OUTER HOUSE, COURT OF SESSION [2008] CSOH 9
	OPINION OF LORD EMSLIE in the Petition of S.A. Petitioner; for Judicial Review of Decisions by the Secretary of State for the Home Department dated 5 November 2002 and 20 and 24 October 2005 relative to the removal of the Petitioner and his family to Germany ________________

Petitioner: Bovey, QC; Wilson Terris & Co, SSC

Respondent: Drummond, Lindsay; Office of the Solicitor to the Advocate General for Scotland

17 January 2008

[1] In these proceedings the petitioner, an Iraqi national, seeks judicial review of certain decisions by the Secretary of State for the Home Department which, if implemented, would involve his being transferred to Germany for determination of his claim to asylum. Many of the issues arising between the parties are as yet unfocused in written pleadings; others will admittedly require proof before they can be resolved; but I have now heard parties' submissions on certain limited issues of law which they conceive to be capable of determination at this stage. These disputed issues concern the construction and application of the 'Convention, signed in Dublin on 15 June 1990, determining the State responsible for examining applications for asylum lodged in one of the Member States of the European Communities' ("the Dublin Convention"). In particular questions arise as to whether that Convention can lawfully be operated by the respondent against the petitioner in the circumstances of this case.

[2] In broad terms the Dublin Convention contains provisions designed to allocate responsibility for determining asylum claims to the appropriate member state within the EU. It does so by inter alia prescribing various situations in which that responsibility is laid upon the first EU state to grant the asylum-seeker an entry visa or residence permit (whether current or expired), and also others in which responsibility rests with the state in which a relevant asylum claim has been made. Where transfer of an asylum claim to a different member state is called for under the Convention, that constitutes an express exception to the normal rule precluding deportation of an asylum-seeker while his claim remains in dependence.

[3] In that latter connection, Sections 11 and 15 of the Immigration and Asylum Act 1999 provide inter alia as follows:

"11(2) Nothing in Section 15 prevents a person who has made a claim for asylum ('the claimant') from being removed from the United Kingdom to a member state if -

(a) the Secretary of State has certified that -

(i) the member state has accepted that, under standing arrangements, it is the responsible state in relation to the claimant's claim for asylum; ...

(4) 'Standing arrangements' means arrangements in force as between member states for determining which state is responsible for considering applications for asylum.

...

15(1) During the period beginning when a person makes a claim for asylum and ending when the Secretary of State gives him notice of the decision on the claim, he may not be removed from, or required to leave, the United Kingdom."

[4] For present purposes the following provisions of the Dublin Convention are relevant:-

"Article 1

1. ...

(d) 'Examination of an application for asylum' means: all the measures for examination, decisions or rulings given by the competent authorities on an application for asylum, except for procedures to determine the State responsible for examining the application for asylum pursuant to this Convention;

(e) 'Residence permit' means: any authorization issued by the authorities of a Member State authorizing an alien to stay in its territory with the exception of visas and 'stay permits' issued during examination of an application for .... asylum; ...

Article 5

1. Where the applicant for asylum is in possession of a valid residence permit, the Member State which issued the permit shall be responsible for examining the application for asylum.

...

4. Where the applicant for asylum is in possession only of one or more residence permits which have expired less than two years previously ..., the provisions of paragraphs 1, 2 and 3 of this Article shall apply for such time as the alien has not left the territory of the Member States.

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:

(a) take charge under the conditions laid down in Article 11 of an
applicant who has lodged an application for asylum in a different Member State,

(b) complete the examination of the application for asylum,

...

(e) 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 paragraph 1(a) to (d) shall cease to apply if
the alien concerned has left the territory of the Member States for a period of at least three months.

4. The obligations specified in paragraph 1(d) and (e) shall cease to apply
if the State responsible for examining the application for asylum, following the withdrawal or rejection of the application, takes and enforces the necessary measures for the alien to return to his country of origin or to another country which he may lawfully enter.

Article 11

1. If a Member State with which an application for asylum has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any case within the six months following the date on which the application was lodged, call upon the other Member State to take charge of the applicant.

2. If the request that charge be taken is not made within the six-months time limit, responsibility for examining the application for asylum shall rest with the State in which the application was lodged.

3. The State responsible in accordance with (the criteria laid down in this Convention) shall be determined on the basis of the situation obtaining when the applicant for asylum first lodged his application with a Member State.

