Scottish Court of Session Decisions

OUTER HOUSE, COURT OF SESSION
	[2014] CSOH 001
P878/13	OPINION OF LORD BANNATYNE in the cause M S (A.P.) Petitioner; against The Secretary of State for the Home Department Respondent: ________________

Petitioner: Forrest; Drummond Miller LLP

Respondent: O'Rourke; Office of the Advocate General

10^th January 2014

Introduction
[1] This matter came before me as a first hearing. The petitioner was represented by Mr Forrest, advocate and the respondent by Mr O'Rourke, advocate. The petitioner is a 29 year old Iranian national who entered the UK on 20 May 2013. He at that time claimed asylum and was detained by the respondent.

[2] The respondent has issued two decisions relative to the petitioner: first, on 31 July 2013, she issued a letter in terms of paragraphs 4 and 5 of Part 2 of Schedule 3 of the Asylum & Immigration (Treatment of Claimants, etc) Act 2004 declining to examine the petitioner's claim for asylum and second, on 22 August 2013, she issued a decision directing that the petitioner be removed from the UK to Italy, on Wednesday 4^th September 2013, at 06.45 hours.

[3] The respondent's position when issuing these decisions was that Italy was the member state responsible for considering the petitioner's claim for asylum in terms of Council Regulation (EC) No 343/2003 ("the Dublin II Regulation") & Commission Regulation (EC) No 1560/2003, ("the Implementation Regulation").

[4] The petitioner in the present proceedings seeks reduction of both of these decisions.

The Dublin II Regulation & the Implementation Regulation
[5] The Dublin II Regulation provides a system for allocating responsibility for assessing asylum claims among members states. Chapter III of it (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."

[6] 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. In the instant case the application for asylum was made on 20 May 2013.

[7] In the instant case the respondent's decision is based on article 9 of the Dublin II Regulation, the material parts of the said provision are in the following terms:

"(2) Where the asylum seeker is in possession of a valid visa, the Member State which issued the visa shall be responsible for examining the application for asylum, unless the visa was issued when acting for or on the written authorisation of another Member State. In such a case the latter Member State shall be responsible for examining the application for asylum. Where a Member State first consults the central authority of another Member State, in particular for security reasons, the latter's reply to the consultation shall not constitute written authorisation within the meaning of this provision. ......

(4) Where the asylum seeker is in possession only of one or more residence documents which have expired less than two years previously or one or more visas which have expired less than six months previously and which enabled him actually to enter the territory of a Member State, paragraphs 1, 2 and 3 shall apply for such time as the applicant has not left the territories of the Member States."

[8] Beyond the above reference was made in the course of oral submissions to the following further provisions of the Dublin II Regulation. Article 10(1) provides that:

"1. 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. ..."

Article 18(3) provides that:

"3. ...two lists shall be established and periodically reviewed, indicating the elements of proof and circumstantial evidence in accordance with the following criteria:

(a) Proof:

(i) This refers to formal proof which determines responsibility pursuant to this Regulation, as long as it is not refuted by proof to the contrary.

(ii) The Member States shall provide the Committee provided for in Article 27 with models of the different types of administrative documents, in accordance with the typology established in the list of formal proofs.

(b) Circumstantial Evidence:

(i) This refers to indicative elements which while being refutable may be sufficient, in certain cases, according to the evidentiary value attributed to them.

(ii) Their evidentiary value, in relation to the responsibility for examining the application for asylum shall be assessed on a case-by-case basis."

The Implementation Regulation sets forth detailed rules for the implementation of the Dublin II Regulation. Reference was made to the following provisions of the Implementation Regulation. Article 1.1(a) provides that the country seeking to transfer the asylum seeker shall provide:

"(a) a copy of all the proof and circumstantial evidence showing that the requested Member State is responsible for examining the application for asylum, accompanied, where appropriate, by comments on the circumstances in which it was obtained and the probative value attached to it by the requesting Member State, with reference to the lists of proof and circumstantial evidence referred to in Article 18(3) of Regulation (EC) No 343/2003, which are set out in Annex II to the present Regulation."

Annex II sets out two categories (List A ("Means of Proof") and List B ("Circumstantial Evidence")) of evidence which demonstrate that an asylum seeker irregularly entered a country.

(iii) Paragraph 7 in List A states:

"7. Illegal entry at an external frontier (Article 10(1))

Probative evidence:

- positive match by Eurodac from a comparison of the fingerprints of the applicant with fingerprints taken pursuant to Article 8 of the 'Eurodac' Regulation,

- entry stamp in a forged or falsified passport,

- exit stamp from a country bordering on a Member State, bearing in mind the route taken by the asylum-seeker and the date the frontier was crossed,

- tickets conclusively establishing entry at an external frontier,

- entry stamp or similar endorsement in passport."

