Case No: C/2002/1365

Neutral Citation No: [2002] EWCA Civ 1855

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Manjit Gill, QC and Christopher Jacobs (instructed by JCWI, London EC1V 9RT) for the Appellant

Miss Lisa Giovannetti (instructed by The Treasury Solicitors) for the Respondent

Hearing dates : 4^th December 2002

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Lord Justice Latham:

1. On the 11^th June 1998, the appellant, an ethnic Albanian from Kosovo, arrived in this country by Eurostar from France and claimed asylum. On the 17^th December 1998 the German authorities accepted responsibility for the appellant’s asylum claim under Article 8 of the Dublin Convention. By letter dated the 22^nd December 1998, the respondent certified the claim under s. 2(2) of the Asylum and Immigration Act 1996 (the Act) on the grounds that the authorities in Germany had accepted that Germany was the state responsible for examining his application; and leave to enter was refused. The appellant commenced judicial review proceedings on the 14^th January 1999 on the grounds that Germany was not the responsible state under the Dublin Convention, and that Germany was not a safe third country for an ethnic Albanian asylum seeker. The latter ground was one which was the subject matter of a substantial number of other applications for judicial review; and accordingly the claim was adjourned pending their resolution.
2. The matter was reviewed by the respondent in the light of the decision of Collins J in Ex parte Shefki Gashi and ex parte Artan Gjoka on the 15^th June 2000. The respondent took the view that as a result of that judgment, the appellant’s argument that Germany was not a safe third country could no longer be maintained. Accordingly the Asylum Directorate on his behalf wrote to the appellant’s legal advisors on the 22^nd December 1998 stating that the Secretary of State was clearly of the view that the appellant was properly returnable to Germany under s. 2 of the Act and that he was "re-admissible" to Germany under the provisions of the Dublin Convention. The appellant nonetheless pursued his application, and further challenged the respondent’s decision in that letter on the basis that the respondent had misdirected himself as to the provisions of the Dublin Convention. The appellant’s application was dismissed by Jackson J on the 21^st May 2002. His appeal to this court is limited to an argument based upon the provisions of the Dublin Convention, and its effect on domestic law.
3. Before setting out the relevant provisions of domestic law and the Dublin Convention, it is necessary to set out in more detail the facts, and in particular the claims made by the appellant in the course of these proceedings.

The Facts

4. When the appellant arrived in this country he completed an asylum questionnaire in which he denied having previously applied for asylum in any country.
5. In the section on the form headed "Basis of Claim Statement", he described his activities as a leader of demonstrations against the Serbian authorities in Kosovo and also differences between himself and KLA members about the ways in which their common aims could be achieved.
6. The respondent made enquiries. These included sending the appellants fingerprints to the immigration authorities in Germany. Those authorities investigated the matter and reported that the claimant had made an asylum claim in Germany at the end of 1993. They accepted that Germany was the proper country to deal with the appellants claim for asylum pursuant to the provisions of the Dublin Convention; and on the 17^th December 1998, the Bundesamt in Germany wrote to the respondent confirming that they accepted responsibility under article 8 of the Convention
7. In the letter of the 22^nd December 1998 refusing the appellant asylum, the Asylum Directorate on the respondent’s behalf, wrote to the appellant as follows:

"You have applied for asylum in the United Kingdom on the grounds that you have a well founded fear of persecution in Yugoslavia for reasons of race, religion, nationality, membership of a particular social group or political opinion.

However, Yugoslavia is not the only country to which you can be removed. Under the provisions of the Convention for Determining the State Responsible for Examining Applications for Asylum Lodged in one of the Member States of the European Communities (the Dublin Convention) the authorities in Germany have accepted that Germany is the state responsible for examining your application for asylum under Article 8. You are, under paragraph 8(1)(c) of Schedule 2 of the Immigration Act 1971, returnable to Germany which is a signatory to the 1951 United Nations Convention relating to the status of refugees."