4. The Member State shall pronounce judgment on the request within three months of receipt of the claim. Failure to act within that period shall be tantamount to accepting the claim.

5. 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 ...".

[5] The circumstances in which the present dispute arises are somewhat unusual, and only limited details are agreed. In late 1998/ early 1999 the petitioner left Iraq and travelled to Germany. There he immediately claimed asylum under the Refugee Convention, asserting on various grounds that he would be at real risk of persecution if he were to be returned to his country of origin. On 18 September 2001, that claim was finally rejected by the German authorities, and arrangements were made to have the petitioner returned to Iraq. In early 2002, however, before he could actually be deported, the petitioner unlawfully absconded from Germany. It is possible (though not agreed) that he briefly revisited Iraq at that time, but in any event he turned up as an illegal immigrant in the United Kingdom on 22 March 2002, claiming to have arrived here by means of lorry transport through several countries which he could not identify. On the following day he made a claim to asylum in this country, this time founding on the European Convention on Human Rights as well as on the Refugee Convention. At this point steps were taken by the UK and German Governments pursuant to the Dublin Convention, and the questions argued before me concern the validity of (i) the respondent's request of 24 September 2002 (production 7/2.1) for the petitioner's asylum claim to be transferred to Germany, and correspondingly (ii) the German Government's acceptance of that transfer request on 1 October 2002 (Production 7/9, translated as 7/10).

[6] Subsequent to the foregoing request and acceptance in the latter part of 2002, matters have not exactly moved at a rapid pace. Initial arrangements for the physical transfer of the petitioner and his family to Germany were thwarted by the petitioner's failure to appear for removal on 27 January 2003. Thereafter, matters were further delayed by the pregnancy of the petitioner's wife and the birth of their second child on 11 June 2003. On or about 24 October 2005, further steps by the respondent to complete the agreed transfer of the petitioner to Germany were blocked by the lodging of the present petition.. The petitioner now maintains inter alia that the continuing delay is fatal to any reactivation of procedures under the Dublin Convention.

[7] In the debate which has now taken place before me, both parties made it clear that there were important factual disputes between them which might not be capable of resolution without proof. In particular, the respondent did not accept the petitioner's claim to have returned to Iraq in early 2002, maintaining instead that the petitioner had remained in Germany and applied for a work permit at that time. For his part the petitioner did not accept the respondent's claim, founded on the apparent terms of the document translated as Production 7/18, that on 5 November 2001 the German Government had granted him (the petitioner) temporary leave to remain until 3 May 2002 or until the issue of documentation for travel home. These continuing disputes, it was said, could have a material bearing on the outcome of the present petition proceedings. If the petitioner did indeed visit Iraq for a period in early 2002, that might be a relevant and material consideration for the purposes of Article 5.4 or Article 10.3 of the Dublin Convention. Significantly, it was in purported reliance on Article 5.4 that the German Government had accepted transfer of the petitioner's asylum claim in October 2002. Equally, the status of the purported temporary leave to remain (production 7/18) was important because it was only this document which could apparently constitute a "residence permit" within the definition in Article 1.1(e) and thereby bring Article 5.4 into play. Moreover the duration of any such "residence permit" would be of importance in determining whether Article 5.1 might possibly apply in place of Article 5.4 on which the German Government had purported to rely.

[8] Against the background of these unresolved factual disagreements, the legal issues which have been raised for my decision are as follows:-

1. If, as maintained by the respondent and apparently accepted by the German Government, production 7/18 constituted or evidenced a grant of temporary leave to the petitioner to remain in Germany, did that amount to a "residence permit" as defined for the purposes of Article 5.4 of the Dublin Convention?

2. If, as maintained by the petitioner, he temporarily revisited Iraq in early 2002, did that preclude the purported operation against him of Articles 5.4 and 10.1 of the Convention?

3. If, as was indisputable, the respondent had failed to transfer the petitioner to Germany within the one-month time limit specified in Article 11.5 of the Convention, was such failure justiciable at the instance of the petitioner and, in particular, did it thenceforth entitle him to remain in the United Kingdom free of any further threat of transfer?

