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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Jeyarupan, R (on the application of) v Secretary of State for the Home Department [2014] EWHC 386 (Admin) (20 February 2014)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/386.html
Cite as: [2014] EWHC 386 (Admin)

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Neutral Citation Number: [2014] EWHC 386 (Admin)
Case No: CO/6148/2012

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

Royal Courts of Justice
Strand, London, WC2A 2LL
20/02/2014

B e f o r e :

PHILIP MOTT QC
Sitting as a Deputy High Court Judge

____________________

Between:
THE QUEEN
(on the application of JEYASUTHAN JEYARUPAN)
Claimant
- and -

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Defendant

____________________

Claire Physsas (instructed by Duncan Lewis) for the Claimant
Andrew Deakin (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 30th January 2014

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Philip Mott QC:

  1. The Claimant seeks to challenge four decisions of the Defendant in relation to the return of the Claimant to Cyprus under the provisions of EU Council Regulation 343/2003 ("Dublin II").
  2. The Claimant is a Sri Lankan Tamil, born on 21 April 1981. He has one brother and one sister, who both live now in the UK. His father went missing during the last stages of the civil war in Sri Lanka in May 2009. His mother is alive and still lives in Sri Lanka. In November 2006 the Claimant fled Sri Lanka and travelled to Cyprus where he claimed asylum. His asylum claim was refused and he applied for administrative recourse. This was dismissed on 23 April 2012, but by that time the Claimant had left Cyprus. On 7 May 2012 he arrived in the UK where he again claimed asylum. Under the terms of Dublin II, Cyprus was the country responsible for dealing with his asylum claim (including a renewed asylum claim with fresh evidence), and on 31 May 2012 the Defendant issued a decision letter indicating that she proposed to remove the Claimant to Cyprus.
  3. This initial decision led to the Claim Form being issued on 13 June 2012. In response to that, and the Grounds filed by the Claimant, a supplemental decision letter was sent on 3 July 2012. Permission was granted on one ground only by John Bowers QC on 14 December 2012. The Claimant has sought permission to appeal from the Court of Appeal on other grounds, but the hearing of that application has been adjourned to be heard with other similar cases on 6 March 2014. The ground on which permission was granted is a discrete one, and the hearing before me has proceeded on that ground alone.
  4. On 16 January 2014 the Defendant sent a further supplemental decision letter, dealing with submissions and comments made during the oral permission hearing. On 23 January 2014 the Claimant filed further witness statements. On 28 January 2014 the Defendant sent another supplemental decision letter, dealing with the effect of the new evidence.
  5. In the light of these developments the Claimant applied to amend his grounds to challenge all four decision letters, but still limited to the single ground on which permission was granted. This application was not opposed, and I allowed it.
  6. The ground on which permission was granted by the learned Deputy Judge was the argument that the Defendant ought to have exercised her discretion under Article 3(2) of Dublin II to determine the Claimant's asylum claim in the UK, notwithstanding that Cyprus is the country with responsibility under Dublin II. The challenge raises three principal issues:
  7. i) What is the extent and nature of the discretion under Article 3(2), when considered in the light of the Regulation as a whole, and in particular the Preamble and Article 15?

    ii) Is a decision by the Defendant not to exercise her discretion under Article 3(2) justiciable, that is, reviewable on public law grounds in this court? If so, it is accepted that any challenge would involve normal public law principles of Wednesbury unreasonableness.

    iii) If so, is the decision lawful? This involves looking at two aspects of the decision letters, taken as a whole. Has the Defendant adequately considered the exercise of her discretion? Is the Defendant's conclusion rational?