Paragraph 7 in List B states:

"7. Illegal entry into the territory at an external frontier (Article 10(1))

Indicative evidence

- detailed and verifiable statements by the asylum applicant,

- reports/confirmation of the information by an international organisation, such as UNHCR,

- reports/confirmation of the information by another Member State or third country,

- reports/confirmation of the information by family members, travelling companions, etc.,

- fingerprints, except in cases where the authorities decided to take fingerprints when the alien crossed the external frontier. In such cases, they constitute probative evidence as defined in list A,

- tickets,

- hotel bills,

- entry cards for public or private institutions in the Member States,

- appointment cards for doctors, dentists, etc.,

- information showing that the asylum applicant has used the services of a courier or a travel agency,

- other circumstantial evidence of the same kind."

Background
[9] The petitioner was interviewed on behalf of the respondent on 20 May 2013 when he made his application for asylum. In terms of his interview he claimed the following. He left Iran on 10 May 2013 on horseback and by foot. He did not know any of the countries which he had passed through. After travelling by horse he was placed in a lorry. He was in the lorry he believed for a matter of days. Sometimes it would stop and they would give him food and water. He stated that he had never been issued with a passport. When asked what document he had used to enter the UK he stated that he had used no document. His position was that he had not applied for or been issued a visa for any other country before. With respect to why he was claiming asylum his position was that he was a homosexual and had carried out activities with his partner and others. He advised that he was caught with his partner by the authorities at a party for gay people. Further, leaflets were found at this house which were propaganda leaflets against the regime. Some of these said "death to the leader". Following this he had been taken to a detention centre and told he would be stoned for being a homosexual. He was beaten several times with a baton and a whip. He was kept for three days and put in a car in order to be taken to court. He was then in a car accident.

[10] The respondent's position as set out in her answers and as maintained in oral submissions before me was this: On 22 April 2013 the petitioner was encountered in Belgium by the Belgian Federal Police. He was attempting to reach the United Kingdom via Belgium and Federal Police Officers notified the UK Border Agency accordingly. On the said date the petitioner was found, by said Federal Police Officers, to be in personal possession of his Iranian passport, together with a visa for entry into Italy. The petitioner on said date had attempted to board the Eurostar train to the United Kingdom and that being a country outwith the Schengen area, he was prevented by the police officers from doing so. The Belgian Police took copies of the petitioner's passport and Italian entry visa. These were then sent to the UK Border Agency for their information. These documents were produced being 7/1 and 7/2 of process.
Submissions on behalf of the petitioner
[11] The two core propositions advanced on behalf of the petitioner were these:

(1) There had been procedural impropriety in the way that the respondent had dealt with the petitioner's application for asylum in that he had not been informed by the respondent when interviewed on 20 May 2013 of the information which the respondent held from the Belgium Federal Police and had not been given an opportunity to respond to it and

(2) The decisions of the respondent had been irrational in that she had failed to have regard to the evidential requirements imposed by the Dublin II Regulation and the Implementation Regulation.

[12] In elaboration of his first proposition Mr Forrest submitted that as at the relevant date the respondent had information before her suggesting that the petitioner had been in Belgium and had an Iranian passport containing an Italian visa. It was his position that in these circumstances this information had to be put to the petitioner, in order that he should be afforded an opportunity to refute it. In the absence of such an opportunity being afforded to the petitioner the decision of the respondent was arrived at in a procedurally improper manner.

[13] Mr Forrest contended that on a fair reading of the Dublin II Regulation and the Implementation Regulation, such a right was given to the petitioner. He in particular relied on article 18.3(a)(i) of the Dublin II Regulation which provided that proof may be formal so long as it is not rebutted by proof to the contrary. He argued that it was implicit in this provision that the petitioner was entitled, in terms of the Dublin II Regulation, to an opportunity to counter the information which was relied upon by the respondent before she made her decision.

[14] With respect to the second proposition, Mr Forrest asserted that the visa relied upon by the respondent did not amount to coherent or verifiable evidence that the petitioner had irregularly entered Italy. It did not comply with any of the tests set out in article 18(3) of the Dublin II Regulation. It did not comply with any of the definitions as set forth in the relevant Statutory Provisions. It did not amount to the sort of document that was admissible either by way of probative or circumstantial evidence. He referred in particular to paragraph 7 in both lists A and B in annex II of the Implementation Regulation, as earlier set out.

The reply on behalf of the respondent
[15] Mr O'Rourke for the respondent began by generally submitting that the purpose of the Dublin II Regulation was to provide a framework whereby at the point at which asylum applications were first made and on the basis of the material available at that time, a decision as to which country was responsible for dealing with an asylum claim could be made.

