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PHOUNG VO (AP) AGAINST THE RIGHT HONOURABLE THE LORD WALLACE OF TANKERNESS, QC, ADVOCATE GENERAL FOR SCOTLAND


Submitted: 16 July 2015

OUTER HOUSE, COURT OF SESSION

[2015] CSOH 95

 

P181/14 & P171/14

OPINION OF LADY RAE

In the Petitions of

SALAM ESSAM MOHOMED ABDEL AL

First Petitioner;

and

PHUONG VO (AP)

Second Petitioner;

against

 

THE RIGHT HONOURABLE THE LORD WALLACE OF TANKERNESS, QC, Advocate General for Scotland, as representing the Secretary of State for the Home Department

Respondent:

for

Judicial Review of Decisions of the Secretary of State for the Home Department to remove the first Petitioner to Hungary and to remove the second Petitioner to Germany

Petitioners:  Dewar, QC, Caskie; Drummond Miller LLP

Respondent:  Pirie;  Office of the Advocate General

16 July 2015

Introduction
[1]        The present proceedings are concerned with judicial review of decisions of the Secretary of State for the Home Department (the Secretary of State) in relation to the removal of each of the petitioners from the United Kingdom under immigration legislation.  I heard argument over several days, namely, 27-30 May 2014 with final oral argument on 13 November 2014.  By agreement of parties further written submissions were lodged by the respondent in answer to some of the fresh submissions made by the petitioners on 13 November in relation to the Secretary of State’s certification decisions.  This was to obviate the necessity of seeking a further day for continuation of the hearing when I and counsel would be available and when the court timetable would permit such a hearing.  Subsequently and while the case was at avizandum I was advised that a request had been made to bring this case out by order as a motion had been lodged by the second petitioner on 9 January 2015 to allow amendment to his petition.  That minute contained information regarding another petition in a similar case.  This motion was opposed on the basis that, if allowed, further investigations would be necessary and inevitably this would delay the issue of my decision.  I heard parties briefly on the motion on 25 February 2015 (the first available date).  On the morning of the hearing parties agreed that the amendment procedure should not proceed further but the information contained in the minute of amendment was to be put before me under the proviso that the respondent’s counsel, Mr Pirie, was permitted to explain the background of the case referred to but on the limited information available as at 25 February.  In addition I was advised that as at that date, 62 Scottish cases were sisted pending my decision in the present petitions and two Northern Irish cases had been sisted for the same reason.  On 31 March 2015 I was advised that additional submissions and productions had been forwarded to the court.  I refused to consider these additional documents until the respondent had an opportunity to make any representations.  (Mr Pirie was on vacation as at that date.)  On 5 May 2015 I was advised that further motions were to be lodged for amendment.  These were to be opposed.  I indicated that on the limited information available I was not at that stage prepared to put the case out by order.  I left it to parties to decide what further procedure they could competently take but I expressed concerns at the risk of further procedure delaying this decision.  I was advised there were now 90 Scottish cases sisted and an increased number of Northern Irish cases in the same position.  In early June fresh motions were lodged by the petitioners seeking further amendment.  These were opposed.  The earliest hearing available was 30 June 2015.  On that date, after discussion, senior counsel for the petitioners decided to withdraw the minutes of amendment.  A motion for expenses was made by the respondent but by agreement I reserved that matter.  I was advised that there were now 111 cases sisted in Scotland and 10 in Northern Ireland.

 

Background
[2]        The first petitioner is a citizen of Sudan who entered the United Kingdom unlawfully and without leave.  He sought asylum in Glasgow on 4 October 2013.  The Secretary of State established that the first petitioner had previously made a claim for asylum in Hungary and as a result, on 25 October 2013, requested the Hungarian authorities to “take back” the petitioner in terms of Article 16.1 (c) of Council Regulation (EC) No 343/2003 of 18 February 2003 (the “Dublin II regulation”).  The Hungarian authorities accepted the “take back” request on 5 November 2013 and the Secretary of State, as she is entitled to do, declined to consider the petitioner’s claim for asylum.  On 12 November 2013 the Secretary of State also certified (“Third country certificate”) that the conditions set out in paragraphs 4 and 5, Part 2, Schedule 3, of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (“the 2004 Act”), were met.  The effect of said certification was that the petitioner could not appeal against the decision of the Secretary of State until he had been removed from the United Kingdom.  On 11 February 2014 the petitioner was advised of his liability to be removed and detained pending removal.  Removal directions were set for his departure to Hungary on 20 February 2014.  First orders in respect of these proceedings were granted by this court on 19 February 2014 and said removal directions were cancelled in accordance with the published policy of the Secretary of State.  The first petitioner seeks reduction of the decision to remove him from the United Kingdom on the ground that that decision is unlawful et separatim unreasonable and he also seeks reduction of the decision to certify in terms of Part 2, Schedule 3 of the 2004 Act.

