RECLAIMING MOTIONS BY MIAB (AP) AND OTHERS AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
FIRST DIVISION, INNER HOUSE, COURT OF SESSION
[2016] CSIH 64
P261/15; P744/15; P488/14; P915/15; P612/14; P961/14; P682/15; P745/14; P512/14; P289/15; P1264/14; P340/14; P873/14; P1265/14; P487/15; P1255/14; P365/14; P420/15
Lord President
Lady Smith
Lord Brodie
OPINION OF THE COURT
delivered by LORD CARLOWAY, the LORD PRESIDENT
in the reclaiming motions
MIAB (AP) AND OTHERS
Petitioners;
against
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondents;
Petitioners: Dewar QC, Caskie; Drummond Miller LLP
Respondents: McIlvride QC, Pirie; Office of the Advocate General
27 July 2016
Introduction
[1] These are 18 reclaiming motions, which were heard together, against the interlocutors of the Lord Ordinary, dated 29 January 2016, to allow Minutes of Amendment to be received in nine cases and to refuse to do so in nine others. All of the petitioners claim asylum in the United Kingdom. Each first entered the European Union via another Member State. The respondent has refused each claim. She sought to transfer each of the petitioners, back to the Member State which they first entered, under Council Regulation (EC) 343/2003 (“Dublin II”) and Regulation (EU) 604/2013 of the European Parliament and Council (“Dublin III”). All of the petitions sought review of the transfer back decisions. Each removal notice was cancelled by the respondent, in accordance with her normal practice, once first orders had been granted in the relative petition.
[2] The 18 petitions, in their unamended form, relied principally upon the same argument which was determined by Al v Advocate General 2015 SLT 507. The petitions had been sisted pending the decision in Al. Following the decision, which was ultimately not reclaimed, the petitioners sought to amend each petition by deleting the existing case and introducing new grounds of challenge. The petitioners and the respondent reclaim the interlocutors in which they were unsuccessful. The key issues are: the identification of the correct test in deciding whether or not to allow amendment; whether the Lord Ordinary applied that test; and, if not, what the outcomes in the individual cases should be.
Legislation
[3] The Court of Session Act 1988 provides that:
“27B Requirement for permission
(1) No proceedings may be taken in respect of an application to the supervisory jurisdiction of the Court unless the Court has granted permission for the application to proceed.
(2) ... the Court may grant permission ... only if it is satisfied that—
...
(b) the application has a real prospect of success.
...
(4) The Court may grant permission ...
...
(b) only on such of the grounds specified in the application as the Court thinks fit.”
The section 27B requirement for permission was introduced by the Courts Reform (Scotland) Act 2014, and came into force on 22 September 2015. It applies only to petitions lodged after that date. All of the petitions were lodged before that date, when permission was not required.
Dublin II and Dublin III
[4] Dublin II came into force on 1 September 2003. Its purpose was, first, to identify the country responsible for processing asylum applications as quickly as possible, and, secondly, to prevent abuse of asylum procedures. In general terms, it provided that the Member State, which the asylum seeker first entered, would be responsible for determining the application. An asylum seeker had very limited opportunity to challenge a decision to transfer to the responsible Member State.
[5] Dublin II was recast and replaced by Dublin III, which applies to asylum applications and transfer requests made after 1 January 2014. The primary purpose of the new Regulation, and its general scheme, remains the same. However, one significant new feature of Dublin III is Article 27, which provides an asylum seeker with a right to challenge a transfer request “in fact and in law”.
[6] In so far as relevant to the present proceedings, Dublin III provides:
“Article 12
Issue of residence documents or visas
1. Where the applicant is in possession of a valid residence document, the Member State which issued the document shall be responsible for examining the application ...
…
5. The fact that the residence document or visa was issued on the basis of a false or assumed identity or on submission of forged, counterfeit or invalid documents shall not prevent responsibility being allocated to the Member State which issued it. However, the Member State issuing the residence document or visa shall not be responsible if it can establish that a fraud was committed after the document or visa had been issued.
Article 13
Entry and/or stay
1. Where it is established…that an applicant has irregularly crossed the border into a Member State ... the Member State thus entered shall be responsible for examining the application ... That responsibility shall cease 12 months after the date on which the irregular border crossing took place.
2. When a Member State cannot or can no longer be held responsible in accordance with paragraph 1 ... and where it is established … that the applicant ... has been living for a continuous period of at least five months in a Member State before lodging the application ... that Member State shall be responsible for examining the application ...
Article 14
Visa waived entry
1. If a third-country national ... enters into the territory of a Member State in which the need for him or her to have a visa is waived, that Member State shall be responsible for examining his or her application ...
2. The principle set out in paragraph 1 shall not apply if the third-country national ... lodges his or her application ... in another Member State in which the need for him or her to have a visa for entry into the territory is also waived. In that case, that other Member State shall be responsible for examining the application ...
Article 27
Remedies
1. The applicant ... shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal.
…
3. For the purposes of appeals against, or reviews of, transfer decisions, Member States shall provide in their national law that:
(a) the appeal or review confers upon the person concerned the right to remain in the Member State concerned pending the outcome of the appeal or review; or
(b) the transfer is automatically suspended and such suspension lapses after a certain reasonable period of time, during which a court or a tribunal, after a close and rigorous scrutiny, shall have taken a decision whether to grant suspensive effect to an appeal or review; or
(c) the person concerned has the opportunity to request within a reasonable period of time a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal or review. Member States shall ensure that an effective remedy is in place by suspending the transfer until the decision on the first suspension request is taken. Any decision on whether to suspend the implementation of the transfer decision shall be taken within a reasonable period of time, while permitting a close and rigorous scrutiny of the suspension request. A decision not to suspend the implementation of the transfer decision shall state the reasons on which it is based.
4. Member States may provide that the competent authorities may decide, acting ex officio, to suspend the implementation of the transfer decision pending the outcome of the appeal or review.
