“Permanent residence permit in accordance with the Residence Act granted on11 July 2005 ; Application for a residence permit made on28 July 2011 .”
“Issued on18 October 2007 under paragraph 31(1), (2), (4) of the Residence Act (independent residence permit for spouse) valid until30 December 2008 . Central register of foreign nationals number 02725016630.”
“Article 9(4) residence document which expired less than two years previously or visa which expired less than six [sic].”
“The United Kingdom made a formal request to Germany to take charge of the above named applicant under the terms of the Dublin II Regulation on23/02/2012 . It has now been more than one month since our original formal request was made and no response has been received. I attach electronic confirmation of receipt of our request. Article 18(7) of the Dublin II Regulation states: Failure to act within the two month period mentioned in paragraph 1 and the one month period mentioned in paragraph 6 shall be tantamount to accepting the request, and entail the obligation to take charge of the person, including the provisions for proper arrangements for arrival.”
“Dear Sirs, Your request for takeover/for takeback from 22/02 2012 is met according to Article 9 Abs.4 Dublin II Council Regulation (EC) No 343/2003. The petitioner mentioned above will be accepted by the Federal Republic of Germany. All information concerning the modalities of transfer is enclosed”
“Acceptance received from Germany under Article 9.4 of the Dublin II Regulation.”
“to ensure that asylum seekers have effective access to procedures for determining refugee status to prevent abuse of asylum procedures in the form of multiple applications; to close loop holes in Dublin Convention; to ensure that the Member State responsible will be ascertained as quickly as possible; and to increase the system’s effectiveness.” (See paragraph 2.1). 45. Paragraph 2.2 of COM (2001) 447 Final stated that, in order to take the lessons of the past on board, the proposal included: “new provisions emphasising each Member State’s responsibility vis a vis all its partners… when it allows illegal residents to remain on its territory”
“are being examined with a view to determining which Member State is responsible only insofar as those provisions affect the course of proceedings between Member States or are necessary to ensure consistency with the proposal for a directive on procedures for granting and withdrawing refugee status”
“ 2. Before members of the European Community made the Dublin Regulations II (sic) and its predecessor treaty, there were untold problems in the United Kingdom about which country should be responsible for handling the asylum claim of a person who had been refused asylum previously in another European country before applying for asylum in the United Kingdom. The objectives of the Dublin Regulation II and its predecessor treaty were to remedy this disturbing state of affairs and this is shown in the full title of the Dublin Regulation II which explains that its purpose is of “establishing the criteria and mechanism for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third country national.” ”
“Can individuals rely on breaches of Dublin II, and if so, in what circumstances?”
“53 I first address what Mr Mandalia referred to as a preliminary point. Although preliminary, it is in a sense fundamental. It is whether the claimants' cases fall within the limited situations in which alleged breaches of the Dublin II Regulation are directly actionable by an individual. Mr Bedford submitted that, notwithstanding the approach taken in the cases, they do. He has made similar submissions in a number of the cases to which I will refer. His starting point is the direct applicability of the criteria in the Dublin II Regulation : on which see Omar v Secretary of State for the Home Department[2005] EWCA Civ 285 . InCase C-253/00 Munoz y Cia SA v Frumar Ltd and Redbridge Produce Marketing Ltd [2002] ECR 1-7289 at [27], the European Court of Justice (hereafter “ECJ) stated: “…regulations have general application and are directly applicable in all Member States. Accordingly, owing to their very nature and their place in the system of sources of Community law, regulations operate to confer rights on individuals which the national courts have a duty to protect.” 54 Mr Bedford relied on the only decision of the ECJ on the Dublin II Regulation, C-19/08 Migrationsverket v Petrosian[2009] 2 CMLR 33 , in which the judgment of the Fourth Chamber was handed down on29 January 2009 . He recognised that the case, a reference for a preliminary ruling by the Kammarräten I of the Migrationsöverdomstolen (the Court of Appeal in Immigration Matters) in Stockholm, was primarily concerned with the point from which a suspension pursuant to Article 20 of the Regulation began for the purposes of the timetable for a transfer under the Regulation. But he submitted that the ECJ's judgment proceeded on the basis that the Regulation does have direct effect and give individual rights. In doing so, he argued that the decision of Cranston J in R (J)v Secretary of State[2009] EWHC 1182 (Admin) , to which I shall return, was wrong. 55 The next stage in Mr Bedford's argument was the submission that, since it has been contemplated, for example, by Laws LJ in R (AA (Afghanistan)) v Secretary ofState[2006] EWCA Civ 1150 [14], [16] and [21], that a challenge by an individual on Wednesbury or Human Rights grounds might lie where the provisions of the Dublin II Regulation have been applied properly, the position where there has been a breach of those provisions is a fortiori. Article 20(1)(e) requires the requesting Member State to inform the applicant for asylum of the decision, and to set out the grounds on which the decision is based and details of the time limit on carrying out the transfer. It also expressly contemplates an appeal or review of the Member State's decision concerning his being taken back by the Member State responsible and provides for the effect of such appeal or review on the timetable. That provision, Mr Bedford submitted, assumes the individual may have rights. Why, he asked, should there be an appeal or review at all if the individual has no rights. 56 He illustrated this submission by reference to AA (Somalia)[2006] EWCA Civ 1540 at [21], decided three weeks before AA (Afghanistan). In AA (Somalia) consideration was given to the point in time by reference to which the question under Article 6 of the Dublin II Regulation whether an unaccompanied minor has a family member present in a particular Member State was addressed. The consequence of finding a family member present at the relevant time is to make that State responsible for examining the minor's application for asylum. Laws LJ stated that consideration of this point in time may be logically prior to consideration of whether a family member is present in that State. Mr Bedford accepted the issue that arose in AA (Somalia) does not arise in the present case, but asked how the position of an unaccompanied minor would be protected against transfer contrary to the provisions of Article 6 without a right to institute proceedings. 57 Mr Bedford also relied on the fact that the Eurodac regulation confers rights on the individual whose fingerprints are said to be matched with fingerprints taken in another Member State. Those rights include the right to request that factually incorrect data are corrected. In YI (Previous claims – fingerprint match – Eurodac) Eritrea v Secretary of State for the Home Department[2007] UKAIT 00054 , the Asylum and Immigration Tribunal stated that an Immigration Judge hearing an appeal needs to be satisfied on the specific evidence in the particular case, including, if available, evidence of a match on the Eurodac system, whether the appellant has made a previous claim. The Tribunal (Hodge J and Batiste SIJ) stated (at [15]) that an Immigration Judge will, as a matter of fairness, need to be satisfied that the appellant has had the facility to access information about the assertion against him that would enable him “to make a meaningful forensic rebuttal beyond mere denial”
“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.”
“The time limits in Article 20 are applicable as between the States concerned. A country's obligations are discharged once the six month period has elapsed subject to any extension. It is clear from the background material and from Dublin II itself, that there is no intention that individual asylum seekers should derive rights from Article 20…If [the requested State] had refused to accept the claimant on the basis that time periods had lapsed and the United Kingdom demurred, that would have been a matter of dispute between [the requested State] and the United Kingdom. Conversely, if [the requested State] agreed to process the claimant's claim, notwithstanding the time limits were exceeded, that was a matter for [the requested State], notwithstanding the normal application of the provisions. Indeed, as indicated, Article 3(2) enables a Member State to accept responsibility to deal with an asylum claim, notwithstanding that it has no obligations to do so. In neither case could the claimant have objected. Dublin II gives rise to obligations between Member States; it does not confer claims on individual asylum seekers.”
