Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION [2012] CSOH 188
P539/12	OPINION OF LORD STEWART in the Petition of W K R Petitioner; for Judicial Review of a decision by the United Kingdom Border Agency on behalf of the Secretary of State for the Home Department dated 26 March 2012 declining to examine the petitioner's claim for asylum, etcetera and Answers for The Secretary of State for the Home Department Respondent; ________________

Petitioner: K Forrest, advocate; Drummond Miller LLP

Respondent: Gill, advocate; Office of the Solicitor for the Advocate General

14 December 2012

[1] This case is about a male Iraqi asylum seeker of uncertain age. He previously asserted that he was a child but he does not, for present purposes at least, contest that he is an adult. He is the petitioner. The petitioner may have left Iraq in 2008. In 2008 and 2009 he was apparently in Norway, Germany and Italy. He may have returned to Iraq in 2010. He arrived in the United Kingdom before the end of 2011. He claimed asylum in the United Kingdom. The United Kingdom Border Agency [UKBA], acting on behalf of the Secretary of State for the Home Department, declined to examine the petitioner's claim for asylum, maintaining that Germany is the member state responsible for doing so in terms of Council Regulation (EC) No 343/2003, the Dublin II Regulation, and Commission Regulation (EC) No 1560/2003, the Implementation Regulation, and certified the petitioner for removal to a safe third country, namely Germany, in terms of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004. That decision was made on 26 March 2012.

[2] The petitioner wants the Court to quash the decision of 26 March 2012 and also the directions that followed on 16 May 2012 for the petitioner's removal to Germany. I heard submissions at a first hearing of the petition on 28 September 2012 and made avizandum. I have now decided that the petition has to be refused.

Council Regulation (EC) No 343/2003, the Dublin II Regulation
[3] The Dublin II Regulation provides a system for allocating responsibility for assessing asylum claims among member states. Chapter III of the regulation (articles 5 to 14) provides a "hierarchy of criteria" for allocating responsibility. Article 13 is the default provision:

"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."

Chapter II (articles 3 and 4) lays down "general principles". In terms of article 4(1) the process of determining the member state responsible starts as soon as an asylum application is lodged with a member state. Article 4(5) provides for the situation where an asylum seeker withdraws his or her application before the process of determining responsibility is completed, moves on to another member state and makes another application: the member state of first application remains responsible for "taking back" [reprise en charge] the asylum seeker with a view to "completing the process of determining the member state responsible for examining the application for asylum".

[4] The reprise obligation does not persist indefinitely. In terms of article 20(2), if return of the asylum seeker to the member state of first application is not effected within six months the reprise obligation ceases and the obligation to determine the asylum claim transfers to the requesting member state. The time limit can be extended up to a maximum of 18 months in the case of absconders. In terms of article 4(5) the reprise obligation also ceases if the asylum seeker has in the meantime left the European Union for a period of at least three months.

Commission Regulation (EC) No 1560/2003, the Implementation Regulation
[5] Detailed rules for implementing the Dublin II Regulation processes are laid down by Commission Regulation (EC) No 1560/2003, the Implementation Regulation. Article 4 provides:

"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 the obligations have ceased on the basis of those provisions may be relied on only on the basis of material evidence or substantiated and verifiable statements by the asylum seeker."

EURODAC stands for European dactyloscopy, the Europe-wide computerised finger-print database for identifying asylum seekers and illegal immigrants, established by Council Regulation (EC) No 2725/2000.

The facts
[6] The facts as averred in the adjusted petition are as follow. In 2008 the petitioner fled from Iraq to Norway where he claimed asylum. The petitioner was fingerprinted in Norway. He lived in Norway for about one year but his asylum claim was not decided in Norway. In 2009 the petitioner left Norway and passed through Germany. He was detained in Germany for one night and while detained his fingerprints were taken. The petitioner then went to Italy where he was also fingerprinted. The petitioner stayed in Italy for approximately four months. He then returned to Iraq in 2010. While in Iraq the petitioner had a relationship with his employer's daughter. His employer tried to attack the petitioner. The petitioner escaped. The petitioner learned that the employer had killed his own daughter and was determined to kill the petitioner. On 20 October 2011 the petitioner fled from Iraq. He entered the United Kingdom on 10 November 2011 and claimed asylum the next day.

[7] The petitioner's statement narrates that in 2009 he passed through the Netherlands on his way from Germany to Italy. According to the statement the petitioner acquired a false passport in Italy which he used to return to Iraq. He acquired another false passport in Iraq for his return to Europe. The petitioner now supports his story about being in Iraq in 2011 and about his forced departure with photocopy documents, bearing to be an application for an arrest warrant dated 28 December 2011 and a warrant for the arrest of WKR [W] dated 8 January 2012. The application, in translation, refers to:

"...complaints raised by the father of the martyr...where Mr Azad accused [W] of being the main cause of his daughter's martyrdom and that the family of the martyr is asking for revenge and the martyr's blood to be taken from the accused [W] and his family."