…
Article 29
Modalities and time limits
1. The transfer of the applicant ... from the requesting Member State to the Member State responsible shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request by another Member State to take charge or to take back the person concerned or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3).
…
2. Where the transfer does not take place within the six months' time limit, the Member State responsible shall be relieved of its obligations to take charge or to take back the person concerned and responsibility shall then be transferred to the requesting Member State. This time limit may be extended up to a maximum of one year if the transfer could not be carried out due to imprisonment of the person concerned or up to a maximum of eighteen months if the person concerned absconds.
…”
Al v Advocate General 2015 SLT 507
[7] In Al v Advocate General (supra), the petitioners challenged, first, whether the right to an effective remedy contained in Article 27 of Dublin III had been transposed into Scots law, and, secondly, the validity of judicial review as giving effect to that right. The petitioner had submitted that the law did not provide for a transfer decision to be suspended in accordance with Article 27(3). Whilst the policy of the respondent was to cancel any removal directions once first orders had been granted, that policy was unpublished, unknown and the law was unclear. In any event, the policy did not amount to automatic suspension, which was what all three options envisaged by Article 27(3) required.
[8] The petitioner failed in both aspects of the challenge. The Lord Ordinary decided that the language of Article 27(3) was clear. It required a Member State to provide a means by which an asylum seeker could remain in the country for a period of time sufficient to allow him to challenge the transfer decision. This could be by way of: a right to remain pending appeal or review; automatic suspension of the transfer request pending appeal or review; or the opportunity to request suspension pending appeal or review. Judicial review, taken together with the published policy of the respondent, gave the petitioner the opportunity to request suspension pending the determination of a review.
[9] Article 27(3)(c) required the Member State to provide an effective remedy by suspending the transfer until a decision on the “first suspension request” was taken. It had been open to a petitioner to apply for interim suspension pending the outcome of a review. Judicial review amounted to an effective remedy, despite the fact that the practice was not to apply for interim suspension, because of the policy of the respondent. When the respondent suspended a transfer on receipt of first orders, he was acting in precisely the manner envisaged by Article 27(4).
[10] There was no obligation on a Member State to “transpose” the provisions of Dublin III into domestic law. The provisions had direct effect. There was no inconsistency between what was required by Article 27(3), and what was provided for by judicial review. Even if the UK had breached Article 27, the Lord Ordinary would have refused to exercise her discretion to reduce the respondent’s decision, given that the petitioner had achieved all that he had been entitled to achieve by suspension pending the outcome of the review.
Facts averred in the Minutes of Amendment
[11] Sixteen out of 18 petitions relied exclusively on the Article 27 ground which was rejected in Al. The petitions of GA and SM relied principally on that ground, but did set out one other ground of challenge. As a consequence of Al, the petitioners moved to amend by substituting new grounds in various Minutes of Amendment based on Articles 12, 13, 14 and 29 of Dublin III, Article 19 of Dublin II, R (NS (Afghanistan)) v Secretary of State for the Home Department [2013] QB 102 and Articles 3 and 8 of the European Convention on Human Rights.
MIAB
[12] The petitioner had been in the UK since February 2015. A transfer request was made, and accepted, by Austria on 3 March 2015. Article 29 of Dublin III imposed a maximum period of six months from the date that Austria accepted the request. That period expired on 3 September 2015. Article 17 permitted the respondent to consider the application in the UK, notwithstanding that another state may be responsible. The respondent had to ensure that, where fundamental rights had been infringed, the asylum seeker’s situation was not made worse by the use of procedures which involved an excessive amount of time (R (NS (Afghanistan)) (supra)). The respondent was in breach of that obligation.
JJ
[13] A transfer request had been made, and accepted, by France on 20 October 2014. The six-month period had expired on 21 April 2015. In the absence of a transfer having taken place, the respondent had acted unlawfully in refusing to consider the application.
NM
[14] Belgium had accepted a transfer back request on 21 August 2014. The six-month time limit had expired on 22 February 2015. In the absence of a transfer having taken place, the respondent had acted unlawfully in refusing to consider the application.
GA
[15] The petitioner was detained on 5 October 2014, having entered the UK unlawfully. A transfer request was made to, and accepted by, Denmark on 20 October 2014. The passage of over a one year since Denmark had accepted that it was responsible meant that the respondent had acted unlawfully in refusing to consider the application.
AHA-S
[16] The petitioner was detained on 25 February 2014, having entered the UK apparently unlawfully. A transfer request was made to, and accepted by, France on 20 March 2014. The passage of over two years since France had accepted the request meant that the respondent had acted unlawfully in refusing to consider the application.
SS
[17] The petitioner was found in the UK by immigration authorities on 19 June 2013. A transfer request was made to, and accepted by, France on 3 July 2013. The petitioner’s transfer request fell to be considered under Dublin II. The failure to carry out the transfer within the two years meant that the decision to refuse to deal with the application was unlawful, as it was in breach of the principle that the state should not worsen an applicant’s situation (R (NS (Afghanistan)) (supra)). There were no averments regarding the European Convention Article 8 right to private and family life, although the Lord Ordinary noted that such arguments had been made in oral submission.
XCC
[18] The petitioner first entered the UK in 2007 and had lived continuously in the UK since 2011. A transfer request was made to, and accepted by, Slovakia on 28 April 2014. The passage of time since the request was made, rendered it unlawful for the respondent to refuse to consider the petitioner’s application (R (NS (Afghanistan)) (supra)). Again, there were no averments regarding Article 8, although such an argument had been advanced in oral submission.
SM
[19] The petitioner and her sister entered the UK, via Ireland, on 3 February 2014. A transfer request was made to, and accepted by, Ireland on 3 February 2014. The respondent applied the Dublin regime to the petitioner but not to her sister. The petitioner and her sister had a very close relationship. Because of the passage of time since the acceptance of the transfer request, the respondent had acted unlawfully in refusing to consider the petitioner’s application (R (NS (Afghanistan)) (supra)). In addition, to transfer the petitioner to Ireland would interfere with the petitioner’s European Convention Article 8 right.
