Habte v Secretary of State for the Home Department & Ors [2013] EWHC 3295 (Admin)

Case No CO/3439/2012Case No CO/12528/2012[2013] EWHC 3295 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Birmingham Civil Justice Centre,, 33 Bull Street, Birmingham, B4 6DSDate 30/10/2013
Before
MR JUSTICE LEWIS
Between
BIRUK HABTEClaimant
David Chirico (instructed by TRP Solicitors) for Claimant in the first caseS. Chelvan (instructed by Lawrence Lupin Solicitors) for Claimants in the second caseAlan Payne (instructed by Treasury Solicitors) for DefendantHearing Hearing date: 15 th, 16 th October 2013
Judgment

Introduction

[1]The Claimants in these two cases both raise issues concerning the lawfulness of action taken by the United Kingdom authorities to remove them from the United Kingdom to other Member States of the European Union in order to enable those states to deal with their claims for asylum. In brief, both cases involve situations where an asylum claim had first been made and rejected in another EU Member State (Germany in the first case and Belgium in the second). In each case, a subsequent asylum claim was made in the United Kingdom. Following requests by the United Kingdom, the respective authorities of Germany and Belgium accepted that they were responsible for dealing with the asylum claim and agreed to take back the relevant Claimant.[2]In each case, however, the Claimants contend that they had spent more than 3 months outside the territory of the EU and that, therefore, Germany and Belgium could have contended that their obligation to take back the Claimants had ceased by reason of Article 16(3) of Council Regulation (EC) 343/2003 of 18 February 2003 establishing the criteria and the mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third country national (“the Dublin II Regulation”).[3]In the first case, the Claimant, Biruk Alamayehu Habte, contends that various actions of the Defendant were unlawful as a common law duty of procedural fairness, or certain provisions of the Dublin II Regulation, or Article 41 of the Charter on Fundamental Rights of the European Union (“the Charter”), required the Defendant to make further enquiries, or offer him the opportunity to provide further evidence or to take legal advice, before requesting Germany to take him back. In addition, the Claimant contends that the decision of the Defendant, certifying his claim that removal would violate his right to respect for family and private life under Article 8 of the European Convention on Human Rights (“ECHR”) as clearly unfounded, was unlawful.[4]In the second case, the first Claimant contends that the decision of the Defendant either to request the Belgian authorities to take the first Claimant back, or to continue with that request following an initial refusal by Belgium to accept responsibility, was irrational as a matter of domestic public law.[5]The Defendant contends that no procedural obligations of the sort claimed by Mr Habte were owed. More fundamentally, the Defendant contends that, once the requested state has accepted responsibility for dealing with the asylum application, transfer to that Member State is lawful and cannot be challenged on domestic public law grounds. The Defendant also contends that the material provisions of the Dublin II Regulation regulate relations between Member States and do not give rise to directly effective rights enforceable by individuals in national courts. Further, the Defendant contends that Article 41 of the Charter does not apply to decisions relating to the allocation of responsibility for dealing with asylum claims and the removal of asylum seekers to another Member State for that purpose. In relation to RH, the Defendant contends that the process followed was that laid down in the Dublin II Regulation and acting in accordance with that process cannot be said to be irrational. THE FACTS Biruk Habte