  8. The Claimant was refused permission to challenge the decision to return him to Cyprus on ECHR grounds, on the basis that his detention conditions there would breach Article 3 and that the level of legal support and assistance there would be insufficient to ensure that he had a fair trial in breach of Article 5. This refusal is to be reconsidered by the Court of Appeal on 6 March 2014, but it was accepted that I should proceed on the assumption that Cyprus is a safe third country which will treat the Claimant properly and will adjudicate upon his asylum claim fairly. As a result, no human rights issues arise. For that reason, the narrow ground argued at this hearing would be determined in the same way whether the third country was France, Germany or Norway on the one hand, or Greece, Italy or Cyprus on the other. The conditions in the third country are not at issue here.
  9. The Claimant asserts that the decision is open to challenge because of two features of his case:
  10. i) His brother came to the UK and was granted refugee status on 10 March 2011. Public law principles of consistency of decision-making require a decision on the Claimant's asylum claim to be made in the same jurisdiction, even though it will not be at the same time. In addition, because of the substantial overlap between the two claims, the Claimant requires the evidence of his brother in support, and his brother is unlikely to be able to travel to Cyprus to give that evidence.

    ii) The Claimant has family connections in the UK of such a nature that he should be allowed to stay and have his asylum claim dealt with here on humanitarian grounds. Permission to challenge the decision to return him to Cyprus on ECHR Article 8 grounds was refused, and it is accepted that this decision must be made on the assumption that the claim based on family connections falls below the threshold of ECHR Article 8.

  11. For reasons which will appear later in this judgment, I have concluded that the decision not to exercise the discretion under Article 3(2) of Dublin II is not open to review by this court. I have also concluded that, even if it were reviewable on normal public law grounds, the Claimant's challenge would fail because the decision was a lawful and rational one.
  12. Factual Background

  13. I turn first to the underlying facts relating to the Claimant, taken from the evidence served on his behalf and assuming it to be correct for present purposes.
  14. i) His family lived in Vavuniya until 1990, when the Claimant would have been 9 years old. In 1990 they were displaced, and they moved again in 1993. In 1996 the family separated. The Claimant, then aged about 15, and his sister (three years younger than him) moved back to Vavuniya, a government controlled area. Their mother joined them there later that year, and still lives there to this day. Their father and elder brother remained in Puliyankullam, in an area controlled by the LTTE.

    ii) On 9 May 1997 the Claimant was detained by PLOTE, one of the Tamil militant groups working with the government. He was accused of helping the LTTE and tortured. They accused his brother of being a member of the LTTE (which, according to the brother, was untrue at that date). He was released after 25 days into the protective control of TELO, another Tamil militant group working with the government. He joined their student wing and was allowed to attend school.

    iii) On 21 April 1998 the Claimant's brother joined the LTTE. In his asylum interview he says that he was asked to do so and agreed without thinking of the consequences. In his witness statement for these proceedings he says he was forced to join the LTTE. After initial training he worked for the political section. He did this until March 2001 when his mother asked him to leave and he did so.

    iv) Meanwhile, in May 1999 the government forces and PLOTE turned against TELO. The Claimant fled to Columbo on his own. Whilst there he was arrested again on 23 August 1999 because he was mistaken for his brother, due to his brother's involvement in the LTTE. His release was secured by a member of TELO and he fled to India, where he stayed until 2004.

    v) He returned to Sri Lanka in May 2004 on a boat belonging to the LTTE. In return he was asked to undergo military training / instruction in politics and did so from June to August 2004. At the end of this training he became an assistant at the Vavuniya office of LTTE's political wing.

    vi) In 2005 he was re-arrested by PLOTE and the government CID, but released when his mother complained to the police and the LTTE. He was released because the peace process was then continuing. The LTTE sent him to Jaffna and told him to keep a low profile.

    vii) In August 2005 the LTTE sent the Claimant to join a de-mining group run by an NGO called Danish De-Mining Group ("DDG"). The Claimant worked in the Jaffna team. At the same time his brother was working for the DDG in the Vavuniya team, having joined them in 2003. The brother worked in Trincomalee from December 2003 to April 2006, and thereafter until December 2006 he was in Jaffna.

    viii) In 2006 the peace process broke down and DDG ceased its operations. The Claimant was still in Jaffna. His brother was also in Jaffna at that time and was trapped in the camp for four months, but then left with the retreating DDG Vavuniya team in January 2007, going to Trincomalee by ship and from there home to Vavuniya.

