home Department, [2016] EWCA Civ 166, 22 March 2016

Facts:

The appellants are Sikhs of Afghan nationality. The first and second appellants, born in the 1980s, are man and wife. The third appellant is one of their daughters. Her attributed date of birth is 1 January 2009. They claim to have been victimised by the Taliban in Afghanistan on account of their religion. After fleeing their country of origin, they arrived in France in August 2012 where they were briefly detained and fingerprinted as asylum seekers. They chose, however, not to remain there.

The first appellant had an adult brother and sister living in London who had come to the United Kingdom as refugees some 16 years ago and who are now British citizens. The first appellant entered the UK using a false passport and, when his presence in London was discovered on 23 September 2012, he claimed asylum there. He was subsequently joined by the second and third appellants who entered the country on 29 October 2012 and immediately claimed asylum. Around November 2012 the second appellant became pregnant with her second child, who was born on 19 August 2013.

On the basis of the criteria set out in Chapter III of the Dublin II Regulation, the Member State originally responsible for the examination of their application, France, accepted that responsibility on 1 October 2012 in the case of the first appellant, and on 31 December 2012 in the case of the second and third appellants. Directions for their removal to France were issued on 26 February 2013. On 28 February 2013 the appellants’ solicitors made written representations to the Secretary of State, pursuing the examination of their asylum claims in the UK, citing articles 3 and 15 of the Dublin II Regulation, article 8 of the ECHR, and s.55 of the Borders, Citizenship and Immigration Act 2009. They claimed that the second appellant, who was then 16 weeks pregnant, was experiencing “severe symptoms of stress and anxiety” and argued that the first appellant's brother and sister could provide the support and comfort she needed.

The appellants’ applications were refused on 15 March 2013, as the Secretary of State  found no exceptional circumstances that could justify the examination of their claims in the UK, while, according to her judgement, the humanitarian clause of article 15 could only be activated upon request by the State that would otherwise be responsible – France. The Home Secretary also concluded that their Human Rights claims were clearly unfounded since no dependency on their British relatives was established and, as a consequence, they might not appeal against the decision while they remained in the UK.

The appellants requested the judicial review of the above decision. Their case was brought before Ms Geraldine Clark, sitting as a Deputy High Court Judge in the Administrative Court – who dismissed it on 30 July 2014, finding that even if the appellants were entitled to challenge a Dublin II decision on grounds other than the risk of them being subjected to inhuman or degrading treatment, their case would have failed on the merits.

Decision & reasoning:

The Lord Justice observed, first, that the issue at hand is the resolution of the conflict  between two competing legal imperatives: preserving the effet utile of the Dublin II Regulation as an instrument that regulates responsibilities at the inter-State level, and vindicating individual Human Rights claims resulting from the application of that inter-State regime. He then proceeded to analyse relevant National and European case law, starting with a number of cases indicating that no individual challenges to Dublin II decisions are permitted. The arguments in favour of this view can be summarised as follows: the Regulation was designed to allocate responsibility between Member States for the examination of asylum claims – under the assumption that they can all guarantee in similar ways the exercise of the asylum seekers' rights – and to prevent forum shopping in asylum cases. It would thus be inconsistent with that purpose to allocate individual rights that open the way to challenging these decisions. The CJEU has, in fact, adjudicated, in the case of Abdullahi v Bundesasylamt, cited in the decision, that the only way in which an asylum seeker applicant can challenge a Dublin II decision is by pleading systematic deficiencies in the asylum procedure and in reception conditions, which create a real risk of inhuman or degrading treatment.

There is, however, ample case law that points to the opposite direction, starting with the CJEU decision in the case of  K v Bundesasylamt, which found that when the conditions of article 15(2) of the Regulation are met, the Member State responsible for the examination of an asylum application on humanitarian grounds is obliged to take charge of the application, even when the Member State originally responsible did not make such request. Reference is also made to some of Laws LJ's previous observations that when a transfer violates Convention Rights it is unlawful and would justify interference from the Courts. Another decisive case has been AM (Somalia), where the Court of Appeal observed that the Dublin II Regulation does not address the problem of removals which may violate Convention rights. At the same time, the Home Secretary has an obligation  not to act inconsistently with such rights when deciding on Dublin transfers, and the relevant decisions must survive the proportionality assessment.

Taking into account the above observations, Laws LJ proceeded to make a distinction between individual claims based on Dublin II grounds, and challenges made on a completely different basis, such as rights conferred by the ECHR. He found that even though a challenge to the Dublin II decision itself may not be justiciable, an article 8 ECHR claim against the removal of the affected person may, nevertheless, have merit. Besides, it could not have been the intention of the European legislature to enact a regime that would circumvent the European Convention and would not permit the autonomous application of one of its articles. But, even if that were the case, ‘that would be repugnant to the Human Rights Act 1998 and therefore of no legal effect’ in the UK. He underscored, however, that the Dublin II Regulation is a legal instrument of major importance and it should not be seen as establishing little more than a presumption as to which State should deal with which claim, or its purpose would be critically undermined. Hence, an especially compelling case under Article 8 would have to be demonstrated to deny removal following a Dublin II decision.

In applying the aforementioned principles to the case at hand, the Lord Justice found that the appellants failed to make a compelling case demonstrating why their article 8 ECHR rights were violated by their removal to France. He noted that the Home Secretary's decision was consistent with the Wednesbury grounds, since there was no reasonable prospect of success for the Human Rights claims presented before him, and would be reached by any reasonable immigration judge.

Lord Justice Davis and Sir Timothy Lloyd concurred.

Outcome:

The appeal was dismissed.

Observations/comments:

This is an appeal on the decision reached by Ms Geraldine Clark, sitting as a Deputy High Court Judge in the Administrative Court, on 30 July 2014 ([2014] EWHC 2635 (Admin)) – granted with permission of Sharp LJ on 17 June 2015. Ms Clark dismissed the appellants' claims for judicial review to challenge the refusal of the Secretary of State for the Home Department to exercise her discretion under the Dublin II Regulation and allow their asylum claims to be examined in the United Kingdom.

The decision reached by the Court of Appeal is consistent with the new text of the Dublin Regulation, in its third recast (Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013). Article 27 of the new Dublin III Regulation confers an express right to ‘an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal’, departing from the premise that its provisions are concerned strictly with inter-State interactions, and permitting Human Rights-related challenges to Dublin transfers.

This case summary was written by Zoi Anna Kasapi, LL.M. in Human Rights Law, Queen Mary, University of London.