NTK
[20] The petitioner claimed asylum in the UK on 3 April 2014. A transfer request was made to, and accepted by, Bulgaria on 13 May 2014. Article 13(1) of Dublin III provided that the responsibility of a Member State to determine an application, where an irregular border crossing had taken place, lapsed after a period of 12 months. Bulgaria’s responsibility for determining his application had ended at the latest on 3 April 2015, being a year since the petitioner had entered the UK. The petitioner was now entitled to have his asylum application determined in the UK.
MAK
[21] The petitioner entered the UK and was identified by the immigration authorities on 6 May 2014. A transfer request was made to, and accepted by, France on 16 May 2014. Under Article 13(1), France’s responsibility for determining the application lapsed on 6 May 2015 at the latest, by which time a year had passed since the petitioner had left France to enter the UK. The failure of the respondent to consider the petitioner’s application was therefore unlawful.
HK
[22] The petitioner was detained at Manchester Airport, on-board an inbound flight from Lisbon, on 25 September 2014. He had a false Czech identity card, which he intended to use to enter the UK on a fraudulent basis. He had previously entered, and obtained a visa from, Poland. Whilst in Poland, he had bought the identity card in order to enter the UK. His purpose in entering Poland was not as he had stated to the Polish authorities, but to commit a further fraud (by buying the identity card) and entering the UK. Article 12(5) provided that, where a fraud was committed after a visa had been issued, the Member State which had issued the visa would not be responsible for determining the application if it could establish that a fraud had been committed. On that basis, Poland was no longer responsible for determining the application. In failing to have regard to the provisions of Article 12(5), the respondent had acted unlawfully.
OK
[23] The petitioner had entered the UK on 24 October 2014. He had previously obtained a visa from Poland. A transfer request was made to, and accepted by, Poland on 13 November 2014. The petitioner’s intention, when entering Poland, was not as he had stated to the Polish authorities, but to travel to another country to claim asylum there. Poland was no longer responsible for determining the petitioner’s application, by virtue of Article 12(5).
VM
[24] The petitioner had been identified by immigration authorities in the UK on 31 October 2014. He had previously obtained a visa from Poland. A transfer request was made to, and accepted by, Poland on 30 December 2014. The petitioner’s intention, when entering Poland, was not as he had stated to the Polish authorities, but to travel to another country to claim asylum. Poland was no longer responsible for determining the application, by virtue of Article 12(5).
MS
[25] The petitioner entered the UK on 29 December 2014. A transfer request was made to, and accepted by, Belgium. The UK had a list of countries, whose nationals did not require a visa for entry, until 23 April 2015, when the list was abolished. Article 14(2) provided that a Member State (Belgium) would not be responsible for determining an application if the applicant had entered another Member State (United Kingdom) where the requirement to have a visa was also waived. As the petitioner had entered the UK on or before 17 April 2015, Article 14(2) applied, and the UK was the state responsible for determining application.
MAM
[26] The petitioner entered the UK and claimed asylum on 19 March 2014. The respondent made a transfer request, which was accepted by Bulgaria, on 6 April 2014. The transfer of the petitioner back to Bulgaria would breach his European Convention Article 3 right to freedom from inhuman and degrading treatment, because of the conditions which existed in Bulgaria’s asylum seeker detention facilities. Between January and April 2014, the UN Human Rights Commission had called on Member States not to return asylum seekers to Bulgaria. Vulnerable asylum seekers should still not be transferred to Bulgaria. In returning the petitioner to Bulgaria, the respondent would be acting unlawfully.
SAOS
[27] On 27 February 2015, the petitioner claimed asylum in the UK. The respondent made a transfer request to Hungary, which was accepted on 6 April 2015. The transfer of the petitioner back to Hungary would breach his Article 3 right to freedom from inhuman and degrading treatment, on the basis of the living conditions which exist for asylum seekers in Hungary.
DKG
[28] On 26 November 2014, the petitioner claimed asylum in the UK. The respondent made a transfer request to Hungary, which was accepted on 9 December 2014. The transfer of the petitioner back to Hungary would breach his Article 3 right to freedom from inhuman and degrading treatment, on the basis of the living conditions which exist for asylum seekers in Hungary.
MN
[29] The petitioner entered the UK on 7 December 2013. A transfer request was made to, and accepted by, Hungary on 20 December 2013. The petitioner’s application required to be determined under Dublin II. The six month period to transfer the petitioner back to Hungary had expired on 21 June 2014. Under Article 19(3) of Dublin II, Hungary’s responsibility for determining the application had lapsed at the end of the sixth month period. In addition the respondent had breached the obligation not to worsen an applicant’s situation (R (NS (Afghanistan)) (supra)).
Lord Ordinary’s reasoning
[30] The Lord Ordinary rejected the respondent’s submission that he should treat each application as if it was a new petition and thus require to satisfy the section 27B requirement of “reasonable (sic) prospects of success”. He rejected also the idea that the situation was analogous to that where a pursuer attempted to amend his condescendence after the expiry of a statutory time limit. He did so on the basis that this was an area of public law where the petitioners’ positions had to be looked at with “anxious scrutiny”. Rather, he considered that the applications were “akin to the stage of first orders of a petition lodged” prior to the section’s introduction. He could therefore refuse to allow amendment where “the case was manifestly unfounded or irrelevant”.
[31] On that basis, the Lord Ordinary refused to allow the Minutes in MIAB, JJ, NM, GA and AHA-S to be received as their averments were “manifestly ill-founded”. Dublin III did not confer rights on individual applicants to have their transfers completed within 6 months. It simply relieved the receiving state of any obligation to take back after that period. In any event, if sustained, the petitioners’ arguments would produce an absurd result. The application of a time limit could not be dictated by the actions of an individual petitioner in presenting a petition for judicial review which would take longer than the statutory period to resolve.
