AA (Somalia) v Secretary of State for the Home Department [2006] EWCA Civ 1540

Case No C4/2006/0372[2006] EWCA Civ 1540
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
(MR JUSTICE TOULSON)
Venue Royal Courts of JusticeDate Monday, 16 th October 2006
Strand
London, WC2
B E F O R E:
LORD JUSTICE LAWS
LORD JUSTICE MAURICE KAY
MR JUSTICE BODEY
Between
AA (Somalia)Appellant- v -
Between
SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent
(DAR Transcript ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
MR M S GILL QC & MR E FRIPP (instructed by Messrs South West Law) appeared for Appellant.MR A McCULLOUGH & MR A PAYNE (instructed by Treasury Solicitor) appeared for Respondent.
J U D G M E N T

LORD JUSTICE LAWS:

This

[1]is an appeal brought with permission granted by Maurice Kay LJ on 5 May 2006 against the refusal by Toulson J on 25 November 2005 to grant the appellant’s renewed application for permission to seek judicial review of a decision of the Secretary of State made on 11 May 2005. By that decision, the Secretary of State declined to defer directions he had set on 5 May 2005 for the applicant’s removal to Italy, and certified as clearly unfounded the applicant’s claim that his removal to Italy would violate his rights under the European Convention on Human Rights. Mr George Bartlett QC sitting as a deputy High Court judge had earlier on 24 August 2005 refused judicial review permission on consideration of the papers.[2]On 11 April 2006, Keene LJ also on the papers refused permission to appeal Toulson J’s order. That application was restored in court before my Lord, Lord Justice Maurice Kay, who granted permission to appeal to this court. My Lord did not exercise the power conferred by Civil Procedure Rule 52.15(3) to grant judicial review permission. It is, however, clear from the terms of my Lord’s judgment (see in particular paragraph 15) that he contemplated that this court would deal with the substance of the matter rather than send it back to the Administrative Court in the event that judicial review permission were granted. That is the course we will take.[3]The case primarily concerns the construction of two provisions contained in Council Regulation 243/2003 of 18 February 2003 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 regulation is commonly referred to as Dublin II and I shall so refer to it. It replaced an earlier measure, Dublin I, which had addressed the same subject matter. However Dublin I was a treaty or convention, and thus at any rate as a matter of English law only had effect on the international plane. It was not binding and enforceable in domestic law. Dublin II by contrast as a Council Regulation is directly applicable in the legal systems of the Member States. The provisions of Dublin II with which we are concerned are Article 5(2) and Article 2(I)(iii) but it is convenient to set out the facts before coming to the legislation. I should add at this stage that there is a fresh point very recently raised upon a time limit contained in Article 20 of Dublin II. I shall explain that later.[4]The applicant is a national of Somalia. He claimed asylum in Italy in April 2003. He told the Italian authorities that his date of birth was 23 March 1982. According to the Secretary of State he said nothing about any family members of his living in the United Kingdom. However in a letter of 13 October 2006 his solicitors state, no doubt on instructions, that in fact he told the Italian authorities he had a sister here. The letter also says that after he had applied for asylum in Italy he went to Sweden and applied there but was returned to Italy.[5]At all events, while his application in Italy remained undetermined he entered the United Kingdom unlawfully with the help of an agent. He arrived here on 8 May 2004 at Stansted Airport. On the same day he made a claim for asylum. He had no documents. He stated untruthfully that he had never previously claimed asylum and had travelled to the United Kingdom from Ethiopia with a stop-over of one and a half hours in an unknown country. He gave his date of birth to the UK authorities as 21 January 1990. On that basis he would then have been 16 years of age. His fingerprints were taken, and a positive match on what is called the Eurodac Automated Fingerprint Database led to the discovery of his earlier asylum application in Italy. Notwithstanding the discrepancy with the date of birth he had given the Italian authorities, the Secretary of State has dealt with the case and is content that the court deals with the case on the basis that he was in fact born on 21 January 1990 as he claimed on arrival here.[6]The appellant was granted temporary permission and shortly afterwards was placed by the Essex Social Services with his half-sister Mrs A, who lives in Bristol. It seems he also has an elder full brother, Mr A; he too lives in Bristol, and the appellant has remained in Bristol since being placed there, living either with his half-sister or his brother. Mrs A has made a statement saying she is in charge of caring for him.