“The system is designed to prevent asylum shopping and at the same time to ensure that each asylum applicant’s case is processed by only one Member State”. [42]. There is in my judgment a fundamental inconsistency between the proposition that the Regulation is designed to prevent asylum shopping and the proposition that at the same time the Regulation was intended to confer rights on asylum seekers to require a particular Member State to examine their asylum application. 68. Mr Jagadesham pointed to the fact that the Court of Appeal in R (MK (Iran)) was dealing with the limited question of an asserted right on the part of the asylum seeker to have his asylum application dealt with in a particular timeframe and submitted that the conclusions of the court to which I have referred were of no wider application than that narrow context. I do not accept that submission and, as appears from paragraph 62 of Beatson J’s judgment, neither did he. It is plain that he read Carnwath LJ’s dicta as being intended to lay down a general conclusion that the Dublin II Regulation is concerned with the allocation of responsibility as between Member States and not the creation of personal rights. That emerges too in my judgment from paragraph 63 of Beatson J’s judgment in which he explained why in his opinion the decision in Omar v Secretary of State is not inconsistent with Carnwath LJ’s statement in R (MK(Iran)). He also expressed the view in that paragraph that Carnwath LJ’s statement is entirely consistent with the approach in AA(Somalia) and AA(Afghanistan). In my judgment his reason for expressing those opinions was that in his judgment, with which I respectfully agree, the general proposition enunciated by Carnwath LJ with which Smith LJ agreed, represents the law and is of general application as regards the Dublin II Regulation. 69. Mr Jagadesham relied on the statement by Carnwath LJ that: “It may be, as Mr Bedford submits, that a Claimant threatened with removal from the country which has responsibility under the Regulation, has an enforceable right to prevent his removal to another country before his claim is determined.”
“In the context of the present case, Article 15 gives the authorities in this country discretion to deal with the matter following the request from the Italian authorities. What has in fact happened is that the two Members States are in agreement that G’s application should be processed in Italy. It would have been possible, no doubt, for G’s advisers to have made representations to the Italian authorities inviting them to request the British authorities to process the application, but they did not do so. However the text of the Article contained nothing that would have empowered G or her advisors to do anything more.” (Paragraph 26). 74. It is true that Article 15(1) of the Regulation confers a discretion on the Member State even where it is not responsible under the criteria set out in the Regulation to bring together family members as well as other dependent relatives on humanitarian grounds. On the other hand it also provides that in such a case that Member State shall at the request of another Member State examine the application for asylum of the person concerned provided they consent. Article 15(3) also provides that, 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 relative or relatives unless this is not in the best interests of the minor. That led counsel for the asylum seeker in that case to submit that, taken together with Recital 6 to the Regulation, which states that family unity should be preserved insofar as that is compatible with the other objectives pursued by establishing criteria and mechanisms for determining the Member State responsible for examining asylum application, Article 15 gives rise to something akin to a freestanding legal requirement upon which the applicant could rely. (Paragraph 22). Counsel also relied on paragraph 3.1 of the explanatory memorandum accompanying the original Commission proposal, which later gave rise to the Regulation, which stated: “This proposal adds a criterion for the purpose of uniting an unaccompanied minor whatever the circumstances with an adult member of his family who is already present in a Member State and is able to take charge of him.” 75. In my judgment the thrust of Maurice Kay LJ’s statement that the effect of Article 15 is not to confer a freestanding substantive right on individual applicants but is rather to regulate the relationship between two or more Member States goes beyond and is not dependent on the fact that Article 15(1) provides an initial discretion on a Member State to bring together family members even if it is not otherwise responsible under the criteria set out in the Regulation. That in my judgment follows from the contrast made by Maurice Kay LJ, which was the same contrast made by Carnwath LJ in R (MK (Iran), between the conferring of a freestanding substantive right on individual applicants and the regulation of the relationship between two or more Member States. There is nothing specifically referable in that statement to a particular characteristic of Article 15 as distinct from other Articles of the Dublin II Regulation. 76. In AA (Somalia) v Secretary of State for the Home Department[2006] EWCA Civ 1540 at paragraph 29 Laws LJ, in a judgment with which the other two members of the Court of Appeal, including Maurice Kay LJ, agreed, cited Maurice Kay LJ’s conclusion in G that: “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.” 77. He held that that provided the context in which in his judgment the Dublin II Regulation has advisedly located consideration of new found or lately discovered facts. He said that it was open to the appellant to submit to the Italian authorities in that case that they should act under Article 15. (Paragraph 29). This does not add much to Maurice Kay LJ’s conclusion in G since the Court of Appeal was of course bound by its previous decision. Insofar however as it was referred to without qualification or any expression of doubt it is in line with the broad approach adopted in the English cases reviewed by Beatson J in R(MK (Iran)). 78. I turn next to the two decisions of the Court of Appeal on which Mr Jagadesham relied, both of which were referred to by Beatson J in his review of the authorities and neither of which in his judgment compelled the conclusion that the Dublin II Regulation confers rights on individuals or renders alleged breaches of its provisions actionable at their suit. 79. Seventh Omar v The Secretary of State for the Home Department[2005] EWCA Civ 285 was the decision upon which Mr Jagadesham placed the most heavy reliance. In that case an asylum seeker had entered Italy and then proceeded to the United Kingdom. Accordingly there was no dispute that, on the application of the criteria within the then Dublin Convention, known as “Dublin I”, Italy was the responsible Member State. In a chapter headed “Transitional Provisions and Final Provisions”
“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 ”. 84. Sir Swinton Thomas said that there was no dispute that Italy was the state having first responsibility for examining the Appellant’s application for asylum because Italy was the first country he entered. (paragraph 7). He also said that it was common ground between the parties that until the coming into force of the Dublin II Regulation the Dublin Convention had not been incorporated into domestic law. He referred in that regard to the decision of Lord Phillips MR in Zequiri v Secretary of State for the Home Department (CA)[2001] EWCA Civ 342 who 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.” (Paragraph11) 85. He said that it was submitted on behalf of the Appellant that the Dublin Convention was given direct effect in domestic law by the Dublin II Regulation, that he was in entitled to rely upon Article 11(5) and that, accordingly, the responsibility for determining his asylum rested with the United Kingdom. He said that the distinction made in the Regulation between criteria and mechanisms was relevant to the decision in the case before the court (paragraph 13). He drew attention to the words at the end of the Dublin II Regulation: “This Regulation shall be binding in its entirety and directly applicable in the Member States in conformity with the Treaty establishing the European Community.” 86. Sir Swinton Thomas said that it was common ground between the parties and settled law that prior to the coming into force of the Dublin II Regulation the Dublin Convention had not been incorporated into domestic law and gave no rights to an individual claimant. Counsel for the Appellant submitted that the Dublin Convention was given direct effect in its entirety during its transitional period, that, accordingly, Article 11(5) thereof was given direct effect and that, because the arrangements to transfer the Appellant were not made within the one month period, he was entitled to have his claim to asylum determined in the United Kingdom. Counsel for the Appellant submitted, correctly according to Sir Swinton Thomas, that it was common ground that Articles 4 to 8 of the Dublin Convention (the criteria) had direct effect and that in certain circumstances (for example Article 11(1) and 19(1) thereof) consequences followed a failure by the receiving state and gave rights to an applicant. He therefore submitted 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 he would be deprived of his rights. 87. Sir Swinton Thomas did not accept those submissions. He said that both the Dublin Convention and the Dublin II Regulation draw a distinction between criteria and mechanisms, and both provide for circumstances in which consequences follow a breach. The distinction between criteria and mechanisms is drawn in the preamble to the Dublin Convention. Article 3(2) defines the criteria as those set out in Article 4 to 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 follow. He said that 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. 88. Sir Swinton Thomas said that Article 29 of the Dublin II Regulation requires that the Member State shall determine the application in accordance with the criteria set out in the Dublin Convention but that 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 … 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…. Accordingly I conclude that Mitting J came to the correct conclusion and that reg 29 does not give direct effect to the provisions of art 11(5) conferring rights on the Appellant and I would dismiss this appeal on that ground.” (Paragraphs 23 to 24). 89. There is in my judgment nothing in the reasoning relied on by Sir Swinton Thomas for rejecting the Appellant’s arguments in support of his appeal which concluded, still less relied upon a conclusion, that the Dublin II Regulation confers on asylum seekers or other individuals rights to insist on their application for asylum being determined by the Member State identified by application of the criteria set out in the Regulation or that alleged breaches of those articles in the Dublin II Regulation which prescribe the criteria by which the responsible Member State is identified are actionable at the suit of asylum seekers or other individuals. 90. Sir Swinton Thomas added: “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,art 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 art 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 within that country. Article 11(5) in 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.” (Emphasis added).