    ix) Meanwhile, on 20 August 2006 the Claimant was arrested again by PLOTE and the government CID. He was kept in detention and ill-treated. His captors had full details of him and his previous detention records, and also details of his brother. His brother was aware of this arrest, and told the UK authorities about it in his asylum interview.

    x) The Claimant escaped on 17 September 2006 and fled to Trincomalee. On 10 November 2006 he left Sri Lanka with the help of an agent and went to Northern (Turkish) Cyprus. From there he travelled to the southern part of Cyprus and claimed asylum.

    xi) The Claimant's brother began to attract attention from government forces in December 2007. In June 2008 he re-joined the LTTE and stayed with them until April 2009. In May 2009 he surrendered to the army and was detained in a prison camp. Whilst there he was identified in June 2010 as a member of the LTTE and was tortured. His family managed to bribe a government official to facilitate his escape in November 2010. He left Sri Lanka a few days later and travelled to the UK.

  15. It will be seen from this summary that between 1996, when the family separated, and 2012 when the Claimant came to the UK, he and his brother were not in the same place geographically, except between April and August 2006 when they were both in Jaffna working for different DDG teams. They were never in the LTTE at the same time, nor in the same place. The brother's second period in the LTTE, which led to his identification and torture, was all after the Claimant had left Sri Lanka and gone to Cyprus.
  16. The overlap between the Claimant's asylum claim and his brother's claim is put on the following basis:
  17. i) The two are brothers, just a year apart in age.

    ii) When the Claimant was arrested in 1997, PLOTE (wrongly) accused his brother of being a member of LTTE. During that detention he was tortured.

    iii) Both brothers worked for the DDG, and from April to August 2006 were both in Jaffna, albeit working for different DDG teams.

    iv) When the Claimant was arrested in August 2006, PLOTE had full details of both him and his brother. During that detention he was ill-treated (the Claimant's skeleton argument says "tortured" but this is not what the Claimant says in paragraph 12 of his first witness statement). His brother was aware of his arrest and detention by PLOTE. He believed that the Claimant had been moved to a different detention centre or killed by the authorities.

    v) The Claimant's brother was identified and tortured as an LTTE member in 2010, although he had re-joined the LTTE after the Claimant had left Sri Lanka.

    Dublin II Regulation

  18. Dublin II is an EC Regulation dated 18 February 2003. It has now been superseded by Dublin III (Regulation 604/2013), but that does not apply to the present case.
  19. The Preamble to Dublin II contains the following relevant paragraphs:
  20. (2) The European Council, at its special meeting in Tampere on 15 and 16 October 1999, agreed to work towards establishing a Common European Asylum System
    (3) The Tampere conclusions also stated that this system should include, in the short term, a clear and workable method of determining the Member State responsible for the examination of an asylum application.
    (4) Such a method should be based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of asylum applications.
    (6) Family unity should be preserved in so far as this is compatible with the other objectives pursued by establishing criteria and mechanisms for determining the Member State responsible for examining an asylum application.
    (7) The processing together of the asylum applications of the members of one family by a single Member State makes it possible to ensure that the applications are examined thoroughly and the decisions taken in respect of them are consistent. Member States should be able to derogate from the responsibility criteria, so as to make it possible to bring family members together where this is necessary on humanitarian grounds.
    (12) With respect to the treatment of persons falling within the scope of this Regulation, Member States are bound by obligations under instruments of international law to which they are party.
    (15) The Regulation observes the fundamental rights and principles which are acknowledged in particular in the Charter of Fundamental Rights of the European Union. In particular, it seeks to ensure full observance of the right to asylum guaranteed by Article 18.
  21. Article 2(i) provides a definition of 'family members', as follows:
  22. 'family members' means insofar as the family already existed in the country of origin, the following members of the applicant's family who are present in the territory of the Member States:
    (i) the spouse of the asylum seeker or his or her unmarried partner in a stable relationship
    (ii) the minor children of couples referred to in point (i) or of the applicant, on condition that they are unmarried and dependent
    (iii) the father, mother or guardian when the applicant or refugee is a minor and unmarried.
  23. Article 3 sets out the general principles as follows:
  24. 1. Member States shall examine the application of any third-country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.
    2. By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility. Where appropriate, it shall inform the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of or take back the applicant.
  25. Chapter III, in Articles 5 to 14, sets out a Hierarchy of Criteria for determining the Member State responsible. By Article 5 the criteria shall be applied in the order in which they are set out. It is not suggested that any of these criteria apply to make the UK, or any country other than Cyprus, responsible for examining the Claimant's asylum claim.
  26. It is relevant, however, to note Article 7, which provides that:
  27. Where the asylum seeker has a family member, regardless of whether the family was previously formed in the country of origin, who has been allowed to reside as a refugee in a Member State, that Member State shall be responsible for examining the application for asylum, provided that the persons concerned so desire.