[7]On 15 July 2004 the Secretary of State made a request to Italy, as the Member State where the appellant had first claimed asylum, to take him back and continue processing his outstanding application under the material provisions of Dublin II. On 7 August 2004 the Italian authorities were informed that having failed within two weeks to respond to that request, they were deemed under Article 20.1(c) of Dublin II, to which I will come, to have accepted responsibility for the processing of the appellant’s asylum claim.[8]On 16 November 2004 Italy formally accepted responsibility under Dublin II for processing the appellant’s claim. Then, as I have indicated, on 5 May 2005 the Secretary of State issued directions for the appellant’s return to Italy. On 10 May solicitors wrote on his behalf contending that because the appellant was a minor living with his half-sister, who was a refugee in the United Kingdom and was de facto his guardian, the United Kingdom and not Italy was the Member State responsible for processing the asylum claim.[9]In further representations it was also asserted that the appellant’s removal to Italy would violate his right to respect for his family and/or private life under Article 8 of the European Convention on Human Rights. The Secretary of State responded by the decision letter under challenge dated, as I have said, 11 May 2005. He stated that the half-sister was not the appellant’s “legal guardian”. That engages one of the provisions of Dublin II which we must scrutinise, namely Article 2(I)(iii), as I shall shortly explain.[10]The Secretary of State also rejected the Article 8 claim and issued a certificate under section 93 of the Nationality Immigration and Asylum Act 2002 to the effect that the claim was clearly unfounded. The effect of the certificate, of course, is that the appellant’s right of appeal against the decision on Article 8 was only exercisable from abroad. I should say at this stage that on this appeal we are not concerned with the Article 8 claim. Toulson J on 5 May 2006 rejected the proposed challenge to the section 93 certificate stating that he could not: “… see any basis on which it could rationally be found that a removal of this claimant to Italy for the processing of his asylum claim would be a disproportionate measure and would contravene his Article 8 rights.” (paragraph 11)[11]My Lord, Lord Justice Maurice Kay, held at paragraph 12 of his judgment that Toulson J’s view was inevitably right, on the basis that given his rejection of the appellant’s arguments on the construction of Dublin II the Secretary of State’s decision would stand, so that the appellant would be removed but to Italy and not to Somalia.[12]Accordingly the appellant has no permission to appeal to this court on the Article 8 part of the case and we are only concerned with the points on Dublin II and the additional point which I have yet to describe.[13]In order to explain how the points on the construction of Dublin II arise, I should set out the following provisions in Dublin II itself. The second recital recalls the agreement at Tampere:
“… to work towards establishing a common European Asylum System …”
Then:
“3) The Tampere conclusions also stated that this system should include, in the short term, a clear and workable method for determining the Member State responsible for the examination of an asylum application. “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 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. “12) With respect to the treatment of persons falling within the scope of this Regulation, Member States are bound by obligations under instruments of international law to which they are party. “15) The Regulation observes the fundamental rights and principles which are acknowledged in particular in the Charter of Fundamental Rights of the European Union (3). In particular, it seeks to ensure full observance of the right to asylum guaranteed by Article 18.”
[14]Article 2 of Dublin II is in English law parlance the interpretation section. I should read the following sub-paragraphs:
“h) ‘unaccompanied minor’ means unmarried persons below the age of eighteen who arrive in the territory of the Member States unaccompanied by an adult responsible for them whether by law or by custom, and for as long as they are not effectively taken into the care of such a person; it includes minors who are left unaccompanied after they have entered the territory of the member States; “i) ‘family members’ means insofar as the family already existed in the country of origin, the following members of the applicant’s family who are present in the territory of the Member States: “(j) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship, where the legislation or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to aliens; “k)the minor children of couples referred to in point (i) or of the applicant, on the condition that they are unmarried and dependent and regardless of whether they were born in or out of wedlock or adopted as defined under the national law; “l)the father, mother or guardian when the applicant or refugee is a minor and unmarried; …”
Then Article 3(i):
“Member States shall examine the application of any third country national who applies at the border or in their territory to anyone 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.”
