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Cite as: [2000] EWHC Admin 356

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R. V SECRETARY OF STATE FOR HOME DEPARTMENT EX PARTE SHEFKI GASHI AND SECRETARY OF STATE FOR HOME DEPARTMENT EX PARTE ARTAN GJOKA [2000] EWHC Admin 356 (15th June, 2000)


Case No: CO/3559/1999
CO/4506/1999

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
THURSDAY 15 JUNE 2000

BE F O R E :
THE HON. MR JUSTICE COLLINS
----------------------------------

R.


V


SECRETARY OF STATE FOR THE HOME DEPARTMENT




EX PARTE SHEFKI GASHI



AND

SECRETARY OF STATE FOR THE HOME DEPARTMENT



EX PARTE ARTAN GJOKA


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(TRANSCRIPT OF THE HANDED DOWN JUDGMENT OF
SMITH BERNAL REPORTING LIMITED, 180 FLEET STREET
LONDON EC4A 2HD
TEL NO: 0171 421 4040, FAX NO: 0171 831 8838
OFFICIAL SHORTHAND WRITERS TO THE COURT)
---------------------------------

MR MANJIT GILL Q.C.
MS JOANNE ROTHWELL

APPEARED FOR 2ND RESPONDENT THE KING ROSE LAW GROUP BOSTON LINDS, P21 3NE



MISS LISA GIOVANNETTI

APPEARED FOR THE TREASURY SOLICITORS


FIRST RESPONDENT WAS NOT REPRESNTED



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JUDGMENT
AS APPROVED BY THE COURT
CROWN COPYRIGHT ©

MR JUSTICE COLLINS:
1. These two cases came before me on 25 May 2000 pursuant to an order made by Burton, J the previous day. Each applicant is an ethnic Albanian from Kosovo. Neither applicant intends to pursue his application, but the respondent opposed the proposed withdrawal because there are some 200 or so applications for permission which raise similar points to those which were likely to be argued in these cases. Accordingly, the respondent wanted the court to rule on two points which he felt were likely to dispose of most of the outstanding applications and these cases seemed to be the obvious and convenient vehicles to enable that to be done. The respondent produced a document which set out three declarations (Burton J having earlier on 9 May 2000 encouraged this) which he wished the court to make. Pursuant to directions given by Burton J, six permission applications, chosen as being representative of the various applicants, were listed before me and their circumstances are included in the most helpful skeleton argument lodged by Mr. Manjit Gill Q.C., on behalf of the applicants in the substantive cases. Counsel instructed in those permission applications have attended before me but, in the time available, have not felt able to make any submissions to me. That has in no way prejudiced their clients since Mr. Gill has covered all possible arguments in dealing with the cases in which he appears.
2. I should explain how the issue has arisen and the limited nature of my task. Since the applications in the two cases before me are not being pursued, I shall consider facts material to the outstanding permission applications and so hereafter when I refer to applicants, it will be to those whose cases have yet to be considered. Many applicants came to the United Kingdom through Germany. The respondent therefore had to consider whether he should issue a certificate under s.2 of the Asylum and Immigration Act 1996 to enable any particular applicant to be returned to Germany so that the German authorities could consider his application for asylum. That section enables the respondent to "remove expeditiously from this country claimants for asylum who have arrived in this country from a safe third country": see R v Secretary of State for the Home Department ex parte Besnik Gashi [1999] INLR 276 @ 278A per Brooke, L.J. Before issuing a certificate the respondent must satisfy himself that certain conditions are fulfilled. For my purposes, the relevant one is that contained in s.2(2)(c) which reads:-
"that the government of that country ... would not send him to another country or territory otherwise than in accordance with the [Geneva] Convention".
3. The respondent did satisfy himself that that condition was met in Germany. But in ex parte Besnik Gashi (supra) the Court of Appeal on 25 March 1999 decided that there were worrying discrepancies between the numbers of asylum seekers who were succeeding in gaining recognition of their status in Germany and in the United Kingdom. Essentially, German figures seemed to show that there was a very small percentage of successful applications at a time when the United Kingdom was allowing most such applications. The court decided that the respondent had not properly analysed this discrepancy and was not entitled to rely on a general assumption that Germany properly applied the convention and so the burden was transferred to the applicant to displace that assumption: see [1999] INLR @ p.306D-F per Buxton, L.J. This decision led the respondent to suspend attempts to remove Kosovar asylum seekers to Germany whilst he made further enquiries to seek to satisfy himself that Germany was indeed a safe third country. In addition, on 24 March 1999, the NATO forces began bombing the Federal Republic of Yugoslavia. By 15 June 1999 the respondent had satisfied himself that the German authorities did properly apply the Geneva Convention and that Germany was a safe third country. In addition, the changed situation in Kosovo following the NATO bombing campaign meant that the vast majority of Kosovar asylum seekers would not be able to establish their claims. Accordingly, on 13 July 1999 the respondent announced that he would recommence consideration of returning Kosovar asylum seekers to Germany.