“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 toart 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 effect 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 having his asylum application dealt with in Italy, not in the United Kingdom. It is unnecessary, therefore, to strain words of the directive in order to give effect to its terms; and in any event, it is no assistance to the Appellant seeking to have his asylum application dealt with in the United Kingdom, which is the purpose of these proceedings.” (Paragraph 27). 94. There is no question but that in that passage of his judgment Latham J said that a failure on the part of the United Kingdom authorities to give effect to what he described as a “right” that Italy should determine the Appellant’s claim, which he said was a result of the relevant provisions of the Dublin Convention having direct effect, would justify an application by the Appellants to the court. There is however in my judgment equally no doubt but that that opinion was obiter. It formed no part of the reasons for his decision that the appeal should be dismissed which were the reasons given by Sir Swinton Thomas with which Latham LJ expressly agreed. I would also observe that his remarks were addressed to “rights” which he considered were conferred by the transitional provision of Article 29 of the Dublin II Regulation to require compliance with the criteria for determining the responsible Member State not set out in the Dublin II Regulation but set out in the Dublin Convention. I further observe that there appears to have been no argument addressed to the court on behalf of the Secretary of State, unlike in this case, to the effect that the Articles in Chapter 3 of the Dublin II Regulation and Article 13 which prescribe the criteria by reference to which the responsible Member State is to be identified do not confer rights on asylum seekers or other individuals and that alleged breaches thereof are not actionable at their suit. 95. Chadwick LJ also dismissed the appeal but for different reasons. In the course of his judgment he expressed the view that it is clear that the final sentence of the Dublin II Regulation gives the Regulation direct effect in relation to applications lodged after the end of the transitional period. He also expressed the view that the Dublin II Regulation required direct effect to be given to Articles 4 to 8 of the Dublin Convention: “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 arts 4 to 8 of the Convention – it is necessary to read art 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 arts 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 –art 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 – art 11.1 of the Convention; (ii) state B must accept the obligation to take charge – arts 10.1(a) and 11.4; and (iii) the applicant must be transferred from state A to state B – art 11.5. (emphasis added). For my part, I would be prepared to hold, in a case in which the point arose, that it is necessary to read art 29 of the Regulation in such a way as to 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 art 29 of the Regulation confers on asylum seekers in transitional cases direct rights – under arts 11.1 and 11.5 of the Convention – which are comparable to those conferred by arts 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 art 11.5 of the convention provides, he has, thereafter, every right not to be transferred or a right to have his application examined by state A. 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 arts 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.”
“So much is established by the decision of this court in Omar… Omar is an important case, but with respect I need not cite the text of the judgment. These propositions are common ground and it seems to me incontestable.” (Paragraph 10(i)). 101. I note in passing that Mr Jagadesham cited Laws LJ’s statement that “these propositions are…it seems to me incontestable” apparently as suggesting that Laws LJ thereby intended to approve or agree with the obiter dicta which I have quoted above from Omar suggesting that the Dublin Convention (and/or the Dublin II Regulation) conferred rights on asylum seekers. In fact, as is apparent from the context of Laws LJ’s observation, it is in my judgment clear that the propositions in Omar which he considered to be incontestable were not those obiter dicta but rather the ratiodecidendi of that case, namely that a violation by the United Kingdom of the obligation to abide by the time limits specified in Article 11(5) of the Dublin Convention conferred no legal right on a claimant to insist that his asylum claim be determined substantively in this country. Thus that observation of Laws LJ is of no assistance to the Claimant in this case. 102. On the contrary if anything what is striking about Laws LJ’s unqualified reference to the correctness of the decision of the Court of Appeal in Omar is that he did not suggest, still less hold, that the obiter dicta of Sir Swinton Thomas or Chadwick LJ which Mr Jagadesham submitted are binding authority for the proposition that the Dublin II Regulation confers a right on an asylum seeker to require that his application be examined by the Member State identified by application of the criteria set out therein were a correct statement of the law. 103. Bean J identified the real question in RAA (Afghanistan) case as being whether the Dublin Convention required the United Kingdom to transfer the claimant to Austria even after a substantial and unexpected delay and if not whether the Secretary of State was nevertheless entitled to transfer the claimant against his wishes despite the delay, neither of which questions was decided by Omar. He concluded that the Dublin Convention did not require the Secretary of State to return the Claimant to Austria despite the delay but held that by reason of a delay some 25 times that permitted by Article 11(5) of the Dublin Convention and significant prejudice resulting therefrom it would be wholly unreasonable for the Secretary of State to transfer the claimant against his wishes to Austria. He was now entitled to have his claim for asylum and a subsidiary claim based on Human Rights grounds heard in the United Kingdom. 104. The Court of Appeal allowed the Secretary of State’s appeal against Bean J’s decision on the limited ground that on the facts of the case the decision of the Secretary of State to issue removal directions was not Wednesbury unreasonable, there being nothing in hisArticle 8 of the ECHR argument. (Paras 10, 17, 18, 19, 20, 21, 23). 105. It is thus apparent that the decision of the Court of Appeal in R(AA (Afghanistan)) did not turn on the question whether the Dublin Convention, still less the Dublin II Regulation, confers rights on asylum seekers or renders alleged breaches of the provisions of either the Convention or the Regulation actionable at their suit. 106. As had been held in Omar the failure of the United Kingdom to effect a transfer within the one month period stipulated by Article 11(5) of the Dublin Convention did not displace or vitiate responsibility of Austria to consider the claimant’s asylum application or transfer responsibility for considering it to the United Kingdom. Laws LJ observed that under the Dublin II Regulation on like facts the United Kingdom would have been “bound” to deal with the claimant’s asylum claim on its merits because provision was made in the Dublin II Regulation to the effect that if the transfer to the receiving State does not take place in the extended six months time period responsibility for deciding the asylum claim is on the shoulders of the sending State (paragraph 9). 