I must read part of Article 4(iii):
“For the purposes of this Regulation, the situation of a minor who is accompanying the asylum seeker and meets the definition of a family member set out in Article 2, point (i), shall be indissociable from that of his parent or guardian …”
[15]Chapter 3 of Dublin II starts with Article 5. The chapter is headed, “Hierarchy of Criteria”. I should set out Articles 5 to 7. “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. “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. “Article 7 “Where the asylum seeker has a family member, regardless of whether the family was previously formed in the country of origin, who has been allowed to reside as a refugee in a Member State, that Member State shall be responsible for examining the application for asylum, provided that the persons concerned so desire.”[16]I will also read Article 15 paragraph 1, 3 and 4:
“Article 15 “1. Any Member State, even where it is not responsible under the criteria set out in this Regulation, may bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. In this case that Member State shall, at the request of another Member State, examine the application for asylum of the person concerned. The persons concerned must consent. “3. If the asylum seeker is an unaccompanied minor who has a relative or relatives in another Member State who can take care of him, or her, Member States shall if possible unite the minor with his or her relative or relatives, unless this is not in the best interests of the minor. “4. Where the Member State thus approached accedes to the request, responsibility for examining the application shall be transferred to it.”
[17]Article 16(1)(c):
“The Member State responsible for examining an application for asylum under this Regulation shall be obliged to:… “(c) take back, under the conditions laid down in Article 20, an applicant whose applicant is under examination and who is in the territory of another Member State without permission.”
[18]Finally, Article 20, paragraph 1(c) and (d) and also Article 20, paragraph 2:
“1. An asylum seeker shall be taken back in accordance with Article 4 (5) and Article 16 (1) (c), (d) and (e) as follows: … “c) where the requested Member State does not communicate its decision within the one month period or the two weeks period mentioned in subparagraph (b), it shall be considered to have agreed to take back the asylum seeker; d) a Member State which agrees to take back an asylum seeker shall be obliged to readmit that person to its territory. The transfer shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request that charge be taken by another Member State or of the decision on an appeal or review where there is a suspensive effect; “2. 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 or the examination of the application 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.”
[19]The impact of these provisions on the facts of the present case will on the face of it be readily apparent. Given that the appellant falls to be treated as a minor on the basis of the date of birth he put before the authorities here, the United Kingdom and not Italy is responsible for examining his asylum application if, but only if, a “member of his family is legally present” here: Article 6, first sub-paragraph. Otherwise, Italy is responsible: Article 6, second sub-paragraph, read with Article 5(2). His half-sister and his brother are certainly legally present here, but siblings or half-siblings are not within the definition of, “family members” given in Article 2(i). The appellant can only rely on the first sub-paragraph of Article 6 so as to have his asylum claim determined here, if his half-sister or his brother fall to be regarded as his “guardian” within Article 2(i)(iii).[20]The issue then on Article 2(i)(iii) is what is meant by “guardian”, a term not further defined in Dublin II. Does it mean a person who in fact has the care of the minor without any requirement of formality? That is the contention of Mr Gill QC for the appellant. Or does it mean a person who is the minor’s guardian in some formal sense, the status of guardian being conferred by law or custom? That is the contention of Mr McCullough for the Secretary of State.[21]But, there is another issue which may be thought logically to come first. What is the point in time by reference to which the Article 6 question, whether a family member (here putatively a guardian) is present in a particular Member State (here the United Kingdom) is to be decided? That engages Article 5(2) and the meaning of the phrase: “…on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State”.