Omar v Secretary of State for the Home Department [2005] EWCA Civ 285

Case No C4/2004/1358[2005] EWCA Civ 285
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (ADMINISTRATIVE COURT)
MR JUSTICE MITTING
CO/1421/2004
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Wednesday, 16 March 2005
Before
LORD JUSTICE CHADWICKLORD JUSTICE LATHAMSIR SWINTON THOMAS
Between
MOHAMMED ABDI OMARAppellantTHE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(Transcript of the Handed Down Judgment ofSmith Bernal Reporting Limited, 190 Fleet StreetLondon EC4A 2AGTel No: 020 7421 4040, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Mr Becket Bedford (instructed by Sultan Lloyd of 510a Coventry Road, Small Heath, Birmingham, B10 0UN) for AppellantMiss Lisa Givannetti and Mr Timothy Otty (instructed by The Treasury Solicitor of Queen Anne’s Chambers, 28 Broadway, London SW1H 9JS) for Respondent
JudgmentSir Swinton Thomas:
[1]This is an appeal against the judgment of Mitting J given on the 9th June 2004, whereby he dismissed the appellant’s claim for Judicial Review of a decision by the Respondent, the Secretary of State for the Home Department dated 13th January 2004 certifying as unfounded the Appellant’s claim for asylum on third country grounds and his directions dated 5th March 2004 to remove the appellant to Italy on 19th March.[2]The appellant is a Somalian national. On a date earlier than the 2nd May 2003, he left Somalia and arrived in Italy on that date and his fingerprints were taken. There is a dispute as to whether at that time he claimed asylum in Italy. However that is not of importance in this case because Italy is the first country within the European Union in which he arrived.[3]The appellant said that he arrived in the United Kingdom on 6th June 2003, having left Somalia on 20th May. That, again, is a matter of dispute but it is conceded that it is probable that he came directly from Italy to the United Kingdom. On 9th June 2003 he claimed asylum in this country.[4]On 1st July 2003, the United Kingdom, acting under the provisions of the Dublin Convention to which I will refer to in some detail below, sent a request to the Italian authorities inviting them to accept responsibility for the appellant’s asylum claim. Further letters were sent on 5th August and 8th September, but there was no immediate reply to any of the letters. Under Article 11.4 of the Convention, Italy had three months from 1st July, 2003, in which to reply the request. That period expired on 1st October 2004. The Article provides that:
“Failure to act within that period shall be tantamount to accepting the claim.”
Accordingly, on 22nd December, 2003, the United Kingdom authorities informed the Italian authorities that unless a response was received within a week, Italy would be deemed to have accepted responsibility under Article 11.4.[5]As I have said, on 13th January 2004 the appellant’s application for asylum was certified as unfounded on third country grounds. On 22nd January acceptance of responsibility for the appellant’s claim was received from the Italian authorities.[6]Article 11.5 of the Dublin Convention provides that:
“Transfer of the applicant for asylum from the Member State where the application was lodged to the Member State responsible must take place not later than one month after acceptance of the request to take charge or one month after the conclusion of any proceedings initiated by the alien challenging the transfer decision if the proceedings are suspensory.”
It is the breach of that provision which forms the basis for the appellant’s claim for judicial review. On 29th February, 2004, beyond the period of one month, the appellant was served with notice of the decision to remove him to Italy, and he was detained. On 5th March removal directions were set. The present proceedings were then commenced. On 12th July, 2004, the appellant was granted permission to appeal and a stay of execution.[7]The Dublin Convention, known as Dublin 1, is headed:
“Determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Community.”
It was signed on the 15th June, 1990 and was subsequently ratified by all Member States. It was designed to lay down a regime as between the Member States for taking responsibility for processing claims for asylum when there might be a dispute between two or more States as to where responsibility lay. There is no dispute in this case that Italy is the State having first responsibility for examining the Appellant’s application for asylum because Italy was the first country entered by the appellant.[8]Article 11 provides:
“1. If a Member State with which the application for asylum has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any case within the six months following the date on which the application was lodged, call upon the other Member State to take charge of the applicant. If the request that charge be taken is not made within the six month time limit, responsibility for examining the application for asylum shall rest with the State in which the application was lodged. 2. The request that charge be taken shall contain indications enabling the authorities of that other State to ascertain whether it is responsible on the basis of the criteria laid down in this Convention. 3. The State responsible in accordance with those criteria shall be determined on the basis of the situation obtaining when the applicant for asylum first lodged his application with a Member State. 4. The Member State shall pronounce judgment on the request within three months of receipt of the claim. Failure to act within that period shall be tantamount to accepting the claim. 5. Transfer of the applicant for asylum from the Member State where the application was lodged to the Member State responsible must take place not later than one month after acceptance of the request to take charge or one month after the conclusion of any proceedings initiated by the alien challenging the transfer decision if the proceedings are suspensory.”