107. Mr Jagadesham submitted that, in saying that on like facts the United Kingdom would have been bound to deal with the claimant’s asylum claim on its merits under the Dublin II Regulation, Laws LJ was holding that under the Dublin II Regulation the claimant would have had a right to require the United Kingdom to deal with his asylum claim on its merits. I do not accept that submission. In my judgment Laws LJ’s reference to the United Kingdom being “bound” to deal with the claim was intended to be no more than a statement that the United Kingdom would be bound to do so as between it and Austria both of which as Member States were bound to adhere to and observe the provisions of the Dublin II Regulations. There is nothing to indicate that he intended to go further and express the view that the Dublin II Regulation confers rights on asylum seekers, or that in the hypothetical case postulated by him, a failure by the United Kingdom to examine the claimant’s asylum application would have been actionable at his suit. 108. Laws LJ recorded that the Secretary of State’s case had changed by the time of the oral hearing. Originally it had been submitted that, at least absent a viable Human Rights claim, in the events which had happened the Secretary of State was not even obliged to consider whether the respondent’s asylum claim should be processed in the United Kingdom. Austria having accepted responsibility the question where the claim should be dealt with should be regarded as closed. Reliance had been placed on a dictum of Laws LJ at first instance in Simba[1998] EWHC Admin 799 : “Once it is plain that there has been an agreement for the purposes of dealing with an asylum claim, following application of the provisions of Article 5.2 the approach of the court must be simply to accept that that has been agreed to on the international plane and the matter is thereby closed.” [That was a Dublin Convention case] (paragraph 12). 109. By the time of the hearing Laws LJ recorded that new counsel for the Secretary of State modified the submission in effect to acknowledge that in theory a challenge could lie against the decision to set removal directions on Wednesbury principles (paragraph 11). He then said this: “My observations in Simba were made in circumstances where an application for judicial review permission had actually been withdrawn. I gave a short judgment merely to “explain very briefly what has occurred”
“Regulations have general application and are directly applicable in all Member States. Accordingly, owing to the very nature and their place in the system of sources of Community Law, Regulations operate to confer rights on individuals which the National Courts have a duty to protect.” (Paragraph 53). In his general conclusion that the formidable body of case law proceeded on the basis that alleged breaches of the Dublin II Regulation are not actionable by an individual claimant, Beatson J expressly referred to the fact that they also proceeded on the basis that the Dublin II Regulation is directly applicable in Member States. (Paragraph 58). 116. It follows that he did not consider that it automatically follows that every Regulation which is directly applicable confers rights on individuals which the national courts have a duty to protect or that alleged breaches of them are automatically actionable by an asylum seeker. 117. Mr Jagadesham had an alternative submission that Laws LJ’s conclusion that in the absence of any human rights grounds a gross breach of a provision of the Dublin Convention or the Dublin II Regulation sustaining a Wednesbury argument is required to sustain a challenge was limited to cases, such as Omar, RAA Afghanistan and R(MK ( Iran)) where the alleged breach is of an Article constituting a mechanism rather than a criterion for determining responsibility for examining an asylum application. That he said follows from the fact that in all three cases referred to the Article allegedly breached was a mechanism rather than a criterion. I do not accept that submission. 118. Although it is true that in each of the cases referred to the provision allegedly breached was a mechanism rather than a criterion, in my judgment the nature and context of Laws LJ’s observations and Beatson J’s observations suggest that their conclusions were intended to be of more general application. That is particularly so in relation to Beatson J whose review of all the authorities including R AA Afghanistan led him to conclude that they all proceeded on the basis that, absent Wednesbury unreasonableness or a breach of an individual’s Human Rights, although the Dublin II Regulation is directly applicable in Member States, alleged breaches of it are not actionable by an individual asylum seeker. That conclusion was not confined to alleged breaches of mechanisms but was expressed in general terms. I would point out in this context that one of the cases included by Beatson J among those which proceeded on this general basis was the decision of Cranston J in R(J) v Secretary of State in which he concluded with the general holding that: “Dublin II gives rise to obligations between Member States; it does not confer claims on individual asylum seekers” (at [21]). 119. Mr Jagadesham submitted that because Beatson J was only faced with arguments in relation to mechanisms as well as an argument as to whether the asylum seeker’s claim that he had not in fact applied for asylum in another Member State amounted to a precedent fact and was thus not dealing with criteria, his statement that the cases which he reviewed proceed on the basis that absent Wednesbury unreasonableness or a breach of an individual’s Human Rights, alleged breaches of the Dublin II Regulation are not actionable by an individual claimant were strictly obiter. I am not convinced that that is correct. The section of his judgment which I have quoted appears under the heading: “Can individuals rely on breaches of Dublin II. And if so, in what circumstances?” and he described the preliminary point which he addressed as in a sense fundamental. It was whether the claimant’s cases fell within the limited situations in which alleged breaches of the Dublin II Regulation are directly actionable by an individual. Central to his conclusion that they were not was his general conclusion that the basis on which the cases which he reviewed proceeded represented a correct statement of law. 120. It is true that the three cases decided by Beatson J in R (YZ & ors) did not allege breaches of those Articles of the Dublin II Regulation which have been referred to as criteria as distinct from mechanisms. To that extent it can be said that in so far as he expressed opinions of general application as to the non-actionability at the suit of individual asylum seekers of alleged breaches of the Dublin II Regulation, they were obiter dicta. On the other hand, at the outset of his judgment, having identified the three issues raised in the cases, he said this: “9. Underlying the three particular issues is the broader question of whether, and if so, to what extent, alleged breaches of the Dublin II Regulation are directly actionable by an individual applicant for asylum. A number of authorities have held that its provisions govern responsibility as between Member States, but do not give directly actionable personal rights to the individual asylum seekers unless the Secretary of State acts in a Wednesbury unreasonable manner or in breach of that individual’s human rights.” 121. He thus considered that the resolution of the three issues which he had to determine depended at least in part on the answer to the general question which he posed in the first sentence of that paragraph of his judgment. 122. Ninth the final decision of the Court of Appeal considered to by Beatson J was that of Pill LJ (with whom Moses LJ agreed) in Mota v Secretary of State[2006] EWCA Civ 1380 . In that case the Court of Appeal refused permission to an asylum seeker to appeal against the refusal of Burton J to grant her permission to apply for judicial review of the Secretary of State’s decision to remove her to the Netherlands. There are some similarities with the present case. 123. The applicant came from Sierra Leone. Having arrived in the Netherlands where she made an application for asylum she then travelled to the United Kingdom where she also applied for asylum. She claimed that after leaving the Netherlands but before arriving in the United Kingdom she returned to Sierra Leone for more than three months. She therefore relied on Article 16(3) of the Dublin II Regulation which provides that the obligation on a Member State responsible for examining an application for asylum under the Regulation to take charge of an asylum seeker who has lodged an application in a different Member State shall cease where the third country national has left the territory of the Member States for at least three months. 124. The United Kingdom Immigration Service requested the Dutch Authorities to accept responsibility for the claimant’s asylum claim under the provisions of the Dublin II Regulation. Initially the Dutch Authorities rejected responsibility stating that it was possible that the claimant had returned to Sierra Leone before arriving in the United Kingdom. In response to the Immigration Service pointing out that it was highly unlikely that the claimant had returned to Sierra Leone before returning to the United Kingdom, the Dutch Authorities initially maintained that they were not satisfied that the evidence submitted was strong enough to accept responsibility for her claim. Subsequently however, on being provided with more information they accepted responsibility for her claim. Removal directions were then set which the claimant sought to challenge. 