“2… Following a long and difficult journey from Afghanistan, they arrived in France in August 2012 where they were briefly detained and fingerprinted as asylum seekers. 3. However they chose not to remain in France. The First Claimant 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 Claimant entered the United Kingdom using a false passport and, when his presence in London was discovered on23 September 2012 , he claimed asylum here. He was subsequently joined by the Second and Third Claimants who entered the United Kingdom on29 October 2012 and immediately claimed asylum here. Around November 2012 the Second Claimant became pregnant with her second child, who was born on19 August 2013 . She discovered that she was pregnant in mid-December 2012. On16 December 2012 the Claimants moved to accommodation in Bolton.”
“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 that the criteria set out in Chapter III indicate is responsible. 2. By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility…”
“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 [sic]relatives, on humanitarian grounds based in particular on family or cultural considerations. In this case, the Member State shall, at the request of another Member State, examine the application for asylum of the person concerned. The persons concerned must consent. 2. In cases in which the person concerned is dependent on the assistance of the other on account of pregnancy or a new-born child, serious illness, severe handicap, or old age, Member States shall normally keep or bring together the asylum seeker with another relative present in the territory of one of the Member States, provided that family ties existed in the country of origin.”
“[The first appellant] has a brother… and a sister… in the United Kingdom. Both are British citizens who were originally recognised as refugees… Our clients have received considerable comfort from their family members in the United Kingdom and are anxious not to be returned to a country in which they know no one and have no familial support.”
“Your client [has] not been financially, physically, or emotionally dependant on her brother in law and sister in law as they had clearly been apart for a considerable time. There is not any evidence of anything beyond what is usually expected of adult relatives. Your client can maintain contact with her brother in law and sister in law by way of telephone calls and emails. Your client’s brother in law and sister in law can also visit your client in France as they are British Citizens.”
“The whole point of the Dublin II arrangements is that they assume that it will not matter to the outcome where in the Community an asylum application is heard. If… the member states cannot pick and choose amongst themselves as to the validity and reliability of particular state systems, a fortiori an individual applicant cannot do so.”
“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.”
“[t]he 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”
“… [T]he words ‘only insofar as those provisions affect the course of proceedings between Member States’ in paragraph 2.2 of Com (2001) 447 final [a reference to the travaux préparatoires of Dublin II] are to my mind powerful support for the proposition that the intention was that [Dublin II] should not confer rights on individuals and it was not intended that alleged breaches of the provisions of [Dublin II] should be actionable at the suit of asylum seekers or other individuals.”
“In my judgment as a matter of construction of the Dublin II Regulation and in the light of the travaux preparatoires, the Regulation does not confer on individuals a right to require Member States to allocate responsibility for examining their asylum application in accordance with the provisions of the Regulation and alleged breaches of those provisions are not actionable at the suit of an individual. Further I do not consider that there is binding Court of Appeal authority which would compel the contrary conclusion…”
“57. Thus, article 3(2) of [Dublin II] … and article 15(1)… are designed to maintain the prerogatives of the member states in the exercise of the right to grant asylum, irrespective of the member state responsible for the examination of an application on the basis of the criteria set out in that Regulation. These are optional provisions which grant a wide discretionary power to member states… 60… [T]he only way in which the applicant for asylum can call into question the choice of that criterion [sc. under Article 10(1)] is by pleading systematic deficiencies in the asylum procedure and in the conditions for the reception of applicants for asylum in that latter member state, which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment…”
“whether Article 15 of [Dublin II] must be interpreted as meaning that, in circumstances such as those in the main proceedings, in which the daughter-in-law of the asylum seeker is dependent on the asylum seeker’s assistance because that daughter-in-law has a new-born baby and suffers from a serious illness and handicap, a Member State which is not the State responsible for examining the asylum request according to the criteria laid down in Chapter III of that regulation can automatically become the responsible State on humanitarian grounds. If the answer to that question is in the affirmative, [the Austrian court] wishes to know whether that interpretation remains valid where the Member State which is responsible in accordance with those criteria did not make any request pursuant to the second sentence of Article 15(1) of the regulation.”
