UK - Court of Appeal, R (AR (Iran) v Secretary of State for the Home Department, [2013] EWCA Civ 778
| Country of Decision: | United Kingdom |
| Country of applicant: | Iran |
| Court name: | UK - Court of Appeal, R (AR (Iran) v Secretary of State for the Home Department, [2013] EWCA Civ 778 |
| Date of decision: | 28-06-2013 |
| Citation: | [2013] EWCA Civ 778 |
| Additional citation: | [2013] 3 CMLR 40 |
Keywords:
| Keywords |
|
Responsibility for examining application
Description
The Member State responsible for examining an application for asylum is determined in accordance with the criteria contained in Chapter III Dublin II Regulation in the order in which they are set out in that Chapter and on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State. |
|
Dublin Transfer
Description
"The transfer of responsibility for the examination of an asylum application from one Member State to another Member State. Such a transfer typically also includes the physical transport of an asylum applicant to the Member State responsible in cases where the applicant is in another Member State and/or has lodged an application in this latter Member State (Article 19(3) of Council Regulation (EC) 343/2003). The determination of the Member State responsible for examining an asylum application is done on the basis of objective and hierarchical criteria, as laid out in Chapter III of Council Regulation (EC) 343/2003." |
Headnote:
This case related to a dispute as to whether the UK or Belgium had responsibility for determining the applicant’s asylum claim
Facts:
The applicant was refused asylum in Belgium in 2003. He claimed that he subsequently returned to Iran, was persecuted again, and then fled to the UK, where he claimed asylum in 2011. The UK requested Belgium to take the applicant back pursuant to Dublin II and Belgium agreed. The UK authorities had no evidence before it to show that the applicant had indeed left the EU, and did not solicit any further evidence from the applicant before opting to request Belgium take the case. The applicant brought judicial review proceedings, resisting his removal to Belgium, on grounds that he had been outside of the EU in the intervening period and thus Dublin II did not apply.
Decision & reasoning:
The Court reaffirmed that Dublin II does not give rise to rights for individuals; it regulates responsibility between states for dealing substantively with asylum claims, applying the case of R(MK Iran) [2010] EWCA Civ 115.
The applicant sought to argue, among other things, that Article 25.1 of the Procedures Directive did not apply in this case because the failure of the UK to examine the asylum claim had not been ‘in accordance’ with Dublin II (as he had returned to his home country after leaving Belgium, and so Dublin II was technically not applicable, by Article 16.3). The Court rejected this argument for four different reasons, emphasising that Dublin II does not give rise to any individual rights inhering in the applicant and that this “fatally undermined” the applicant’s argument: “The whole point of the Dublin II jurisprudence is that while member states may complain of defects in procedure the asylum seeker may not do so” (para. 31)
The Court also reiterated that Dublin II envisaged swift decision-making, with trust placed in other member states. The appellant was not in any way adversely affected by being returned to Belgium.
Outcome:
Appeal dismissed; claim for judicial review dismissed.
Relevant International and European Legislation:
Cited Cases:
| Cited Cases |
| UK - Court of Appeal, 25 February 2010, MK (Iran), R (on the application of) v Secretary of State for the Home Department [2010] EWCA Civ 115 |
| CJEU - C-277/11 MM v Minister for Justice, Equality and Law Reform, Ireland, Attorney General (UP) |
| CJEU - C-411/10 and C-493/10 N.S. v Secretary of State for the Home Department and ME (UP) |
Follower Cases:
| Follower Cases |
| 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 |
Other sources:
CJEU - C-620/10 Kastrati, Opinion of Advocate General
CJEU -C4/11 Puid, Opinion of G Jaaskinen (para. 58)