    The restricted definition of 'family member' in Article 2 means that this does not apply to the present case.

  28. It follows that the Claimant seeks to argue that the discretion in Article 3(2) should be used to widen the criterion set out specifically in Article 7.
  29. Article 15 is in Chapter IV, headed 'Humanitarian Clause'. The paragraphs relied upon by the Claimant are as follows:
  30. 1. Any Member State, even where it is not responsible under the criteria set out in this Regulation, may bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. In this case that Member State shall, at the request of another Member State, examine the application for asylum of the person concerned. The persons concerned must consent.
    2. In cases in which the person concerned is dependent on the assistance of the other on account of pregnancy or a new-born child, serious illness, severe handicap or old age, Member States shall normally keep or bring together the asylum seeker with another relative present in the territory of one of the Member States, provided that family ties existed in the country of origin.
  31. It is not suggested that either of these provisions directly applies. This is because the Claimant is not within the required family relationship or degree of dependency.
  32. In relation to Article 15(1), no request has been made by Cyprus, although the Court of Justice of the European Union has ruled that such a request is not be a pre-condition of a Member State bringing family members or dependent relatives together, or even of examining the asylum claim, if Article 15(1) otherwise applies: see K v Germany C-245/11.
  33. Situations of dependency in relation to Article 15(2) are defined in Article 11 of Commission Regulation 1560/2003 in terms which exclude the relationship between the Claimant and his other family members in the UK.
  34. Maintaining family unity is further regulated by Article 23 of Council Directive 2004/83/EC. This applies to 'family members', defined by Article 2(h) in similar terms to Dublin II, but also provides in paragraph 5 that:
  35. Member States may decide that this Article also applies to other close relatives who lived together as part of the family at the time of leaving the country of origin, and who were wholly or mainly dependent on the beneficiary of refugee or subsidiary protection status at that time.

    That provision does not cover the position of the Claimant in relation to his brother.

  36. It follows that the Claimant seeks to argue that the discretion in Article 3(2) should be used to widen the criteria set out specifically in Article 15 and supplemented by the Commission Regulation and Council Directive considered above.
  37. Justiciability of the exercise of discretion under Article 3(2)