[3]        The second petitioner is believed to be a citizen of Vietnam, who arrived in the United Kingdom unlawfully and without leave to enter during 2007.  He first came into contact with immigration authorities on 3 June 2013.  He was interviewed by the police at Reading Police Station and released with a requirement that he report to an office of the Secretary of State for the Home Department.  He failed to do so.  He was subsequently detained again by police on 30 December 2013 but attempted to escape on 31 December 2013.  He was immediately re-captured.  On 1 January 2014 a “Eurodac” search revealed that he had previously claimed asylum in Germany and had been fingerprinted on 8 August 2006.  A request by the Secretary of State to the German authorities to “take back” the petitioner in terms of Regulation(EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 (“Dublin III regulation”) was accepted and on 21 January 2014 the Secretary of State declined to consider the petitioner’s claim for asylum.  The Secretary of State also certified (“Third country certificate”) that the conditions set out in paragraphs 4 and 5, Part 2, Schedule 3, of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (“the 2004 Act”), were met.  On 8 February 2014 the Secretary of State gave directions for the petitioner’s removal to Germany.  Said removal was scheduled to take place on 24 February 2014.  First orders were granted by this court on 21 February 2014 and said removal directions were cancelled on the same date.  The second petitioner seeks reduction of the decision to remove him to Germany and reduction of the certification decision.  A remedy in terms of Article 8 of the European Convention on Human Rights is also sought however that issue was not argued before me at the stage of the first hearing.

[4]        If the Dublin regulations are applicable in respect of each petitioner it is accepted that Hungary would be the responsible state for the first petitioner’s application while Germany would be the responsible state for dealing with the second petitioner.

 

Relevant legislation, regulations etc
[5]        The relevant law applicable to this case is contained in a number of different statutory provisions and regulations.

 

European Communities Act 1972 (the 1972 Act)
[6]        Section 2 provides:

“(1)   All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression ‘enforceable EU right’ and similar expressions shall be read as referring to one to which this subsection applies.”

 

Immigration and Asylum Act 1999
[7]        Section 10 provides:

“(1)   A person who is not a British citizen may be removed from the United Kingdom, in accordance with directions given by an immigration officer, if—

 

(a)  having only a limited leave to enter or remain, he does not observe a condition attached to the leave or remains beyond the time limited by the leave;”

 

Nationality, Immigration and Asylum Act 2002 (the 2002 Act)
[8]        Section 77 provides:

“(1)   While a person’s claim for asylum is pending he may not be—

 

(a)  removed from the United Kingdom in accordance with a provision of the Immigration Acts, or

 

(b)  required to leave the United Kingdom in accordance with a provision of the Immigration Acts.

 

(2)   In this section—

 

(a)  ‘claim for asylum’ means a claim by a person that it would be contrary to the United Kingdom’s obligations under the Refugee Convention to remove him from or require him to leave the United Kingdom, and

 

(b)  a person’s claim is pending until he is given notice of the Secretary of State’s decision on it.

 

(3)   In subsection (2) ‘the Refugee Convention’ means the Convention relating to the Status of Refugees done at Geneva on 28th July 1951 and its Protocol.

 

(4)   Nothing in this section shall prevent any of the following while a claim for asylum is pending—

 

(a)  the giving of a direction for the claimant’s removal from the United Kingdom,

 

(b)  the making of a deportation order in respect of the claimant, or

 

(c)  the taking of any other interim or preparatory action.

 

(5)   Section 15 of the Immigration and Asylum Act 1999 (c. 33) (protection from removal or deportation) shall cease to have effect.”

 

Asylum and Immigration (Treatment of Claimants etc) Act 2004 (the 2004 Act)
[9]        Paragraph 2 of Part 2 of Schedule 3 of the 2004 Act lists the safe countries to which an asylum claimant may be removed in terms of paragraph 4.  [Germany and Hungary appear on said list at “(i)” and “(k)” respectively.]

[10]      Paragraphs 3, 4 and 5 of Part 2, Schedule 3, of the 2004 Act provide:

“3  (1)  This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made an asylum claim or a human rights claim may be removed—

 

(a)   from the United Kingdom, and

 

(b)   to a State of which he is not a national or citizen.

 

(2)  A State to which this Part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place—

 

(a)   where a person’s life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion,

 

(b)   from which a person will not be sent to another State in contravention of his Convention rights, and

 

(c)    from which a person will not be sent to another State otherwise than in accordance with the ‘Refugee Convention’.