4. In some cases, certificates had been issued before 25 March 1999. These were not put into effect because of the Court of Appeal decision in ex parte Besnik Gashi, but have since been activated or reissued. In other cases, the request to Germany to accept the applicant had been made (and in some cases acceded to by Germany) before 25 March 1999, but no certificate had been issued. Somewhat different considerations are said to apply to these two categories, and I am concerned only with the latter, that is to say, those where there was no certificate before 25 March 1999. In many, the applicant had arrived in the U.K. in 1998, but for various reasons no certificate had been issued before 25 March 1999. Neither Counsel was prepared or able to argue the legal result of the first category and so I do not deal with it in this judgment.
5. In reality, the issue upon which I have been asked to rule arises somewhat artificially. When the matter was before Burton, J, the respondent, as the draft form of declaration shows, had two main concerns, neither of which is now in issue. It is convenient to set out the Proposed Form of Declaration. It reads:-
"1. The Secretary of State was lawfully able to conclude that as of 15 June 1999 there was no significant disparity between the approach of the German authorities and that of the U.K. immigration authorities as regards asylum claims by Kosovar Albanians.
2. In forming an opinion for the purposes of Section 2(2)(c) of the Asylum and Immigration Act 1996 as to the safety of the country to which he proposes to remove an Applicant, the Secretary of State should consider the law and practice of that country as at the date of certification, or any subsequent decision to maintain the certificate. On hearing of any application for Judicial Review, the Court will also have regard to the situation as at the date of the hearing, the Secretary of State is not precluded from lawfully forming the opinion required by section 2(2)(c) simply by reason of the fact that he could not have done so as at the date the Applicant's claim for asylum, or at the date when the Secretary of State became aware that the Applicant might be returnable to the country in question.
(3) In the premises of paragraphs 1 and 2 above, the Secretary of State was entitled to issue, further or in the alternative to maintain his certificate in respect of the Applicants in these proceedings".
Paragraph 1 is accepted in the sense that Mr. Gill concedes that on the material now available he cannot dispute that the respondent has since 15 June 1999 been lawfully able to conclude that the disparity does not exist and so can in principle conclude that Germany is a safe third country. But Mr. Gill reserves the position of any applicant should he be able to produce factual material which undermines the respondent's conclusions. Paragraph 2 is not disputed. It is indeed surprising that it ever was and Mr Gill did not seek to argue the contrary. Paragraph 3 is not accepted and does not flow from Paragraphs 1 and 2. Furthermore, as I have already indicated, the underlying facts vary and there may be additional special or compassionate circumstances in any individual case.
6. Mr. Gill did not concede that the Court could or should make any declaration at the instance of a respondent. For my part, I can see the value of the court being able to make such a declaration and it may be possible in many cases to do so where any applicant has sought one. This is, I think, something those responsible for the new Crown Office Rules might like to consider. But the argument is a barren one since a formal declaration is unnecessary when the judgment makes clear what the judge's view of the law is. It was for that reason that I heard no argument on the issue and am content to incorporate what otherwise might constitute declarations into my judgment.
7. It did seem sensible to make use of the hearing. Accordingly, counsel agreed that I should consider whether the respondent could lawfully issue certificates after 13 July 1999 when the applicants had claimed asylum before 15 June 1999. This date was chosen because it was the policy of the respondent not to send any ethnic Albanian asylum seeker from Kosovo to Germany between 25 March 1999 and 15 June 1999 and in any event, the respondent was accepting that most such asylum seekers were refugees prior to that date. It is submitted on their behalf that, had their claims been considered here, there was an overwhelming probability that they would have been granted refugee status. As I have already said, this judgment does not apply directly to those in respect of whom certificates were issued under s.2 prior to 25 March 1999.
