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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 >> Jeyarupan, R (on the application of) v Secretary of State for the Home Department  EWHC 386 (Admin) (20 February 2014)
Cite as:  EWHC 386 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
Sitting as a Deputy High Court Judge
| THE QUEEN
(on the application of JEYASUTHAN JEYARUPAN)
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
Andrew Deakin (instructed by Treasury Solicitor) for the Defendant
Hearing dates: 30th January 2014
Crown Copyright ©
Philip Mott QC:
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?
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.
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.
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
(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.
'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.
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.
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.
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.
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.
Justiciability of the exercise of discretion under Article 3(2)
"… 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  EWCA Civ 1550 at paragraphs 13 to 14 and R (YZ, MT and YM) v Secretary of State for the Home Department  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."
"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  1 WLR 2059 and see also R (AR (Iran)) v Secretary of State for the Home Department  EWCA Civ 778. The High Court has reached similar conclusions: see R (YZ, MT and YM) v Secretary of State for the Home Department  EWHC 205 (Admin) and R (Kheirollahi-Ahmadoghani) v Secretary of State for the Home Department  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."
"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."
"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.
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.
Was the Defendant's decision lawful on ordinary public law principles?
"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.
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.