 

4          Section 77 of the Nationality, Immigration and Asylum Act 2002 (c. 41) (no removal while claim for asylum pending) shall not prevent a person who has made a claim for asylum from being removed—

 

(a)   from the United Kingdom, and

 

(b)   to a State to which this Part applies;

 

provided that the Secretary of State certifies that in his opinion the person is not a national or citizen of the State. (A third country certificate)

 

5    (1)  This paragraph applies where the Secretary of State certifies that—

 

(a)   it is proposed to remove a person to a State to which this Part applies, and

 

(b)   in the Secretary of State’s opinion the person is not a national or citizen of the State.

 

(2)  The person may not bring an immigration appeal by virtue of section 92(2) or (3) of that Act (appeal from within United Kingdom: general).

 

(3)  The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act (appeal from within United Kingdom: asylum or human rights) in reliance on—

 

(a)   an asylum claim which asserts that to remove the person to a specified State to which this Part applies would breach the United Kingdom’s obligations under the Refugee Convention, or

 

(b)   a human rights claim in so far as it asserts that to remove the person to a specified State to which this Part applies would be unlawful under section 6 of the Human Rights Act 1998 because of the possibility of removal from that State to another State.

 

(4)  The person may not bring an immigration appeal by virtue of section 92(4)(a) of that Act in reliance on a human rights claim to which this sub-paragraph applies if the Secretary of State certifies that the claim is clearly unfounded; and the Secretary of State shall certify a human rights claim to which this sub-paragraph applies unless satisfied that the claim is not clearly unfounded.

 

(5)  Sub-paragraph (4) applies to a human rights claim if, or in so far as, it asserts a matter other than  that specified in sub-paragraph (3)(b).”

 

[11]      Article 288 of the Treaty on the Functioning of the European Union provides:

“To exercise the Union's competences, the institutions shall adopt regulations, directives, decisions, recommendations and opinions.

 

A regulation shall have general application. It shall be binding in its entirety and directly applicable in all Member States.

 

A directive shall be binding, as to the result to be achieved, upon each Member State to which it is addressed, but shall leave to the national authorities the choice of form and methods.

 

A decision shall be binding in its entirety.  A decision which specifies those to whom it is addressed shall be binding only on them.

 

Recommendations and opinions shall have no binding force.”

 

Dublin II and Dublin III regulations
[12]      The objective of the “Dublin II” regulation [Council Regulation (EC) no 343/2003 of 18 February 2003] was to identify as quickly as possible the Member State responsible for an asylum application and to prevent abuse of asylum procedures.  It laid down the criteria and mechanisms for determining an application for asylum lodged in one of the Member States by a third country national or a stateless person.  In particular it dealt with cases such as those of the present petitioners, where an individual entered one Member State and claimed asylum but left that Member State before his application had been dealt with and entered another Member State illegally.  It obliged the Member State in which the individual first claimed asylum, under certain conditions, to take back the applicant to determine his asylum application.  A decision by the second Member State to convey the applicant back to the original Member State is referred to in the regulations as a ‘transfer decision’. The Regulation was recast and replaced by “Dublin III”, regulation (EU) No 604/2013.

[13]      Article 27 of Dublin III provided an applicant for international protection (asylum) a right to an effective remedy against the decision to transfer him from one Member State to the Member State responsible for the examination of his application (being the Member State ‘taking back’ the applicant for the purposes of determination of his immigration status within the EU).  It is in the following terms:

“1. The applicant or another person as referred to in Article 18(1)(c) or (d) 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.

2.   Member States shall provide for a reasonable period of time within which the person concerned may exercise his or her right to an effective remedy pursuant to paragraph 1.

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.

5.   Member States shall ensure that the person concerned has access to legal assistance and where necessary to linguistic assistance.

6.   Member States shall ensure that legal assistance is granted on request free of charge where the person concerned cannot afford the costs involved.  Member States may provide that, as regards fees and other costs, the treatment of applicants shall not be more favourable than the treatment generally accorded to their nationals in matters pertaining to legal assistance.”

 

[14]      Dublin II came into force on 1 September 2003 and applies to requests made by Member States in respect of asylum seekers from that date.  The United Kingdom opted into Dublin II.  Dublin III came into force on 1 January 2014 and applies to requests from that date.

[15]      Article 49 of Dublin III provides that the Dublin II regulation shall continue to have effect in respect of applications for international protection submitted before 1 January 2014.  It provides:

            “’The Dublin III regulation’ shall apply to applications for international protection lodged as from [1 January 2014] and, from that date, it will apply to any request to take charge of or take back applicants, irrespective of the date on which the application was made. The Member State responsible for the examination of an application for international protection submitted before that date shall be determined in accordance with the criteria set out in Regulation (EC) No 343/2003.”  [Dublin II].

 

[16]      At the end of the regulation the following is stated:

“This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the Treaties.”