[32] The Lord Ordinary allowed the Minutes in SS, XCC and SM to be received because, despite the absence of any averments in SS and XCC, European Convention Article 8 considerations were raised. It is not clear what these were, other than as averred in SM, and there is no analysis of the prospects of their being successful, in terms of the Lord Ordinary’s adopted test. He allowed the Minutes also in NTK and MAK, so that the issue of whether the receiving state was refusing to accept the transfers could be explored.
[33] The Minutes in HK, OK and VM were rejected on the basis that it was not for the petitioners to determine whether Poland would seek to establish whether the petitioners had committed a further fraud after the issue of the visas. However, he regarded MS’s new averments on Article 14 of Dublin III as “at least arguable”. He allowed the Minutes in MAM, SAOS and DKG where European Convention Article 3 breaches were averred, although, again, there is no analysis of the strength of the merits of these cases. Finally, the Minute in MN was rejected on the basis that the time limit under Article 19 of Dublin II did not confer rights on the petitioner.
Submissions
Petitioners
[34] The initial general submission of the petitioners was that the Lord Ordinary had adopted the correct approach to the Minutes in considering whether to exercise his discretion, having regard to whether they contained averments which were irrelevant or manifestly ill-founded. His decision accorded with that expressed in a Note attached to the interlocutor in Alali v Secretary of State for the Home Department, Lord McEwan, 27 November 2015, unreported. This contention was departed from to the extent that it was accepted that the test set out by the Lord Ordinary by reference to irrelevancy and “manifestly ill-founded” averments was incorrect. Nevertheless, it was said that the Lord Ordinary had in fact applied a higher standard.
[34] The Lord Ordinary had been entitled to reject the respondent’s proposition that the test should accord with the new requirements for permission to proceed, since these were not applicable to an amendment process. However, in approaching the individual Dublin III arguments, the Lord Ordinary had erred in law. Although Dublin II had contained few protections for asylum seekers, and had been held not to create rights for individuals, Dublin III had created the right to seek suspension of a transfer decision pending the determination of a review or appeal.
[36] In deciding that some of the amendments were irrelevant, the Lord Ordinary had erred. He had failed to apply Pompa’s Trs v Magistrates of Edinburgh 1942 SC 119. If the proposed amendments were not allowed, many of the petitions would fall to be dismissed. New petitions would no doubt be re-raised, with any breach of the three month time limit met with a plea relying upon the present actions. That course of action would have significant financial impact on the public purse. The costs of preparing a new petition would be £1000 to £1200, even if the petitioner did not require an interpreter. In addition, there would be the costs to the court administration, in terms of judicial time, and to the respondent. The new rule had contained no provision making the legislation retrospective. Once permission was granted, there was nothing to prevent new arguments being proposed by way of amendment.
[37] The suggestion that the amendments were an attempt to circumvent the requirement to obtain permission was without foundation. The amendments were an attempt to protect the petitioners from (in many cases) a breach of their European Convention Article 3 or 8 rights and/or to prevent them suffering a breach of their rights under Dublin II or III. They were presented because of the delay in the resolution of Al (supra). The introduction of a significant change in the respondent’s policy had had the effect of ending the reclaiming motion in that case. The cases cited by the respondent for not granting the discretionary remedy of reduction were different from those under consideration. Here there had been breaches of time limits and reduction of the decisions was the only appropriate remedy.
[38] On the specific Article 29 cases (MIAB, JJ, NM, GA and AHA-S), the Lord Ordinary had erred in holding that the time limit could not be relied upon, when the petitioners had caused the delay. The respondent could have taken steps that would have made the time limit inapplicable, by insisting that the petitioners apply for a suspension under Article 27(3), rather than proceeding, as she had done, under Article 27(4), which was not contemplated within the suspensive effect provision in Article 29(1) (see R (WK (Eritrea) v Secretary of State for the Home Department [2016] EWCA Civ 502). The respondent’s position in England and Wales was not consistent with that taken by her in Scotland.
[39] The Lord Ordinary’s decision was in conflict with Ghezelbash v Staatssecretaris van VeiligheidenJustitie, CJEU, 7 June 2016 (Case C-63/15), which noted the differences between Dublin II and Dublin III in relation to the need for an effective remedy (see also Karim v Migrationsverket, CJEU, 7 June 2016 (Case C-155/15)). He had erred in his treatment of Recital 19 of Dublin III in interpreting it in a manner that was inconsistent with Ghezelbash (supra).
[40] In assessing what the Lord Ordinary described as the “absurd” results of the application of Article 29, he had failed to take into account the fact that an applicant, who had caused his own imprisonment so that removal could not take place within 1 year, or who had absconded with the result that removal could not take place within 18 months, would be entitled to have his claim for asylum assessed in the UK. If the Lord Ordinary was correct, a petitioner conducting litigation would be in a worse position. This was the true absurdity in the context of Dublin III’s purpose of expeditious disposal of claims.
[41] On the cases under Articles 13(1) of Dublin III (NTK and MAK) the Lord Ordinary had erred in his assessment of the scope of the petitioners’ appeal rights. His interpretation did not accord with the words of the Article. The same was true of the Article 12(5) cases, (HK, OK and VM) and the Dublin II Article 19 case (MN). The Lord Ordinary had erred in not applying this principle in these cases.
[42] In relation to MIAB, SS, XCC, SM and MN, R (NS (Afghanistan) (supra)), which was a Dublin II case, said that a Member State, in which an asylum seeker was present, must ensure that it did not worsen a situation by using a procedure, for determining the Member State responsible, which takes an unreasonable length of time.
[43] In the human rights cases (SS, XCC, SM, MAM, SAOS and DKG), the removal directions had been accompanied by a statement that there was no appeal against the direction. It was not submitted that there was no alternative remedy available. However, if the respondent decided against an applicant, she would certify the case as “clearly unfounded” thus requiring that any appeal be taken from outside the UK. In the human rights cases, although there was a strong evidential presumption that the receiving states would comply with the Convention, that presumption could be overcome. In relation to any criticism of a lack of specification, those cases, involving reception conditions in Italy, Hungary and Bulgaria, all had lead test cases either in Scotland or England. In any event the degree of precision and detail in ordinary actions was not to be looked for in applications for judicial review (Clyde and Edwards: Judicial Review, para 23.19).