[22]Is the reference to the objective situation which in fact obtained, whether or not it had been discerned or revealed at the time when the first asylum application was lodged? That is Mr Gill’s contention. In that case it would make no difference that in Italy nothing was said about the half-sister or the brother, if that is what happened. Or does it mean the situation so far as it was apparent upon the examination of the application in the Member State where the first asylum claim was lodged? That is Mr McCullough’s contention. In that case the Secretary of State says it makes all the difference that the circumstances relating to the sister or brother were not discerned.[23]Both of these issues were considered by Wilson J, as he then was, in R (G) v Secretary of State [2004] EWHC Admin 2848. His decision was appealed to this court ([2005] EWCA Civ 546) but the Court of Appeal’s judgment principally concerned human rights issues and did not address Wilson J’s reasoning on Articles 5(2) and 2(i)(iii).[24]Before turning to Wilson J’s judgment, I should notice in passing the fact that Toulson J in this case appears to have regarded himself as bound by Wilson J’s decision. Mr Gill certainly asserts that he was so bound. That is wrong. The High Court is not bound by its own previous decisions though it will treat them with a high degree of respect: see R v Greater Manchester Coroner, ex parte Tal [1984] 3 All ER 240, 250.[25]I turn then to the Article 5(2) issue, and first to Wilson J’s reasoning in G. It is necessary to set out paragraphs 27 to 29 of his judgment. “… Mr Payne contends that, under the Convention and now the Regulation, the screening process falls to be conducted only once and that, inasmuch as Italy has already completed it, an applicant cannot demand further consideration of the hierarchy of criteria, whether in the UK, Italy, or elsewhere. He argues that, subject only to the possible invocation by Italy of Article 15, to which I will turn in paragraph 34 below, the applicant's application for asylum may now be subject to substantive examination only by Italy. He submits that it would run counter to the policy behind the Regulation to allow an applicant who has become dissatisfied with the result of the screening process undertaken by one State to move to a second (or, so he postulates, perhaps even a third or fourth) State and, by reference to the purported revelation of further or different facts, to demand that the process be undertaken again. To this Mr Nicholson has one simple response, namely that no I amount of clever argument can justify the maintenance of a decision which, for whatever reason, has been made upon inaccurate data. “28. I hold that the submissions of Mr Payne set out in paragraph 27 above are correct. The fourth recital to the Regulation describes its objective as being:
‘… in particular [to] make it possible to determine rapidly the Member State responsible [for the substantive examination of the application for asylum].’ “Article 5.2, set out in paragraph 23 above, requires the screening process to ‘be determined on the basis of the situation obtaining when the asylum seeker first ledged his application with a Member State.’
Mr Nicholson argues that ‘the situation obtaining’ means ‘the situation truly obtaining, whether or not then discernible’. But I disagree with him. In my view the words indicate that the process must be undertaken by reference to the upshot of an enquiry conducted by the Member State with which the application for asylum is first lodged and at the time when it is 1odged. “29. Article 3, relied on by both counsel, is, in my view, irrelevant to this argument because it refers to the obligation to conduct the substantive examination of the application for asylum rather than to conduct the screening process, Highly relevant, however, is the mechanism for ‘taking back’, to which Articles 4.5, 16 and 20 refer. This present case is an example of the mechanism: for under Articles 16 and 20 the UK has required Italy to take the claimant back. Articles 4, 5 and 16. l (c) address the situations in which an applicant for asylum moves to a second member State at a time when a first member State is conducting either the screening process or the substantive examination of her or his application; and in each such situation they oblige the first State to take the applicant back. In my view the mechanism is inconsistent with the existence of my power, still less a duty, on the second State itself to conduct the screening process. I have already explained that the claimant is appealing against the decision, reflected in the letter dated 26 November 2003, that Italy should take her back but that, unless this claim succeeds, the pendency of the appeal will not prevent her removal to Italy.

(e) :

“This decision [by one Member State that the applicant be taken back by another] may be subject to an appeal or a review. Appeal or review concerning this decision shall not suspend the implementation of the transfer except when the c o w or competent bodies so decide in a case by-case basis if the national legislation allows for this.’”