 

Policy
[17]      The Secretary of State’s published policy in relation to the operation of Judicial Reviews and Injunctions in the context of enforcement immigration matters is contained in the Home Office Enforcement Instructions and Guidance, Chapter 60 (‘the Home Office Guidance’) .  The relevant policy (as at the relevant period for these petitions) regarding the operation of the timing of removal of individuals from the United Kingdom is set out in section 2:

“Section 2: Notice of removal

 

Notice of removal will usually be given to the individual concerned in advance of their removal to ensure that the person being removed has adequate notice.  This will usually be by service of copies of the removal directions in the case.  Additionally, when notice is given to a person being removed, it must be copied to their legal representatives where the Home Office has details of any representative actively involved in the case, or where a person asks that a specified representative be sent copies.

 

Notice of removal must also be accompanied by the Immigration Factual Summary (ICD.2599).  This must include a chronology of the case history including details of whether any appeal rights were exercised and past applications for JR.  Further guidance on the Immigration Factual Summary is in section 18 of this guidance.

 

Persons being removed must be given adequate notice that removal has been scheduled.  ….

 

The ‘notice period’ is the time period between the service of removal directions on the person being removed and the time the actual removal is scheduled for.  Subject to certain exceptions described in this guidance at section 3, notice of removal must be given in accordance with the following minimum timescales:

 

  • Normal enforcement cases – minimum 72 hours (including at least two working days)

 

  • Third country cases and cases where the decision certified the claim as clearly unfounded – minimum five working days.

 

2.1 Normal enforcement cases (administrative removal and deportation)

 

When you give notice of removal to a person subject to administrative removal or deportation, you must ensure that they have had adequate opportunity to access the courts. Unless an exception applies, there are three rules to consider when calculating the notice period:

 

(i)      A minimum of 72 hours must be allowed between giving notice of removal and the removal itself.

 

(ii)     This 72 hour notification period must always include at least two working days.

 

(iii)    The last 24 hours before removal must include a working day unless the notice period already includes three working days. …

 

2.3 Third country and Non-suspensive appeal (NSA) cases

 

Non-suspensive and third country cases do not attract a statutory in-country right of appeal. When you give notice of removal to a person in these cases, you must satisfy yourself that they have the opportunity to access the courts before their departure is enforced. If notice of removal is given at the same time as the NSA or third country decisions this is likely to be their first opportunity for legal redress. A minimum of 5 working days notice must therefore be given between giving notice of removal and the removal itself.

 

As the courts are shut at weekends, you will need to give notice of removal seven days before you intend to remove the person in most third country and NSA cases.  Where you intend to remove an individual on a Saturday or a Sunday, you may, in some cases, actually need to give notice of removal as much as eight or nine days in advance of removal if, for any reason, you are not able to give notice of removal the preceding weekend.”

 

The policy then provides a specific table of when removal must be notified “by the latest”. 

 

[18]      The policy in relation to the operation of judicial review in Scotland is contained in section 16:

“JR in Scotland is pursued by means of a petition to the Court of Session in Edinburgh.  There are several differences in the way cases are handled in Scotland, not the least of which is the fact that there is no permission to apply stage.  If the court accepts the petition for JR they will grant First Orders.  The granting of First Orders allows the person bringing the case to serve the petition on the Office of the Advocate General (OAG). 

 

Where a person has been granted First Orders and removal directions are in place, you must ask them for a copy of the court order (interlocutor) granting First Orders and their petition for judicial review.  You must then immediately refer the case to the Litigation Unit in Scotland and Northern Ireland or OSCU (particularly when referring the case outside of normal office hours) who will provide advice on whether to defer removal.  The Litigation Unit / OSCU will normally advise to suspend removal when a person has been granted First Orders, but there are exceptions to this.

 

Where a person has been granted First Orders, you must not automatically defer removal where:

  • there has been less than three months since a JR (in Scotland or elsewhere in the UK) or statutory appeal has been concluded on the same or similar issues; or

 

  • there has been less than three months since a previous JR (in Scotland or elsewhere in the UK) or statutory appeal has been concluded and the issues being raised could reasonably have been raised at that previous JR or statutory appeal; or

 

  • The person is being removed on a charter flight.

 

This list is not exhaustive, so you must always seek advice from the Litigation Unit/OSCU when you are considering whether to defer removal.

 

If an appeal is marked (called a reclaiming motion) against a decision of the Court of Session dismissing a petition for JR that will not of itself prevent removal directions being fixed.  Removal directions can be set if, after consultation with the OAG, it is considered that an appeal is obviously lacking in merit. Generally, removal directions will not be set within the 21 days during which a reclaiming motion can be marked.  If a reclaiming motion is marked and removal directions are subsequently set, the petitioner (via their legal representatives where applicable) must be advised that in order to have their removal cancelled they must seek and obtain from the Inner House of the Court of Session an interim order suspending those removal directions.

 

If you decide that removal will not be deferred, you must immediately notify the person or his legal representatives in writing that removal will go ahead unless they obtain an interim order preventing removal.  If an interim order is granted, removal cannot take place until the petition is determined.”