Respondent
[44] The respondent submitted that the effect of the Minutes of Amendment was, in almost all of the petitions, to delete the existing case, which concerned only the effectiveness of judicial review as a means of implementing Article 27 of Dublin III, and to substitute entirely new grounds. If the new grounds had been presented in a new petition, the permission of the court to proceed would have been required. The petitioners were using what were now the empty husks of the existing petitions to circumvent the permission provisions. The respondent was not suggesting that section 27B of the 1988 applied directly, although in substance the Minutes were new “applications to proceed”. The test was “the interests of justice” (Thomson v Glasgow Corporation 1962 SC (HL) 36, LJC (Thomson) at 51). However, the court ought to reconsider the principles on which it exercised this jurisdiction in judicial review cases.
[45] Just as the court would not allow a party to change the basis of his case by amendment after the expiry of a time limit, neither should it permit amendment designed to avoid a requirement for permission to appeal. The court had a wide discretion, but it was not unlimited (Gray Aitken Partnership v Link Housing Association 2007 SC 294). The Lord Ordinary ought to have taken the view that it was improper to allow the Minutes to be received unless they contained an argument which gave rise to real prospects of success. That was not the only consideration, but it ought to have been regarded as a minimum requirement.
[46] The interests of justice test required the court to consider the waste of substantial public expense in the respondent having to resist a petition that was bound to fail. Requiring an amended case to be brought by a new petition prevented that, because no permission would be granted for a petition without a real prospect of success. The public interest in good administration was another consideration. Third parties ought not to be kept in suspense as to the validity of a decision any longer than was necessary in fairness to the person affected by it (King v East Ayrshire Council 1998 SC 182, LP (Rodger) at 196). Requiring a new petition served the public interest in the efficient and effective administration of justice because: (a) there was a need to prevent the progress of unmeritorious cases, so that other cases could be dealt with expeditiously (Report of the Scottish Civil Courts Review, ch 12, paras 51 and 54; (b) like cases should be treated alike; (c) Parliament had determined that permission to proceed was required; and (d) the Scottish Legal Aid Board would be spared expense were the amended grounds to lack merit. Judicial review was intended to be a quick process. The allowance of amendment did not encourage that.
[47] The Lord Ordinary had considered that he required to apply the anxious scrutiny principle when determining whether to allow the Minutes to be received. However, such scrutiny referred to the need for any decision to demonstrate that every relevant factor had been taken into account (MN v Secretary of State for Home Department 2014 SC (UKSC) 183). It did not refer to the rules of procedure leading up to the point of decision. Such scrutiny would be required at the permission stage. The Lord Ordinary had in fact applied a higher standard than irrelevant or manifestly ill-founded averments.
[48] In the Article 29 cases (MIAB, JJ, NM, GA and AHA-S), the time limit would not expire until the determination of the petitions. This was the literal reading of the Article. The respondent’s decision to cancel the removal directions amounted to a “suspensive effect in accordance with Article 27(3)”. The petitioners had had “the opportunity to request within a reasonable period of time a court… to suspend the implementation of the transfer decision pending the outcome of his or her… review”. The petitioners had not needed to take that opportunity, because the respondent had cancelled the directions when asked to do so.
[49] An alternative reading of the Article would be absurd because it would have the result that: (a) an applicant could rely on a decision, which he had requested, to resist the respondent’s later efforts to remove him; and (b) the respondent would need to seek a suspension of her own decision (R (YZ) v Secretary of State for the Home Department [2011] EWHC 205 (Admin), at paras 79-80). It would defeat the purpose of Article 27(4). It would do nothing to achieve the objectives of Dublin III. It would make Article 27(4) less effective. EU legislation required to be interpreted purposively with a preference given to efficacy (Holger Forstmann Transporte v Hauptzollampt Munster, 2015 RTR 2 (CJEU Case C-152/13)). There was no inconsistency in the respondent’s approach in Scotland and England & Wales. R (WK (Eritrea)) (supra) was concerned with the position on appeal and not at first instance.
[50] The petitioners had remained in the UK for more than 6 months after acceptance of a transfer request. If any of the respondent’s decisions were unlawful, the petitioners had not averred any prejudice as a result. In these circumstances reduction of the respondent’s decisions should not be granted (King (supra) LP (Rodger) at 194; Al (supra) paras [71-73]).
[51] Looking at the instances where a Minute had been refused, in those cases founding upon R (NS (Afghanistan)) (supra) (MIAB, SS, XCC, SM and MN), it was important to note that the court in NS had been addressing the situation where it had been difficult to determine the responsible country. The court had admonished a country for taking an unreasonable time in which to do that. That was not the position here. The averments were therefore clearly irrelevant. In relation to MN, the Lord Ordinary had also been correct to refuse the amendment where the petitioner had maintained that Dublin II had created individual rights, which it had not (Abdullahi v Bundesasylant [2014] 1 WLR 1895 (CJEU)). MN had wished to challenge the application of the Dublin II criteria where the receiving country had accepted the transfer. There was no right of challenge on that basis.
[52] The Article 13 cases (MAK and NTK) had no real prospects of success. Article 13 was part of the hierarchy of criteria which determining the responsible Member State. It applied where an applicant had entered one state illegally and had then left that state. The first state would be responsible, but not if 12 months had expired before the second state had established that responsibility. Otherwise, the provision would not apply where a meritless appeal delayed determination of a challenge. Again, the petitioners had not averred that the proposed receiving state had declined that reception. No prejudice had been averred.
[53] In the Article 12 cases (HK, OK and VM) the Lord Ordinary had correctly rejected the Minutes. It was for the receiving country to prove that, after the issue of the relevant document, it had discovered that a fraud had been committed. There was no averment that the receiving country so contended.
