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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Naseri, R (on the application of) v Secretary of State for the Home Department [2006] EWHC 875 (Admin) (27 March 2006) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2006/875.html Cite as: [2006] EWHC 875 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2
		27th March 2006

1. MR JUSTICE BURTON: This has been the renewed application for permission after refusal by Stanley Burnton J on the papers. The facts of the case are not directly relevant for consideration so I shall deal with them very shortly. I am dealing with this by way of a judgment with a view that there can be a transcript which can be placed before the Court of Appeal when the Court of Appeal considers the application for permission to appeal, which, I am told, is being brought by the Secretary of State for the Home Department against the judgment of Bean J in the decision of Ahmadzai v Secretary of State for the Home Department, CO/3760/2005, which is very close indeed on its facts to the facts of this case. As will appear, I am giving permission to apply in this case largely, if not wholly, because if I did not I would be reaching a decision contrary to that of Bean J, and the very existence of the decision of Bean J, albeit not binding upon me, being a judgment made by a fellow judge on a full application, is clearly of persuasive authority, and at least sufficient to render the case for Mr Jacobs, who appeared before me today on behalf this claimant, and also appeared on behalf of the claimant in Ahmadzai, arguable.
2. This claimant, Mr Naseri, originates from Afghanistan, as did Mr Ahmadzai in Bean J's case. The brief chronology is that he was encountered by Kent police in September 2002 and it was discovered that he was an illegal entrant. He denied at that stage that he had claimed asylum previously, either in the United Kingdom or elsewhere, but subsequent enquiries revealed that that was a false statement, and that he had applied for asylum in Austria. A request was made to the Austrian authorities to accept the applicant, pursuant to the Dublin Convention which was then in force (which I will call Dublin I), and on 24th March 2003 the Austrian authorities agreed to accept the claimant back.
3. This challenge relates to the subsequent removal direction given in June of 2005, when he was to be deported to Austria. An application two days later, on 23rd June 2005, was made for judicial review of that direction. Subsequent events are to that extent not relevant, although the facts of this case give some vividness to the description of someone who is an asylum applicant, and whose position is covered by the Dublin Convention, as being a 'refugee in orbit', because the claimant was returned to Austria in error, given the existence of these proceedings (which, seemingly, had not been known to, or, at any rate, had been forgotten by, the removing authority), and then returned back by the Austrian authorities, at the request of the United Kingdom, so that this pending application for judicial review could be decided. The additional complication was that in the meanwhile the Austrians had withdrawn their agreement to accept him on 7th July, a day prior to his return on 8th July. Subsequently, the Austrians have reinstated their agreement to accept him, on 5th August 2005. So the unfortunate ping pong of Mr Naseri being returned to Austria, and then coming back here, must be ignored for the purpose of my consideration, which relates to the validity of the removal directions in June 2005.
4. Mr Jacobs suggests that the reason for the withdrawal of the Austrian acceptance was because of their concern at the delay between March 2003 and June 2005. Whether that is so or not, is perhaps not material for this application, and, in any event, has been overtaken by the reversed decision to accept him on 5th August. But no doubt that can be a matter of argument hereafter.
5. The fact now, however, is that the Dublin Convention procedures are all in order, save, of course, for the raising by Mr Jacobs of the issue of time limit, namely the passage of 27 months between the agreement by the Austrian authorities to accept the claimant back on 24th March 2003 and the removal directions on 23rd June 2005. So far as that is concerned, there has been no full explanation by the Secretary of State in these proceedings as to the delay, insofar as that is necessary. There is a suggestion in the acknowledgment of service that there was difficulty in tracing the claimant, at any rate in July 2004, because the address provided did not appear to exist, but Mr Waite, who has appeared for the respondent today, made it clear that he was not, at any rate at this stage, relying on any question of absconding or disappearance. He accepted that the delay, in those circumstances, was not one which could be laid at the door of the claimant.
6. The position then is a simple one. The Dublin Convention requires and entitles the community countries who have subscribed to the Convention to return asylum applicants to the first place of claim. There is, notwithstanding the original denial by the claimant, no doubt that in this case that is Austria. Austria has accepted the return. On the face of it, therefore, the claim by the claimant has no substance. However, he relies upon the unexplained delay.
7. Dublin Convention I requires, by Article 11(5), as follows:

"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."