“47. Where the conditions stated in Article 15(2) are satisfied, the Member State which, on the humanitarian grounds referred to in that provision, is obliged to take charge of an asylum seeker becomes the Member State responsible for the examination of the application for asylum. 54. In the light of all the foregoing considerations, the answer to the first question is that, in circumstances such as those in the main proceedings, Article 15(2)… must be interpreted as meaning that a Member State which is not responsible for examining an application for asylum pursuant to the criteria laid down in Chapter III of [Dublin II] becomes so responsible. It is for the Member State which has become the responsible Member State within the meaning of that regulation to assume the obligations which go along with that responsibility. It must inform in that respect the Member State previously responsible. This interpretation of Article 15(2) also applies where the Member State which was responsible pursuant to the criteria laid down in Chapter III… did not make a request in that regard in accordance with the second sentence of Article 15(1) of that regulation.”
“13… I certainly accept in general terms that an asylum claimant cannot challenge (save perhaps on human rights grounds) the allocation of responsibility between States for the determination of his claim where that has been effected by proper application of Dublin I or II. But it by no means follows that where as here there has been a gross breach of the time limit given by Article 11(5) of Dublin I yet the receiving State continues to accept responsibility for the claim, there can be no challenge on Wednesbury grounds to the Secretary of State's decision to send the claimant back… 14. In the course of his submissions before us Mr McCullough accepted that if in a case such as this the decision to transfer the claimant to the other State were shown to be irrational, then it would be unlawful and open to challenge as such; but he opined that it was difficult (I think he would say impossible) to find an instance where that might be so which did not engage ECHR rights. That may be correct. In any event it is common ground that if the respondent’s transfer to Austria would violate his Convention rights, it would be unlawful and the court could interfere…”
“22. The Dublin system has nothing to do with the merits of individual cases: it is designed simply to prevent forum-shopping while ensuring that every asylum claim is properly processed. By itself it does not address the problem of removals which may violate Convention rights. That is catered for by the separate obligation of the Home Secretary not to act inconsistently with such rights. 23. Thus the question in the present case is whether an independent adjudication could find substance in the contention that to follow the Dublin procedure in this appellant’s case would be disproportionate. In my judgment it undoubtedly could. … 25… [I]f, as is distinctly possible…, he is given asylum in Italy, all that will lie ahead there is a life of isolation and probable relapse. In other words, this is a case in which, on appeal, an immigration judge might well hold that the lawful purpose of the Dublin Regulation was not sufficient to justify the damaging effect on this appellant of disrupting what is now his private and family life by compelling him to present his asylum claim in Italy rather than here.”
“50. It is not suggested, correctly in our view, that either of these regimes has any inherent value or status giving one precedence over the other. They are not in competition with each other. However, as this litigation demonstrates, they may sometimes tug in different directions. Where this occurs full cohesion, or harmonisation, is unlikely to be achievable and some accommodation, or compromise, must be found. 51… [T]he question to be determined in [a] case of this kind is whether a disproportionate interference with the Article 8 rights of a person claiming to be a victim within the compass ofs.7 of the Human Rights Act 1998 is demonstrated. 52. What is the correct approach to the Dublin Regulation in a case of this kind? We consider that the Dublin Regulation, with its rationale and overarching aims and principles, has the status of a material consideration of undeniable potency in the proportionality balancing exercise. It follows that vindication of an Article 8 human rights challenge will require a strong and persuasive case on its merits. Judges will not lightly find that, in a given context, Article 8 operates in a manner which permits circumvention of the Dublin Regulation procedures and mechanisms, whether in whole or in part. We consider that such cases are likely to be rare.”
“[t]he effect of Article 15 is not to confer a freestanding substantive right on individual applicants”
“alleged breaches of those provisions [sc. of Dublin II] are not actionable at the suit of an individual”
“T]he only way in which the applicant for asylum can call into question the choice of that criterion [sc. under Article 10(1)] is by pleading systematic deficiencies in the asylum procedure…”
“Judges will not lightly find that, in a given context, Article 8 operates in a manner which permits circumvention of the Dublin Regulation procedures and mechanisms, whether in whole or in part. We consider that such cases are likely to be rare.”
“Your client [has] not been financially, physically, or emotionally dependant on her brother in law and sister in law as they had clearly been apart for a considerable time. There is not any evidence of anything beyond what is usually expected of adult relatives. Your client can maintain contact with her brother in law and sister in law by way of telephone calls and emails. Your client’s brother in law and sister in law can also visit your client in France as they are British Citizens.”