THE FACTS

[6]Mr Habte is an Ethiopian national born on 5 April 1990. In 2006, he, together with a brother and a sister, arrived in Germany. He claimed asylum on the basis that he feared persecution in Ethiopia because of his family’s, and subsequently his own, involvement with the Oromo Liberation Front which is a banned organisation in Ethiopia. Their asylum claims were refused.[7]The Claimant says that he returned to Ethiopia. He does not say in his witness statement when he says he returned to Ethiopia. He contends that he attended a bible study course in Ethiopia between the 1 March 2007 and 20 May 2007 and his lawyers have inferred that he claims to have returned to Ethiopia some time in February 2007. In any event, he contends that he spent more than three months in Ethiopia between the refusal of his asylum claim in Germany and leaving Ethiopia again on 6 July 2007.[8]On 6 July 2007, Mr Habte says that he left Ethiopia and flew first to France, then went to Belgium and then came by air to the United Kingdom. He was 17 at the time. In Belgium, Mr Habte obtained a visa to come to the United Kingdom using a false name and claiming that he was the son of a person who was, in fact, his brother-in-law. He entered the United Kingdom with that visa and with a passport again in a false name. In 2008, when he was 18, he went again to France and obtained another visa in a false name and returned to the United Kingdom using false documents. That visa was valid from 23 January 2008 until 23 July 2008. In interview, he explained his actions on the basis that he was following the instructions of his brother-in-law.[9]On 3 January 2012, Mr Habte claimed asylum. An interview, referred to as a screening interview, was conducted on that day. Mr Habte admitted that he had used an alias to enter the United Kingdom and had used a false passport. He gave some details of the route by which he had arrived in the United Kingdom. He said that he had been fingerprinted in Germany in 2006. He said that he had applied for asylum under a false name in Germany in 2006 but that application had been refused. He said he then went back to Ethiopia. He was not asked how long he spent in Ethiopia. He was asked “do you have any evidence to prove you returned to your own country of your own accord”. Mr Habte replied “No”.[10]Mr Habte’s fingerprints were taken and were checked against a computerised central database of fingerprints known as “Eurodac”. That revealed that Mr Habte had claimed asylum in Germany in 2006 as he had said in interview.[11]On 12 January 2012, the United Kingdom authorities requested Germany to take back Mr Habte using the standard form prescribed by Article 2 and Annex II to the Commission Regulation (EC) 1560/2003 of 2 September 2003 laying down detailed rules for the application of the Dublin II Regulation (“the Commission Regulation”). Question 12 of that form asked whether the applicant had stated that he had left the territory of the Member States. The request says, incorrectly, “no”. However, there was a box headed “Comments” which said this:
“The applicant is a EURODAC hit with Germany on 01/06/2006, EURODAC hit attached. The applicant claimed asylum in the UK on 03/01/2012. During the screening interview, the applicant claimed that he left Ethiopia on 16/07/2007 by air and went to France. On 24/07/2007 he claimed to have left France hidden in a lorry and entered the UK on the same day. He then states in the same interview that he left Ethiopia on 06/07/2011 and flew to France before taking a flight to Belgium and then a further flight to the UK, arriving in the UK on 24th or 25th July 2011. The applicant later admitted to being fingerprinted in Germany and that he claimed asylum there in 2006. He claims that his German asylum claim was refused and that he went back to Ethiopia, but has not supplied any evidence of this. The applicant has been vague about his travel route to the UK, and has travelled on a false passport for at least part of the journey. He initially didn’t mention his time in Germany, and has failed to provide any evidence to support his claims that he returned to Ethiopia. All of this casts doubt on the validity of the applicants claims.”
[12]On 3 February 2012, the German authorities replied stating that the request for them to take back Mr Habte was accepted and he would be taken back by the Federal Republic of Germany.[13]On 7 February 2012, the Defendant certified that she proposed to remove Mr Habte to Germany and that he was not a national of that state, pursuant to section 33 and part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants) Act 2004 (“the 2004 Act”). On 23 March 2012, the Defendant determined to remove Mr Habte to Germany. Both the decision to certify and the decision to remove are challenged by the Claimant. Initially, removal directions were fixed and the Claimant was detained. The removal directions were cancelled and the Claimant was released. Although initially the subject of challenge, the removal directions and detention decisions are not now challenged in these proceedings (the underlying decision to remove Mr Habte from the United Kingdom to Germany is, of course, still challenged).[14]When Mr Habte was interviewed on 3 January 2012, he was asked and said he had no evidence that he had returned to his country. Subsequently, he produced a fax dated 30 January 2012 said to be from the Reverend Mussie Alazar at the Ethiopian Evangelic Lutheran Church Addis Ababa Congregation. That said:
“This is certifying that Biruk Alemayehu was born in 05/04/1990. While he was here in Ethiopia he was an active member and took a short term BIBLE study course from March 01 – May 20, 2007. He had good approach to the church ministers and all members. I would like to thank you for your cooperation.”
[15]There are subsequent e-mails in late March 2012 between the solicitors for Mr Habte and Reverend Mussie Alazar confirming the authenticity of the certificate and accuracy of the information. There is also an e-mail from a Gunter Schroder dated 28 March 2012 which states that he is familiar with the relevant church in Ethiopia, had checked with a contact at the church and the contact had said that the header, format and stamp on the letter conformed with those used by the church. The contact said that the pastor, the Reverend Mussie Alazar, was known to him. On the basis of that information, Mr Schroder expressed his view that it was highly likely that the letter of 30 January 2012 was genuine.[16]On 23 March 2012, the Defendant rejected Mr Habte’s claim that removal from the United Kingdom would constitute an unlawful interference with his right to respect to family and private life under Article 8 ECHR. That decision was replaced by a decision letter dated 28 March 2012. The claim to family life was based on the fact that Mr Habte was in a relationship with a British national and had been living with her since the end of his immigration detention and also on ties with his brother and sister who lived in the United Kingdom. The claim to private life relied on the ties that the Claimant had established during his period of unlawful presence in the United Kingdom including the ties with his church and the local community. The Defendant did not accept that Mr Habte had established a family life with his girlfriend and considered that the ties with his siblings did not go beyond normal emotional ties and did not amount to family life. In relation to his right to respect for his private life (and, even if the Defendant had accepted that Mr Habte had established a family life), the Defendant considered that removal would pursue a legitimate interest and was proportionate in all the circumstances. The Defendant certified that the human rights claim was clearly unfounded, pursuant to paragraph 5(4) of Schedule 3 to the 2004 Act. The practical consequences of the decision to certify the claim as clearly unfounded is that Mr Habte could only appeal against the decision from outside the United Kingdom.[17]A further letter was sent by the Defendant on 14 October 2013 to supplement the 28 March 2012 letter. In that later letter, the Defendant stated that she had considered the witness statements of Mr Habte and his girlfriend in the judicial review proceedings to consider whether or not they altered her decision in relation to the human rights claim. In summary, the Defendant again decided that the evidence did not substantiate the claim that Mr Habte and his girlfriend were in a subsisting and genuine relationship. The Defendant, in any event, concluded that Mr Habte would not be entitled to obtain leave as the partner of his girlfriend under the Immigration Rules. The Defendant also stated that, even assuming there was such a relationship, any interference with Mr Habte’s family or private life would be justified. He had entered the United Kingdom illegally. Any family life or private life had been established at a time when his presence in the United Kingdom was precarious and formed in the full knowledge that he was residing illegally in the United Kingdom. In those circumstances, removal would pursue a legitimate aim, namely the maintenance of effective immigration control and was proportionate in the circumstances identified in the letter of 14 October 2013. The Defendant stated that she had considered the position of Mr Habte’s girlfriend and her rights under Article 8 ECHR. The Defendant maintained her decision to certify the human rights claim as clearly unfounded.[18]Mr Habte now seeks to challenge(1) the 7 February 2012 decision to certify his asylum claim,(2) the decision of 12 January 2012 to request Germany to take him back(3) the decision of 23 March 2012 to remove him to Germany and(4) the decision of 28 March 2012, as supplemented by the letter of 14 October 2013, to certify his human rights claim as clearly unfounded.[19]On 29 October 2012, Silber J. granted permission on two grounds, namely(1) what enquiries the Defendant had to make before making a formal request to another member to accept responsibility for consideration of his asylum claim under the Dublin II Regulation in circumstances where the Claimant has indicated that there is material that shows or might show that he has been out of the jurisdiction for 3 months or more and(2) Article 8 ECHR. In fact at the time that the Defendant made the request to Germany, the Claimant had not produced any material to show that he had been out of the jurisdiction. The hearing proceeded on the basis that Mr Habte was contending that various procedural obligations applied in this case notwithstanding the fact that Mr Habte had said that he had no evidence to show that he had left the EU.

RH and DY

[20]RH is a national of Eritrea who was born on 24 December 1976. She applied for asylum in Belgium on 30 December 2004. That claim was refused.[21]On 17 August 2011, RH, together with her son who was born on 6 July 2005, arrived at Stansted Airport and claimed asylum. RH was interviewed on 17 August 2011 and said that she had left Eritrea and had been in Sudan, then Turkey and then Greece. She claimed that she had a fear that she would be persecuted if returned to Eritrea as she had avoided military service there. On 22 September 2011 RH was interviewed in connection with her asylum claim. She said that she had left Eritrea in December 2002 to avoid military service and crossed into Sudan. She said she stayed in Sudan for 1 year and 11 months until November 2004. She said that she then left for Turkey and was in Turkey until 2006 and her son was born in Turkey. She said that she then went to Greece and remained in Greece until she came to the United Kingdom in August 2011. When asked whether she had ever been fingerprinted in Europe, she replied no. In fact, the authorities had checked her fingerprints on the Eurodac database on 17 August 2011 and that showed that she had had her fingerprints taken in Belgium in 2004 and RH was asked to explain that and she said that she thought she was being asked if she had been fingerprinted in Greece. RH said that she had been taken to a camp in Belgium for a month and a half but she was pregnant and could not tolerate the situation. She says she therefore left the camp and went to Turkey.[22]As RH had claimed asylum in Belgium, the Defendant requested that Belgium take RH back. The standard form again requires the Defendant to state if the applicant for asylum states that she had left the territory of the Member States. Again, as in Mr Habte’s case, the Defendant incorrectly ticked the box saying no. In fact RH had stated that she had left the territory of the Member States. The Defendant has not put forward any evidence to explain why, in both RH’s case and Mr Habte’s case, the boxes were completed incorrectly. In any event, there was a comments box on the request and that said:
“Subject and her son, [DY], date of birth 06/07/2005, claimed asylum in the UK. The Eurodac search revealed Subject claimed asylum in Brussels, on 30/12/2004. During Subject’s interview she claimed that she left Eritrea on 20th December/25th December 2002, which took 6 to 7 days, to reach the border at Sudan, crossing in early 2003. Subject claimed she was concealed in a lorry Subject claimed she stayed in Sudan for about 1 year and 11 months, until November 2004. Subject claimed she then travelled to Turkey, where she stayed until 2006. Subject then travelled to Greece, where she stayed for 5 years, then to Italy exact location not know but was one hours drive from Milan. Subject arrived in the UK with her son, [DY], 06/07/2005, on 17th August 2011 at Stansted Airport on a Brasilian passport which the agent had given to her, but she disposed of this on the plane. Subject claimed she did not have her fingerprints taken whilst in Europe. On further questioning regarding her Eurodac fingerprints in Belgium on 30/12/2004, Subject admitted she was caught at the border in Belgium, was fingerprinted and then stayed for about a month and a half in a camp because she was pregnant. Subject claimed she then left on her own. Subject claimed her son was born in Turkey. The UK has no proof to substantiate this claim and no account be relied upon as credible. From the account given by applicant, shows total disregard for the UK Immigration rules.”
[23]On 21 October 2011, the Belgian authorities replied stating that they did not accept the request to take back RH and said this:
“The alien and her child [DY], 06/07/2005 applied for asylum on 30/12/2004. On 28/04/2005 they got a negative decision. As we have no traces of the alien and her son since 04/2005 and the alien declared he [sic] went outside the Schengen Territory, we can not accept to take them back. Please provide us all information about the aliens whereabouts since 2005.”
Please provide us all information about the aliens whereabouts since 2005.”[24]On 9 November 2011, the Defendant wrote again to the Belgian authorities and set out a fuller description of RH’s travel history as set out by RH in her interview. That letter did not, however, contain any material new facts or evidence. The letter concluded by saying that there “is no evidence to substantiate the applicant’s claim that she went out of the Member States”.[25]On 10 November 2011, the Belgian authorities wrote accepting the transfer of RH back to Belgium pursuant to Article 16.1.(e) of Dublin II.[26]On 23 April 2013, permission was granted to RH and [DY] to argue that the decision to request Belgium to take RH back, and the decision to continue to seek transfer to Belgium after the initial refusal by Belgium, was irrational.