[9]Article 3 provides:
“1. Member States undertake to examine the applications of any alien who applies at the border or in their country to any one of them for asylum. 2. That application shall be examined by a single Member State which shall be determined in accordance with the criteria defined in this Convention. The criteria set out in Articles 4 to 8 shall apply in the order in which they appear. 3. That application shall be examined by that state in accordance with its national laws and its international obligations. 4. Each Member State shall have the right to examine an application for asylum submitted to it by an alien, even if such examination is not its responsibility under the criteria defined in this Convention, provided that the applicant for asylum agrees thereto. The Member State responsible under the above criteria is then relieved of its obligations, which are transferred to the Member State which expressed the wish to examine the application. The latter State shall then inform the Member State responsible under the said criteria if the application has been referred to it.”
[10]The criteria referred to in Article 3(2) are then set out in Articles 4 to 8, dealing with issues such as family members, valid residence permits or visas and other special circumstances. Article 10 lays down the obligations of the Member State responsible for examining the application for asylum.[11]It was and is common ground between the parties that until the coming into force of Council Regulation (EC) No. 343/2003 of 18th February 2003 the Dublin Convention had not been incorporated into domestic law. In Zequiri v Secretary of State for the Home Department (CA) [2002] IMM AR 42 Lord Phillips MR summarised the position as follows:
“The provisions as to time in the Dublin Convention are designed to govern the relationship between the parties to it, not to confer rights on applicants for asylum. In the second place the Dublin Convention does not form part of our domestic law and cannot govern the manner in which the 1996 Act operates.”
[12]On behalf of the appellant it is submitted that the Dublin Convention was given direct effect in domestic law by the Regulation, that he is entitled to rely upon Article 11(5) and that, accordingly, the responsibility for determining his asylum claim rests with the United Kingdom.[13]The Regulation of 18th February 2003, is headed as “Establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national.” The preambles make it clear that the objective of the regulation is over a period of time to harmonise the asylum policies of members of European Union. The distinction made between criteria and mechanisms is relevant to the decision in this case.[14]Chapter II sets out General Principles, and Article 3 provides:
“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.”
Chapter III then sets out a “hierarchy of criteria”, dealing with family members, holders of visas or residence documents and the like.[15]Chapter V is headed:
“Taking charge and taking back”, and Article 17 provides “1. Where a Member State with which a Member State for asylum has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any case within three months of the date on which the application was lodged within the meaning of Article 4(2) call upon the other Member State to take charge of the applicant. Where the request to take charge of an applicant is not made within the period of three months responsibility for examining the application for asylum shall lie with the Member State in which the application was lodged.”
[16]Article 19 lays down various requirements placed on both the requested Member State and the requesting Member State, such as notification to the applicant of the decision, setting out grounds upon which the decision is based, details of the time limit for carrying out the transfer, and means of travel. Article 19(2) provides that the decision may be subject to an appeal or review. Article 19(3) provides that the transfer of the applicant from one State to the other shall be carried out “as soon as practicably possible and at the latest within six months of acceptance of the request that charge be taken or of the decision on an appeal or review where there is a suspensive effect”.[17]Article 19(4) provides:
“Where the transfer does not take place within the six months time limit, responsibility shall lie with the Member State in which the application for asylum was lodged. This time limit may be extended up to a maximum of one year if the transfer could not be carried out due to imprisonment of the asylum seeker or up to a maximum of eighteen months if the asylum seeker absconds.”
Accordingly, the regulation makes provision for consequences to follow in those circumstances.[18]Chapter VII is headed:
“Transitional provisions and final provisions.”
Article 29 provides:
“This Regulation shall enter into force on the 20th day following that of its publication in the Official Journal of the European Union. It shall apply to asylum applications lodged as from the first day of the sixth month following its entry into force and from that date, it will apply to any request to take charge of or to take back asylum seekers, irrespective of the date on which the application was made. The Member State responsible for examination of an asylum application submitted before that date shall be determined in accordance with the criteria set out in the Dublin Convention.”
Then at the conclusion this appears:
“This Regulation shall be binding in its entirety and directly applicable in the Member States in conformity with the Treaty establishing the European Community.”