 

The issues
[19]      A number of issues were raised in the course of argument over several days.  At the initial stages of the hearing I was invited to deal only with reduction of the decisions to remove the petitioners in respect of both petitions.  At the final stages of argument however, parties also raised the issue of the reduction of the Secretary of State’s certification decisions and I was invited to rule on that additional matter.  In the event of a failure on the part of the second petitioner to achieve reduction of the decision to remove him to Germany, I was invited to continue his case to determine the lawfulness of his detention and for a ruling in respect of the unlawfulness of his removal as being in breach of Article 8 of the European Convention on Human Rights.  I had also understood that the issue raised in the second petitioner’s fifth crave which sought:

“reduction of the decision to certify the decision refusing the petitioner leave to remain on Article 8 ECHR grounds as ‘clearly unfounded’”

 

would also be dealt with at a second hearing as it related to the argument that removal was unlawful on Article 8 grounds.

[20]      I was also invited by the petitioners to remit questions for a preliminary ruling from the European Court of Justice.  The questions were:

i.          Are the procedures detailed in Chapter 58 of the Rules of the Court of Session compliant with the requirements of Article 27 of the Dublin III regulation?

ii.         If not, may the Member State rely upon Dublin II regulation when dealing with a case where a “take back” request was made prior to 1 January 2014?

iii.        Whether any certification decision, as provided for in Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, is Wednesbury (Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223) unreasonable and thereby unlawful in relation to asylum cases having regard to the provisions of Articles 4.1 (d) and 27 of the Dublin III regulation?

[21]      The specific issues which I had to consider are as follows:

i.       whether there is an obligation on the United Kingdom to transpose Regulation EU 604/2013 (“Dublin III”) into its national law; 

ii.      whether, if there is an obligation on the United Kingdom to make provisions in national law which comply with the provisions of Article 27 of Dublin III, it has failed to do so;

iii.     whether the process of judicial review, as governed by Chapter 58 of the Rules of the Court of Session, meets the requirements of Article 27 of the Dublin III regulation;

iv.     esto the United Kingdom has failed to make provisions in national law complying with Article 27 of Dublin III regulation, whether the removal decisions in respect of the petitioners are necessarily unlawful;

v       esto the removal directions are unlawful, ought the court, in the exercise of its discretion, refuse to reduce said decision to remove the petitioners, there being no prejudice suffered by them;

vi.     whether the Secretary of State’s certification decisions in terms of paragraphs 4 and 5 of Part 2 of Schedule 3 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 ought to be reduced as being unreasonable, unlawful and outwith the range of reasonable decisions open to her; and

vii     in respect of the first petitioner whether, having failed to make provisions in the national law to implement Article 27 of Dublin III, the Secretary of State is entitled to rely on Article 49 of said regulation, which provides that applications for international protection lodged prior to 1 January 2014 are to be determined by the criteria set out in Dublin II.

[22]      A number of subsidiary issues were raised but, although relevant and important, were not material in my view to decisions in respect of the above mentioned issues and I propose to deal with them generally by way of comment in the course of this opinion.  They were:

i        whether the five day working rule as disclosed in the Secretary of State’s published policy was unworkable in practice;

ii       what constitutes a first suspension request;

iii      whether a decision to refuse a suspension request requires to be written;

iv      whether judicial review is amenable to resolving issues of fact;

v       whether what is provided for in the national law of Scotland in terms of judicial review procedures as set out in the Rules of Court, Chapter 58 and as supplemented by government policy contained in the Home Office Enforcement Instructions and Guidance, Chapter 60 failed to meet the requirements of being adequately accessible and sufficiently precise to enable the citizen to regulate his conduct with reasonable certainty.

 

Current practice
[23]      The current practice in cases such as those which are identified in the present petitions are that the Secretary of State issues removal directions on the individual while intimating the date on which removal is to take place.  In accordance with her published policy contained in Chapter 60 of the Home Office Guidance, adequate notice requires to be given to the subject of those removal directions.  This policy states that a minimum period of five working days’ notice is required although in most cases at least eight to nine days, including weekends, is given.  Once removal directions are issued the individual affected raises a petition for judicial review.  First orders are sought and if granted by the Lord Ordinary an interlocutor is issued to the petitioner.  A certified copy interlocutor is then sent to an office of the Secretary of State and on receipt of this the removal directions will normally be cancelled.  Interim suspension is not sought in all cases but where it is and a caveat is triggered then a hearing requires to be fixed.  From the information provided I understood that there have, in fact, been no applications for interim suspension in respect of these types of petitions.  In all cases, removal directions have been cancelled on the intimation to the Secretary of State of the granting of first orders.  There were, however, four cases in which, despite first orders having been granted, the petitioners were removed.  Removal appears to have been due to errors in failures of proper intimation to the Secretary of State.  There was a dispute as to fault in relation to proper intimation.  In any event all, when requested, were returned to the United Kingdom after the error was discovered.

