MA (Iran) v The Secretary of State for the Home Department [2014] EWCA Civ 417

[2014] EWCA Civ 417Case No C4/2013/1582
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
(MR JUSTICE STADLEN)
Venue Royal Courts of JusticeDate Monday, 10 March 2014
Between
MA (IRAN)Applicant
Strand
London, WC2A 2LL
B E F O R E:
LORD JUSTICE PITCHFORD
-v-
Between
THE SECRETARY OF STATE FOR THE HOME DEPARTMENTRespondent(DAR Transcript ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)Mr Kadri QC & Mr R Ahmed (instructed by Britannia Law Practice) appeared for ApplicantMr A Payne (instructed by Treasury Solicitors) appeared for RespondentJ U D G M E N T

LORD JUSTICE PITCHFORD:

[1]This is a renewed application for permission to appeal against the judgment of Stadlen J handed down on 20 May 2013 when he dismissed the applicant's claim for judicial review of the Secretary of State's decision made on 26 April 2012 to remove the applicant to Germany under the Dublin II Regulation.[2]On 26 November 2011 the applicant was arrested in Nottingham. In interview, she said she had entered the United Kingdom in a lorry. She had, she said, valid leave to remain in Germany and wished to return there. However, on the following day she claimed asylum.[3]In her screening interview the applicant said that she had lived in Germany since 2002 and held a valid visa to return to that country. In a later witness statement she said that she had travelled to Iran in September and had left Iran in October 2011, arriving in the United Kingdom in early November. In a further interview held on 6 December 2011 the applicant said that her German visa expired on 15 December 2011. The applicant sought asylum because she said that she was in fear of stoning in Iran as a result of her affair with a German national called Dieter.[4]After seeking information from Germany as to the applicant's status in that country, on 22 February 2012 the Secretary of State sent to the German authorities a request for a determination as to the member state responsible for examining the applicant's asylum application. Under Article 18-paragraph 1 of the Regulation, Germany was required to give a decision within two months. By Article 18-paragraph 7, failure to respond within that period placed upon Germany the obligation to take charge of the applicant.[5]Six days out of time on 27 April 2012 the German authorities accepted responsibility for the applicant's asylum application under the Dublin II Regulation. On 26 April, as I have said, the decision was made to remove the applicant to Germany.[6]Before Stadlen J the applicant challenged the decision on the ground that as a matter of fact the applicant did not qualify for return to Germany under the provisions of the Dublin II Regulation. He rejected the applicant's claim, holding as follows. First, upon the information and evidence available to the Secretary of State the request made to Germany on 22 February 2012 was a reasonable one. Germany's obligation to take charge of the applicant's asylum claim matured two months later, on 21 April 2012. That was, the judge held, sufficient to dispose of the applicant's claim for judicial review of the decision to remove.[7]In any event, secondly, on 22 April 2012 Germany acknowledged its responsibility for the applicant. Under Article 17-paragraph 3 of the Dublin II Regulation it was a matter for Germany to satisfy itself of its obligations. Germany having indicated acceptance, it was not for the Secretary of State to ensure that Germany had made no error of fact in reaching its decision.[8]Thirdly, there was positive evidence from the applicant herself that she had been in possession of the visa or residence permit expiring on 15 December 2011, even if there had been no confirmation of that fact from Germany. If that was true, then Germany became responsible for the applicant under Article 9-paragraph 1 or paragraph 2. The judge held that even if as a matter of fact Germany's obligation did not, as the requested and requesting states thought, arise under Article 9-paragraph 4, the applicant nevertheless qualified under Article9.1 or9.2 and the conditions of the Regulation were thereby satisfied.[9]Finally, and in any event, the judge held that while the Dublin II Regulation applied in both Germany and the United Kingdom it created no individual right of action in favour of the applicant.[10]The applicant seeks to challenge Stadlen J's decision on the ground that he was wrong in law to hold that the Dublin II Regulation gave rise to no personal right of action in her favour and she seeks to support that assertion by saying that in the present case there was in fact no factual doubt that the applicant did not qualify under the Regulation for return to Germany.[11]On 28 June 2013, one month after Stadlen J's judgment, this court handed down judgment in R(AR Iran) v SSHD [2013] EWCA Civ 778 in which it confirmed that the Dublin II Regulation does not create the individual rights. In my view the applicant has no real prospect of overturning the effect of that decision.[12]Furthermore, on 10 December 2013 the Grand Chamber of the European Court of Justice published its decision in Abdullahi v Bundesasylamt case C 394 [2012]. Austria had sought a preliminary ruling as to the status of an applicant for asylum to challenge the acceptance by Austria and Hungary under Article 10 of the Dublin II Regulation of Hungary as the member state to take charge of the asylum application. At paragraphs 52 and 53 the Grand Chamber said this:
"52... it should be borne in mind first that the common European asylum system was conceived in a context making it possible to assume that all of the participating states, whether member states or third states, observe fundamental rights, including the rights based on the Geneva Convention and the 1967 Protocol and on the ECHR and that member states can have confidence in each other in that regard (NS and others paragraph 78). 53. It is precisely because of that principle of mutual confidence that the EU legislature adopted regulation number 344/2003 in order to rationalise the treatment of applications for asylum and to avoid blockages in the system as a result of the obligation on state authorities to examine multiple applications by the same applicant and in order to increase legal certainty with regard to the determination of the state responsible for examining the asylum application and thus to avoid forum shopping. It being the principal objective of all of these measures to speed up the handling of these claims in the interests both of asylum seekers and the participating member states (NS and others paragraph 79)."
[13]In the light of those observations, the Grand Chamber came to the following conclusion:
"Where a member state has agreed to take charge of an applicant for asylum on the basis of the criterion laid down in Article 10(1) of that regulation, namely as the member state of the first entry of the applicant for asylum into the European Union, the only way in which the applicant for asylum can call into question the choice of that criterion is by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that member state which provides substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union."
[14]In other words the applicant does not enjoy a right to challenge the application of the Regulation by the interested member states save to the extent that the challenge would support a claim that the applicant would if received in the requesting state receive a real risk of inhuman or degrading treatment. That seems to me to put the legal issue which arises here beyond question.[15]Secondly, even if the applicant does enjoy a right to question the application of the Regulation by the relevant member states it seems to me that the judge had ample material before him on which to conclude that the Secretary of State had acted reasonably in seeking acknowledgement from Germany that it should take charge of the applicant's asylum claim. Germany's acceptance disposed of the matter. Even if Germany made an error of fact in reaching that conclusion the United Kingdom had no further obligations under the Regulation.[16]In my judgment there is no real prospect of persuading the full court as to any different result and for that reason the renewed application for permission must be refused.