THE LEGAL FRAMEWORK

[27]Since 1999, the European Union has sought to develop a common asylum system, which is a system for dealing with applications for asylum by third- country nationals. The arrangements in force at the time are contained in the Dublin II Regulation. The material preambles provide as follows: “(1) A common policy on asylum, including a Common European Asylum System, is a constituent part of the European Union’s objective of progressively establishing an area of freedom, security and justice open to those who, forced by circumstances, legitimately seek protection in the Community. ….. "(4) Such a method should be based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum applications. ….. “(15) The Regulation observes the fundamental rights and principles which are acknowledged in particular in the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure full observance of the right to asylum guaranteed by Article 18.” …..[28]Article 1 provides that the Dublin II lays down the criteria and mechanisms for determining “the Member State responsible for examining an application for asylum lodged in one of the Member States by a third-country national”. Article 2 then defines the meaning of the terms “an application for asylum” and “an asylum seeker”.[29]Articles3.1 and3.2 provide as follows:
“3.1. Member states shall examine the application of any third-country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible. “3.2. 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. Where appropriate, it shall inform the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of or take back the applicant.”
[30]Articles 5 to 15 of the Dublin II Regulation then set out the criteria for determining the Member State responsible for dealing with the asylum application. Article 5 provides:
“1. The Criteria for determining the Member State responsible shall be applied in the order in which they are set out in this Chapter. “2. The Member State responsible in accordance with the criteria shall be determined on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State.”
[31]There then follows a series of criteria to be applied in order. Article 6 deals with the Member State responsible in respect of claims for asylum by unaccompanied minors. Articles 7 and 8 deal with the Member State responsible for claims by persons who have family members who have been granted refugee status or have applied for asylum in a Member State. Article 9 deals with asylum seekers in possession of a valid residence permit. Article 10.1 provides that:
“ Where it is established, on the basis of proof or circumstantial evidence as described in the two lists mentioned in Article 18(3), including the data referred to in Chapter III of Regulation (EC) No 2725/2000, that an asylum seeker has irregularly crossed the border into a Member State by land, sea or air having come from a third country, the Member State thus entered shall be responsible for examining the application for asylum. This responsibility shall cease 12 months after the date on which the irregular border crossing took place.”
[32]Article 11 and 12 deal respectively with cases of persons where the need for an entry visa has been waived or they are in an international transit area. Article 13 provides that:
“Where no Member State responsible for examining the application for asylum can be designated on the basis of the criteria listed in this Regulation, the first Member State with which the application for asylum was lodged shall be responsible for examining it.”
[33]The Claimants in these cases accept that the responsible Member State for dealing with Mr Habte’s asylum claim is Germany, and that for dealing with RH’s claim is Belgium, either because Article 10.1 applies or, failing that, because Article 13 applies..[34]Having identified which Member State is responsible for dealing with a claim for asylum Article 16 of the Dublin II Regulation imposes an obligation on that responsible Member State to take charge, or take back as the case may be, the asylum seeker. Article 16 provides as follows: “16.1. The Member State responsible for examining an application for asylum under this Regulation shall be obliged to:(a) take charge, under the conditions laid down in Articles 17 to 19, of an asylum seeker who has lodged an application in a different Member State;(b) complete the examination of the application for asylum;(c) take back, under the conditions laid down in Article 20, an applicant whose application is under examination and who is in the territory of another Member State without permission;(d) take back, under the conditions laid down in Article 20, an applicant who has withdrawn the application under examination and made an application in another Member State;(e) take back, under the conditions laid down in Article 20, a third-country national whose application it has rejected and who is in the territory of another Member State without permission. “16.2 Where a Member State issues a residence document to the applicant, the obligations specified in paragraph 1 shall be transferred to that Member State. “16.3 The obligations specified in paragraph 1 shall cease where the third-country national has left the territory of the Member States for at least three months, unless the third-country national is in possession of a valid residence document issued by the Member State responsible. “16.4 The obligations specified in paragraph 1(d) and (c) shall likewise cease once the Member State responsible for examining the application has adopted and actually implemented, following the withdrawal or rejection of the application, the provisions that are necessary before the third-country national can go to his country of origin or to another country to which he may lawfully travel. ” (a) take charge, under the conditions laid down in Articles 17 to 19, of an asylum seeker who has lodged an application in a different Member State; (b) complete the examination of the application for asylum; (c) take back, under the conditions laid down in Article 20, an applicant whose application is under examination and who is in the territory of another Member State without permission; (d) take back, under the conditions laid down in Article 20, an applicant who has withdrawn the application under examination and made an application in another Member State; (e) take back, under the conditions laid down in Article 20, a third-country national whose application it has rejected and who is in the territory of another Member State without permission.[35]Articles 16.1(a) and (b) deal with the obligation on a Member State to take charge of an asylum seeker who has applied for asylum in another member State. The procedural conditions for taking charge are contained in Article 17 and 18 of the Dublin II Regulation and Article 1 and Annex I of the Commission Regulation.[36]Article 16.1(c) to (e) deal with the taking back of asylum seekers. Article 16(1)(c) deals with a person whose application is being examined in one Member State and the applicant is in the territory of another Member State without permission. Article 16(1)(d) deals with an applicant who has withdrawn an application made in one Member State and then makes an application in another. Article 16(1)(e) deals with applicants whose application for asylum has been rejected by the responsible Member State and who are in the territory of another Member State without permission. Those cases are governed by Article 20 of the Dublin II Regulation and Articles 2 and 4 of and Annex III to the Commission Regulation.[37]The two claims in the present proceedings involve Regulation 16(1)(e) as both Mr Habte and RH have had their first claims for asylum rejected in Germany and Belgium respectively. Subject to Regulation 16(3), those States are the responsible Member States for examining their later asylum applications (made in the United Kingdom) and are obliged to take them back. Regulation 16(3) provides that the obligations on the responsible Member States cease where the third-county national “has left the territory of the Member States for at least three months”.[38]The procedure governing requests to take back persons within Article 16(1)(e) is set out in Article 20 which provides: “20.1. An asylum seeker shall be taken back in accordance with Article 4(5) and Article 16(1)(c), (d) and (e) as follows:(a) the request for the applicant to be taken back must contain information enabling the requested Member State to check that it is responsible;(b) the Member State called upon to take back the applicant shall be obliged to make the necessary checks and reply to the request addressed to it as quickly as possible and under no circumstances exceeding a period of one month from the referral. When the request is based on data obtained from the Eurodac system, this time limit is reduced to two weeks;(c) where the requested Member State does not communicate its decision within the one month period or the two weeks period mentioned in subparagraph (b), it shall be considered to have agreed to take back the asylum seeker.(d) a Member State which agrees to take back an asylum seeker shall be obliged to readmit that person in its territory. The transfer shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request that charge be taken by another Member State or of the decision on an appeal or review where there is a suspensive effect;(e) the requesting Member State shall notify the asylum seeker of the decision concerning his being taken back by the Member State responsible. The decision shall set out the grounds on which it is based, it shall contain details of the time limit on carrying out the transfer and shall, if necessary, contain information on the place and date at which the applicant should appear, if he is travelling to the Member State responsible by his own means. This decision may be subject to an appeal or a review. Appeal or review concerning this decision shall not suspend the implementation of the transfer except when the courts or competent bodies so decide in a case-by-case basis if the national legislation allows for this. If necessary, the asylum seeker shall be supplied by the requesting Member State with a laissez passer of the design adopted in accordance with the procedure referred to in Article 27(2). The Member State responsible shall inform the requesting Member State, as appropriate, of the safe arrival of the asylum seeker or of the fact that he did not appear within the set time limit. “20.2 Where the transfer does not take place within the six months’ time limit, responsibility shall lie with the Member State in which the application for asylum was lodged. This time limit may be extended up to a maximum of one year if the transfer or the examination of the application could not be carried out due to imprisonment of the asylum seeker or up to a maximum of eighteen months if the asylum seeker absconds. “20.3 The rules of proof and evidence and their interpretation, and on the preparation of and the procedures for transmitting requests, shall be adopted in accordance with the procedure referred to in Article 27(2). “20.4 Supplementary rules on carrying out transfers may be adopted in accordance with the procedure referred to in Article 27(2)” (a) the request for the applicant to be taken back must contain information enabling the requested Member State to check that it is responsible; (b) the Member State called upon to take back the applicant shall be obliged to make the necessary checks and reply to the request addressed to it as quickly as possible and under no circumstances exceeding a period of one month from the referral. When the request is based on data obtained from the Eurodac system, this time limit is reduced to two weeks; (c) where the requested Member State does not communicate its decision within the one month period or the two weeks period mentioned in subparagraph (b), it shall be considered to have agreed to take back the asylum seeker. (d) a Member State which agrees to take back an asylum seeker shall be obliged to readmit that person in its territory. The transfer shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request that charge be taken by another Member State or of the decision on an appeal or review where there is a suspensive effect; (e) the requesting Member State shall notify the asylum seeker of the decision concerning his being taken back by the Member State responsible. The decision shall set out the grounds on which it is based, it shall contain details of the time limit on carrying out the transfer and shall, if necessary, contain information on the place and date at which the applicant should appear, if he is travelling to the Member State responsible by his own means. This decision may be subject to an appeal or a review. Appeal or review concerning this decision shall not suspend the implementation of the transfer except when the courts or competent bodies so decide in a case-by-case basis if the national legislation allows for this. If necessary, the asylum seeker shall be supplied by the requesting Member State with a laissez passer of the design adopted in accordance with the procedure referred to in Article 27(2). The Member State responsible shall inform the requesting Member State, as appropriate, of the safe arrival of the asylum seeker or of the fact that he did not appear within the set time limit.[39]Further provision for administrative co-operation between Member States is provided by Article 21. That provides in Article 21(1):
“1. Each Member State shall communicate to any Member State that so requests such personal data concerning the asylum seeker as is appropriate, relevant and non-excessive for (a) the determination of the Member State responsible for examining the application for asylum; (b) examining the application for asylum; (c) implementing any obligation arising under this Regulation.” (a) the determination of the Member State responsible for examining the application for asylum; (b) examining the application for asylum; (c) implementing any obligation arising under this Regulation.”
[40]Article 21.2 then sets out the categories of information that may be requested. Article 21.9 provides that an asylum seeker “shall have the right to be informed, on request, of any information provided”.[41]The procedure for making and processing of a request to take back under Article 16(1)(e) is governed by Articles 2 and 4 of the Commission Regulation which provide:
“Article 2 Requests for taking back shall be made on a standard form in accordance with the model in Annex III, setting out the nature of the request, the reasons for it and the provisions of regulation (EC) No 343/2003 on which it is based. The request shall also include the positive result (hit) transmitted by the Eurodac Central Unit, in accordance with Article 4(5) of Regulation (EC) No 2725/2000, after comparison of the applicant’s fingerprints with fingerprint data previously taken and sent to the Central Unit in accordance with Article 4(1) and (2) of that Regulation and checked in accordance with Article 4(6) of that Regulation. For requests relating to applications dating from before Eurodac became operational, a copy of the fingerprints shall be attached to the form. ….. “Article 4 Where a request for taking back is based on data supplied by the Eurodac Central Unit and checked by the requesting Member State, in accordance with Article 4(6) of Regulation (EC) No 2725/2000, the requested Member State shall acknowledge its responsibility unless the checks carried out reveal that its obligations have ceased under the second subparagraph of Article 4(5) or under Article 16(2), (3) or (4) of Regulation (EC) No 343/2003. The fact that obligations have ceased on the basis of those provisions may be relied on only on the basis of material evidence or substantiated and veritable statements by the asylum seeker.”
[42]Article 5 of the Commission Regulation provides that:
“Article 5 1. Where, after checks are carried out, the requested Member State considers that the evidence submitted does not establish its responsibility; the negative reply it sends to the requesting Member State shall state full and detailed reasons for its refusal. 2. Where the requesting Member State feels that such a refusal is based on a misappraisal, or where it has additional evidence to put forward, it may ask for its request to be re-examined. This option must be exercised within three weeks following receipt of the negative reply. The requested Member State shall endeavour to reply within two weeks. In any event, this additional procedure shall not extend the time limits laid down in Article 18(1) and (6) and Article 20(1)(b) of Regulation (EC) No 343/2003.”
[43]Finally, there is provision for a mechanism to resolve disputes between Member States over the need to bring about a transfer: see Article 14 of the Commission Regulation.[44]In summary, therefore, the position is that the provisions of Dublin II determine which Member State is responsible for examining an application for asylum. That Member State is obliged to take charge of, or, as in these cases, take back, the asylum seeker concerned. In cases such as the present, the Member State makes a request on the relevant standard form set out in the Annexes to the Commission Regulation. The requested Member State makes the necessary checks to determine if it is responsible. If it is, it must acknowledge its responsibility unless the checks reveal, on the basis of “material evidence or substantiated and verifiable statements by the asylum seeker”, that its obligations have ceased by reason of Article 16(3), i.e. in the present case by reason of the fact that the asylum seeker has been outside the EU for at least three months.[45]In terms of relevant domestic law, a person who claims asylum cannot be removed from the United Kingdom: see section 77 of the 2002 Act. However, that provision does not prevent a person from being removed to a third country listed in Part 2 of Schedule 3 to the 2004 Act (which includes the EU Member States to which the Dublin II Regulation applies) provided that the Secretary of State certifies that the person is not a national of that third country: see paragraph 4 of Part 2 of Schedule 3 to the 2004 Act. The Defendant in the present case has exercised the power conferred by that domestic provision to certify that Mr Habte and RH should be returned to Germany and Belgium respectively. In Mr Habte’s case, the Defendant has also exercised the power conferred by paragraph 5(4) of the 2004 Act to certify that his human rights claim, based on Article 8 ECHR, was clearly unfounded. As a consequence, any appeal may not be brought from within the United Kingdom.