[24]      While I did not hear any detailed submissions as to what occurs in any other jurisdiction, in response to a question from me, I was advised by Mr Pirie that in England and Wales cases such as those of the petitioners are dealt with by judicial review albeit heard by the Upper Tribunal rather than the Administrative Court.  There had been only one application for judicial review on the ground of a breach of Article 27 of Dublin III, namely, (Simaei) v Secretary of State for the Home Department.  The point taken in that case however was not the same as taken in the present petition.  It was clear however, on the limited information available, that the Secretary of State operated a similar policy in England and Wales as that in Scotland, namely, giving an applicant at least five working days’ notice of the removal date.  There was no suggestion that any other Member State which had opted into the “Dublin” scheme had any difficulty with the interpretation of Article 27.

 

Submissions for petitioners
[25]      The principal argument on behalf of the petitioners was that the United Kingdom had failed in its obligations to “transpose” the Dublin III regulation into domestic law and secondly that the judicial review procedures which apply in Scotland in cases such as those of the petitioners do not meet all of the requirements of Article 27 of Dublin III.  The argument was presented in terms of Dublin III although it was accepted that regulation did not apply to the first petitioner.  A separate argument was presented on his behalf, namely, that having failed to transpose Dublin III, the Secretary of State was not entitled to rely on Article 49 of Dublin III which provides that the Dublin II regulation shall continue to have effect in respect of applications for international protection submitted before 1 January 2014.

[26]      The petitioners assert that in terms of Article 27, each individual has a personal right to an appeal or review on fact and law against his transfer decision and this appeal or review must be heard before a court or tribunal (27.1).  Further, Article 27.3 provides that such individuals are entitled to remain within the Member State pending determination of that appeal or review or pending a hearing on a first suspension request.  Each Member State is entitled to opt for the method by which any transfer decision is to be suspended pending a decision on the appeal or review or pending a hearing on a first suspension request.

[27]      Since the implementation of Dublin III there had been no amendments to the domestic law in Scotland.  No new procedures have been introduced.  There have been no amendments to the Rules of Court, Chapter 58 (Application for Judicial Review) and accordingly, having regard to the terms of Article 27, the United Kingdom had not fulfilled its obligations as set out in that Article.

[28]      Senior counsel for the petitioners, Mr Dewar, submitted that the existing law in Scotland does not meet requirements of that Article.  He suggested that it was not entirely clear which option has been adopted by the United Kingdom and because of that, when presented with a request for first orders a Lord Ordinary would not, under our present law know which option applied.  Mr Dewar appeared prepared to concede however that the one which was “closest to what we have” in Scotland was option “(c)” in Article 27.3. Notwithstanding that concession it was submitted that, whichever option in terms of that Article was selected by a Member State, all, including option (c), implied automatic suspension of the transfer decision to enable an applicant to exercise his right to appeal or review the transfer decision.  The Secretary of State does not presently have any policy of suspending removal pending the determination of an application for judicial review.  In relation to option (c) of Article 27, Member States required to ensure that an effective remedy was in place to suspend the transfer decision until a decision on suspension had been taken.  Such a decision required to be taken within a reasonable period of time after a close and rigorous scrutiny of the suspension request.  In addition, any decision not to suspend implementation of the transfer decision had to be stated and reasons given.  Those reasons required to be provided in writing.  There was a dissonance between what is required by Article 27 and the provisions regulating judicial review as set out in Chapter 58.

[29]      Senior counsel also submitted that the policy issued by the Secretary of State and relied upon by the respondent was unpublished, inaccessible and not known with certainty.  He referred in particular to cases of Dougoz v Greece No 4097/98 (2002) 34 EHRR 61 at paragraph 55;  Amuur v France [1996] 22 EHRR 533;  The Sunday Times v UK (1979) 2 EHRR 245, para 49; R (Begbie) v Secretary of State for Education and Employment [2000] 1 WLR 1115 at 1132;  R (Salih) v Secretary of State for the Home Department 2003 EWHC 2273;  and R (Nadarajah) v Secretary of State for the Home Department 2003 EWCA Civ 1768, paras 64-67.  It was suggested that the policy as contained in section 16 of Chapter 60 of the Home Office Guidance was unknown to the petitioners until the present petitions were raised.  Although the issue of the Secretary of State’s policy being unpublished was argued, as far as I could determine, by the end of submissions, it was not insisted upon as it became clear that the policy was published and in the public domain and certainly known or ought to have been known to practitioners.  Counsel for the respondent advised me that the policy had been published on the internet since 2006.  It had not been updated.  Accordingly I do not propose to set out the arguments on this particular point more fully.  However the argument with regard to lack of clarity in the law and to its inaccessibility was advanced throughout the petitioners’ submissions in respect of how the policy of the Secretary of State was operated and how judicial review procedures had, in effect, to be manipulated to give effect to Article 27.