125. Burton J held that even though the Dublin II Regulation is directly applicable in this country he could see no basis for a case that gives a claimant the right to complain when, notwithstanding that it may be that the obligation on the original country to retain the responsibility for deciding an asylum application may have ceased, that country nevertheless accepts responsibility, that in some way the claimant has a right to challenge that acceptance of responsibility. (Paragraph 14). 126. Counsel for the applicant submitted that pursuant to Article 21 the United Kingdom should have sent to the Dutch authorities further information, namely tickets supplied by the applicant’s solicitors which they claimed corroborated her case that she did indeed return to Sierra Leone through the Netherlands, to give them the opportunity of reconsidering their decision. Burton J rejected that submission holding that there was not, whether in the circumstances of that case or otherwise, any continuing obligation on the United Kingdom to supply such further information. A decision had been taken under the Dublin II Regulation. The receiving country would address the asylum application of the claimant and the only issue, namely as to whether the Netherlands would accept responsibility for the Applicant was resolved by their express acceptance of such responsibility. 127. He held that it would render the operation of the Dublin Convention (by which I take him to have meant the Dublin II Regulation) quite different from what was intended if there were some obligation on a country such as the United Kingdom in those circumstances to continue to supply information to a country which had already accepted responsibility for an applicant after such acceptance had been given. If such information had to be supplied it was difficult to see the issue to which it remained material once the administrative decision to accept responsibility had been made. The reality was that what was needed was speediness and fairness in the operation of the asylum process. If a fellow member of the Dublin Convention, fully governed by the ECHR, was prepared to consider the asylum application he could see no basis for another country, from whom that responsibility had been lifted, to continue to supply further information in case the receiving country might change its mind. (Paragraph 15). 128. Burton J said that the simple basis on which he resolved the application was that the Dublin Convention (by which again in context I take him to have referred to the Dublin II Regulation) had been operated. Whether or not the Netherlands had an obligation under Article 16(3) they had accepted responsibility. That was the country in which the asylum application would now be resolved. 129. Although it is not entirely clear it seems to me that Burton J’s reason for rejecting the application was not that he considered that the Dublin II Regulation does not confer on individual asylum applicants a right to insist that their application be considered by the Member State identified by a proper application of the provisions of the Regulation. Rather it was for the separate reason that even if a Member State is not responsible or has ceased to be responsible for considering an asylum application under the provisions of the Dublin II Regulation, nonetheless if it chooses to accept responsibility there is no obligation on the United Kingdom Authorities to continue to send evidence to that Member State with a view to it reconsidering whether it was right to accept responsibility. 130. If that analysis is correct, Burton J’s judgment was not decided on the basis of an express conclusion that the Dublin II Regulation does not confer rights on individual asylum applicants to insist on the proper application of the Regulations. Moreover, unlike in this case, it would appear that the derogation in Article 3(2) from the general requirement in Article 3(1) that an 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, did apply. That is because Article 3(2) provides that a 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 criteria laid down in the Regulation. In Mota the applicant had applied for asylum in the Netherlands whereas in this case the Claimant did not apply for asylum in Germany. Thus on Burton J’s ruling the acceptance of responsibility by the Netherlands was permitted by Article 3(2) so that there was no breach of the Dublin II Regulation. 131. There is however arguably a different respect in which, if my analysis is correct, Burton J’s judgment assists the Defendant in this case. That is because he held that he could see no basis for a case that gave the Claimant the right to complain that a country whose obligation under the Dublin II Regulation to retain the responsibility for deciding an asylum application may have ceased should not have accepted responsibility. It is true that it appears that unlike in this case the voluntary acceptance responsibility by the Netherlands was authorised by Article 3(2) of the Regulation. Nonetheless Burton J expressed his reasons in wider terms than by reference to that specific Article which were based on the general principle that if a Member State is prepared to consider an asylum application then there is no basis for another country from whom that responsibility has been lifted to continue to supply further information in case the receiving country might change its mind. 132. Thus in this case it could be argued on behalf of the Defendant that Germany having accepted responsibility, apparently under Article 9(4), there was no obligation on the Defendant to respond to the German Authorities by asking for confirmation that, contrary to the information which she had supplied suggesting that the Claimant had left Germany for Iran, in fact the conditions precedent for Article 9(4) to apply were met. 133. As against that it could be said that there is a material distinction between a case such as Mota where it was contended that the United Kingdom had an obligation to continue to send information to a Member State after it had accepted responsibility with a view to its reconsidering the position and a case, such as this one, where the allegation is that the acceptance by Germany of responsibility under Article 9(4) was on its face in breach of Article 9(4) on the basis on the information which was already before Germany when it accepted responsibility. 134. On the facts of this case there is a further wrinkle. Although Germany responded by a letter dated27th April 2012 to the Defendant’s Article 17(1) request that it take charge of the Claimant by saying that the request was met according to Article 9(4) and that the Claimant would be accepted by Germany, the effect of Article 18(7) was that Germany’s failure to give a decision on the request within 2 months of the date on which the request was received, as required by Article 18(1), was tantamount to accepting the request and entailed the obligation to take charge of the Claimant. 135. Thus even if, as Mr Jagadesham submitted, there was no criterion set out in Chapter III of the Regulation pointing to Germany as the responsible Member State and even though there is no provision comparable to Article 3(2) entitling a Member State with whom no asylum application has been lodged voluntarily to accept responsibility even where such responsibility is not dictated by Chapter III, it would appear that an obligation to take charge of the Claimant was imposed on Germany by Article 18(7) by reason of its failure to act within the two month period mentioned in Article 18(1). 136. On that basis, even if Germany was not the responsible Member State by reason of Article 9(4) and even if its subsequent purported acceptance of responsibility pursuant to Article 9(4) were actionable at the suit of the Claimant, the provisions of Article 18(7) had already lawfully imposed on Germany the obligation to take charge of the Claimant. I return to this important point in my overall conclusions at the end of this judgment. 