[9] In my view none of these questions can be answered in the petitioner's favour at this stage, and my reasons for reaching that conclusion may be shortly stated. In the first place, for the purposes of Article 5.4 of the Convention, I cannot positively uphold the petitioner's contention that production 7/18 did not constitute or evidence a "residence permit" at all. According to the petitioner, the document was not a residence permit because it bore to have been granted " ... during examination of an application for .... asylum" and thus fell within the scope of the exception to the definition of "residence permit" in Article 1.1(e). Article 1.1(d) further clarified the position by defining "examination of an application for asylum" as comprising all the measures for examination, decisions or rulings given by the competent authorities on such an application. In November 2001 the petitioner was still in Germany following refusal of his claim to asylum; implementation of that refusal had not yet taken place; and the temporary leave to remain in Germany was therefore granted at a date when examination of the petitioner's application for asylum was not yet concluded. In response, the respondent relied heavily on the definition in Article 1.1(d), maintaining that "examination of an application for asylum" could not extend beyond the final refusal of that application. Accordingly, in counsel's submission, the temporary leave to remain in Germany, granted in early November 2001, came several weeks too late to fall within the exception identified in Article 1.1(e). An interesting contrast could, it was said, be drawn between the wording of Article 1.1(d) and the reference in Article 10.4 to the taking and enforcing of "... necessary measures for the alien to return to his country of origin ... following the withdrawal or rejection of the (asylum) application". In my judgment the respondent's argument is clearly to be preferred on this issue. Properly construed, the terms of Article 1.1(d) are not in my view wide enough to cover any period after final rejection of an application for asylum, and that conclusion is strongly fortified by the different terms in which the post-refusal situation is covered in Article 10.4. In any event, notwithstanding the apparent width of the definition of "residence permit" in Article 1.1(e), I think that there is still room for doubt as to what would constitute a "stay permit" capable of bringing the stated exception into play.

[10] The petitioner also submitted that Article 5.4 was disapplied by his disputed return visit to Iraq in early 2002. This was because Article 5.4 only extended the effect of Article 5.1, 2 and 3 "... for such time as the alien has not left the territory of the Member States". According to the respondent, the answer to this point was simply that Article 5.1, 2 and 3 required no extension while a residence permit remained valid; that Article 5.4 did not come into play unless and until a residence permit expired; and accordingly that the only departure from the EU which could disapply that latter Article was one occurring subsequent to the expiry of the relevant residence permit. In the present case, the petitioner's claimed trip to Iraq took place in early 2002 when ex facie production 7/18 had not yet expired. Again, in my judgment, the respondent's position here is to be preferred, but only on the hypothesis (further discussed in paragraph [12] below) that as at the date of any relevant trip to Iraq a valid residence permit remained in force. As it seems to me, the qualification at the end of Article 5.4 cannot sensibly be read as referring to any departure from the EU during the currency of a residence permit, since in such a situation Article 5.1, 2 and 3 would apply on their own terms and the Article 5.4 extension would not be engaged at all. For completeness in this context I should add that, since the petitioner's claimed trip to Iraq is said to have taken place between January and March 2002, he cannot in my view take advantage of the "three month" rule in Article 10.3.

[11] The petitioner also argued that Article 5.4 could not apply because, as at the relevant tempus inspiciendi, any residence permit constituted or evidenced by production 7/18 was still in force. The stated expiry date of 3 May 2002 was clearly later than the date of the petitioner's arrival and related asylum claim in the United Kingdom in March of that year. In reply, the respondent's position was that where (as here) responsibility under Article 5.4 had been formally accepted by the German Government, that acceptance was conclusive in a question with the petitioner and it would not be competent to look behind it. In any event, it was suggested, the relevant tempus inspiciendi was the date of the German acceptance in October 2002, by which time there could be no question of any relevant permit or permission still being extant.

[12] In the absence of fuller argument, and perhaps proof, on these issues, I am again unable to sustain the petitioner's contentions at this stage. Prima facie it seems plausible that the validity, period and mode of expiry of any temporary leave to remain in Germany should, as the respondent submitted, be matters for determination by the German Government, or at least by reference to German law, and in that context the German Government does appear to have accepted responsibility under Article 5.4 in the present case. On the other hand, if it were possible to go behind that acceptance, I am inclined to think that the terms of Article 11.3 of the Convention might pose a problem insofar as they appear to provide for allocation criteria to be judged as at the time of the first lodgement of the relevant claim for asylum, and not as at the later date for which the respondent contended. Moreover, even if deemed expiry of the relevant permission might justifiably be asserted on the ground of the petitioner's unlawful departure from Germany in or before March 2002, that might not necessarily assist the respondent on the different issue, discussed in paragraph [10] above, as to the status of the permission at the time of the petitioner's alleged earlier visit to Iraq.