8. In his application for leave to apply for judicial review dated the 14^th January 1999, the appellant acknowledged that he had, contrary to his original account, made an application for asylum in Germany. Paragraph A3 of the grounds stated:

"The applicant and his wife originally fled Kosovo in December 1993 and travelled to Germany where they claimed asylum on arrival. A few days later the applicant and his wife’s applications for asylum were refused on 5 January 1994. Since Mrs Lika had been travelling on her Yugoslavian passport, which bears her maiden name Laura Bela, she had to make an asylum application independent of her husband. Both the applicant and his wife appealed against the German authorities’ decision to refuse their applications for asylum. In April 1998, Mrs Lika was notified that her appeal against the authorities’ decision to refuse her application for asylum had been unsuccessful and she must now leave Germany."

9. Nothing was said about either the appellant or his wife having returned to Kosovo. Indeed in his affidavit in support of the application, the impression given by the appellant was that he and his wife had travelled directly from Germany to this country in June 1998.
10. As I have already said, the respondent reviewed the position in the autumn of 2000. In the letter of the 28^th October 2000, he said:

"Following the judgment of the Honourable Mr Justice Collins in the case of ex parte Artan Gjoka and ex parte Shefki Gashi which was handed down on the 15 June 2000, the Secretary of State reviewed his certificate in your client’s particular case, in order to determine whether or not it should be maintained, in the light of the changed situation for Kosovan Albanians both in Europe and in Kosovo. The Secretary of State remains clearly of the view that your client is properly returnable to Germany under s. 2 of the Asylum and Immigration Act 19996 and that he is re-admissible to Germany under the provisions of the Dublin Convention. The Secretary of State can find no compelling, compassionate grounds which would cause him to depart from his normal policy and practice in your client’s particular case, which is to return him to the State with responsibility for examining his asylum application under the Dublin Convention."

11. In either December 2000 or January 2001, the appellant’s legal advisors delivered to the respondent an undated statement, together with supporting documentation, which set out a detailed and circumstantial account of the appellant’s activities as a student leader in Kosovo from March 1997 until the time that he said he left Kosovo, which in general accorded with the information that he had given in support of his application for asylum in 1998. In particular, that documentation included a passport and marriage certificate apparently obtained in Kosovo in 1997 in order to show that he had returned to Kosovo as he had stated in his Form 86A.
12. On the 31^st January 2001, paragraph A3 of Form 86A was amended by the appellant. The previous version was deleted and replaced with the following:

"The applicant left FRY at about the end of 1993, having been ill-treated by the Serb authorities. His wife’s Bosnian relatives were facing ethnic cleansing at this time. The applicant applied for asylum in Germany on or around 5^th December 1993. The asylum applications were refused and the applicant and Mrs Lika he (sic) grew to fear that the German authorities would return them to Belgrade as they had done to other asylum seekers. They returned to Kosovo in December 1994, where the applicant became politically active as an organiser of student demonstrations. He was arrested and ill treated by the Serb authorities in May 1998 and then visited by members of KLA, who threatened to kill him if he continued to organise protests as people were being deterred from joining them to fight. The applicant and his wife fled Kosovo in July 1998 after the Serb authorities raided and burnt their flat."

13. This was the material before Jackson J when he came to his decision on the 21^st May 2002. Neither party brought to the judge’s attention a further letter from the respondent dated the 17^th May 2002. The relevant passages are as follows:

    8. When a request for transfer is made to Germany it is considered by the Federal Office for the Recognition of Foreign Refugees (BAFI) in Nurenberg. Before accepting the Dublin transfer request the BAFI must satisfy themselves that Germany is indeed the responsible member state. As a routine in every case where the subject of the request has been a previous asylum applicant in Germany, the BAFI makes detailed inquiry to the responsible Aliens Office to ensure that the subject of the request is not been forcibly expelled from Germany or has left Germany to return to their country of origin voluntarily.
    9. In your client’s case, Germany was, and remains, satisfied after making such inquiries that your client did not leave Germany as he now claims to have done and that Germany is properly a member state responsible for the examination of your client’s asylum application under the provisions of the Dublin Convention.
    10. Further, your client and his wife left Kosovo in March 1993 and claimed asylum in Germany in December 1993. There was no final decision on this asylum claim in 1994 and no action was taken, or contemplated, by Germany to forcibly return your client to Kosovo. In such circumstances, the Secretary of State does not find it likely or credible that your client and his wife would voluntarily return to the place from whence they fled fearing persecution within a few months of them making an asylum claim in a safe country.
    11. …… The Secretary of State view, there is no argument, Germany is the responsible member state and has accepted this responsibility.
    12. In any event, the Secretary of State is firmly of the view that the operation of the Dublin Convention is solely a matter for the two signatory states concerned; in your clients case, the United Kingdom and Germany, and that its operation in a particular case is not susceptible to challenge by way of judicial review. This view was supported in the case of ex parte Simba [CO Ref 838/98 29 July 1998, unreported] which application was refused by Mr Justice Laws who took the view that:

    "Once there has been an acceptance of responsibility by another member state, the approach of the court must be that this has been agreed on the international plane and the matter was thereby closed. The other member state would consider the asylum application, the Secretary of State was entitled to certify and there was no sensible room in those circumstances for any legitimate judicial review complaint."

    13. This view has subsequently been supported in the case of ex parte Shefki Gashi and ex parte Artan Gjoka in [CO/3559/1999 and CO/4506/1999 15 June 2000 unreported] and endorsed by the Court of Appeal and the House of Lords in the case of R –v- SSHD, Zeqiri [2002] UKHL 3. 24 January 2002.
    14. The Secretary of State is confident, therefore, that your client and his wife may be properly and lawfully returned to Germany."

    The Law

14. The Dublin Convention was the result of the agreement of all the member states of the European Communities that there should be some common basis for determining which state should be responsible for examining applications for asylum lodged in one of the member states of the European Communities. The preamble included the following:

"Determined, in keeping with their common humanitarian tradition, to guarantee adequate protection to refugees in accordance with the terms of the Geneva Convention of 28 July 1951, as amended by The New York Protocol of 31 January 1967 relating to the status of refugees, hereinafter referred to as the "Geneva Convention" and the "New York Protocol" respectively;

Considering the joint objective of an area without internal frontiers in which the free movement of persons shall, in particular, be ensured, in accordance with the provisions of the Treaty establishing the European Economic Community as amended by the single European Act;

Aware of the need, in pursuit of this objective, 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 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 these states acknowledging itself to be competent to examine the application for asylum ….."

15. The relevant Articles are as follows:

    "Article 3

    1. Member States undertake to examine the application of any alien who applies at their border or in their territory to any one of them for asylum.
    2. That application should be examined by a single member state, which shall be determined in accordance with the criteria defined in this Convention. The criteria set out in Articles 4 to 8 shall apply in the order that they appear.

    ……

    Article 8

    Where no member state responsible for examining the application for asylum can be designated on the basis of the other criteria listed in this Convention, the first member state with which the application for asylum is lodged shall be responsible for examining it.

    Article 10

    1. The member state responsible for examining an application for asylum according to the criteria set out in this convention shall be obliged to:

    1. Take charge under the conditions laid down in Article 11 of an applicant who has lodged an application for asylum in a different state.
    2. Complete the examination for asylum.
    3. Readmit or take back under the conditions laid down in Article 13 an applicant whose application is under examination and who is irregularly in another member state.
    4. Take back, under the conditions laid down in Article 13, an applicant who has withdrawn the application under examination and lodged an application in another member state.
    5. Take back, under the conditions laid down in Article 13, an alien whose application it has rejected and who is illegally in another member state.

    …….

    3. The obligations specified in para 1 points (a) to (d) shall cease to apply if the alien concerned has left the territory of the member state for a period of at least three months.

    ……."

16. As to domestic law, the Act was, in part, intended to give effect to the Dublin Convention. The relevant provisions are in Section 2 are, as follows:

    "(1) Nothing in section 6 of the 1993 Act (Protection of Claimants from Deportation etc) shall prevent a person who has made a claim for asylum being removed from the United Kingdom if –

    (a) The Secretary of State has certified that in his opinion, the conditions mentioned in ss. (2) below are fulfilled

    (2) The conditions are –

    (a) that the person is not a national or citizen of the country or territory to which he is to be sent;

    (b) That his life and liberty would not be threatened in that country or territory by reason of his race, religion, nationality, membership of a particular social group, or political opinion; and

    (c) That the government in that country or territory would not send him to another country or territory otherwise than in accordance with the convention."
    