137. In the Court of Appeal in Mota Pill LJ summarised Burton J’s findings in the following terms: “In dismissing the application, Burton J found that Article 16(3) did not apply after a Member State had accepted a transfer, even if the Claimant was out of the Union for over three months; then once there had been an acceptance of a transfer application, the applicant is not entitled to challenge the transfer. The judge found that the Regulations confer no rights upon individuals to challenge decisions between States, notwithstanding that the Regulations are directly applicable in the Member States. Dealing with a further submission, the judge found that, if she made an application in the Netherlands, the Claimant would suffer no prejudice by virtue of the fact that the Netherland’s apparent acceptance that she had not left the territory of the Union. It would not mean that, in an application to the Dutch Authorities, she could not rely on the events in Sierra Leone in 2005.” (Paragraph 7). 138. In the second sentence of that paragraph Pill LJ clearly held that Burton J had made a general finding that the Dublin II Regulation confers no rights upon individuals to challenge decisions between States, notwithstanding that the Regulations are directly applicable in the Member States. He thus gave a much broader interpretation of Burton J’s reasoning than that which I have suggested above. He also found that Burton J had found that once there has been an acceptance of a transfer application the applicant is not entitled to challenge the transfer. Again he framed that conclusion in general terms. Mr Karim submitted in this case that in refusing permission to appeal the Court of Appeal in Mota upheld those parts of Burton J’s conclusions which appeared in the second half of the first sentence and in the second sentence of Pill LJ’s summary thereof. 139. Thus he submitted that Mota is binding Court of Appeal authority both for the proposition that once there has been an acceptance of a transfer application the applicant is not entitled to challenge the transfer and for the proposition that the Dublin II Regulation confers no rights on individuals to challenge decisions between Member States, notwithstanding that it is directly applicable in the Member State. 140. While he did not say that in refusing permission to appeal the Court of Appeal expressly upheld or approved those conclusions Beatson J in R(MK)(Iran)) did say that when refusing permission to appeal Pill LJ, with whom Moses LJ agreed, took the same approach as Carnwath LJ R(MK)(Iran)) when he said that the Regulation is concerned with the allocation of responsibility as between States not the creation of personal rights, and there is nothing in the Regulation which can be said to create a personal right to have the claim determined within any particular time. (Paragraphs 36, 37). 141. In my judgment a close reading of Pill LJ’s judgment suggests that permission to appeal was refused on more limited and grounds which fell short of an outright approval of the two findings of Burton J to which I have referred. 142. Pill LJ identified the following submissions advanced by Counsel for the Applicant. First he submitted that the decision of the Secretary of State that the Applicant had not left the Union was irrational having regard to the material available. It was also submitted that the decision letter was insufficiently reasoned. It was also put and was said by Pill LJ to be part of the same point but put in a different way that the decision of the Dutch Authorities was erroneous. They were in error in finding that the Applicant had not left the territory of the Union. That being so it was submitted that the applicant had a right under the law of England and Wales to have her application considered in this country. Finally it was submitted that any application in the Netherlands would be prejudiced in the manner argued before Burton J. (Paragraph 8). 143. Pill LJ rejected the submissions that the Secretary of State’s decision was irrational and insufficiently reasoned on the facts. As to the submission based on the alleged erroneous finding of the Dutch Authorities, Pill LJ stated that that overlapped with the first submission in that if the United Kingdom decision on not leaving the Union was a valid one it would be extremely difficult for the Court of Appeal to hold that the decision of the Dutch Authorities was other than one they were entitled to reach. He then identified a further hurdle which the applicant would need to jump, namely the need to show that an erroneous decision of the Dutch Authorities led to a private law right in the United Kingdom to prevent removal from the United Kingdom and consideration of the asylum claim here. As to that Pill LJ said that in his judgment the point did not arise upon the finding of the first point. Having regard to the finding on the first point it would not be possible for the Court to hold that the decision of the Dutch Authorities was erroneous which he described as a necessary finding before one got to the stage of considering the consequences. The point could well arise if there were conflicting decisions in the two jurisdictions. If for example the Dutch Authorities were denying any leaving of the Union and therefore accepting responsibility whereas the British Authorities declined to make any finding on the point, counsel for the applicant then wished to argue before the English Courts that the decision of the Dutch Authorities was an irrational one and that he had a right under English law to have the application here. Again Pill LJ said that there was no need on the application before the Court of Appeal to decide that point. 144. He did, however, say that he would be prepared to assume for present purposes that the decision of Bean J in Ahmadzai v Secretary of State[2006] EWHC 318 (Admin) was correct and that a private law right may arise upon a breach of duty by the United Kingdom while emphasising that that was no indication as to how the appeal against his decision might be resolved. (The judgments in the appeal against his decision are those reported under the name AA (Afghanistan) v SSHD[2006] EWCA 1150 (Civ) to which I have already referred.) 145. Pill LJ referred to a submission of counsel for the Applicant that a private right is created in Article 16 of the Dublin II Regulation if the circumstances set out in Article 6(3) [I take that to be a misprint for 16(3)] arise and that there may then be facts which entitle an applicant to bring a claim in the courts of this country. 146. He cited without comment brief extracts from the judgments of Sir Swinton Thomas and Chadwick LJ. in Omar including the obiter dictum of the latter that it may well be, as he was inclined to think, that the Appellant had a directly effective right, conferred by Article 11.5 of the Convention read with Article 29 of the Regulation to be transferred to Italy. He also cited Maurice Kay LJ’s dictum in G v Secretary of State that the effect of Article 15 of the Dublin II Regulation is not to confer a free-standing substantive right on individual applicants but rather to regulate the relationship between two or more Member States. Pill LJ also observed that Omar as do other cases on the Dublin Convention and the Dublin II Regulation depended on the particular Article in question. 147. There was in my judgment in Pill LJ’s judgment no explicit approval of the broad finding which he described Burton J as having made that the Dublin II Regulation confers no rights on individuals to challenge decisions between States, or even that once there has been an acceptance of a transfer application, the applicant is not entitled to challenge the transfer. Indeed his statement that the question whether an erroneous decision of the Dutch Authorities led to a private law right in the United Kingdom to prevent removal from the United Kingdom and [require] consideration of the asylum claim here did not arise on the facts and his readiness to assume for present purposes that the decision of Bean J in Ahmadzaj was correct and that a private law right may arise upon a breach of duty by the United Kingdom, suggest that he considered that both points were at least arguable. The matter is further complicated by his reference to counsel for the applicant wishing to argue before the English Courts not that the decision of Dutch Authorities was wrong such as to give rise to a right on the applicant to insist on a direct application of the Dublin II Regulation but rather that it was an irrational one. Whether there is to be read into that distinction an echo of the distinction drawn by Laws LJ is AA (Afghanistan) it is impossible to say. 148. Having said that it is undoubtedly also the case that Pill LJ nowhere expressed the view that the Dublin II Regulation does confer rights on asylum applicants or other individuals or agreed with the obiter dicta in Omar and the effect of the decision of the Court of Appeal was to uphold a decision of Burton J whose findings, as summarised by Pill LJ included an express finding in general terms that the Dublin II Regulation confers no rights upon individuals to challenge decision between States, notwithstanding that it is directly applicable in the Member States. Thus although it does not in my judgment constitute a binding authority approving that proposition Pill LJ’s judgment in Mota is undoubtedly more helpful to the Defendant than the Claimant. It certainly does not approve the obiter dicta to which I have referred in Omar and it does not contain even obiter dicta supporting those views. 