The Regulation in fact came into force on the 17th March 2003. “This Regulation shall be binding in its entirety and directly applicable in the Member States in conformity with the Treaty establishing the European Community.” The Regulation in fact came into force on the 17th March 2003.[19]The Appellant lodged his application for asylum in the transitional period between the entry into force of the Regulation and the six month period set out in Article 29 of the Regulation which requires the Member State during that period to determine the application “in accordance with the criteria set out in the Dublin Convention”. It is common ground between the parties and settled law that prior to the coming into force of the Regulation the Dublin Convention had not been incorporated into domestic law and gave no rights to an individual claimant. Mr Bedford submitted to the Judge and to this Court that the Dublin Convention is given direct effect in its entirety during its transitional period, that, accordingly, Article 11(5) was given direct effect, and because the arrangements to transfer the Appellant were not made within the one month period, he is entitled to have his claim to asylum determined in this country.[20]Mitting J rejected the claim. In his judgment he said:
“26. I prefer to consider, first of all, and as my reason for determining this claim, [the Secretary of State’s] alternative submission that the last sentence of Article 25 does have direct but limited effect. In my view that submission is clearly right. What the last sentence of Article 29 provides is merely that the Member State responsible for the examination of an asylum application submitted in the relevant period must be determined in accordance with the criteria set out in the Dublin Convention, that is to say, in accordance with Articles 4 – 8 of that Convention….. 27. What I cannot read into the words of the last sentence of Article 29 is that the timing and default mechanisms in Article 11 which are not criteria, should have direct effect. In my view, express words would be required for that surprising conclusion to emerge from that Regulation. It would presuppose that the Member States in the Council would have decided to bring into effect a convention which, certainly in this country, had no direct effect beforehand, simply by a single sentence in what is obviously a transitional provision. 28. Such a method of legislation would be unusual, and while not impossible by express words, is certainly so unlikely as to be rejected as a viable construction merely by implication or by a side-wind. The words in the last sentence of Article 29, in my view, mean, and mean no more than, at the most, that the criteria set out in Articles 4 – 8 of the Dublin Convention have direct effect: and nothing else. The Claimant does not claim that the criteria set out in those Articles have not been complied with. His claim to review the decision of the Defendant must therefore fail.”
[21]Mr Bedford criticises the Judge’s reasoning. He says, correctly, that it is common ground that Articles 4 – 8 (the criteria) have direct effect, and that in certain circumstances (for example Articles 11(1) and 19(1) consequences follow a failure by the receiving State and give rights to an Applicant. He submits, therefore, that it would be illogical if consequences did not follow from a breach of Article 11(5), and give rights to the asylum seeker. Otherwise, Mr Bedford submits, he is deprived of his rights.[22]I do not accept those submissions. Both the Convention and the Regulation draw a clear distinction between criteria and mechanisms, and both provide for the circumstances in which consequences follow a breach. The distinction between criteria and mechanisms is drawn in the preamble. Article 3(2) defines the criteria as those set out in Articles 4 – 8. Article 8 refers to the criteria that precede that Article. Article 13 of the Regulation similarly refers to the criteria which precede that Article, and then in subsequent Chapters provision is made for the carrying into effect of the Regulation (the equivalent of the mechanisms) with consequences to follow where consequences are intended to follow. There is a stark contrast between the transfer provisions in the Convention and in the Regulation concerning transfer from the requesting State to the requested State, the Convention not providing for consequences to follow a breach, whereas the latter does provide for consequences, but with quite different time limits.[23]Mr Bedford relies for his submission on the wording of Regulation 29, the transitional provision. But the Article requires that the Member State shall determine the application in accordance with the criteria set out in the Dublin Convention. There is no reference in Article 29 to the mechanisms. In my judgment, it would be extraordinary if Article 29 were construed as meaning that a breach of any of the mechanisms contained in the Dublin Convention (and in fact it would have been impossible for the United Kingdom to comply with the time requirements of Article 11(5) in this case) resulted in an Applicant having the right to have his asylum claim resolved in the requesting Member State. The Regulation does not so state, the ordinary construction of the Regulation does not so suggest, and in my view it would require clear wording to produce such a strange result. Mr Bedford’s construction, if correct, would have very odd results. For example, if an Applicant suffered from acute appendicitis and could not travel for a month after acceptance of the request it would follow that the responsibility for determining his application would shift from one state to the other.[24]Accordingly, I conclude that Mitting J came to the correct conclusion and that Regulation 29 does not give direct effect to the provisions of Article 11(5) conferring rights on the Appellant, and I would dismiss this appeal on that ground.[25]However, even if that should be wrong, it would not avail the Appellant who wishes to have his application for asylum resolved in this country. As I have already said, Article 11(1) of the Convention provides for consequences to follow if there is a breach of that provision. Article 11(5) does not. Accordingly if Article 11(5) gave rights to the Applicant, his right would be to insist that he should be transferred within the time limit to Italy for his claim to be dealt with in that country. Article 11(5) could not possibly be construed so that if there is a breach of the time requirements the effect is to transfer the responsibility for resolving the claim from the requested to the requesting Member State, in this case Italy to the United Kingdom.[26]For those reasons I would dismiss this appeal.