[26]I find this reasoning persuasive. Mr Gill, however, advances a number of arguments which he says go the other way. First, he submits that a once-only examination of the criteria for deciding which is the Member State responsible for examining an asylum claim is potentially unreliable because it would exclude from consideration facts which are subsequently discovered. Secondly, it is submitted that for various reasons enumerated at paragraph 38 of Mr Gill’s skeleton, the risk which Wilson J identified (judgment paragraph 27) of the serial revelation of different facts in different jurisdictions is exaggerated or of limited significance. Thirdly, it is said that Dublin II itself emphasises the importance of family unity: see for example recital 6 of Article 6; yet on Wilson J’s approach family unity may be frustrated by chance or inadvertence. I should say that this last point was a major theme of Mr Gill’s oral submissions made to us this morning.[27]However, as the Secretary of State submits, first the reliability of the original assessment must largely depend on what the claimant himself says to the State where he first applies. An honest claimant, even if he is an accompanied minor, will generally give the information required for a reasonable assessment of the situation. In this case it remains unexplained why the appellant on arrival in Italy on his own case lied about his date of birth. There is, as I have indicated, an issue as to whether he said anything about his sister.[28]Secondly, the Secretary of State submits that the risk of different tales being told in different places at different times is a patent one, certainly in the case of claimants without a genuine asylum claim. Such claimants are not interested in the rapid determination of the application they make. They are on the contrary likely to be interested in spinning it out.[29]As for family unity, for my part I would accept that that very important interest is advisedly protected by the mechanisms of Article 15. In any event it is I think subsidiary to the other goals of Dublin II: see the terms of the Sixth Recital which I have set out. However it would be wrong in any way to diminish its importance. Article 15 provides a basis for considering information which comes to light after application of the criteria by the Member State first approached. But as Maurice Kay LJ said on appeal in G [2005] EWCA Civ 546 paragraph 25:
“The effect of Article 15 is not to confer a freestanding substantive right on individual applicants. Rather, it is to regulate the relationship between two or more Member States.”
[30]That, with respect, provides the context in which in my judgment Dublin II has advisedly located consideration of new found or lately discovered facts. It is open to the appellant to submit to the Italian authorities that they should act under Article 15.[31]Those then are in broad canvass the points upon which issue was joined in the skeletons. However they lead to what is perhaps a deeper point, which has been elaborated by Mr Gill in the course of his submissions this morning. Mr Gill’s argument, and it is put as a prime feature of his case, is that when new facts or alleged facts emerge when the appellant arrives in a second Member State, the second Member State at least may and perhaps must examine them. The provisions of Dublin II do not prevent there being a second screening process, as Mr Gill puts it.[32]In my judgment, first, there is nothing in Dublin II to provide for such a procedure. The structure – or, in the vogue phrase, the architecture of Dublin II is by contrast entirely consonant with the establishment of a single stage decision-making process. Mr Gill’s submission would in my judgment, if accepted, gravely undermine the plain goal of Dublin II to ascertain rapidly which single Member State is responsible for dealing with the claim. The notion that there be a single process seems to me to be inherent in the provisions contained under “Hierarchy of Criteria” in chapter 3, and also specifically in the provisions relating to “taking back” in Articles 16 and 20 which I have read.[33]For these reasons, then, I would uphold the Secretary of State’s construction of Article 5(2).[34]I turn to Article 2(i)(iii), the meaning of “guardian”. It is acknowledged on all hands that in order to succeed in this judicial review claim, the appellant must carry the day both on Article 5(2) and on the construction of “guardian” in Article 2(i)(iii).[35]On that basis, my conclusion on Article 5(2), if my Lords agree with it, is dispositive of the appeal in the Secretary of State’s favour. But it is clearly right that we should consider the other issue as to the meaning of guardian in Article 2(i)(iii). Here, however, the appellant encounters a difficulty which was not at the forefront, at any rate, of the written arguments on this part of the case. The difficulty may be said to form something of a crossover between the argument on Article 5(2) and that on 2(i)(iii). Here it is: the relevant facts for the purposes of the application of the hierarchy of criteria must surely be those in existence at the time of the first claim, here the time of the claim made in Italy. The only question upon which the parties have been in contention is whether these relevant facts must at that time have come to light or not. In this case, on no basis, as it seems to me, was the appellant’s half-sister or brother his guardian when he made his claim in Italy. He was not then living with either of them or cared for by either of them.