THE ISSUES

[46]Against that background, the following issues potentially arise in the case of Mr Habte:(1) Was the Defendant obliged to take further procedural steps to obtain evidence relevant to proving, or disproving that the obligation of Germany to take back Mr Habte had ceased by reason of Article 16(3) of the Dublin II Regulation either (a) as a matter of domestic law relating to procedural fairness (b) the provisions of the Dublin II Regulation or the Commission Regulation or (c) Article 41 of the Charter?(2) Would the decision to transfer Mr Habte be open to challenge on domestic public law grounds given that Germany had accepted it was responsible for examining Mr Habte’s asylum claim and said that it would take back Mr Habte?(3) Do the material provisions of the Dublin II Regulation confer directly effective rights on individual asylum seekers such as Mr Habte?(4) Does a decision to remove Mr Habte constitute an individual decision adversely affecting Mr Habte within the meaning of Article 41 of the Charter?(5) Was the decision to certify Mr Habte’s human rights claim as clearly unfounded unlawful?[47]In relation to RH, the potential issues that arise are:(1) Whether the decision to request a transfer, and to continue the request, was irrational on domestic public law grounds given that RH claimed to have left the EU for more than 3 months and Belgium initially declined to accept responsibility?(2) If so, is it open to RH now to challenge the actions of the Defendant on the domestic public law ground of irrationality, given that Belgium has now accepted responsibility for examining RH’s asylum claim and has agreed to take RH back? ANALYSIS The Procedural Obligations