149. In R (YZ and others)the Secretary of State for the Home Department[2011] EWHC 2005 (Admin) , Beatson J said that the decision of Silber J in R (Chen) v Secretary of State[2008] EWHC 437 (Admin) at [30] and [35] is to the same effect as the decision of the Court of Appeal in Mota which, as we have seen, he considered took the same approach as that of Carnwath LJ in R (AK Iran). 150. In R (Chen) Silber J held that: “[35] There is a further difficulty for the claimant which would also mean that the case for the claimant is doomed to failure and that is because the allocation of responsibility between Member States under the Dublin regulations cannot be challenged by an individual save on human rights grounds, and perhaps on the basis of irrationality, neither of which are relevant to the present case. The matter was made clear by Laws LJ who said when giving the only substantive judgment of the Court of Appeal in R (AA Afghanistan) v Secretary of Statement for the Home Department[2006] EWCA 1150 (Civ): 13….. I certainly accept in general terms an asylum claimant cannot challenge (save perhaps on human rights grounds) the allocation of responsibility between states for the determination of the claim that has been affected by the proper application of [the Dublin Regulations II]: [36] For the purpose of completeness I should point out that further support for this view can be found in Mota v Secretary of State for the Home Department [2006] EWCH 1380 (Civ) because Pill LJ (with whom Moses LJ agreed) refused permission to appeal against a decision to the effect that: “Once there had been acceptance of the transfer application the applicant is not entitled to challenge the transfer. The judge found that the regulations confer no rights upon individuals to challenge decisions between states notwithstanding that the regulations are directly applicable in the Member States.” 151. As appears from this extract of his judgment Silber J interpreted Laws LJ’s judgment in AA (Afghanistan) as holding that as a general matter the allocation of responsibility between Member States under Dublin II Regulation cannot be challenged by an individual save on human rights grounds and perhaps on the basis of irrationality. Although, for the reasons which I have given, the decision of the Court of Appeal in AA (Afghanistan) was not, in my respectful opinion, quite as unequivocal as it was in the opinion of Silber J, it is striking that Silber J held as part of the ratio decidendi of his decision that alleged breaches of the provisions of the Dublin II Regulation which determine which Member State is responsible are not actionable at the suit of an individual. I also draw attention to the fact that he like Beatson J considered that the decision of the Court of Appeal in Mota supported that view. It is also, in my judgment, noteworthy that Silber J in reaching his conclusion twice referred to the origin and purpose of the Dublin II Regulation which was to provide a speedy administrative route map by which Member States could as between themselves identify which Member State is to be responsible in any particular case for considering an asylum application. 152. As appears from Beatson J’s summary of Cranston J’s decision in R(J) Secretary of State[2009] EWHC 1182 (Admin) and the extract from his judgment which he cited, Cranston J expressed the general opinion that the Dublin II Regulation gives rise to obligations between Member States but does not confer claims on individual asylum seekers. In reaching that conclusion he, as did Beatson J, relied in part on the background material and on the terms of the Dublin II Regulation itself, both of which in his judgment made clear that there is no intention that an individual asylum seeker should derive rights from Article 20 of the Regulation. (Paragraph 21 cited in paragraph 69 of Beatson J’s judgment.) 153. It is in my view striking that both Cranston J and Beatson J reached the conclusion that the Dublin II Regulation does not confer rights on individuals and that alleged breaches of its provisions are not actionable at the suit of individuals in part based on their interpretation of the travaux preparatoires and the terms of the Regulation itself, independently of any analysis of what has been held in the authorities on the subject. I respectfully agree with both of them. 154. In R(Haedare) v Secretary of State[2009] EWHC 3444 (Admin) Christopher Symons Q.C. sitting as a Deputy High Court judge cited paragraphs 35 and 36 of Silber J’s judgment in Chen and held that: “The authorities make it clear that it is not open to the applicant to challenge his removal to Greece except where his human rights are breached or on the basis of irrationality.” (Paragraphs 16 and 24). In so far as Mr Symons Q.C. followed the conclusions of Silber J without demur or comment his judgment provides further support for them. 155. Mr Karim relied on the following extract from the judgment of Wyn Williams J in R (Shayanth) v Secretary of State for the Home Department[2009] EWHC 1208 (Admin) at paragraph 47: “The whole purpose of Dublin II is to provide a mechanism for determining which of the contracting States should determine an application for asylum. It is very difficult to envisage circumstances in which it could be thought to be unfair to an asylum seeker that his application for asylum was determined in one member country as opposed to another. If removal to a third country would involve a breach of the asylum seeker’s human rights under the European Convention on Human Rights, of course, the removal can be challenged and it may be that a separate and parallel challenge can also be brought and maintained against the allocation of responsibility under Dublin II (see R AA v Secretary of State for the Home Department [2006] EWCH 2250 (Civ) per Laws LJ). That same case suggests that a challenge to allocation may also be brought on rationality grounds…” 156. Wynn Williams J’s observation that it is very difficult to envisage circumstances in which it could be thought to be unfair to an asylum seeker that his application for asylum was determined in one Member country as opposed to another goes to the root of the question whether the purpose and effect of the Dublin II Regulation extends to conferring rights on asylum seekers to have their asylum applications determined by the Member State identified by proper application of the hierarchy of criteria. It strongly supports in my judgment the conclusion that as a matter of construction of the Dublin II Regulation in the context of the travaux preparatoires the answer to that question is no. 157. As against that the last two sentences of the extract of his judgment would appear to suggest that he interpreted the decision of the court of Appeal in AA (Afghanistan) as holding open the possibility that the allocation of responsibility under the Dublin II Regulation may be challenged not only on irrationality grounds but on the ground that the provisions of the Dublin II Regulation have been breached. To that extent they may be said to provide some support for Mr Jagadesham’s submissions. However no reasons or explanations were given by Wynn Williams J for that interpretation of Laws LJ’s judgment in AA (Afghanistan). 158. In R (Reza) v Secretary of State for the Home Department[2012] EWHC 1207 (Admin) an Iranian National arrived in Belgium where he made an unsuccessful application for asylum. Six years later he arrived in the United Kingdom where he again applied for asylum. He claimed to have travelled to Iran where he stayed for several years after leaving Belgium. After initially refusing to accept the United Kingdom’s request for it to accept responsibility under the Dublin II Regulation, Belgium accepted responsibility in response to a subsequent letter from the British Authorities which cast doubt on the applicant’s account. 159. Mitting J said that counsel for the applicant “accepts, as he must, that the Dublin II Regulation does not, in principle, give rights to an individual but regulates the responsibility for dealing with asylum claims as between states.”