    

17. The mechanism for the removal of such a person is set out in paragraph 8 of Schedule 2 to the Immigration Act 1971 which provides for directions to be given for the removal of a person refused leave to enter the United Kingdom to inter alia, a country or territory to which there is reason to believe that he will be admitted.
18. The respondent’s policy in relation to certification and removal is contained in paragraph 345 of HC 395, which provides as follows:

"(1) In a case where the Secretary of State is satisfied that the conditions set out in s. 2(2) of the 1996 Act are fulfilled, he will normally refuse the asylum application and issue a certificate under s. 2(1) of the Act without substantive consideration of the applicants claim for refugee status …..

2. The Secretary of State shall not remove an asylum applicant without substantive consideration of his claim unless:

1. The asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity at the border or within the third country or territory to make contact with the authorities in that country or territory in order to seek their protection; or
2. There is other clear evidence of his admissibility to a third country or territory.

19. The main submission made by Mr Gill QC on behalf of the appellant with his usual care and skill is that on a proper and fair analysis of the facts, the German authorities are not responsible for the asylum application because the appellant was outside the member states from 1994 to 1998, and accordingly cannot be required to take charge of, take back or readmit the appellant by reason of the provisions of Article 10.3 of the Dublin Convention, namely that he had left the territory of the member states for a period of at least three months. He accepts that he can only succeed if it can properly be said that the Dublin Convention has some effect in domestic law. He accepts that the decision was taken in accordance with domestic law for the provisions of s. 2 of the Act clearly apply and the respondent’s decision is in accordance with the policy in HC 395.
20. There is no doubt that the provisions of the Dublin Convention are not incorporated into domestic law. In ex parte Shefki Gashi and ex parte Artan Gjoka, Collins J, when dealing with the argument that there had been delay in dealing with the applications which amounted to a breach of the requirement of the Dublin Convention that the application should be dealt with expeditiously said at paragraph 11:

21. This statement of principle was approved by Lord Phillips MR in Zeqiri –v- SSHD [2002] Imm AR 42 at para 49 where he said:

22. Whilst the House of Lords reversed the decision of the Court of Appeal in this latter case on other grounds, it did not question the statement of principle contained in this passage. I have no doubt that it is correct. Accordingly, the question is whether or not in some way or another, although not directly affecting the rights of the appellant, the Dublin Convention restrains the behaviour of the respondent towards him.
23. Mr Gill submits that it does in two respects. The first is presaged in the judgment of Collins J. He submits that the appellant had a legitimate expectation that he would be dealt with in accordance with the Dublin Convention, in other words that the Secretary of State would only act in accordance with the Convention. This, he submits, required the Secretary of State firstly to consider whether or not the conditions for Germany’s acceptance for responsibility had been met, and secondly required the Secretary of State to have complied with the obligations as to the provision of information between states provided for in the Convention.

24. His submission in this respect is based upon the dicta referred to by Collins J in the passage which I have cited from the judgments of Lord Woolf MR and Hobhouse LJ in Ahmed & Patel. Lord Woolf said at page 583 G:

25. Hobhouse LJ said at page 592A:

"If there was no statement of executive policy other than the executives ratification of a treaty, it might be possible to say that it was legitimate expectation that the executives treatment and decision of matters falling within the ambit of such a treaty would be dealt with in accordance with that treaty."