  38. There is now substantial authority on this question, both domestically and in the CJEU. It will not assist that learning if I review the authorities extensively. I can more usefully summarise the position by starting at the most recent domestic authority, the decision of Lewis J in Habte v Secretary of State for the Home Department [2013] EWHC 3295 (Admin). The state of the authorities at the date of that judgment, 30 October 2013, is analysed in paragraph [59] in these terms:
  39. " there is an issue as to whether or not challenges may be made on domestic public law grounds to the actions of the Defendant in operating the Dublin II Regulation. Earlier authorities refer to the possibility of actions of the Defendant being amenable to challenge on domestic public law grounds (it is accepted they may be challenged on the ground that the actions would be incompatible with the ECHR): see, for example, the dicta in R (AA) (Afghanistan) v Secretary of State for the Home Department [2006] EWCA Civ 1550 at paragraphs 13 to 14 and R (YZ, MT and YM) v Secretary of State for the Home Department [2011] EWHC 205 at paragraphs 9 and 58. However, none of the decided cases involve a situation where a breach of any relevant principle of domestic public law was established. In the present case, in my judgment, domestic law procedural obligations do not apply to, or qualify, the provisions of the relevant EU regulations. In those circumstances, it is not necessary to consider whether or not any failure by the Secretary of State to comply with the relevant public law principles affects the lawfulness of any transfer or whether, once a Member State accepts responsibility and agrees to take back an asylum seeker, any breach of a domestic law principle ceases to be relevant. Given the purpose and wording of the Dublin II Regulation and the Commission Regulation, there will, in any event, in my judgment be few if any circumstances in which domestic public law principles will be relevant and would qualify the obligations of the Defendant under the Dublin II Regulation."
  40. The judgment continues at paragraph [61]:
  41. "The EU Regulations are directly applicable and form part of the domestic law of the United Kingdom. However, the question arises as to whether or not they confer directly effective rights on individuals enforceable in domestic courts. Provisions which are intended to regulate relations between Member States (or between Member States and European Union institutions) may not be intended to confer directly effective rights on individuals and may not, therefore, have direct effect. The Court of Appeal has held that provisions of the Dublin II Regulation, including Article 16, are concerned with the allocation of responsibility as between Member States and are not intended [to] and do not create directly effective rights for individual asylum seekers: see R (MK (Iran)) v Secretary of State for the Home Department [2010] 1 WLR 2059 and see also R (AR (Iran)) v Secretary of State for the Home Department [2013] EWCA Civ 778. The High Court has reached similar conclusions: see R (YZ, MT and YM) v Secretary of State for the Home Department [2011] EWHC 205 (Admin) and R (Kheirollahi-Ahmadoghani) v Secretary of State for the Home Department [2013] EWHC 1314 (Admin). The question of whether Article 3(2) of the Dublin II Regulation confers directly effective rights has been referred to the Court of Justice of the European [Union] in case C-4/11 Germany v Puid. Advocate General Jaaskinen, at paragraph 59 of his opinion, considered that Article 3(2) does not confer directly effective rights as it is not a clear and unconditional obligation but is dependent upon an exercise of discretion by a Member State. The Court of Justice has not yet given its ruling."
  42. Having been taken to the underlying authorities, I agree. I add only three further comments. First, as the Defendant points out, the challenge contemplated by Laws LJ in AA (Afghanistan) (2006) would arise only because of delay which was in breach of ordinary public law principles, not directly arising from the Dublin Regulation itself. It is difficult to see how such a challenge could arise from the mere exercise of (or refusal to exercise) the discretion under Article 3(2) of Dublin II.
  43. Secondly, in AR (Iran), the latest Court of Appeal case, it was conceded by Hugh Southey QC for the Claimant that Dublin II does not give rise to rights for an individual but regulates the responsibility between states for dealing with asylum claims: see paragraph [12]. The Claimant there sought to argue either that it was not a Dublin II case, or that the decision under Dublin II was vitiated by procedural errors in and around the Secretary of State's letter to the other Member State, in that case Belgium. The second argument failed for a number of reasons, but was fatally undermined by the fact that Dublin II does not create individual rights. 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: see paragraph [31]. As Sir Richard Buxton said at paragraph [29]:
  44. "The whole point of the Dublin II arrangements is that they assume that it will not matter to the outcome where in the Community an asylum application is heard."
  45. Thirdly, the Grand Chamber of the Court of Justice of the European Union gave its ruling in Germany v Puid on 14 November 2013. The question for determination was expressed as follows:
  46. "Does an enforceable personal right on the part of the asylum seeker to force a Member State to assume responsibility result from the duty of the Member States to exercise their right under the first sentence of Article 3(2) of [the Dublin II] Regulation?"