8. It is accepted that there were no proceedings initiated within the one month period after the original acceptance by the Austrian authority, and therefore that proviso does not apply.
9. The relevant regulations relating to Dublin I are in Decision number 1/97 9th September 1997 of the Committee set up by Article 18 of the Dublin Convention of 15th June 1990 concerning Provisions for the Implementation of the Convention. By Article 21(4) and 21(5), certain exceptions are provided, at least in relation to 21(4) of a very general nature, with regard to extensions of that one month period.
10. There is no express reliance upon those exceptions by Mr Waite before me today. What he has submitted is that he can rely on the decision in the Court of Appeal in Omar v Secretary of State for the Home Department, which, inter alia, concludes that the provisions of the Dublin Convention are not binding on the United Kingdom, a proposition with which Mr Jacobs agrees, as he did before Bean J.
11. Paragraphs 24 and 25 of Sir Swinton Thomas's judgment in Omar, and in this regard Latham and Chadwick LJJ agreed, were as follows:

"24. Accordingly, I conclude that Mitting J came to the correct conclusion and that Regulation 29 does not give direct effect to the provisions of Article 11(5) conferring rights on the appellant, and I would dismiss this appeal on that ground.

25. However, even if that should be wrong, it would not avail the appellant who wishes to have his application for asylum resolved in his country. As I have already said, Article 11(1) of the Convention provides for consequences to follow if there is a breach of that provision. Article 11(5) does not. Accordingly if Article 11(5) gave rights to the applicant, his right would be to insist that he should be transferred within the time limit to Italy for his claim to be dealt with in that country. Article 11(5) could not possibly be construed so that if there is a breach of the time requirements the effect is to transfer the responsibility for resolving the claim from the requested to the requesting Member State, in this case Italy to the United Kingdom."

12. Mr Jacobs, as I have indicated, accepts that Article 11(5), with the one month deadline there provided - subject to the various exceptions - does not give rights to the claimant: but he relies upon the decision of Bean J, which, as I have indicated, is to be the subject of an application for permission to appeal to the Court of Appeal. Bean J in his judgment referred to that paragraph of Sir Swinton Thomas's judgment in paragraph 13 of his judgment. He refers also to the assenting judgments of Latham and Chadwick LJJ in paragraph 15 of his judgment.
13. Bean J stated as follows:

"In the light of Omar, Mr Christopher Jacobs, for the claimant, accepted that Article 11(5) of Dublin I does not confer a statutory right on his client to remain in the UK. Mr Jacobs's point on this application is a different one. He submits that after an unexplained delay of two years it is, as he put it, 'Wednesbury unreasonable' Of the Secretary of State to transfer his client to Austria rather than deal with the asylum claim (together with the ECHR Article 8 claim) in this country."

14. What appears to have caused Bean J to conclude that the delay, or a decision to transfer after the delay, was Wednesbury unreasonable was by reference to what was said by Mr Jacobs to amount to prejudice suffered by the claimant.
15. At paragraph 17 of Bean J's judgment he said as follows:

"Mr Ahmadzai would indeed have difficulty, on the face of it, in crossing the high threshold set by Huang."

That is a reference to the Court of Appeal decision, which has also been the subject of decision in Ekinci in the Court of Appeal, that an Article 8 claim would have to be exceptional in order for an applicant for asylum without lawful entry in this country to succeed.

16. Bean J continued:

"... but the Article 8 is secondary. Dublin I (and likewise Dublin II) [with which neither he nor I deal] deals with responsibility for determining asylum claims. In theory, no doubt, an asylum claim can be made just as well in one Member State as in another. But there is force in Mr Jacobs's submission that his client would suffer some prejudice in attempting to establish such a claim in Austria without the benefit of the support network of his girlfriend (a British citizen), other friends he has made here over the past two years, and the lawyers who have been acting for him in recent months."

That appears to have been decisive with Bean J, because in paragraph 23 he said as follows:

"Turning to domestic law, Mr Johnson [counsel instructed by the Treasury Solicitor on behalf of the defendant in that case] submits that the prejudice to the claimant, no more and no less than that identified in paragraph 17 above, is insufficient to disentitle the Secretary of State from removing the claimant to Austria."

Then Bean J continued:

"But the unexplained delay is some 25 times that permitted by Article 11(5) of Dublin I; and the prejudice, though by no means exceptional, is significant. I conclude that in the present case it would be wholly unreasonable, after the lapse of transferred against his wishes to Austria. He is now entitled to have his claim for asylum (and the subsidiary claim based on human rights grounds) heard in the United Kingdom. His application for judicial review accordingly succeeds."