ANALYSIS

[48]In Mr Habte’s case, the Defendant conducted an interview with Mr Habte in which he indicated that he had left the territory of the European Union and returned to Ethiopia. Asked if he had any evidence of this, he said no. Against that background, Germany would have been obliged to take back Mr Habte. He had previously made an application for asylum in Germany and it is accepted that Germany is responsible for examining the asylum claim made subsequently. Germany would be obliged to take back Mr Habte by reason of Article 16(1)(e) of the Dublin II Regulation. That obligation would only cease if Mr Habte had been out of the territories of the Member States for 3 months. Germany could only decline to take back an asylum seeker on this ground on the basis of “material evidence or substantiated and verifiable statements by the asylum seeker”: see Article 4 of the Commission Regulation. There was no such evidence or statements available in this case when the request was made. Germany has decided to accept responsibility and is not contending that the obligation to take Mr Habte back has ceased.[49]Notwithstanding that position, Mr Habte’s principal submission set out at paragraph 68 of his skeleton argument, is that:
“within a speedy timeframe in accordance with the aims of the Dublin II Regulation, the requesting state must take reasonable steps required to obtain the documentary evidence relevant to proving (and, therefore, disproving), each of the facts upon which the mandatory or discretionary allocation of responsibility under the Dublin II Regulation depends.”
[50]He contends that, in this particular case, the Defendant should have(1) inquired how long he had been outside the territories of the Member States(2) put him on notice of the documentary evidence necessary to enable Germany to determine if its obligations to take him back had ceased or arranged for him to obtain legal advice so that he could effectively present his case(3) given him a reasonable opportunity to obtain and provide documents proving his absence from the EU and(4) deferred making the request to Germany until this reasonable opportunity had been given and then provided copies of any documents provided to Germany and a fair account of the opportunity provided to obtain further documentation (see paragraph 72 of the Claimant’s skeleton argument).[51]Those obligations are said to arise as a result of the common law principles of procedural fairness which require any party to judicial proceedings to be put on notice of the case against him. Alternatively, it is said that these obligations are implicit in Article 20 of the Dublin II Regulation and Article 2 of the Commission Regulation or are required by Article 41 of the Charter.[52]In my judgment, there is no basis for holding that the Defendant is under the procedural obligations alleged. That conclusion follows from:(1) the nature of the decision in question;(2) the specific provisions of the relevant EU Regulations and the structure of those Regulations; and(3) the policy underlying the Dublin II Regulation.[53]First, the decision in question involves the allocation of responsibility as between Member States for processing Mr Habte’s asylum claim. He has the right to claim asylum and, pending determination of that claim, the right not to be returned to the country where he says he has a well-founded fear of persecution. He does not, however, have any right under the Refugee Convention to insist that his asylum application is processed by any particular EU Member State or to claim protection in any particular Member State. The process of deciding which Member State is responsible for dealing with his claim, therefore, affects none of his rights as an asylum seeker: see R (AR (Iran))[2013] EWCA Civ 778 at paragraph 33. It is not correct, therefore, to regard the situation as one where there are judicial or other proceedings in existence determining the rights of the individual as an asylum seeker. Reference to the right of individual to know the case against him are, therefore, misplaced.[54]Secondly, and importantly, the Dublin II Regulation sets out a set of criteria for determining which Member State is responsible for processing an asylum claim. It imposes obligations on Member States to take charge of, or take back, an asylum seeker. There are specific procedural provisions governing decisions to take charge set out in Articles 16(1)(a) and (b), 17 and 18 of the Dublin II Regulation and Articles 1 and 3 of the Commission Regulation. There are different, and simplified, procedural obligations dealing with the taking back of an asylum seeker, including those whose asylum claim had already been rejected in another Member State which is the situation in the present case. Those obligations are set out in Article 16(1)(e) and Article 20 of the Dublin II Regulation and Articles 2 and 4 of the Commission Regulation. There is specific provision for the requested state to request further information so long as it is “appropriate, relevant and non-excessive”: see Article 21 of the Dublin II Regulation. The specific procedural steps to be followed in cases of taking charge of, or as here taking back, asylum seekers are, therefore, set out in detail in the relevant EU regulations. It would be inconsistent with the provisions of the relevant regulations to add further procedural obligations as a matter of domestic law, or to imply further procedural obligations into the EU regulations themselves.[55]Thirdly, the policy underlying the Dublin II Regulation is to prevent forum shopping and, in particular, to ensure speedy decision-making in the processing of claims for asylum. That is recognised in recital 4 to the Dublin II Regulation which refers to a system which “makes it possible to determine rapidly the Member State responsible” and in a way which does not “compromise the objective of the rapid processing of asylum claims”.[56]The aim of speeding up the handling of asylum claims has been recognised by the Court of Justice of the European Union in Joined Cases C-411/10 and C-493/10 R (NS (Afghanistan)) v Secretary of State for the Home Department (Amnesty International Ltd. and others Intervening) [2013] Q.B. 102. At paragraphs 78 and 79, the Court said:
“78. Consideration of the texts which constitute the Common European Asylum System shows that it was conceived in a context making it possible to assume that all the participating states, whether member states or third states, observe fundamental human rights based on the Geneva Convention and the 1967 Protocol, and on the ECHR, and that the member states can have confidence in each other in that regard. “79. It is precisely because of that principle of mutual confidence that the European Union legislature adopted Regulation No 343/2003 and the Conventions referred to in paras 24-36 of the present judgement to rationalise the treatment of asylum claims and to avoid blockages in the system as a result of the obligation on state authorities to examine multiple claims by the same applicant, and in order to increase legal certainty with regard to the determination of the state responsible for examining the asylum claim and thus to avoid forum shopping, it being the principal aim of all these measures to speed up the handling of claims in the interest of both asylum seekers and the participating member states.”
[57]The procedural obligations which the Claimant seeks to impose, involving as they do informing asylum seekers of the provisions governing the need for certain types of evidence, arranging for opportunities for the asylum seeker to obtain legal advice, and deferring the making of a request to another Member State that it assume responsibility until the asylum seeker has had a reasonable opportunity of obtaining further evidence, is inconsistent with the aim underlying the Dublin II Regulation. They will not assist in speeding up the process of determining which Member State is responsible for a claim and will not assist in speeding up the determination of the underlying asylum claim. Given that all Member Sates are expected to observe the substantive principles of the Geneva Convention and the ECHR, there is no justification for introducing additional procedural obligations which will slow down, rather than speed up, the asylum process.[58]For those reasons, in my judgment, the procedural requirements that the Defendant is to follow when making a request to another Member State to accept responsibility for processing an asylum claim are those set out in the relevant EU regulations themselves. There is no obligation on the Defendant to undertake additional procedural steps of the sort claimed by the Claimant in the present case. No such obligation arises as a matter of domestic public law, nor on the basis that further procedural obligations ought to be implied into the provisions of the relevant EU regulations.[59]The following additional matters also require brief comment. First, there is an issue as to whether or not challenges may be made on domestic public law grounds to the actions of the Defendant in operating the Dublin II Regulation. Earlier authorities refer to the possibility of actions of the Defendant being amenable to challenge on domestic public law grounds (it is accepted they may be challenged on the ground that the actions would be incompatible with the ECHR): see, for example, the dicta in R (AA) (Afghanistan) v Secretary of State for the Home Department [2006] EWCA Civ. 1550 at paragraphs 13 to 14 and R (YZ, MT and YM) v Secretary of State for the Home Department [2011] EWHC 205 at paragraphs 9 and 58. However, none of the decided cases involve a situation where a breach of any relevant principle of domestic public law was established. In the present case, in my judgment, domestic law procedural obligations do not apply to, or qualify, the provisions of the relevant EU regulations. In those circumstances, it is not necessary to consider whether or not any failure by the Secretary of State to comply with relevant public law principles affects the lawfulness of any transfer or whether, once a Member State accepts responsibility and agrees to take back an asylum seeker, any breach of a domestic law principle ceases to be relevant. Given the purpose and wording of the Dublin II Regulation and the Commission Regulation, there will, in any event, in my judgment be few – if any – circumstances in which domestic public law principles will be relevant and would qualify the obligations of the Defendant under the Dublin II Regulation.