    The context in which that question arose was a finding in the German domestic courts that Mr Puid could not be transferred to Greece under the provisions of Dublin II because of systemic failings in that country's treatment of asylum-seekers. On an appeal against that finding, the appeal court referred a number of questions to the CJEU and stayed the proceedings pending the ruling. Before the CJEU hearing took place Mr Puid was granted refugee status in Germany, but the point of principle was still considered by the CJEU.

  47. In essence, the CJEU reiterated its ruling in NS v Secretary of State for the Home Department C-411/10, that Dublin II provides a hierarchy of criteria for determining the Member State responsible for examining an asylum claim. If it is impossible to transfer the asylum seeker to the Member State initially identified under the criteria, the Member State in which he is located must continue to examine the criteria in order to establish whether another Member State can be identified. It is only if no Member State can be identified to which the asylum seeker can be transferred, because of the real risk of inhuman or degrading treatment contrary to Article 4 of the Charter of Fundamental Rights of the European Union, that the member State in which the asylum seeker is located may need to examine the asylum claim itself, using its discretion under Article 3(2), in order to avoid the procedure taking an unreasonable length of time. The failure at the initial stage to identify another Member State to which the asylum seeker can be transferred does not in itself require the first Member State to invoke Article 3(2).
  48. Accordingly, it seems to me, no duty to invoke Article 3(2) arises and, as a result, there can be no personal right for the asylum seeker to force the Member State to do so. The rights of the asylum seeker are not to be treated contrary to his fundamental rights, and to have his asylum claim determined within a reasonable time. Any action by him must arise from a breach of those rights, not any failure to exercise a discretion granted by Dublin II.
  49. In the present case the following matters are established:
  50. i) The Claimant has no arguable complaint of breach of his human rights, whether under ECHR Articles 3, 5 or 8. That is the assumption on which this hearing has proceeded, and will remain so unless and until the Court of Appeal gives permission to argue otherwise.

    ii) There is provision in Article 7 of Dublin II for the asylum claims of certain family members to be decided in the same Member State, but that provision does not apply to the Claimant's case.

    iii) There is provision in Article 15 of Dublin II for family members and other dependents to be brought together and for the Member State in which the family is located to decide any asylum claims, but those provisions do not apply to the Claimant's case.

    iv) There has been no unreasonable delay in determining the Member State responsible for examining the Claimant's asylum claim under the Dublin II procedure.

  51. I reject the suggestion which the Claimant's arguments involve that the Article 3(2) discretion should be exercised in cases which are akin to the situations contemplated by Articles 7 or 15, but which fail to come within those Articles. The Claimant cannot bring himself within the Dublin II provisions relating to consistency of decisions and humanitarian concerns. There is no room in Dublin II for a 'near miss' principle of public law, even if the facts of this case could be said to represent a near miss.
  52. As Lord Carnwath said in Patel & Others v Secretary of State for the Home Department [2013] UKSC 72 about a similar argument in relation to the Immigration Rules, at paragraph [56]: "a near-miss under the rules cannot provide substance to a human rights case which is otherwise lacking in merit". The European cases in which it has been suggested that a Member State would have to resort to using its discretion under Article 3(2) of Dublin II relate to situations where, without that, there would be a breach of the fundamental rights of the asylum applicant.
  53. In the absence of a human rights claim of substance, the Claimant's legitimate public law interests are protected by the assumption referred to by Sir Richard Buxton in AR (Iran) that it will not matter to the outcome where in the Community an asylum application is heard. The discretion in Article 3(2) is a matter solely between the UK and Cyprus, not justiciable in this court at the instance of the Claimant.
  54. I come to this conclusion on the facts of this case, and specifically in relation to the Article 3(2) discretion, but I would echo the comments of Lewis J in Habte that there will be few if any circumstances in which domestic public law principles will be relevant and would qualify the obligations of the Defendant under Dublin II.
  55. The justiciability of the exercise of the Article 3(2) discretion is of general importance because it may affect the extent of reasoning required in a decision of the Defendant in such cases. In my judgment it would be contrary to the whole structure of Dublin II to require detailed consideration of facts and evidence at the stage of identifying the responsible Member State. Detailed decision letters justifying the non-exercise of the discretion under Article 3(2) would only encourage further challenges, which in turn would delay and frustrate the intention of Dublin II that there should be a speedy identification of the Member State responsible for examining the asylum claim in detail. It is enough, in my judgment, for the Defendant to indicate, as she did in the first decision letter of 31 May 2012, that there are no grounds for departing from the usual practice in this case.
  56. Was the Defendant's decision lawful on ordinary public law principles?