[36]Mr Gill has submitted this morning that the half-sister was in truth the appellant’s guardian even at the time he applied in Italy. He points to such facts (contained in a recent note) as the fact that his mother was dead; his father a displaced person in Ethiopia; the half-sister was formerly a member of the same household. But this is surely an impossible submission. The half-sister was not caring for the appellant when he applied in Italy. She was neither then a de facto carer or guardian, nor a guardian so established by law or custom.[37]It seems to me that Mr Gill cannot rely on events which indisputably only happened after he had “first lodged his application in a Member State”, unless that phrase, which appears in Article 5(2) as we have seen, could refer to his lodging a claim in any Member State even though he had already lodged one in another; and indeed Mr Gill so submits. He submits that the words are apt to refer to the making of his claim in the United Kingdom, albeit that the earlier claim had been made in Italy. That, too, in my judgment is an impossible position to take. Such a construction would entirely undermine the Dublin II goal of identifying a single Member State with responsibility to process any given claim. In addition, it does I think some considerable injury to the language of Article 5(2).[38]In the result, then, the United Kingdom is not competent under Dublin II to examine the appellant’s claim under Article 6 even on the appellant’s primary construction of Article 5(2), and indeed his construction of Article 2(i)(iii). The facts giving rise to the supposed guardianship are in any event outside the contemplation of Article 5(2) in the events which have happened.[39]But I should consider the case on Article 2(i)(iii) on its merits. Wilson J dealt with this at paragraph 33 of his judgment in G. He said:
“Instinctively I feel that the word ‘guardian’ connotes the external investment of a person with formal responsibility for a minor and that Mr Nicholson’s construction probably widens the application of Article 7 (and, for that matter, of Articles 6 and 8) far wider than the Council intended. Are my instincts valid? Two pointers embolden me to answer affirmatively. First, Article 12 of Commission Regulation No 1560/2003 (which lays down detailed rules for the application of the Regulation and which I will describe as ‘the Commission Regulation’) refers to a decision to entrust the care of a minor to a relative ‘other than the mother, father or legal guardian”
. Mr Nicholson submits that the difference reflected by the presence of the adjective ‘legal’ in Article 12 of the Commission Regulation, and by its absence in Article 2(i) of the (Council) Regulation is deliberate and significant. I hold, on the contrary, that it is most unlikely that the trio of persons collected together in each of the Articles are intended to be substantially different. Second, Article 2(h) of the (Council) Regulation defines an ‘unaccompanied minor’ as, so far as is relevant, a minor ‘unaccompanied by an adult responsible for them whether by law or by custom.’ In my view this notion of responsibility for a minor, invested in a person externally whether by law or by custom, is precisely the notion which is intended to be carried into the interpretation of the word ‘guardian’ in the following sub-paragraph.”[40]This also seems to me to be right. Mr Gill submits that the term “guardian” is to be assimilated in its meaning to another expression which is widely used in Community measures, namely a person “responsible for a minor whether by law or custom”. This expression is to be found in Council Resolution 97/C221/03 on Unaccompanied Minors who are Nationals of Third Countries; Council Directive 2003/9/EC, on Minimum Standards for the Reception of Asylum Seekers; and Council Directive 2004/81/EC, on the Issue of Residence Permits to Third Country Nationals in Certain Circumstances. For good measure, the expression is used by the Home Office itself in an asylum policy instruction.[41]In my judgment there are powerful considerations which support the view that guardian means a person in some sense formally constituted as such. First, Mr McCullough refers to Article 15. He says that the phrase “dependant relatives” appearing in Article 15(1) -- see also Article 15(3), relatives “who can take care of him or her” -- suggests that there is a difference or distinction between a dependant relative and a person who is in the charge of a guardian.[42]More substantially perhaps Article 4(3), which I have read, offers very considerable support for the view that a guardian must have a concrete formal status. The reason is that this sub-paragraph assimilates the refugee status of a minor accompanying an asylum seeker with the refugee status of his parent or guardian. For objective consequences of that kind to be attached by in the terms of Article 4(3) seems to me to suggest that guardian means something a good deal more than a person who has no more nor less than de facto care of a minor.[43]There is also the reference to the expression “legal guardian” in Article 12 of Commission Regulation 1560/2003, which perhaps I may be forgiven for not setting out. More important, I think, a central aim of Dublin II -- the aim of facilitating the speedy identification of the Member State responsible for processing an asylum claim on a clear objective basis -- would be quite seriously undermined if the term “guardian” had to be interpreted by reference only to the particular degree of care, the particular relationship, the particular pros and cons of what might be fluid family circumstances, in any particular case. All matters of that kind would, if I may use the expression, be in the frame if Mr Gill’s construction were right.