8. There has long been an assumption that the first safe country he reaches should be responsible for investigating and dealing with a person's claim to asylum. This has led to efforts by a country to return to another which the asylum seeker first entered, and sometimes resulted in unedifying wrangles between the two countries with the would-be refugee being shuttled between the two. The international practice relied on was recognised by the House of Lords in R v Secretary of State for the Home Department ex parte Bagdaycay [1987] 1 AC 514 where Lord Bridge at p.532 said:-
"I can well see that if a person arrives in the United Kingdom from Country A claiming to be a refugee from Country B, where Country A is itself a party to the Convention, there can in the ordinary case be no obligation on the immigration authorities here to investigate the matter. If the person is refused leave to enter the United Kingdom, he will be returned to Country A whose responsibility it will be to investigate his claim to refugee status and, if it is established, to respect it. This is, I take it, in accordance with the `international practice' of which Mr. McDowell speaks in his affidavit. The practice must rest upon the assumption that all countries which adhere to the Convention may be trusted to respect their obligations under it. Upon that hypothesis, it is obviously a sensible practice and nothing I say is intended to question it".
9. In those circumstances, in 1990 there came into existence the Dublin Convention which was designed to set a code which would apply to all states which were members of the European Union and which would determine which state had the responsibility under the Geneva Convention. The Dublin Convention is now in force, having been ratified by all member states in 1997. The key paragraph in the preamble reads:-
"Aware of the need to take measures to avoid any situations arising, with the result that applicants for asylum are left in doubt for too long as regards the likely outcome of their applications and concerned to provide all applicants for asylum with a guarantee that their applications will be examined by one of the member states and to ensure that applicants for asylum are not referred successively from one Member State to another without any of those states acknowledging itself to be competent to examine the application for asylum".
This paragraph, coupled with the acceptance by our courts of paragraph 28 of the UNHCR Handbook which states that a person is a refugee as soon as he fulfils the criteria set out in the Geneva Convention so that recognition of his status is declaratory (see Khaboka v Secretary of State for the Home Department [1993] 1mm AR 484), enables Mr. Gill to submit that there is an obligation to make a decision as quickly as possible. It is not open, he submits, to the respondent to adopt a `wait and see' policy and the clearer it is that he is likely to be declared a refugee, the speedier the process must be. Ethnic Albanians from Kosovo would, following the decision of the I.A.T. in Gash and Nikshiqi v Secretary of State for the Home Department [1997] INLR 96, itself approved by the Court of Appeal in ex parte Besnik Gashi (supra), almost inevitably qualify. There must be no unnecessary delay. Thus each case should succeed unless the respondent can show that there was no delay.
10. Mr. Gill submits that the delays in the United Kingdom in deciding claims by asylum seekers themselves are unlawful. But in the context of s.2 of the 1996 Act he argues that the applicants are entitled to rely on the Dublin Convention as creating at least a legitimate expectation that their claims will be dealt with as speedily as possible. He goes further (but the argument based on a possible EU requirement was not fully developed) and suggests that they can rely on the Dublin Convention directly. In either event, unreasonable delay means that the decision to send to Germany must be quashed.
11. I have no doubt that these arguments must be rejected. While naturally the Dublin Convention has regard to the need for those seeking asylum to know their fate as soon as is reasonably possible, it is concerned with the allocation of responsibility for considering claims and caring for refugees. I am prepared to assume for the purposes of this judgment that the ratification by the Government of a treaty may create a legitimate expectation that its terms will be applied in dealing with an individual affected by it: see R v Secretary of State for the Home Department ex parte Ahmed & Patel [1998] INLR 570 @ 583G per Lord Woolf, M.R. and 592A per Hobhouse, L.J. But that will only be if there is nothing else to show how the government will act and no statement of policy. Here the respondent has quite clearly indicated that he intends to make use of his powers under s.2 of the 1996 Act and to apply the Dublin Convention accordingly. In any event, I cannot accept that an individual can have any rights or expectations under the Dublin Convention since it is concerned not to confer benefits on the individual but to ascertain which state should be responsible for dealing with his claim. It may confer benefits on him indirectly inasmuch as he will not be passed from one state to another and back again and thus ascertainment of responsibility will take less time than if there were no Dublin Convention.