17. If one looks, as I have indicated, at the Article 8 claim, Mr Jacobs accepts that such Article 8 claim as there was in Ahmadzai is a stronger one than in this case, where Mr Naseri has developed no ties of the kind of a girlfriend or wife, and he simply relies, or will rely, upon his having lived here and developed I think some 15 friends and established an understanding of English which he did not have previously. Mr Jacobs submits that the very existence of an Article 8 claim, whatever its merit, amounts to prejudice which is caused by the delay, and which benefit he will lose by going to Austria where he will, if dealt with speedily, have developed no similar basis for an Article 8 claim.
18. I am far from persuaded that the simple assertion of an Article 8 claim by reference to having lived in this country and developed a coterie of friends and a knowledge of the language would begin to get such claim off the ground, as, indeed, must have been at least in Bean J's mind, given his reference to Huang. Insofar, therefore, as prejudice is required, or is required to be attached to the delay, or caused by it, I can see no basis for it in this case if it relates to the loss of an arguable Article 8 claim, and certainly I would accept Mr Jacobs's concession that any Article 8 claim here is less strong than Ahmadzai; but it seems to me that the claim in Ahmadzai itself was very weak.
19. Given the absence of any weighing by Bean J of the strength of the Article 8 claim in Ahmadzai, what appears perhaps to have influenced him was not the causative nature of delay giving rise to an arguable Article 8 claim, although that might arise in some other case; but rather the simple fact that what would have always been capable of being, and is regularly, asserted, namely an asylum applicant's preference for his asylum claim to be resolved in England - because, for example, he has some facility in English language, which, no doubt, will have improved during his time in the UK, coupled perhaps with a support network, or with the easier availability of legal representation and legal aid – which would ordinarily be overridden by the provisions of the Dublin Convention, should by virtue of the delay not be so overridden.
20. What seems to me to lie behind Bean J's decision is that the Secretary of State should not be entitled to enforce the Dublin Convention, irrespective of prejudice, or, at any rate, any greater prejudice caused by that delay, but should take into account the preference of the asylum applicant, once there has been an unexplained and exceptional period of delay, 25 months in the case of Ahmadzai, 27 months in this case. That seems to me to underlie the conclusion by Bean J that it was Wednesbury unreasonable of the Secretary of State after that delay to make the removal direction in Ahmadzai, such that consequently, through the back door of such a conclusion, the asylum applicant obtains a right to have his asylum application heard in this country, contrary to the conclusion of the Court of Appeal in Omar, which, as Mr Jacobs pointed out, was not a case involving delay.
21. It seems to me that there is clearly a powerful case to be made on behalf of the Secretary of State that Bean J erred in relation to his approach to that case, and in relation to the applicability of the binding authority of the Court of Appeal in Omar. It may well be that the Court of Appeal will want to reconsider the question, both by reference to Bean J's decision, and, if they were persuaded by Bean J's conclusions, by reference to its own earlier decision in Omar. But, as of now, there is a decision, as I said at the outset, of a fellow judge of the Administrative Court which appears to me to be indistinguishable from the facts of this case. The case may be said to be stronger, the delay being 27 months rather than 25 months: on the other hand, the Article 8 claim is weaker by reference to the absence of a girlfriend. But in the respects which I have already indicated I do not feel there is a strong argument on prejudice in any event by reference to the lesser availability of an Article 8 claim. My judgment would be that, if prejudice be necessary to be considered, the existence of an Article 8 claim, which can be assessed as being one with very little likelihood of success, can be weighed very low indeed, if at all, in the balance. But it may be, if the result in Ahmadzai be right, that prejudice is not necessarily a factor to take into account, and that either the Secretary of State's decision, to enforce the Dublin Convention after 27 months, notwithstanding the deadline in the regulations of one month was Wednesbury unreasonable, or it was not. If it was Wednesbury unreasonable, then the preference of an asylum applicant to have a decision on his or her asylum application taken in this country would be met. If it was not otherwise Wednesbury unreasonable, then, if there be prejudice, it does not appear to me to be material in this case or to have been material in Ahmadzai. This will be a matter for the Court of Appeal's consideration of Bean J's decision.
22. I conclude that, although I grant permission for this case, it should not be heard substantively until after the outcome of the application for permission in Ahmadzai, and, if permission granted, after the hearing of the appeal. I will incorporate that in the order that, although I grant permission, the substantive hearing should await the outcome of the application for permission to appeal in Ahmadzai, and, if granted, await the appeal hearing in that case. I will also order an expedited transcript.
23. MR JACOBS: Could I ask for costs reserved?
24. MR JUSTICE BURTON: That sounds sensible. Yes, thank you very much.