[60]Second, Mr Habte relied upon the fact that certain additional procedural obligations could be implied into the Dublin II Regulation or the Commission Regulation. In addition, he relied upon the fact that the standard form of request asks the requesting state to say whether the asylum seeker says he or she has left the territory of the Member States and if so, the dates which the asylum seeker says departure and return occurred. In the present case (and in RH’s case), the Defendant ticked the box saying that the asylum seeker had not said that he was outside the territory. This was incorrect. As a result, the Defendant did not ask Mr Habte for the dates of his alleged departure from and return to the European Union. It is regrettable that the Defendant completed the standard form incorrectly in both the cases of Mr Habte and RH. It is surprising that the Defendant did not, in her evidence, explain how this occurred not once but twice. Nevertheless, having considered the material in the request sent to Germany, it seems to me that it is clear that the Defendant did record the fact that Mr Habte did say that he had returned to Ethiopia some time after he had claimed asylum in Germany on 1 June 2006 and that he claimed that he had left Ethiopia on 16 July 2007. The absence of a reference to the specific date upon which he claimed to have left the EU would not have prevented Germany considering whether or not its obligations had ceased. In my judgment, there was no material breach of Article 20 of the Dublin II Regulation or the Commission Regulation. The request did “contain information enabling the requested Member State to check that it is responsible” as provided for in Article 20 of the Dublin Regulation. (No allegation of a breach of Article 20 is made in RH’s case but, again, the comments on the request form made it clear that RH had said that she had left he territories of the Member States and, broadly, gave the dates when RH said she was in Turkey: no material breach of Article 20 occurred in her case). Similarly, the fact that Mr Habte obtained a copy of a fax purporting to be relevant to establishing presence in Ethiopia cannot, in my judgment, affect the lawfulness of the transfer. The fax was obtained after the request was made to Germany and after the decision by Germany accepting responsibility. It cannot affect the lawfulness of the Defendant’s actions prior to the request and does not affect the lawfulness of the transfer.[61]Even if additional obligations were to be read into the EU regulations, or if there had been a breach of a material obligation, the Claimant would still face an additional hurdle. The EU Regulations are directly applicable and form part of the domestic law of the United Kingdom. However, the question arises as to whether or not they confer directly effective rights on individuals enforceable in domestic courts. Provisions which are intended to regulate relations between Member States (or between Member States and European Union institutions) may not be intended to confer directly effective rights on individuals and may not, therefore, have direct effect. The Court of Appeal has held that provisions of the Dublin II Regulation, including Article 16, are concerned with the allocation of responsibility as between Member States and are not intended and do not create directly effective rights for individual asylum seekers: see R (MK (Iran)) v Secretary of State for the Home Department [2010] 1 W.L.R. 2059 and see also R (AR (Iran)) v Secretary of State for the Home Department [2013] EWCH Civ 778. The High Court has reached similar conclusions: see R (YZ, MT and YM) v Secretary of State for the Home Department [2011] EWHC 205 (Admin.) and R (Kheirollahi-Ahmadoghani) v Secretary of State for the Home Department [2013] EWHC 1314 (Admin.). The question of whether Article 3(2) of the Dublin II Regulation confers directly effective rights has been referred to the Court of Justice of the European in case C-4/11 Germany v Puid. Advocate General Jaaskinen, at paragraph 59 of his opinion, considered that Article 3(2) does not confer directly effective rights as it is not a clear and unconditional obligation but is dependent upon an exercise of discretion by a Member State. The Court of Justice has not yet given its ruling.[62]In the circumstances, Mr Chirico for Mr Habte realistically recognised that it would require a ruling from the Court of Justice to establish that the relevant provisions of the Dublin II Regulation were directly effective even if there had been a breach of a material express or implied obligation imposed by that regulation. In the circumstances, for the reasons given above, there is, in my judgment, no basis for implying further procedural obligations into the relevant EU regulations and no breach of those regulations. In the circumstances, the question of the direct effect of any such provision, and the need for any reference to the Court of Justice on that issue, does not arise.[63]Finally, Mr Habte relies upon Article 41 of the Charter as a source of the procedural obligations that he seeks to impose upon the Defendant. That Article provides, so far as material, that:
“1. Every person has the right to have his or her affairs handled impartially, fairly and within a reasonable time by the institutions, bodies, offices and agencies of the Union. “2. This right includes: (a) the right of every person to be heard before any individual measure which would affect him or her adversely is taken….” (a) the right of every person to be heard before any individual measure which would affect him or her adversely is taken….”
[64]This provision was considered by the Court of Appeal in R (AR (Iran)) [2013] EWCA Civ. 778. There, the Defendant requested Belgium to accept responsibility for an asylum seeker. Belgium sought further information about whether the asylum seeker had been outside the territories of the Member States. On 11 April 2011, the Defendant replied setting out the information available but pointing out that the asylum seeker had been unable to provide any evidence to substantiate his claim to have left the EU and to have returned to Iran. It was contended by the asylum seeker that the Defendant owed procedural obligations to the asylum seeker prior to 11 April 2011 to assist the asylum seeker to see if he could have improved his case. The Court of Appeal rejected the claim that Article 41 of the Charter applied in these circumstances to the decision in question. Sir Richard Buxton said:
“29 First, article 41 only applies to measures that would adversely affect the citizen, that is, are sufficiently important to him to justify the obligation imposed on the state party. When we asked Mr Southey how the letter of 11 April 2011 adversely affected the appellant, he said that it led to his case being heard in Belgium when he would prefer it to be heard in the UK: because he had already received a negative decision in Belgium. That will not do. 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 (see paragraph 11 above) 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. “30 Second, and in any event, in a system such as that of Dublin II, which makes so great a distinction between the full justiciability of the second phase of the asylum process and the threshold allocation of responsibility of the first phase, it is very unlikely that article 41 obligations were intended to apply to that first phase.”
[65]Mr Chirico does not challenge the logic of that decision. However, he seeks to distinguish it. He submits that the decision applies to the decision to request that Germany accepts responsibility. He submits that the decision does not apply to a later decision to remove an asylum seeker from the United Kingdom. He contends that that is a different decision, involving the exercise of different statutory powers, and does adversely affect the asylum seeker. He will be placed on a plane and removed, against his will to another country.[66]In my judgment, the reasoning in the decision in AR (Iran) does apply to a decision to remove an individual to another Member State following acceptance by that state that it is responsible for processing the asylum-seeker’s asylum claim. The asylum seeker has no right to insist that his asylum claim is determined in any particular Member State. Removal does not, therefore, involve a decision or determination on any rights of the asylum-seeker. Further, the decision to remove is, in truth, part of the first phase of the asylum process. It follows from the fact that the Member State which is responsible for determining the asylum claim, and taking back the asylum-seeker for those purposes, is Germany. In my judgment, the reference to individual measures which adversely affect an individual does not include removal of an individual asylum-seeker of a Member State, consequent upon that Member State’s acceptance of responsibility for dealing with the asylum claim. Such action does not constitute an individual measure adversely affecting the individual within the meaning of Article 41 of the Charter.