[44]Mr McCullough submits that some degree of objective formality is also suggested as belonging to the notion “guardian” by the terms of Article 2(h), which I have read. He points to the expression “an adult responsible by law or by custom”. Indeed, for my part I have no difficulty in assimilating the notion of guardian to a person who is responsible for the minor by law or custom: on the footing, however, that custom in this context denotes a formal assumption of responsibility according to some external rule or practice whether it be traditional, cultural, tribal or other. Indeed that is I think the natural meaning of the term “custom” in the context of something said to arise “by law or custom”. Now, there may be a legal rule or there may be a customary rule. The sense of the expression is, however, not satisfied in my judgment merely by a set of individual circumstances in which one person has assumed the care of another without any such rule whatever.[45]For all those reasons I would uphold the Secretary of State’s construction of Article 2(i)(iii) as well as his construction of Article 5(2). In the circumstances I would dismiss the appeal and thus refuse judicial review permission, subject to the new point which I have mentioned and to which at last I now come. This has surfaced very late, and indeed my Lords and I were only made aware of it by a note put on our desks this morning which I think was drafted by Mr Gill’s junior, Mr Fripp.[46]The point arises in this way. As I have indicated, it was on 15 July 2004 that the Secretary of State made his request to Italy for the appellant to be taken back under Dublin II, and it was on 7 August 2004 that the Secretary of State put it to the authorities in Italy that because they had not responded to that request within two weeks they were deemed to have accepted responsibility. That was a reference to Article 20.1(c). I will not re-read it in its entirety, but it will be recalled that where there is no such response within the prescribed period the requested State “shall be considered to have agreed to take back the asylum seeker”. Then on 16 November 2004, and again I have dealt with this in introducing the facts, Italy formally notified its acceptance of responsibility under Dublin II for dealing with the appellant’s asylum claim.[47]On 5 May 2005 the removal directions were set.

(d) The words are:

“at the latest within six months of acceptance of the request that charge be taken by another Member State.”
[48]In those circumstances the consequences prescribed by Article 20.2, namely responsibility for dealing with the claim, lies with the requesting Member State. Thus, it is submitted that unless the claimant’s removal or transfer is carried out within the six-month period, the Member State that made the request must then take responsibility for the claim. Whether this argument is right or not depends on the point in time from which the six-month period runs.[49]The appellant’s argument is that it runs from the date at which Italy was deemed to have agreed to take back the asylum seeker under Article 20.1(c). That date was presumably two weeks after receipt of the request to Italy on 15 July 2004. If that is the correct terminus a quo for this time limit prescribed by Article 20.1(d), why then the removal directions of 5 May 2005 were indeed well out of time. Mr McCullough’s riposte is to submit that at any rate in a case where the deeming provision in 20.1(c) applies, there is a distinction drawn by Dublin II between the requested State’s agreement to take back the asylum seeker and its formal acceptance. The contrast appears in the language of 20.1(d).[50]Thus, here it is said that the deeming provision applied two weeks after the request was received some time in July 2004, but it was not until 16 November that Italy accepted responsibility for the purposes of Article 20.1(d). If that is right, then the removal directions were within the six-month period. Supporting this submission, Mr McCullough said that if Mr Gill is right then the provisions as to consultation and the practical arrangements necessary for effecting the transfer of the asylum seeker are really unworkable. There must be a period of time after the deeming provision bites in which the attitude of the requested Member State can be ascertained before the six-month time period begins to run.[51]At first this seemed to me to be a conclusive argument, but Mr Gill has pointed us to the terms of Article 10 of Commission Regulation 1560/2003, which I have mentioned in passing in another context. Article 10 provides:
“1. Where, pursuant to Article 18(7) or Article 20(1)(c) of Regulation (EC) No 343/2003 as appropriate, the requested Member State is deemed to have accepted a request to take charge or to take back, the requesting Member State shall initiate the consultations needed to organise the transfer. “2. If asked to do so by the requesting Member State, the Member State responsible must confirm in writing, without delay, that it acknowledges its responsibility as a result of its failure to reply within the time limit. The Member State responsible shall take the necessary steps to determine the asylum seeker’s place of arrival as quickly as possible and, where applicable, agree with the requesting Member State the time of arrival and the practical details of the handover to the competent authorities.”