[16] Thereafter Mr O'Rouke contended that breaches of the Dublin II Regulation were as a rule not actionable by individual asylum seekers. He directed my attention to Asylum Law & Practice, Symes & Jorro at page 482 paragraph 10.15 where the learned authors say this:

"...the UK courts have consistently held that an individual applicant cannot challenge, other than on human rights grounds, a decision taken by Member States, in accordance with the Dublin II Regulation, on the allocation of responsibility as between them for determining the individual's asylum claim."

[17] In addition he took me to a recent Court of Appeal authority, The Queen (on the application of A R (Iran)) v Secretary of State for the Home Department [2013] EWCA Civ 778 in which the court made certain observations regarding an individual applicant's ability to challenge a decision taken by a Member State in accordance with the Dublin II Regulation. In particular, Sir Richard Buxton makes these observations at paragraph 31 regarding such an argument:

"it is...fatally undermined by the fact that Dublin II does not create individual rights. The rights that the appellant asserts under this argument are said to be inherent in or to spring from the application of Dublin II to his case. The whole point of the Dublin II jurisprudence is that while member states may complain of defects in procedure the asylum seeker may not do so."

[18] Lastly counsel directed my attention to W K R [2012] CSOH 188 in which a similar argument to that advanced by Mr Forrest in the instant case was considered by Lord Stewart who at paragraph 18 held that 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."

[20] Mr O'Rourke submitted that the above provided a complete answer to the arguments advanced on behalf of the petitioner. He contended that the position was in summary this: the petitioner had no basis for the rights he sought to assert.

[21] He went on to argue this: even if I were not with him in relation to his primary argument there was no substance in either of the petitioner's propositions.

[22] Firstly he submitted that on a proper reading of the Dublin II Regulation, the petitioner was not granted any right of reply. The position was that at his asylum interview the petitioner was given an opportunity to place before the respondent his position in support of his asylum claim. The respondent was not required to place before him such information as she had regarding him for his comment.

[23] As regards the contention that there was insufficient evidence before the respondent to make a rational decision, Mr O'Rourke submitted that there was more than sufficient evidence to entitle the respondent to reach a proper decision in relation to the issue which was before her.

Discussion
[24] The petitioner entirely bases his case upon this contention: an individual applicant can challenge a decision of the respondent allocating responsibility in terms of the Dublin II Regulation as to where his asylum claim should be considered on the basis that rights which were inherent in or sprang from the application of the Dublin II Regulation had been breached. In my view the law in relation to these assertions is well settled and is to this effect: "that while member states may complain of defects in procedure, the asylum seeker may not do so." See: A R (Iran) at paragraph 31.

[25] I note in: Asylum Law & Practice, the learned authors when they assert "that an individual applicant cannot challenge...a decision taken by Member States, in accordance with the Dublin II Regulation..." they refer to no less than nine cases in which the courts have opined in a manner which supports this contention. Moreover, I was referred to an additional two authorities, namely A R (Iran) and W K R petitioner, which also supported this view of the law. In the course of the argument before me, Mr Forrest referred me to no authority to the contrary effect, which would support his position that individual rights were created by the Dublin II Regulation.

[26] I conclude for the above reason that it is not competent for the petitioner to seek review on the above basis and there has been no reviewable error on the part of the respondent.

[27] Given my above decision the petitioner's application must fail and I need not go on to consider the detailed arguments advanced on behalf of the petitioner. However, I would wish to make certain observations regarding the petitioner's argument contending that the respondent's decision on the basis of the information before her was irrational. In the course of his argument Mr Forrest described the information before the respondent as "flimsy". On the contrary, I believe the information before the respondent was wholly reliable and was highly persuasive. The respondent was provided with information from a reliable source namely the Belgian Police Force that a man had been stopped in Belgium who was believed to be seeking to enter the United Kingdom illegally. The police authorities in Belgium took a copy of his passport and of the Italian visa therein. This was then sent to the UKBA. The passport relates to the petitioner. Shortly after this information was provided to the UKBA, the petitioner sought to enter the United Kingdom and claim asylum. In the course of his asylum interview he said that he had never been issued with an Iranian passport (although I note at a later stage he admitted that he did have at one time an Iranian passport and that he attended the Italian Embassy in Iran and obtained an Italian visa [see: paragraph 5.1 of the adjusted petition]).

[28] I find it difficult to see what more cogent evident the respondent could have had before her entitling her to hold herself satisfied in terms of article 9 of the Dublin II Regulation. In my view it is not sustainable that such evidence could be described as flimsy. It seems to me that on the basis of this information and evidence, the respondent was clearly entitled to reach the view that article 9 was satisfied. In this context it is noteworthy that the Italian authorities accepted that Italy was the appropriate country to deal with the petitioner's asylum claim. The respondent's decision on this issue it seems to me was unimpeachable.

Disposal
[29] For the above reasons I repel the petitioner's pleas in law, sustain the respondent's second, third and fourth pleas in law and refuse the petition. I have reserved all questions of expenses.