Lord Justice Latham:

[27]I agree. The only concern that I have is that this construction, which seems to me to be inevitable, would appear to result in a lacuna in the sense that if the criteria, which are directly applicable are met, there would appear to be no means of giving effect to the consequences. But that ignores the operation of ordinary principles of administrative law. In the present case the criterion which was met was that Italy was the first country in the European Union which the appellant had entered. Italy was accordingly the state responsible for examining the application for asylum pursuant to Article 6 of the Convention. Accordingly the only “right” which could be relied upon by the appellant as a result of the relevant provisions of the Convention having direct affect was that Italy should determine his claim. A failure on the part of the United Kingdom authorities to give effect to that “right” would justify an application to the court. But that application would be directed to securing his “right” to have the asylum application dealt with in Italy, not in the United Kingdom. It is unnecessary, therefore, to strain the words of the directive in order to give effect to its terms; and in any event, it is of no assistance to the appellant in seeking to have his asylum application dealt with in the United Kingdom, which is the purpose of these proceedings.

Lord Justice Chadwick:

[28]Sir Swinton Thomas has set out in his judgment the relevant facts and the applicable provisions of the Dublin Convention of 15 June 1990 and the Council Regulation of 18 February 2003. It is unnecessary for me to rehearse those matters. I gratefully adopt the account which he has given. Like him I would dismiss this appeal. But, because I have reached that conclusion by a somewhat different route, I must add some observations of my own.[29]Article 29 of Council Regulation (EC) No 343/2003 had the effect that the Regulation came into force on 17 March 2003 and was to be applied to asylum applications lodged as from 1 September 2003. But the article went on to provide transitional provisions:
“ The Member State responsible for the examination of an asylum application submitted before that date shall be determined in accordance with the criteria set out in the Dublin Convention.”
In the present case the asylum application was submitted on 1 July 2003. It is common ground that, by reason of the transitional provisions in article 29 of the Regulation, the application fell to be dealt with under the Convention. And it is common ground that, until the Regulation came into force, the Convention had not been incorporated into domestic law and did not give rights directly enforceable in the United Kingdom courts – Zequiri v Secretary of State for the Home Department [2002] IMM AR 42.[30]The Regulation concluded with the sentence:
“This Regulation shall be binding in its entirety and directly applicable in the Member States in conformity with the Treaty establishing the European Community.”
The argument before the judge, and on this appeal, turned on the meaning and effect of that final sentence in the Regulation when applied to the transitional provisions in article 29. It is clear that that final sentence gives the Regulation direct effect in relation to applications lodged after the end of the transitional period. The question is what effect (if any) does it have in relation to applications lodged during the transitional period.[31]Counsel for the Home Department had contended before the judge that that final sentence did not give direct effect, during the transitional period, to any of the provisions of the Dublin Convention. The position remained as it was. The judge rejected that contention and – although it was renewed in the respondent’s notice as originally served on behalf of the Department as an additional ground upon which to uphold the judge’s order – it was not pursued in this Court.[32]In this Court it was accepted on behalf of the Home Department – as the judge had held – that that final sentence in the Regulation did give direct effect, in relation to applications lodged during the transitional period, to the provisions in articles 4 to 8 of the Convention. The basis for that view is that that final sentence in the Regulation requires direct effect to be the last sentence of article 29 - that the Member State responsible for the examination of an asylum application submitted during the transitional period “shall be determined in accordance with the criteria set out in the Dublin Convention”. And, in that context, “the criteria set out in the Dublin Convention” means, and means only, the criteria set out in articles 4 to 8 of the Convention.