  57. My conclusion above is sufficient to dispose of this challenge. I should go on, however, to consider the position if there were a public law duty attached to the exercise of the Article 3(2) discretion. Under normal public law principles, two questions would then arise. Has the Defendant adequately considered the exercise of her discretion? Is the Defendant's conclusion rational? These questions arise in respect of each of the bases put forward by the Claimant as set out in paragraph [8] above, namely, to secure consistency of decision-making and on humanitarian grounds
  58. The Claimant's arguments on consistency of decision-making are founded on the Devaseelan principles, as endorsed by Auld LJ in Ocampo v Secretary of State for the Home Department [2006] EWCA 1276. Those principles were elaborated by the Court of Appeal in AA (Somalia) v Secretary of State for the Home Department [2007] EWCA Civ 1040. It is sufficient for present purposes to refer to the qualification set out in paragraph [69] of the judgment of Carnwath LJ, with which Ward LJ agreed. The Devaseelan guidelines were said by Auld LJ in Ocampo to apply to cases where "there is a material overlap of evidence". Carnwath LJ made it clear that:
  59. "In all the cases in which the principle has been applied so far, including Ocampo, the claims have not merely involved overlapping evidence, but have arisen out of the same factual matrix, such as the same relationship or the same event or series of events."

    In future, he said, the principle should be limited to such cases.

  60. The Claimant frankly admits that he cannot find any authority where a sibling had refugee status in the UK and there was a successful challenge to the return to a third country under Dublin II.
  61. Dublin II recognises a principle of consistency in paragraph (7) of the Preamble, and this is carried over to Article 7. Indeed, Article 7 goes further in removing the requirement in the definition of 'family members' in Article 2(i) that the family already existed in the country of origin (and it could therefore be expected that their experiences relevant to their refugee status would have arisen out of the same factual matrix). It is accepted that this is not wide enough to assist this Claimant.
  62. The Claimant also accepts that his consistency argument can only succeed if both his and his brother's claims arise out of the same factual matrix. He submits, boldly, that they do.
  63. The degree of overlap between the facts likely to be relevant to the Claimant's claim for asylum and those relevant to his brother's claim is very small, as can be seen from the analysis in paragraph [12] above. In relation to their LTTE activities, there is no overlap either chronologically or geographically. The key period in his brother's story, of his identification as a member of the LTTE and subsequent torture in 2010, falls well after the Claimant had left Sri Lanka and arrived in Cyprus. It is impossible to argue from this that the cases arise "out of the same factual matrix".
  64. Even looking at the evidence which might assist the Claimant's claim, when examined there is little which the Claimant's brother can say directly that is likely to be contentious. Their relationship as brothers cannot be in dispute. When the Claimant was arrested in 1997 in Vavuniya, his brother was still in Puliyankullam, and thus can give no first-hand evidence of what happened to the Claimant. The period in 2006 when both brothers were working for the DDG, clearing mines, was a period of peace. When the peace process broke down the brothers were again separated, and the Claimant's brother was unaware of what had happened to the Claimant at the time of his asylum screening interview.
  65. In any event, it must be assumed as part of the Dublin II process that such evidence will be made available in some form to the authorities in Cyprus, and taken into account there as it would be in the UK, so as to come to the same conclusion.
  66. Accordingly, there is nothing in the consistency argument which comes near to a successful public law challenge, even on the assumption that such a challenge would lie in this case.
  67. The humanitarian grounds argument is equally doomed to failure. It does not even arguably amount to an ECHR Article 8 claim (as must be assumed at this hearing). The Claimant has been reunited with his brother and sister, together with his brother-in-law and other more distant relatives, after very many years. Their contact has taken place entirely during a time when the Claimant had no status in the UK. Indeed, if it were not for these proceedings he would have been removed to Cyprus within a very short time of arriving in the UK, and no form of family or private life would have been re-established.
  68. Added to this, the Claimant is not to be removed to Sri Lanka, where he fears persecution, but to a safe third country. It must be assumed that he will be properly treated there, and that his asylum claim will stand as much chance of success there as in the UK. If successful, he will be able to arrange to be reunited with his relatives in due course.
  69. For these reasons I conclude that there is no merit in either of the points made by the Claimant in submitting that the Defendant should have exercised her discretion to decide on his asylum claim in the UK.
  70. That is the position on the material before me, and I have given reasons for the conclusion. What of the defendant's reasons? The position in relation to the four decisions is as follows:
  71. i) On 31 May 2012 the Defendant simply stated that "The Secretary of State will normally decline to examine the asylum application substantively if there is a safe third country to which the applicant can be sent. There are no grounds for departing from this practice in your case."