“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article” 162. He also relied on Article 6.1 of the Procedure Directive which provides that: “Member States shall ensure that each adult having legal capacity has the right to make an application for asylum on his/her own behalf.” 163. Mitting J rejected the application, the answer to which he said was to be found in Article 25.1 of the Procedure Directive, which does not deem inadmissible cases in which an application is, as a matter of obligation, required to be considered by a Member State other than the one to which immediate application is made. He held that it covers cases “in which an application is not examined” in accordance with the Dublin II Regulation. 164. For present purposes what is of relevance is Mitting J’s observation that if the applicant’s argument succeeded then: “….in a significant number of cases the Dublin II Regulation, which is designed to regulate matters as between Member States and not confer individual rights, can be the subject of individual challenge in the courts of the Member State such as to give rise in effect, even if not in theory, to a right to an individual to challenge the apportionment of responsibility between Member States under that Regulation. As a matter of ordinary statutory construction, that cannot have been the intention of the European legislators when passing into law the Procedure Directive as they recognised in Recital 29, already cited.” (paragraph 15). That is a clear statement of general principle that the Dublin II Regulation is not designed to confer individual rights and that, ab sent what he described as the novel argument based on Article 47 of the Charter of Fundamental Rights and Article 6 of the Procedure Directive, an individual does not have a right to challenge the apportionment of responsibility between Member States under the Dublin II Regulation. 165. Mitting J also held that it was for Belgium to decide whether or not it accepted its obligation under Article 13 of the Dublin II Regulation and that once it had accepted that obligation the United Kingdom authorities were relieved of any obligation to determine the application for asylum save in two circumstances not relevant for present purposes. It was not permissible for the Claimant to challenge in a British Court the decision of the Belgium authorities to accept their obligation under Article 13. The European legislature did not envisage that such a challenge would be open to an individual and it was difficult to see how it could in practice be litigated. How he asked could an English Court determine whether the Belgium Authorities were or were not justified in accepting responsibility under the Dublin II Regulation? (paragraph 17 and 18). Conclusion on the English Authorities 166. 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. Although I do not consider that there is binding Court of Appeal authority which would compel the conclusion which, as a matter of statutory construction, is in my judgment the correct one, I respectfully agree with Beatson J, as he then was, in R (YZ and others), albeit not for entirely the same reasons, that the weight of English authority supports the construction which in my view is the correct one. 167. Accordingly, unless compelled by binding authority of the ECJ I would, if necessary, dismiss the claim for judicial review in this case on the ground that the Claimant has no right under the Dublin II Regulation to challenge the acceptance by Germany of responsibility for examining her asylum application or the refusal by the Defendant to consider it on the ground that both decisions constituted breaches of the obligation of both countries to identify the responsible Member State by proper application of the criteria set out in the Dublin II Regulation which should have resulted in the United Kingdom being identified as the responsible Member State. European Authorities 168. The concluding words of the Dublin II Regulation are: “This Regulation shall be binding in its entirety and directly applicable in the Member States in conformity with the Treaty establishing the European Community. ” 169. It was common ground between the parties that the Dublin II Regulation is directly applicable in the Member States including the United Kingdom in the sense that no domestic legislation in any Member State is required before its provisions come into force and have the force of law. 170. The issue between the parties is whether as well as imposing obligations on Member States as between themselves the Dublin II Regulation also confers rights on individuals and whether alleged breaches of its provisions are actionable at their suit. 171. Mr Jagadesham submitted that the only test as to whether a provision of European law has direct effect (as distinct from being directly applicable) is whether it satisfies the requirements established in the case of Van Gend enLoos [1963] ECR1 that it should be clear, precise and unconditional. 172. He next submitted that it is an automatic consequence of a provision of European law having direct effect that it can be invoked or enforced by an individual in a national court. In support of that proposition he relied on the statement in Van Gend enLoos by the ECJ that: “…Article 12 of the EEC Treaty was to be “interpreted as producing direct effects and creating individual rights which national courts must protect.” (Emphasis added).
“In accordance with the case-law of the Court, it is for the national courts in application of the principle of cooperation laid down in Article 5 of the EEC Treaty, to ensure the legal protection which persons derive from the direct effect of provisions of community law…” 174. Mr Jagadesham referred tosection 2(1) of the European Communities Act 1972 which provides that: “All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression “enforceable EU right” and similar expression shall be read as referring to one to which this sub section applies.” 175. He referred in this context to the text book Craig and Deburca , EU Law (5th edition OUP, Oxford 2011) at page 286: “Section 2(1) makes the concept of direct effect a part of the UK legal system. It deems law which under the EU Treaties is to be given immediate legal effect to be directly enforceable in the UK. Accordingly UK courts…are directed by section 2(1) to enforce any directly effective EU measures.” 176. Mr Jagadesham submitted that it follows that any directly effective EU measures must be enforceable by an individual and not only by Member States. 177. As regards EC Regulations Article 249 of the EC Treaty provides that: “A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.” 178. He accepted that not every provision of every Regulation necessarily has direct effect. However he submitted that the only test as to whether any particular provision in a particular regulation does have direct effect is whether it satisfies the three Van Gend enLoos requirements. In that regard he referred to Craig and Deburca at page 190: “…there is no reason why, so long as their provisions are sufficiently clear, precise, and relevant to the situation of an individual litigant, they should not be capable of being relied on and enforced by individuals before their national courts. The key issue will be whether the particular article of the regulation on which the individual relies is sufficiently clear, precise and certain for direct effect [the Van Gend enLoos conditions].” 179. He submitted that the only ECJ case in which the Court found that a provision of a Regulation was not directly effective turned on the fact that the contested provision was not sufficiently precise and or was conditional: see Azienda Agricola Monte Arcosu Srl v Regione Autonoma Della Sardegna (case C403/98)[2002] 2cmlr 14 [at 26]: “In the light of the discretion enjoyed by the Member States in respect of the implementation of those provisions, it cannot be held that individuals may derive rights from those provisions in the absence of measures of applications adopted by the Member States.” 180. As to the question whether an EC Regulation is enforceable by individuals he submitted that there is no ECJ case which provides that an individual cannot enforce a provision of a Regulation in a national court where that provision meets the Van Gend enLoos conditions. 181. Thus he submitted that the only test for whether a Regulation is enforceable in a national court by an individual is whether the provision has direct effect or not which is to be determined by whether it meets the Van Gend enLoos conditions. 182. He relied on two ECJ cases which he submitted contain clear statements of principle as to the enforceability of EC Regulations by individuals. In Leonesio v Italian Ministry of Agriculture and Forestry (Case 93/71)[1973] CMLR 343 (ECJ), 352 the ECJ said: “(2) The second paragraph of Article 189 of the Treaty provides that a Regulation shall have “general application” and “shall be …directly applicable in all Member States”
“Regulations have general application and are directly applicable in all Member States. Accordingly, owing to their very nature and their place in the system of sources of Community law, regulations operate to confer rights on individuals which the national courts have a duty to protect.” 184. Finally he submitted that neither Laws LJ in AA (Afghanistan) nor Beatson J in R (YZ) and others addressed head on the question whether a Regulation must confer a right on an individual. 185. Ms Busch, who made submissions on EU law on behalf of the Defendant, accepted that EC Regulations often confer direct rights on individuals which are enforceable by them in national courts. However she submitted that that is not always the case. It does not follow from the fact that a Regulation is, as she conceded is the case with the Dublin II Regulation, directly applicable in the sense of being incorporated into domestic UK law without the need for further statute, that it necessarily confers on individuals enforceable rights. 186. She submitted that there is no decision of the ECJ which holds that all provisions in all Regulations necessarily confer directly enforceable rights on individuals. She referred to the decision of the ECJ in Defrennev SABENA (No 2) (Equal Pay) [1976] EUECJ C-43/75. The question in that case was whether Article 119 of the Treaty of Rome introduced directly into the national law of each Member State of the European Community the principle that men and women should receive equal pay for equal work and whether it therefore independently of any national provision entitled workers to institute proceedings before national courts in order to ensure its observance. 187. The ECJ held that for the purposes of the implementation of Article 119 a distinction had to be drawn between direct and overt discrimination, which may be identified solely with the aid of the criteria based on equal work and equal pay referred to by the Article in question, and secondly indirect and disguised discrimination which can only be identified by reference to more explicit implementing provisions of a Community or national character. (Paragraph 18). 188. The ECJ held: “(21) Among the forms of direct discrimination which may be identified solely by reference to the criteria laid down by Article 119 must be included in particular those which have their origin in legislative provisions or in collective labour agreements and which may be detected on the basis of a purely legal analysis of the situation. (22) This applies even more in cases where men and women receive unequal pay for equal work carried out in the same establishment or service, whether public or private. (23) As is shown by the various findings of the judgment making the reference, in such a situation the court is in a position to establish all facts which enable it to decide whether a woman worker is receiving lower pay than a male worker performing the same tasks. (24) In such situation, at least, Article 119 is directly applicable and may thus give rise to individual rights which the courts must protect.” (Emphasis added).