[54] In relation to those human rights cases, in which the Lord Ordinary had found in favour of the petitioners (SS, XCC, SM, MAM, SAOS and DKG), the petitioners had an alternative remedy in respect of the new grounds. Judicial review was therefore incompetent (MH (Bangladesh) v Secretary of State for the Home Department [2014] CSOH 143 at paras [32], [38-42]) or should not be permitted as a matter of discretion. Section 113 of the Nationality, Immigration and Asylum Act 2002 allowed a person to raise with the respondent a human rights claim in relation to a decision to remove. If the claim was rejected, it could be appealed to a First Tier Tribunal (ibid ss 82 and 84). In terms of the “Reception” Council Directive 2013/33/EU, receiving states required to provide an adequate standard of living, which guaranteed the subsistence of applicants and protected their physical and mental health. Article 3 of the European Convention protected against inhumane or degrading treatment reaching a minimum level of severity (MSS v Belgium and Greece (2011) EHRR 2 at para 19), although there was a presumption that EU states would comply with its Article 3 obligations (R (EM (Eritrea) v Secretary of State for the Home Department [2014] 1 AC 1321 at para 64). Article 8, which was founded on by SS, XCC and SM, protected against interferences with private or family life only where these were exceptional or removal was disproportionate (MAK (Pakistan) v Secretary of State for the Home Department [2016] CSIH 13 at paras [16] and [19]). That level of interference was not apparent in these case.
[55] In MAM, SAOS and DKG, there were lengthy averments about conditions in Bulgaria and Hungary. In MSS v Belgium and Greece (supra) it was said that a transfer to Greece would result in a breach of Article 3, but that was the only country which the European Court of Human Rights had described in those terms. In R (EM) (Eritrea) (supra) the importance of the views of the United Nations High Commissioner for Refugees was recognised (at para 71). He had not stated that a return to Bulgaria, Hungary or Italy would have that effect. It could not be said that there was a real prospect of success in these circumstances.
[56] MS’s case under Article 14 was irrelevant where he had not said that he had lodged an asylum application in another Member State in which the need for him to have had a visa had been waived. Belgium had accepted responsibility.
Decision
[57] Amendment of a writ, whether a summons or a petition, is governed by Chapter 24 of the Rules of Court (“any ‘cause’”; see RCS 1.3). RCS 24.1 provides that the Court may, at any time before final judgment, allow an amendment which may be necessary for the purpose of determining the real question in controversy between the parties. There is no dispute that amendment, such as those sought in these petitions, is a competent mode of proceeding, even although it substitutes one ground of action for another.
[58] The grant or refusal of an application to amend is a matter for the discretion of the court (Thomson v Glasgow Corporation 1962 SC (HL) 36, Lord Reid at 66 – 67). The test for determining whether, in exercising that discretion, an amendment should be allowed is whether it is in the interests of justice (ibid LJC (Thomson) at 51). In an ordinary action involving private parties, the interests of justice will involve, first and foremost, fairness in the conduct of the litigation (ibid. at 52). However, in the modern era, and especially in the context of the review of local or central government action, they will also encapsulate matters such as the efficiency of the civil justice system. Where the public purse is involved, as it is in these petitions, questions of expense may be of some importance too.
[59] It is not at all clear, from the Lord Ordinary’s Note, that he did apply the correct test. The manner in which he expressed the task which he set himself was one said to be “akin to the stage of first orders” in a petition presented prior to the introduction of section 27B of the Court of Session Act 1988. In EY v Secretary of State for the Home Department 2011 SC 388, an Extra Division (at para [16]) eschewed the idea that, for first orders to be granted, a petitioner required to aver an arguable case. Rather, it was deemed appropriate to apply at the initial stage a low hurdle which a party would fail to cross only in “exceptional circumstances”, such as where the averments were “incomprehensible or gibberish”. The test was also formulated as being that expressed in Eba v Advocate General 2011 SC 70 (LP (Hamilton) at para [35]) of the averments being “manifestly without substance”. This is the test which, in essence, the Lord Ordinary purported to apply. It is not the appropriate test for the determination of whether to allow an amendment, although, clearly, no amendment containing averments which are “manifestly without substance” would be likely to be allowed. In that situation, the Court is bound to review the applications of new, even if it may be that the Lord Ordinary applied a rather higher test than the one which he expressly embraced.
[60] The Lord Ordinary was correct in rejecting the contention that the test should instead be one which applies only the new “real prospects of success” test under section 27B. That section was not applicable at the time of presentation of the petitions and it cannot be decisive. That is not to say that it does not have an important part to play in determining where the interests of justice lie. The Lord Ordinary was also correct to be wary of reading across from reparation cases proceeding as ordinary actions, where an attempt might be made to alter the nature of a case at a particular stage of the process, when a relevant time bar would, but for the subsistence of the action, have applied. Pompa’s Trustees v Magistrates of Edinburgh 1942 SC 119, in which the amendment proposed was allowed, may still reflect sound law as a generality, but the facts there were some distance from those of the present petitioners. The modern principles applicable to the allowance of amendment in reparation actions, in face of a time bar, permit of a wide discretion. Adjustment to introduce a new case after the triennium has expired is unobjectionable (Sellars v IMI Yorkshire Imperial 1986 SLT 629) and amendment, in these cases, is often regarded as little more than “a belated adjustment, for which the laggard has to pay” (Thomson v Glasgow Corporation (supra) LJC (Thomson) at 52). In litigation between private persons, the factors explored in Thomson, notably those relative to the stage of the case, will continue to hold sway.
[61] Whether there is a requirement to scrutinise applications for amendment in asylum cases any more anxiously (Bugdaycay v Secretary of State for the Home Department [1987] AC 514, Lord Bridge at 531) than in other cases may be doubtful (see MN v Secretary of State for the Home Department 2014 SC (UKSC) 183, Lord Carnwath at para [31]), but there is no question that the consequences of granting or refusing amendment to a particular party may be a significant factor, which must be taken into account and explained in the decision (ibid). If refusal means that an asylum seeker might be sent to a country in breach of his or her human rights, that is a weighty factor.