[33]There is powerful textual support for that view. There is a clear distinction drawn between “criteria” and “mechanisms” in the Regulation. The criteria for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national are set out in Chapter III of the Regulation – see article 5.1, read with article 1 and article 3.1. Chapter III provides a “Hierarchy of Criteria” by which the Member State responsible for examining the application is to be determined. The mechanisms required to ensure that the Member State whose responsibility it is to examine an asylum application “takes charge” of the asylum seeker are set out in Chapter V (Taking Charge and Taking Back). The same pattern is found in the Convention. Article 3.2 requires an asylum application to be examined by a single Member State “which shall be determined in accordance with the criteria defined in this Convention” and “The criteria set out in Articles 4 to 8 shall apply in the order in which they appear”. Article 10 of the Convention requires the Member State “responsible for examining the application for asylum according to the criteria set out in the Convention” to take charge, under the conditions laid down in article 11, of an applicant who has lodged an application for asylum in a different Member State. There is obvious force in the judge’s view that the reference in article 29 of the Regulation to “the criteria set out in the Dublin Convention”, is to “the criteria” set out in articles 4 to 8 of the Convention – those being the criteria by which the Member State responsible for examining the asylum application is to be determined for the purposes of the Convention.[34]Nevertheless, as it seems to me, there is force, also, in the submission, advanced by counsel on behalf of the appellant, that – if (as the Regulation requires in the case of applications lodged during the transitional period) direct effect is to be given to articles 4 to 8 of the Convention – it is necessary to read article 29 of the Regulation in such a way as to avoid a result in which the asylum seeker is denied directly effective rights by a failure by the Member State (State A) with which the application has been lodged to implement the mechanisms which are intended to lead to the Member State responsible for examining the application according to the criteria set out in articles 4 to 8 of the Convention (State B) taking charge. To illustrate the point, suppose an asylum seeker, with relevant family members in State B, who has lodged an application in State A during the transitional period. He is entitled to have his application examined by State B – article 4 of the Convention. But, if that right is to be effective:(i) State A must call upon State B to take charge of the applicant – article 11.1 of the Convention;(ii) State B must accept the obligation to take charge – articles 10.1(a) and 11.4; and(iii) the applicant must be transferred from State A to State B – article 11.5.[35]For my part, I would be prepared to hold, in a case in which the point arose, that it is necessary to read article 29 of the Regulation in such a way as give the asylum seeker a direct right to require State A to call upon State B to take charge; and (if State B accepts the obligation to take charge) to transfer him to State B. That is to recognise that article 29 of the Regulation confers on asylum seekers in transitional cases direct rights – under articles 11.1 and 11.5 of the Convention – which are comparable to those conferred by articles 17.1 and 19.3 of the Regulation itself in post-transitional cases. But that does not lead to the conclusion that, in a transitional case where the asylum seeker has not been transferred from State A to State B within the period of one month for which article 11.5 of the Convention provides, he has, thereafter, either a right not to be transferred or a right to have his application examined by State A.[36]The overriding requirement under the Convention is that an asylum seeker shall have his application examined by a single Member State, to be determined in accordance with the hierarchy of criteria set out in articles 4 to 8. Article 8 places that responsibility on “the first Member State with which the application for asylum is lodged” in a case, but only in a case, where “no Member State responsible for examining the application for asylum can be designated on the basis of the other criteria listed in this Convention”. Failure by one Member State (State A) to transfer an asylum seeker (within the prescribed time) to a Member State (State B) which is responsible for examining his application on the basis of criteria set out in articles 4 to 7 does not have the effect that (at the end of the prescribed time) State B is no longer responsible for examining the application on the basis of those criteria. Nor does failure to transfer within the prescribed time have the effect that, at the end of that time, responsibility for examining the application passes to State A. There is nothing in article 11 – or elsewhere in the Convention – which corresponds to article 19.4 of the Regulation.[37]It may well be (as I am inclined to think) that the appellant has a directly effective right, conferred by article 11.5 of the Convention read with article 29 of the Regulation, to be transferred to Italy. But that, of course, is not a right which he seeks to enforce. What he does not have, in my view, is a right, conferred by article 11.5 or any other article of the Convention, not to be transferred to Italy against his wishes. It is for that reason that I would dismiss this appeal.

ORDER:

[1]Application for extension of time to file a respondent’s notice and to amend the respondent’s notice granted.[2]Appeal dismissed.[3]Respondent seeks no order as to costs, save that the appellant’s costs be subject to a detailed community legal services funding assessment.[4]Application for permission to appeal to the House of Lords dismissed and associated application for a stay of the appellant’s removal to Italy in the meantime refused. (Order does not form part of approved judgment)

Cited in 4 later judgments