The petitioner travelled by air to Turkey, he says, and then by lorry to Greece and eventually to Glasgow without any knowledge of the countries through which the lorry passed on its way.

[8] According to the respondent's answers the petitioner first presented himself to immigration officials in Glasgow on 19 December 2011. On 20 December 2011 the petitioner was fingerprinted and his prints were entered in the EURODAC system. EURODAC disclosed that the petitioner had previously been fingerprinted and had claimed asylum in Norway on 25 December 2008 and in Italy on 9 July 2009. On 24 January 2011 UKBA made a request to Norway to take back the petitioner in terms of article 16(1) of the Dublin II Regulation. By letter dated 6 February 2011 the Norwegian authorities advised UKBA that Norway's reprise obligation had ceased.

[9] This situation had arisen because of the history of the petitioner's subsequent application in Germany. The petitioner had claimed asylum in Germany and, on 25 May 2009, Germany had requested Norway to take back the petitioner. On the same day Norway had accepted responsibility for determining the claim. On 26 May 2009 the German authorities notified Norway that the petitioner had absconded. The notification had the effect of extending the reprise time limit to 25 November 2010. The petitioner had not been returned from Germany to Norway within the extended 18-month time limit [No 7/2 of process].

[10] Accordingly Norway maintained that its reprise obligation had been extinguished and that the obligation to determine the petitioner's application had passed to Germany in terms of the Dublin II Regulation art. 20(2). On 7 February 2012 UKBA made a request to Germany to take back the petitioner under article 16(1)(c). The pro forma request was filled in to make it clear that the petitioner claimed to have left Europe in 2009 and to have returned to Europe in 2011. The claimed travel route to and from Iraq was given. Details of the petitioner's immigration and travel history were provided [No 7/3 of process]. By fax letter dated 9 February 2012 the German authorities accepted that Germany had a reprise obligation in respect of the petitioner [No 7/8 of process].

[11] The petitioner's immigration history annexed to the UKBA removal directions narrates that the petitioner presented himself to UKBA in Glasgow on 19 December 2012 with a social worker, claiming to be a minor. He was accepted as a minor, meaning that in terms of the Secretary of State's policy he could expect to be given leave to remain until he attained 18 years of age. Four days after Germany had accepted the reprise request, on 13 February 2012, the petitioner's social worker was made aware that the petitioner was known as an adult in Norway and Germany with a date of birth of 23 December 1991. On 13 March 2012 the petitioner underwent an "age assessment" by Glasgow Social Services and was found to be an adult. On 26 March 2012 the petitioner's asylum application was refused and certified on "safe third country grounds" in terms of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, sched 3, part 2, paras 4 and 5. Directions for removal to Germany followed on 16 May 2012. My impression is that the removal directions would have been issued sooner if the petitioner had not claimed to be a child.

The competing submissions
[12] Counsel for the petitioner submitted that the decision to remove the petitioner to Germany was flawed by procedural impropriety: the case was governed by Dublin II Regulation art. 4(5); and the petitioner's story of having left Europe and having returned to Iraq for a period of more than three months was supported by the record of his screening interview on 19 December 2011, the record of his travel history interview on 20 December 2011, his precognition dated 16 May 2012, the copy application by the Iraqi police for an arrest warrant dated 28 December 2011 and the copy arrest warrant dated 8 January 2012. The two last mentioned documents had been sent by a family member to the petitioner's previous solicitors. The failure by UKBA to take account of and to give effect to the information showing that the petitioner had been outside Europe for more than three months was a reviewable error which required the removal decision to be set aside. Counsel accepted that the case of Chen is authority for the proposition that the Dublin II Regulation does not generally speaking confer rights on individuals to challenge reprise decisions and for the proposition that the validity of a reprise decision is to be tested by reference to the evidence available at the time the request is made and acceded to.

[13] Counsel invited me to distinguish the petitioner's case on the basis that UKBA was in possession of "material evidence" from the petitioner before the reprise request was made to, and accepted by Germany. The "material evidence" was the record of the petitioner's screening interview on 19 December 2011 and the record of his travel history interview on 20 December 2011; and the request was not made to Germany until 7 February 2012. Counsel for the petitioner also drew my attention to the case of Mahathevan which followed Chen [R (on the application of Chen) v Secretary of State for the Home Department [2008] EWHC 437 (Admin) at §§ 5-7, 15, 18, 28-36; R (on the application of Mahathevan) v Secretary of State for the Home Department [2012] EWHC 2251 (Admin) at §§ 14-19].