[62] Judicial Review was introduced as a summary procedure following adverse comment on the effectiveness of the ordinary procedure to review administrative action (Brown v Hamilton District Council 1983 SC (HL) 1, Lord Fraser at 49). The idea was that any new procedure should be “speedy and cheap” (ibid). The unique use of petition procedure in an adversarial setting, with averments of both fact and law (Form 58.3), was designed to achieve this ideal. The procedure, at its most efficient, is intended to involve the petitioner and respondent being able to put all their averments in, respectively, the original petition and answers and the court being able to proceed immediately to a determination at a first hearing. However, for the reasons explored in EY (supra at para [18]), this may not always be possible. Yet it is a state of affairs which the court ought to encourage as the norm, rather than the exception.
[63] It was also intended that judicial review procedure should be “flexible”, allowing the court to take account of “new matters” (King v East Ayrshire Council 1998 SC 182, LP (Rodger) at 196). However, the degree to which the proposed grounds in the Minutes of Amendment are “new” is limited, even if, at the stage when the petitions were lodged, not all of the time limits referred to had been exceeded. That was, however, a long time ago. The need to maintain an efficient review system is an important element in determining whether to allow amendment. This will often depend upon the stage at which the petition has reached. It may be of little moment to allow amendment at the early stage of a process, but of greater significance to do so after, or on the eve of, a first or second hearing. In the present cases, the petitions were sisted pending the outcome of Al v Advocate General 2015 SLT 507. It is not unreasonable to infer that the parties in these petitions were expecting Al to be determinative of all the cases. Introducing new grounds, once the old ones had been rejected, has an air of unfairness about it, at least in so far as the respondent is concerned. This is by no means determinative, but it must play an important part in the decision.
[64] The test in EY v Secretary of State for the Home Department (supra) was subject to some criticism where it might be applicable to the review of certain types of decision (see Eba v Advocate General 2012 SC (UKSC) 1, Lord Hope at para [49(c)]. Meantime, the Scottish Civil Courts Review (2009) (chapter 12, para 51) had recommended the introduction of the requirement for leave to proceed in order to filter out unmeritorious applications from the system. It was this recommendation which became section 27B, which requires that any application to the supervisory jurisdiction requires permission, which can only be given if the ground upon which it proceeds has a “real prospect of success”. The Court, when granting permission, may do so in respect of particular grounds only. It is not immediately apparent that consideration was given to the situation where a petitioner might seek to introduce new grounds after permission to proceed generally had been granted. It must follow, however, that, since permission could only have been given for the grounds stated in the original application, such permission must also be necessary for any new grounds introduced later. Where the court is considering a Minute of Amendment in proceedings raised after the introduction of section 27B, it ought to be asked to grant or refuse permission to proceed on any new grounds advanced, at least at the stage of allowing any amendment. However, it would be most unusual for the Court in a judicial review to allow an amendment to introduce averments containing an argument which has no “real prospects of success”. Other than in exceptional circumstances, the existence of such prospects should be regarded as a minimum requirement before an amendment containing new grounds would be allowed. Even if that low hurdle were crossed, it would not follow that the amendment should be allowed having regard to other factors in the interests of justice equation.
[65] In all of the present petitions, the Minutes of Amendment were proposed after the decision in the test case of Al which, for the reasons outlined above, was intended to be determinative of what was the only issue in almost all of the cases. The new grounds are proposed as substitutes for the original unsuccessful ones. In such circumstances, the interests of justice require that, in the absence of exceptional circumstances, that determination be the end not only of the principal process but also of those dependent upon it. The other elements, including the possible consequences for the petitioners and the prospect of additional costs to the public purse, have been taken into account. The balance, however, rests firmly in favour of the respondents and thus, effectively, in bringing these petitions to an end. If any of the petitioners consider that the new points have some prospect of success, then they remain free to attempt to raise them in new petitions. The ability to do so is a significant element in considering amendment. That would mean that the new grounds would become subject to scrutiny at least by the Court at the permission stage and, no doubt, the Scottish Legal Aid Board, which may require to consider the grant of legal aid. For all of these reasons, the interests of justice lie in refusing to allow the Minutes to be received and thus the respondent’s reclaiming motions and refusing those of the petitioners. That is sufficient to dispose of the reclaiming motions, but, in deference to the arguments on the merits of the new grounds raised in the Minutes, some general comment on their prospects of success is warranted.
[66] It is important that, as a generality, the determination of prospects of success in respect of grounds of appeal in a judicial review for the purposes of permission to proceed should not require a lengthy debate of the complexity involved in the hearing of this reclaiming motion. The procedure requires rapid decision making. If there is uncertainty in the judicial mind, permission should be granted. The hurdle to be overcome, as a minimum requirement, is not a high one. Nevertheless, it is a great deal higher than that of gibberish or incomprehension set out in EY v Secretary of State for the Home Department (supra). Suffice it to say, none of the grounds presented appear to have the minimum requirement of having a real prospect of success.
[67] Dublin III gives an applicant the right to challenge a transfer decision “in fact and law”. It altered the approach to Dublin II set out in Abdullahi v Bundesasylamt [2014] 1 WLR 1895 (CJEU,) which had held that the only ground of challenge was a systematic flaw in the receiving country, such that the applicant would be at real risk of suffering inhumane or degrading treatment. Henceforth, in terms of the effective remedy provision in Article 27(1), which was foreshadowed by Recital 19, an applicant would have a wider right to challenge errors in carrying out the Dublin III procedures or in the application of its criteria (Ghezelbash v Staatssecretaris van VeiligheidenJustitie, CJEU, 7 June 2016, (Case C-63/15) at paras 36 and 39).