THE RATIONALITY CHALLENGE

[67]RH contends that the decision to request Belgium to accept responsibility for her asylum claim, and to continue that request following its initial refusal to do so, is irrational according to domestic public law principles of irrationality.[68]The fact of the matter is that RH had previously made an asylum claim in Belgium and Belgium was responsible, under the criteria, for dealing with the subsequent application for asylum made by her in the United Kingdom. The obligation to take her back would continue, unless Belgium accepted that she had been outside the territory of the Member States for at least 3 months and there was material evidence or verifiable statements from the asylum seeker to that effect.[69]In those circumstances, there is simply no basis for concluding that the request by the Defendant to Belgium that it accept responsibility was irrational. It was open to the Defendant to ask Belgium to accept responsibility. Indeed, that would be consistent with the Dublin II Regulation, not an irrational departure from it. Whether or not there was material evidence or verifiable statements justifying Belgium taking the view that the obligation to take RH back had ceased, was a matter for Belgium to consider.[70]Mr Chelvan, for RH, submitted that once Belgium refused to take RH back, it was irrational for the Defendant to continue with that request. He said that there was no new evidence or material justifying any further request and it was irrational to continue with the request. First, there would, in my judgment, be nothing irrational in the Defendant asking another Member State to consider again whether or not there really was a proper basis for that Member State to decline to take back an asylum seeker for whom it was responsible whether or not there was new evidence. Secondly, and significantly, Article 5 of the Commission Regulation expressly provides for this situation. Article 5.2 provides that where a requested state declines to accept responsibility, the requesting state may ask for the request to be re-examined if it considers that either “the refusal is based on a misappraisal or where it has additional evidence to put forward”. In other words, the Commission Regulation expressly contemplates that a further request may be made in one of two situations, one where there is new evidence and one where there is no new evidence but the requesting state considers that there has been a misappraisal of the position by the requested state. Given that the action taken by the Defendant is expressly contemplated by the relevant regulation, it is not possible to characterise its action as irrational on domestic law grounds.[71]In those circumstances, it is, again, unnecessary to consider whether or not any challenge to the actions of the Defendant on domestic public law grounds would render the transfer unlawful or whether, as Mr Payne for the Defendant submits, once the requested Member State accepts responsibility the transfer is lawful. The situation in the present case, however, reinforces the view that there will be little, if any, scope for applying domestic public law considerations to the operation of machinery set out in the relevant EU regulations for dealing with the allocation of responsibility between Member States for examining asylum claims.