[13] In the course of the debate before me counsel for the respondent appeared to regard such issues as somewhat academic because, it was said, Article 5.1 would plainly apply if the petitioner's residence permit was still in force as at the critical date, whenever that might be. In that situation, however, questions might in my view arise as to the validity of the German Government's acceptance on the ground that it bore to rely, not on Article 5.1, but on Article 5.4. Could a transfer now proceed under Article 5.1 where the original acceptance referred to Article 5.4 alone?

[14] For the avoidance of doubt I should make it clear that, at this stage, I am not in a position to affirm the existence of a valid residence permit capable of bringing Article 5 of the Convention into play. There are several reasons why I am unable to do so. For instance production 7/18 does not ex facie relate to the petitioner, although the respondent contends otherwise; the document is dated in February 2002, and on its terms may arguably constitute an extension, as opposed to an initial grant, of leave to remain; the effective date of 5 November 2001 is not explicitly the date on which the permission was granted for the purposes of the definitions contained in Article 1.1(d) and (e) of the Convention; and, as already noted, the duration of the permission remains in dispute.

[15] Moving on to the petitioner's contention that failure to comply with the one-month time limit in Article 11.5 precludes any valid transfer under the Dublin Convention, and entitles him to remain in the United Kingdom, I have come to the conclusion that this contention is unsound and must be repelled. It proceeds on the basis that the time-limit in question is "justiciable", in the sense that non-compliance may be founded on by an affected asylum-seeker as a complete bar to any further Convention proceedings against him. The respondent's position, on the other hand, was that the Convention was not intended to confer private remedies on asylum-seekers, but was an international instrument designed to regulate arrangements between Member States of the EU. It had never been incorporated as part of the domestic law of the United Kingdom, with the result that, at best, any entitlement asserted by an individual asylum-seeker would require to be founded on "legitimate expectation" alone. The states concerned with a particular application could waive time limits if they wished. In any event this particular time limit carried no express sanction for non-compliance, unlike certain other time limits in Article 11.1 and 4.

[16] In my opinion the respondent is well-founded in maintaining that the one-month time limit under Article 11.5 is not "justiciable" at the instance of the petitioner, and that non-compliance affords him no available remedy in this case. This conclusion derives strong support from several Outer House decisions to which I was referred, notably Ali v SSHD 2003 SLT 674; Khairandish v SSHD 2003 SLT 1358; Musaj v SSHD 2004 SLT 623; and Temel v SSHD 2005 SLT 204. Similarly, it is supported by decisions of English courts, including the Court of Appeal, in cases such as Akhbari v SSHD 2000 Imm AR 436 and R (on the application of Ahmadzai ) v SSHD 2006 EWHC 318 and 2006 EWCA Civ. 1550. The only case cited to me in which a contrary view appears to have been taken was Ibrahim v SSHD 2002 SLT 1150, but for the reasons given in all of the other decisions I think that that contrary view must now be regarded as unsound. It seems inevitable that in some cases the necessary transfer arrangements will take more than one month to complete, and it would be extraordinary if any overrun beyond the stated time limit, however short and for whatever cause, were to have the terminal consequence for which the petitioner contended.

[17] No doubt non-compliance with the one-month time limit may form part of a wider argument on delay to be advanced by the petitioner along 'Wednesbury unreasonableness' lines, especially in the context of an alleged violation of his rights under Article 8 of the ECHR. However, no such argument is before me at the present time, and my decision is simply to the effect that non-compliance with the time-limit in Article 11.5 of the Dublin Convention cannot per se entitle the petitioner to resist a proposed transfer to Germany under Article 5.

[18] It is hoped that the foregoing rulings, which are necessarily limited by the extent of the factual disputes outstanding, will nevertheless be of some assistance to parties at the present time. With a view to maintaining progress I shall have this case put out By Order, at a date convenient to both sides, so that the likely scope, form and duration of future procedure can be discussed and determined.