[14] Counsel for the respondent advanced a number of propositions: the Dublin II Regulation provides a workable method for establishing rapidly which member state is responsible for determining asylum claims; accordingly, member states have to make once-and-for-all decisions about responsibility summarily at the point in time when asylum applications are first received and on the material then available; information which comes to hand afterwards cannot undo the acceptance of reprise requests; the subsistence of reprise obligations based on EURODAC data can be negatived only "on the basis of material evidence or substantiated and verifiable statements by the asylum seeker"; and breaches of the Dublin II Regulation are as a rule not actionable by individual asylum seekers [R (on the application of Chen) v Secretary of State for the Home Department [2008] EWHC 437 (Admin) at §§ 12-14, 16-23, 28-35; R (on the application of YZ and others) v Secretary of State for the Home Department [2008] EWHC 437 (Admin) §§ 53-62 ; R (on the application of Mahathevan) v Secretary of State for the Home Department [2012] EWHC 2251 (Admin) at §§ 1-3, 14-21. Counsel also submitted that this is not a case for "anxious scrutiny" for the reason that it is a case about the allocation of decision-making not about the merits of the decision on the individual's asylum claim.

[15] Counsel for the respondent submitted that the evidence now founded on by the petitioner came too late and that UKBA quite properly did not take it into account. In any event the purported copy documents bearing to emanate from the authorities in Iraq do not specify any date for the petitioner's alleged crime in Iraq and do not provide evidence that he was present in Iraq and therefore outside Europe for any particular period. The information that was before UKBA at the material time raised questions about the petitioner's credibility. His declared date of birth in Norway, Germany and Italy was 23 December 1991. His claimed age when he presented in the United Kingdom was sixteen years with 23 December 1994 as his date of birth. A subsequent age assessment (including a dental X-ray) found that he was most likely to be 20 years of age. He denied having been fingerprinted in Italy. He had absconded from Norway and Germany. Counsel submitted that the information did not represent a basis for negativing Germany's reprise obligation in terms of the Implementation Directive art. 4.

Decision
[16] I am prepared to accept that this is a case governed by the Implementation Directive art. 4 and that UKBA's reprise request to Germany was, albeit indirectly after further information had been provided by the Norwegian authorities, "based on data supplied by the Eurodac Central Unit". It follows that Germany's reprise obligation could not and cannot be negatived except "on the basis of material evidence or substantiated and verifiable statements by the asylum seeker". There was some discussion about the meaning of the words "material evidence" in that provision. (I was not referred to any authority on the point.) In English, the phrase is ambiguous: but I am satisfied, first, by the juxtaposition of the two kinds of proof - "material evidence" and "statements" - and, secondly, by the terms of the French text - d'éléments de preuve matériels - that "material evidence" means "physical evidence" including "documentary evidence". Clearly the petitioner did not provide "substantiated and verifiable statements" about his return to Iraq and his absence from Europe; and the documentary evidence, even if authentic, came too late. I am not sure that I was given a clear understanding of when the copy documents were disclosed to UKBA, or indeed if they were provided to UKBA before these proceedings began: but I do note that the translations are stamped "Certified" by Global Language Services Ltd on 28 February 2012, that is three weeks after Germany had accepted UKBA's reprise request. As counsel for the respondent pointed out, the documents do not prove that the petitioner was in Iraq and absent from Europe for more than three months. There is no evidence of authenticity.

[17] I half expected an argument that until the formal decision was made on 26 March 2012 the Dublin II outcome stayed open for redetermination by UKBA in the light of further information: but this argument was not forthcoming and correctly so because, on a proper understanding, all that the Dublin II process did was to clear the way for "safe third country certification" and removal in terms of domestic law, namely the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, s. 33 and sched. 3, part 2. Domestic law does not require the Secretary of State to adjudicate an asylum claim where there is a safe third country to which the asylum seeker can be removed; and in ordinary circumstances, like the circumstances which obtain here, the asylum seeker does not have the right to question the receiving third country's reprise decision in the United Kingdom courts.

[18] The only law which the petitioner cites for his assertion that the United Kingdom is bound to determine his asylum claim is the Dublin II Regulation: but the Dublin II Regulation is concerned with the obligations of member states inter se and does not confer the right on an individual asylum seeker to insist that one member state rather than another should determine his or her claim. The Dublin II process for the petitioner was completed on 9 February 2012 and the certification decision letter was issued on 26 March 2012 after the petitioner had been assessed to be an adult and had apparently accepted that decision following, presumably, the period allowed for internal review of the age assessment. The directions for removal to Germany of 16 May 2012 inevitably followed.

[19] I conclude that there has been no reviewable error in UKBA's decision-making. Quite contrary to the petitioner's averment I take the view that once the German authorities had accepted UKBA's reprise request, the United Kingdom authorities acted in the only way in which reasonable decision-makers could have acted. I shall repel the petitioner's pleas-in-law and sustain the respondent's pleas to the effect of refusing the petition, reserving in the meantime all questions of expenses. Before parting with this matter I feel bound to raise for consideration the question whether petitions seeking review of Dublin II decisions ought to be given particularly close scrutiny at the point when first orders are applied for.