[30]      The next point raised by the petitioners was the issue of the “five day working rule” as set out in section 2, Chapter 60 of the Secretary of State’s published policy.  Mr Dewar submitted that judicial review procedures in Scotland make it not only excessively difficult but impossible to comply with the time limit of five working days between notice of removal and the removal date.  It was an arbitrary period selected by the Secretary of State.  It would be extremely difficult to obtain a court order suspending the removal directions in that time.  Those who are unrepresented would find it impossible to work within five working days.  For those represented, they need to instruct a solicitor, obtain emergency legal aid, instruct counsel and then obtain a relevant order.  People who are in custody may be moved between detention centres at “the will of the Secretary of State”.  Additional problems arose where applicants were unable to speak English or had limited English.  Interpreters were required.  I was provided with a table showing 21 petitioners in similar cases, including the present petitioners, of those who had lodged petitions between 2013 and 2014, after having been served with removal directions.

Case

Removal directions issued on

Date of Removal

First Orders granted on

Court of Session reference

M M

10.03.14

24.03.14

21.03.14

P276/13

H D

14.03.14

24.03.14

21.03.14

P277/14

Syed A

12.03.14

24.03.14

20.03.14

P264/14

PV second petitioner

08.02.14

24.02.14

21.02.14

P181/14

S A first petitioner

11.02.14

20.02.14

19.02.14

P171/14

M A

06.03.14

17.03.14

14.03.14

P248/14

A K

14.02.14

26.02.14

25.02.14

P190/14

D G

17.02.14

27.02.14

26.02.14

P193/14

T T

19.02.14

03.03.14

28.02.14

P204/14

L S

05.12.13

17.12.13

14.12.13

P1306/13

X Y

21.05.13

06.06.13

05.06.13

P539/13

Y A

13.12.13

08.01.14

07.01.14

P8/14

A E

07.11.13

19.11.13

15.11.13

P1166/13

I I

22.10.13

12.11.13

11.11.13

P1148/13

E D

26.03.14

04.04.14

01.04.14

P311/14

B Al-J

11.03.14

31.03.14 but deferred on 28.03.14

10.04.14 redrafted petition granted FO

P348/14

V B

24.03.14

04.04.14

03.04.14

P324/14

N K

Intention to remove on 10.03.14

No removal date

16.04.14

P366/14

H K

Intention to remove issued on 20.02.14

No removal date

15.04.14

P365/14

A B

Intention to remove issued on 1.04.14

No removal date

15.04.14

P364/14

Y M

11.04.14

28.04.14

25.04.14

P409/14

 

[31]       By reference to this table it was submitted that not one of these cases had achieved first orders within five days, far less interim suspension, although in none of these cases has interim suspension been requested.  Each of the petitioners had been detained and none were released until first orders had been obtained.  In the case of Mr Syed A I was advised that, despite the petitioner having obtained first orders and despite the Secretary of State’s published policy, he had been removed.  Had there been an automatic suspension of the transfer decision in terms of Article 27.3 Mr Syed A would not have been removed.  At the very least there ought to have been an automatic suspension on the granting of first orders.  Accordingly the evidence pointed to the time limit provided in the policy as being “unworkable, unpublished and accordingly unlawful”.  In practice it was impossible to meet the five day time limit, although impossibility was not the appropriate test.  The test was whether meeting a requirement is excessively difficult (Preston v Wolverhampton NHS Trust [2001] 2 AC 415 and Bulicke v Deutsche Büro Service GmbH [2011] 1 CMLR 9, paragraph 25).  It should be noted that Mr Syed A was returned to the United Kingdom.

[32]      Details of three additional cases were provided at the continuation of this hearing in November 2014.  The first of these related to the case of a citizen of Albania, FK, upon whom removal directions were served on Monday 9 June 2014 for her removal and that of her 10 month old child.  She was to be removed to Belgium on 12 June 2014.  It was submitted that this was in breach of the Secretary of State’s “five working day” policy and had it not been for the “exceptionally swift actions of her agents” she would have been removed.  The second case was in relation to removal of Mr G, a Turkish national, to Sweden.  The circumstances of that case, it was suggested, were on all fours with that of Mr Syed A.  The third was SAR where an error by solicitors resulted in his removal.  At the by order hearing on 25 February, I was advised of the circumstances of a further case, HS.  He had been removed to Hungary after a first order was granted by this court and despite the interlocutor having been intimated to the Secretary of State.  HS was however returned to the United Kingdom the same day as his removal.  It was submitted that having regard to these instances of removal after first orders or in situations that are contrary to the published policy it cannot be said that the United Kingdom operates a system compliant with Article 27.