[68] It does not follow, however, that each Article of Dublin III enshrines a right which is vested in the applicant. In particular, as with Dublin II, many of the time limits are solely intended to regulate the position as between different Member States. They permit, for example, a Member State, into which an applicant has first entered, to refuse to receive back that applicant from another Member State if certain time limits have expired or other circumstances exist. However, if the receiving Member State does found upon a particular matter, and is content to receive back the applicant, that will remain the default position in the application of Dublin III as it was with Dublin II; viz that the first Member State into which an applicant has entered has the primary responsibility to determine the application. That, of course, presupposes that the correct procedures have been followed and the correct criteria applied.
[69] Article 29 of Dublin III provides that time will not start to run until there has been a final decision on a review where “there is a suspensive effect in accordance with Article 27(3)”. Article 27(3)(c) refers to the situation where the applicant has had “the opportunity to request … a court… to suspend the implementation of the transfer decision pending the outcome of his or her… review”. That opportunity was afforded to the petitioners. The result of the court granting first orders was that the respondent cancelled the removal directions. That did not alter the fact that an opportunity had been afforded to the petitioners in terms of Article 27(3)(c) and a “suspensive effect” followed therefrom because the state in effect suspended the transfer decision. In addition, the respondent’s argument that a contrary interpretation would achieve an absurd result has merit. After all, the respondent can hardly ask the court to suspend her own decisions. The purpose of Article 29 is to place a limit on the time it takes for the transferring state to act after acceptance of the transfer, subject to the existence of an ongoing review process at the instance of the applicant. A question about whether the time limit has been exceeded should be answered at the point when, but for the judicial process, the original removal direction would have had effect. This view accords with such a purposive interpretation. For completeness, it does not appear that, so far as the effect of first instance applications are concerned, the respondent has different policies north and south of the border.
[70] In R (NS (Afghanistan) v Secretary of State for the Home Department [2013] QB 102, which is founded upon in several of the petitions (MIAB, SS, XCC, SM and MN) the Court of Justice of the European Union expressed the view (at para 98) that the Member State in which an asylum seeker is present must ensure that it does “not worsen a situation where the fundamental rights of that applicant have been infringed by using a procedure for determining the member state responsible which takes an unreasonable length of time”. None of the present petitions involve any delay in the respondent identifying the responsible state. The dictum accordingly has no application.
[71] The arguments based upon Articles 12 (HK, OK and VM), 13 (NTK and MAK) and 14 (MS) of Dublin III and Article 19 (MN) of Dublin II each involve similar considerations. Article 13 applies where the transferring state has not established the identity of the responsible state within 12 months of an irregular entry into the otherwise responsible state, or where the applicant has been in the transferring state for 5 months. Neither condition applies here and neither is founded upon by the receiving state. Article 12(5) applies where the receiving state founds upon a fraud, when the applicant obtained the relevant document, which was discovered by that state sometime after its perpetration. It is for the receiving state to raise such a point. That has not been done. The same consideration applies to the Article 14 case in which it is not suggested that the receiving state had not accepted the transfer or that the petitioner had lodged an application in another state. The limitations of a challenge based upon Dublin II have already been noted under reference to Abdullahi v Bundesasylamt (supra). They exclude an argument based on the application of the time limit under Article 19(3).
[72] The human rights cases (SS, XCC, SM, MAM, SAOS and DKG) are in a different category. However, for human rights considerations to be taken into account, there must first be averments concerning an alleged breach of a particular Article. If, as in the petitions of SS and XCC, there are no averments at all of this nature, the Lord Ordinary ought not to have taken human rights considerations into account in allowing a Minute to be received. In relation to the remaining cases (SM, MAM, SAOS and DKG), there is force in the argument that the petitioners have an alternative remedy, by raising the issues with the respondent in terms of the section 113 of the Nationality, Immigration and Asylum Act 2002. The answer proffered by the respondent, that they would not succeed and would be forced to appeal from outwith the UK is not a good one. It is speculative and does not take into account the prospect of a review should an application not succeed and if the respondent does certify the appeals as “clearly unfounded”.
[73] Although RCS 58.3 provides only that judicial review is not available if the application could be made by an “appeal or review” under any statute, the general rule regarding the competency of seeking review, or at least of granting the remedy sought, is rather wider. It is that the court “may decline to exercise its supervisory jurisdiction ... if it appears that the petitioner has not exhausted a statutory remedy” (Shanks & McEwan (Contractors) v Mifflin Construction 1993 SLT 1124, Lord Cullen at 1129), provided that there are no exceptional circumstances, such as the alternative being an ineffective one (ibid, following Tarmac Econowaste v Assessor for Lothian Region 1991 SLT 77, Lord Clyde reviewing the authorities at 78-79). The court requires to be vigilant in ensuring that effective remedies are available to redress wrongs, but it should also be wary of “trespassing on the jurisdiction of a tribunal which is competent to determine the matter at issue (ibid at 79; see also MH (Bangladesh) v Secretary of State for the Home Department [2014] CSOH 143, Lord Jones at para [32]; Sangha v Secretary of State for the Home Department 1997 SLT 545, Lord Marnoch at 547). In the human rights cases, an obvious alternative statutory remedy is to make an application under section 113 of the 2002 Act and to await the results of that, and of any certification, before asking the court to exercise its supervisory jurisdiction. The fact that any appeal may require to be taken “out of country” does not, of itself, render it ineffective (MH (Bangladesh) (supra), Lord Jones at para [37]).
[74] On the merits of the petitioners’ complaints, the absence of any advice from the UN High Commissioner for Refugees to the effect that asylum seekers should not be returned to Hungary, Bulgaria or Italy is significant in the assessment of real prospects.
[75] The reclaiming motions of the petitioners in respect of the petitions of MIAB, JJ, NM, GA, AHA-S, HK, OK, VM and MN will be refused and the interlocutors of 29 January 2016 will be adhered to. Those of the respondent in the positions of SS, XCC, SM, NTK, MAK, MS, MAM, SAOS and DKG will be allowed, the interlocutors recalled and the motions to allow the Minutes of Amendment to be received will be refused.