12. The Dublin Convention is concerned with responsibility for refugees. Thus the fact that it may be clear that an asylum seeker is likely to be a refugee does not oblige the United Kingdom to accept responsibility because he applies here. Nor in my judgment is there any obligation to act with any particular speed provided the time limits built into the Dublin Convention are adhered to. These are set out in Article 11 which I should set out in full. It reads:-
"Article 11
1. If a Member State with which an application for asylum has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any case within the six months following the date on which the application was lodged, call upon the other Member State to take charge of the applicant.
If the request that charge be taken is not made within the six-month time limit, responsibility for examining the application for asylum shall rest with the State in which the application was lodged.
2. The request that charge be taken shall contain indications enabling the authorities of that other State to ascertain whether it is responsible on the basis of the criteria laid down in this Convention.
3. The State responsible in accordance with those criteria shall be determined on the basis of the situation obtaining when the applicant for asylum first lodged his application with a Member State.
4. The Member State shall pronounce judgment on the request within three months of receipt of the claim. Failure to act within that period shall be tantamount to accepting the claim.
5. Transfer of the applicant for asylum from the Member State where the application was lodged to the Member State responsible must take place not later than one month after acceptance of the request to take charge or one month after the conclusion of any proceedings initiated by the alien challenging the transfer decision if the proceedings are suspensory.
6. Measures taken under Article 18 may subsequently determine the details of the process by which applicants shall be taken in charge".
Article 11.1 states that the call on another Member State must be made as quickly as possible and in any event within 6 months. Any breach of that time scale will not give any rights to the asylum seeker but will enable the other Member State to refuse to accept responsibility. There is then an allowance of 3 months for the requested State to make its decision whether or not to accept responsibility (Article 11.4) and a further month for the transfer to take place, unless a challenge suspends the time limit (Article 11.5). Thus up to 10 months (or more if there are any proceedings to challenge transfer) may pass before the accepting State begins to consider a claim.
13. In my judgment, delay by itself cannot found a challenge to a decision to send an applicant to another Member State provided that the Dublin Convention is followed. If the Member State requested to deal with the claim accedes to the request in accordance with the Dublin Convention, allegations of delay are by themselves irrelevant. It may be possible in an individual case to argue that the respondent has failed to consider properly compassionate or other circumstances which ought to have persuaded him to take responsibility for a particular asylum seeker (for example, the presence of family ties) and to show that delay has some relevance. Otherwise, as I have said, delay is not material.
14. It follows that in my judgment no applicant can rely on delay and decisions made to remove to Germany cannot be attacked on that ground. It follows that, subject to any special circumstances in any individual case, the issuing of a certificate after 13 July 1999 in respect of a claim made before 15 June 1999 is lawful if Germany is prepared to accept responsibility for the asylum seeker in question in accordance with the Dublin Convention. I should add that Miss Giovannetti told me that the respondent does not generally certify any claim in which a request to another Member State is not made within 6 months at the outside.
15. As I have already said, I do not consider any declaration is needed. This judgment speaks for itself. Any outstanding permission application must be reconsidered in the light of this judgment and the two cases before me can now be withdrawn

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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/356.html