    ii) On 3 July 2012 the challenges raised in the Claimant's Grounds were dealt with in paragraphs 18 to 20. Paragraph 18 referred to the matter of Article 15 of Dublin II and "a submission that the Secretary of State should have exercised discretion in your client's case and allowed him to have his asylum claim considered here". This must be read as a reference to the discretion under Article 3(2), although it is not referred to specifically. The decision maker declined to exercise that discretion, stating in paragraph 20 that there was "no compelling evidence" to justify such a course, and no "exceptional circumstances".

    iii) On 16 January 2014 the concerns about the previous letter expressed by the Deputy Judge in granting permission, and the arguments at that hearing, were addressed in some detail in a supplemental decision letter. It concluded that there were "no exceptional circumstances" to justify use of the discretion under Article 3(2).

    iv) The final letter, on 28 January 2014, substantially dealt with further ECHR Article 8 submissions which had been made and which do not arise for consideration here. It affirmed the decision made in relation to Article 3(2) of Dublin II.

  72. What would be required of a decision-maker in a case such as this, assuming that there was a public law duty in relation to the decision? First, there is no duty of inquiry. The whole structure of Dublin II is to promote rapid decision-making about which Member State should accept responsibility for examining the asylum claim. The argument that there was a duty to make inquiries was rejected by the Court of Appeal in AR (Iran) (see paragraph [26]), as it was by Lewis J in Habte (see paragraphs [53] to [55]).
  73. Secondly, I take the view that in general no great detail is required when communicating the decision not to exercise the discretion under Article 3(2). In most if not all cases, the relevant facts will have been in the mind of the decision-maker in relation to one or more of the other Articles in Dublin II (in this case Articles 7 and 15 in particular). It will not be necessary to rehearse the facts in order to justify not invoking the discretion. To expect long and detailed evaluation would undermine the purpose of Dublin II to achieve a rapid choice of forum for examination of the asylum claim.
  74. In my judgment, once a decision-maker has applied the criteria under Dublin II and concluded that another Member State is responsible for the substantive examination of the Claimant's asylum claim, and considers that this has fully addressed any human rights or other issues raised by the applicant, it is sufficient simply to say that. It is not necessary, in addition, to consider those issues separately in relation to the possible exercise of the discretion under Article 3(2).
  75. Applying this test, I have no hesitation in concluding that the initial decision letter was sufficient to deal with the case then being put forward by the Claimant, and the subsequent letters have more than sufficiently covered the evidence and arguments as they have developed.
  76. Conclusion

  77. It follows that this claim fails both on jurisdiction and on the merits.


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URL: http://www.bailii.org/ew/cases/EWHC/Admin/2014/386.html