[52]It will be seen at once that there the term “accepted” is used, but in reference to the point at which under Dublin II the requested Member State is deemed to have agreed to accept the claimant. So the argument is that the Commission Regulation contradicts, or tends to contradict, Mr McCullough’s submission that there is a critical distinction between agreement and acceptance, at any rate in a deeming case.[53]Some argument was addressed to us on the terms of the second paragraph of Article 10. All I propose to say is that it seems to me that there is enough here for judicial review permission to be given. The point is not without some subtlety, and it is right that it should be argued at an inter partes judicial review. That cannot take place today because Mr McCullough, perfectly reasonably given that the point has been raised so late, is not in a position to deal with it substantively. What I would propose to do, is to grant judicial review permission to challenge the removal directions but on the basis only that in the events which have happened the United Kingdom has responsibility to deal with the claim by virtue of the expiry of the time limit in Article 20.[54]On that basis only I would grant judicial review permission but remit the matter to the Administrative Court for determination of that judicial review.

LORD JUSTICE MAURICE KAY: I entirely agree with what my Lord, Lord Justice Laws, has said about the correct construction of Article 5(2). In the circumstances, therefore, it is inevitable that I too would dismiss the appeal because it is common ground that the appellant would need to succeed on both construction points for the appeal to be allowed.

[56]I confess that initially I was hesitant over the question of construction of the word “guardian” in Article 2(I)(iii). That hesitation arose from the fact that one of the purposes of the regulation is plainly child welfare and it seemed to me that that might compel a broad construction. I also wondered whether there might be a practical reason for giving the broad meaning to the word “guardian” because it would focus the decision maker on the facts and circumstances of a particular case which are usually readily ascertainable, rather than on the sometimes elusive matters of foreign law and, in particular, custom.[57]I am now persuaded by Mr McCullough’s submissions that my initial hesitation was unnecessary. The clinching argument in my judgment is the one by reference to Article 4(3): “guardian” must have the same meaning there as it has under Article 2(I)(iii). Whilst there may be a degree of ambiguity in Article 2(I)(iii) when read in isolation, the ambiguity is resolved when one construes it alongside Article 4(3). The accompanied minor under Article 4(3) must be a person whose asylum claim is indissociable from that of his parent or guardian. In my judgment that cannot live with the broader view of guardian contended for on behalf of the appellant. I therefore conclude that “guardian” in Article 2(I)(iii) means a legal or customary guardian, and I take the word customary in that context to carry with it an element of obligation arising under the custom of the state in question.[58]For reasons given by my Lord, Lord Justice Laws, I also consider that the appellant’s case was bound to fail on the facts because no guardianship in any sense existed at the time when the claim was first made in Italy.[59]Turning to the question of the six month point, if I may so call it, I entirely agree with what my Lord has said, namely that we should grant permission to apply for judicial review and remit the matter to the Administrative Court.

MR JUSTICE BODEY: I agree and there is nothing which I wish to add.

Order

Appeal dismissed.

Cited in 6 later judgments