26. There are, however, it seems to me two insuperable difficulties which Mr Gill faces. The first and most fundamental one is that the Dublin Convention, as explained by Collins J and Lord Phillips MR, is not concerned directly with the provision of rights or entitlements to individual asylum seekers. Although its purpose is to produce a system which will benefit asylum seekers generally, it does so by governing the responsibilities of the member states. It seems to me difficult to say, in those circumstances, that the Dublin Convention in itself could give rise to an legitimate expectation upon which an individual asylum seeker could rely. But even if that hurdle could be overcome, the policy of the Secretary of State is clearly set out in paragraph 345 of HC 395. As explained in the judgments to which I have referred, this will override any expectation generated by the Convention. The only legitimate expectation therefore which the appellant could have is that he would be dealt with in accordance with s. 2 of the Act, and that paragraph. Amongst other matters, the paragraph makes it clear that vis a vis the asylum seeker, he has no obligation of consultation. The appellant was treated in accordance with these provisions, and accordingly this argument fails.
27. The second basis upon which Mr Gill puts the appellant’s case is based upon a passage in the speech of Lord Hope of Craighead in R –v- SSHD ex parte Launder [1997] 1WLR 839. In that case the question arose as to whether or not the decision of the Secretary of State to extradite the applicant to Hong Kong would have amounted to a breach of the European Convention on Human Rights. Although the Convention was not at that time in force in the United Kingdom, the Secretary of State had concluded that his decision to extradite would not amount to a breach of the applicant’s human rights. Accepting that the Convention was not incorporated into domestic law, Lord Hope said at page 867 F:

"If the applicant is to have an effective remedy against a decision which is flawed because the decision maker has misdirected himself on the Convention which he himself says he took into account, it must surely be right to examine the substance of the argument. The ordinary principles of judicial review permit this approach because it was the rationality of legality of the decisions and not to some independent remedy that Mr Vaughan directed his argument."

28. The effect of Mr Gill’s submission is that because the respondent asserted that he was acting under the Dublin Convention, he was effectively determining that Germany was the appropriate member state to determine the appellant’s application for asylum, and that this court is entitled to decide whether, in so concluding, he misdirected himself as to the provisions of the Convention. In my view this is a misconceived argument. This appellant’s application was clearly one to which the Dublin Convention applied. The respondent was right in those circumstances to make the appropriate enquiry of Germany. Once the German authorities accepted responsibility under the Convention the matter became an issue between the United Kingdom authorities and the German authorities. Whether or not the German authorities consider that Article 10 in some way, on the facts, absolves them from any obligation to deal with the appellant in accordance with that Article is a matter for them, and is not justiciable in these courts. There is no question of the respondent having misdirected himself in the way envisaged by Lord Hope as giving rise to an issue capable of being the subject matter of a successful application for judicial review.
29. I consider that the only real question is whether or not the respondent should have acted differently on receipt of the information provided in December 2000 or January 2001 so that in adhering to the decisions that he made in December 1998 and October 2000, he was acting perversely. Mr Gill submits that the information with which he was provided was sufficiently cogent to require him to reconsider the matter. In my judgment, the respondent would have been perfectly entitled to have taken the view that the material was material which should be considered by the German authorities and not by him, and could indeed be provided by the appellant himself to the German authorities. In fact, he clearly did reconsider the matter, as the letter of the 17^th May 2002 makes clear. In the context of a decision as to whether or not the application should be considered by the German authorities, the respondent was, in my view, perfectly entitled to conclude that the material was insufficient to justify taking the exceptional course of departing from the procedure envisaged by the Dublin Convention. Article 8 clearly applied. It was and remains for the German authorities to determine whether or not they accept the obligations under Article 10.1. The uncertainties and inconsistencies in the appellant’s account justified the respondent in taking the view that he did. He was under no obligation, it seems to me, to initiate any further investigation of facts which related to the responsibility which the German authorities had accepted under the Dublin Convention; and he had no obligation to the appellant to enter into any further consultation with the German authorities for reasons I have already given.

30. I agree.
31. The appellant’s reliance on what Lord Hope of Craighead said in R –v- SSHD ex parte Launder [1997] 1 WLR 839, 867, is misplaced. Lord Hope accepted that the court could review for rationality or legality an executive decision which was expressed to take into account a potential breach of the European Convention on Human Rights (which at the relevant time was not incorporated into United Kingdom law) if the respondent were extradited to Hong Kong. Like the cases on legitimate expectation, what he said represents a development in the relaxation of the basic rule of United Kingdom constitutional law that an unincorporated treaty cannot confer rights or impose duties in domestic law. Indeed, it may be that those developments may yet lead to the creation of an estoppel against the Crown in favour of individuals in the case of unincorporated treaties dealing with human rights which are plainly intended to benefit individuals. But in so far as it was necessary to give effect to the Dublin Convention in domestic law, that was done by sections 2 and 3 of the Asylum and Immigration Act 1996.