THE ECHR CLAIM

[72]Mr Habte also challenges the decision of the Defendant to certify as clearly unfounded his claim that his removal to Germany would involve an interference with the right to respect for family and private life. It is common ground that the test of determining lawfulness to be applied by this court is that if “on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded”: see R (L) v Secretary of State for the Home Department [2003] 1 W.L.R. 1230 at paragraph 58.[73]In applying that test, the court should take the claimant’s claim at its reasonable highest. To that end, I assume (without deciding) that Mr Habte began a relationship with his girlfriend, Ms Lidya Mekonnen, a British national in 2007 and that they began to live together in about June 2012, following his release from immigration detention. In addition, I assume that Mr Habte has a private life based upon his ties with the community in the UK, including his church. I assume, therefore, that the decision to remove Mr Habte to Germany would involve an interference with his, and Ms Mekonnen’s right to respect for their family life and also Mr Habte’s private life within the meaning of Article 8(1) ECHR. Mr Habte has siblings in the United Kingdom but the ties do not go beyond the normal ties of siblings and it was not contended before me that the ties with his siblings gave rise to any family rights but they contribute to his private life in the United Kingdom. I assume that the consequences of removal would be of such gravity as to involve the application of Article 8 ECHR.[74]The next question is whether the interference is justified under Article 8(2) ECHR. In my judgment, removal would pursue a legitimate aim, namely the maintenance and enforcement of immigration control. The fact is that the Claimant has no right to be in the United Kingdom. Indeed, in his case, he entered twice on false documents. The removal of a person not entitled to be in the United Kingdom does pursue a legitimate aim within the meaning of Article 8(2) ECHR. Fourthly, removal would be in accordance with law. It would be done in accordance with EU and domestic law and would not involve any breach of either EU law or domestic law.[75]The question is whether removal would be proportionate. In that regard, I take into account the fact that Mr Habte was 17 years old when he came here. I assume (again without deciding) that he left Ethiopia because he had been the victim of torture and that the relationship and ties that he has formed in this country are likely to be of particular importance to him. He has no ties with Germany.[76]Nevertheless, in my judgment, no reasonable tribunal, properly directing itself in law, would consider that removal of Mr Habte to Germany would in all the circumstances be disproportionate to his, or Ms Mekkonen’s, rights under Article 8 ECHR. First, the relationship, and the ties, that have been formed in the United Kingdom were formed when Mr Habte had, and knew that he had, no entitlement to be in the United Kingdom. They were formed at a time when his immigration position was precarious. Indeed, he and Ms Mekkonen only began to live with each other after he had been released from immigration detention in about June 2012 (although I assume that their relationship began in 2007). Furthermore, consideration needs to be given to the actual effect of removal. Mr Habte is being returned to Germany. He will be able to pursue his asylum claim there. The consequence of the certification of the human rights claim as clearly unfounded is that the appeal cannot be brought from within the United Kingdom. He will be able to bring any appeal in relation to Article 8 ECHR from Germany. Given the powerful policy reason for removal, the precarious basis upon which family life and private life in the United Kingdom were formed, and the limited effects in reality on Mr Habte, no reasonable tribunal could, in my judgment, form the view that removal would be a disproportionate interference with Mr Habte’s or Ms Mekkonen’s right to family life or Mr Habte’s right to private life contrary to Article 8 ECHR.[77]In considering the question of Article 8(2), Mr Chirico has, very properly, drawn my attention to the following dictum of Sedley L.J. in R (AM (Somalia)) v Secretary of State for the Home Department [2009] EWCA Civ 114 “24 One has first to bear in mind that in Dublin cases the sole purpose of removal is to enable another state to entertain the same claim as has been made in the United Kingdom. It is not, as it is in the case of other removals, to return to their country of origin someone who has failed to establish any right to be here. The imperative of effective immigration control therefore has little bearing: that lies in the future.”[78]I do not read that dictum as indicating a general rule or presumption or approach that the purpose of removing persons from the United Kingdom who have no right to be here would not be a legitimate aim, or not an aim of much significance, in cases where the person is to be removed to another Member State under the Dublin II Regulation. First, the case involved a very different factual situation where removal would result in a psychological breakdown on the part of the asylum-seekers in that case as well as severing them from their family ties. It was in that particular factual context that Sedley L.J. observed that one had “to bear in mind” that what was being weighed was removing a person who would suffer a psychological breakdown against a situation where he was not a failed asylum seeker who should return to his country of origin but would simply be removed to another Member State where his asylum claim would be considered. It was in that context that the Court in that case considered that removal would be disproportionate.[79]The Court was not, in my judgment, seeking to indicate that, as a general rule, the imperative of effective immigration control had little bearing when considering Dublin II cases. Indeed, that would be a surprising conclusion. One legitimate purpose is the removal of persons from the United Kingdom who have no right to be here. The emphasis in that context is the removal of a person unlawfully present in the United Kingdom: not the destination of the country to which the person is being sent. Furthermore, in general terms, the fact that removal is effected in accordance with the system of allocation of responsibility for asylum-seekers provided for by the European Union legislature would itself, in my judgment, be a separate legitimate aim that a state may pursue consistent with Article 8(2) ECHR. The fact that the person is being removed to another Member State which will assess that person’s asylum claim is a factor to be taken into account in assessing the proportionality of the removal.[80]Mr Payne for the Secretary of State also draws attention to the recent decision of the Court of Appeal in EM (Eritrea) v Secretary of State for the Home Department [2012] EWCA Civ. 1336. There, the claimant, MA, was being returned to Italy pursuant to the Dublin II Regulation. Sir Stephen Sedley referred to MA’s claim under Article 8(2) ECHR as being “too exiguous to stand up in any legal forum when set against the history of her entry and stay here and the legal and policy imperatives for returning her to Italy”. That is at least consistent with the view that the dicta in AM (Somalia) were not intended as a general statement to the effect that little weight should be given to immigration control in the context of return of asylum seekers to another Member State under the Dublin II Regulation. It is also consistent with the view that, generally, the legal and policy imperatives of removal of asylum seekers in accordance with the relevant EU regulations are legitimate considerations. The position is not, however, entirely clear. The fact is that MA had been granted refugee status (although it appears that the Court of Appeal approached all the four claims in that case, i.e. those such as MA who had been granted asylum, and those who were asylum seekers, on the same footing: see paragraph 48 of the judgment). Further, the Court of Appeal did not identify precisely the legal and policy imperatives that it had in mind in that case, that is, was it the removal of persons not lawfully present in the UK, or ensuring the proper operation of the Dublin II Regulation, or both?[81]Ultimately, in my judgment, however, removal in the present case would be consistent with Article 8, having regard to the aim of maintaining effective immigration control, by removing persons not lawfully present in the United Kingdom, and was proportionate in all the circumstances of this case. No reasonable tribunal, properly directing itself, could reach the conclusion on any legitimate view of the facts, that removal in this case would involve a breach of Article 8 ECHR.

CONCLUSION

[82]For those reasons, neither domestic public law, nor the relevant EU regulations, nor Article 41 of the Charter impose additional procedural obligations on the Defendant other than those provided for in the relevant EU regulations themselves. Further, no reasonable tribunal, properly directing itself in law, could conclude, on any legitimate view of the facts, that removal would involve an unlawful interference with the right to respect for family or private life under Article 8 ECHR. The decision to certify that claim as clearly unfounded is, therefore, lawful. Further, the decision of the Defendant to ask Belgium to accept responsibility for RH’s asylum claim and to take her back, and to ask Belgium to reconsider its initial refusal to do so, was rational and in accordance with the provisions of Article 5 of the Commission Regulation. These two claims for judicial review are therefore dismissed.

Cited in 4 later judgments