France – Removal – Right to respect for private and family life – Member state’s assumption of responsibility for asylum claim

R (on the application of Shayanth) v Secretary of State for the Home Department: QBD (Admin) (Mr Justice Wyn Williams): 3 June 2009

The claimant asylum seeker (S) applied for judicial review of the defendant secretary of state’s decision to return him to France, where he had made a previous asylum claim. S, a Sri Lankan national of Tamil ethnicity, had arrived in the UK and claimed asylum on the basis that his return to Sri Lanka would breach his rights under the European Convention on Human Rights 1950.

He failed to disclose that he had previously applied for asylum in France. The secretary of state discovered the prior application and contacted the French authorities, asking that they accept responsibility for S’s asylum claim, pursuant to article 16(1)(c) of the Dublin Convention 1990.

The French authorities initially refused to accept responsibility for S’s claim on the basis that there was no evidence to show that he had not been out of the EU for a three-month period after submitting his claim. Eventually, the French authorities acceded to the request and assumed responsibility. Subsequently, S sought to establish by evidence that he was in Sri Lanka for a significant period of time after his initial French asylum claim.

The secretary of state did not consider that information, nor did she forward it to the French authorities.

Later, the secretary of state certified S’s human rights claims as being clearly unfounded by virtue of paragraph 5(4) of schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004. Removal directions were deferred, as S applied for permission to bring a judicial review claim.

In the intervening period, S obtained a certificate of approval to marry a British citizen. Consequently, the secretary of state reconsidered S’s claim under article 8 of the convention, and decided to uphold her prior certification of his claim as clearly unfounded.

S submitted that the secretary of state (1) was under a continuing duty to make representations to the French authorities that set out the true factual position in the light of the whole of the evidence about which country should take responsibility for determining his asylum claim; (2) had made a clear error of law in certifying S’s convention claim as being clearly unfounded.

Held: (1) A requesting member state had no duty to provide information to another member state that had been asked to accept responsibility for an asylum claim if such information only came to light after the requested state had accepted responsibility for dealing with it, R (on the application of Chen) v Secretary of State for the Home Department [2008] EWHC 437 (Admin) applied.

On that basis, there was no ground for the suggestion that the secretary of state had acted unfairly towards S in having failed to forward his evidence of his Sri Lankan residence to the French authorities.

(2) In certifying S’s article 8 claim as she had, the secretary of state had seemingly applied the wrong test, namely that removal would not breach S’s article 8 rights. Manifestly, the claim did not need to be clearly unfounded, even though the secretary of state had reached the conclusion, on balance, that she should not accede to it. There were obviously sufficient features in support of S’s claim under article 8 of the convention to make it irrational to certify such a claim as clearly unfounded, ZT (Kosovo) v Secretary of State for the Home Department [2009] UKHL 6, [2009] 1 WLR 348 applied. Accordingly, the secretary of state’s decision to certify S’s claim under article 8 of the convention would be quashed.

(3) (Obiter) The whole purpose of the Dublin Convention 1990 was to provide a mechanism for determining which of the contracting states should determine an application for asylum.

It was very difficult to envisage circumstances in which it could be thought to be unfair to an asylum seeker that his application for asylum was determined in one member country as opposed to another.

Judgment accordingly.

S Jegarajah (instructed by Ravi Solicitors) for the claimant; M Barnes (instructed by the Treasury Solicitor) for the defendant.