[33]      The petitioners assert that in Scots law there is currently no specific provision to suspend removal pending “a close and rigorous scrutiny” of the suspension request.  In order to fulfil the requirements of the regulation, there required to be automatic suspension of removal directions.  I was not clear however from the argument how that ought to operate standing the terms of paragraph 27.3(c).  I presume what was meant was that, as soon as removal directions were issued, they had, by some mechanism, to be immediately suspended until a court decided otherwise.  However, assuming that approach was incorrect, I was addressed as to what was or what was not a “first suspension request” [Article 27.3(c)].  It was suggested that it was not clear from the policy of the Secretary of State what would or would not be treated as a suspension request or how that would operate in the context of their policy.  It was submitted that the granting of first orders when removal directions had been issued did not necessarily mean that removal directions would be suspended or cancelled because there were exceptions as disclosed in section 16 of Chapter 60 of the Home Office Guidance manual.  Accordingly seeking a first order in a petition for judicial review did not and could not amount to a suspension request.  It was only when the first order was served on the Secretary of State that a cancellation of the removal directions would be instructed.  This applied in most, but not all cases, having regard to the exceptions.  This did not “ensure… an effective remedy ….by suspending the transfer until a decision on the first suspension request is taken.” It was submitted that the provisions of the Rules of Court in relation to judicial review and in particular Rule 58.7(2) which stated, “The Lord Ordinary may grant, but may not refuse to grant, any order specified in paragraph [1] without having heard counsel or other person having a right of audience instructed by the petitioner” meant that the Lord Ordinary would be entitled to refuse first orders, albeit after a hearing.  The granting of first orders was permissive and not obligatory and was therefore not a suspension request in terms of Article 27.  The granting of an interim order suspending a transfer decision, if requested, is also discretionary.  The provisions relating to judicial review and as operated in terms of the Secretary of State’s policy was not in keeping with Article 27.  In any event there was no legal provision in the national law to suspend removal in order to permit a close and rigorous scrutiny of the suspension request.

[34]      Anticipating the respondent’s argument that the regulation had direct effect in terms of section 2 of the 1972 Act, Mr Dewar submitted that the law was unclear because the effect of the respondent’s contention that Article 27 had direct effect, which was not disputed, was that the court would be obliged to grant first orders or interim suspension of the removal directions, if requested.  Accordingly, he submitted, “the Rules of Court say one thing but the practice of the court would be not to do that one thing”.  It was submitted that this was not published and accessible law in respect of this court and was not acceptable.  The procedure set out by the respondent “is in contradiction with the carefully crafted procedures of this court in respect of judicial review.”

[35]      Mr Dewar submitted that the duty to “provide in ..... national law” procedures which fulfil its obligations under Article 27 did not fall on the court or on the Secretary of State to do so on a voluntary, discretionary basis.  The duty was on the Member State as a whole.  A number of mechanisms that might be used to achieve what was required.  There might be an amendment to the Immigration (European Economic Area) Regulations 2006 to permit such appeals to be considered by an immigration judge in the expert and specialist tribunal schema;  there might be a new tribunal established to consider such appeals;  or there might be alterations of the Court of Session Rules.  It was not being suggested by the petitioners that judicial review could not be a compliant mechanism, only that it is not currently compliant.  It was not for the petitioner to identify which particular mechanisms is/are to be used by the Member State to comply with its obligations.  It was submitted that the respondent was attempting to “shoe horn” what is required in Article 27 into the rules and practice of this court.

[36]      In response to a question from me as to what, in the petitioners’ view, would amount to a first suspension request, Mr Dewar suggested that it should be when petitions such as the present were “lodged” in court.  Thereafter there ought to be a system in place to “ensure an automatic suspension” at that point.  On further enquiry as to how the Secretary of State would be made aware of the lodging of the petition it was suggested that the onus ought to be on Court of Session staff to inform the Secretary of State that a petition had been lodged.  Such a system would lessen the potential for error. 

[37]      Further submissions were made in respect of two further matters:  the need for written reasons to be provided where a decision was made by the court not to suspend implementation of the transfer decision (Article 27.3(c));  and the question as to whether judicial review was amenable to resolving issues of fact.  On the first matter it was suggested, in short, that where the Article stated “a decision … shall state the reasons on which it is based”, it was clear from those words that the decision had a separate existence and therefore “must be in writing”.  It was submitted that in this court it is not the practice generally to give written decisions.  (I presume that Mr Dewar was referring to cases in which judges provide ex tempore decisions.)  Only when there was a reclaiming motion would a Lord Ordinary be requested to write a note.  That was insufficient to fulfil the provisions of Article 27 and was a further example of “inaccessible and unpublished law”.  Secondly, it was submitted that judicial review is not amenable to resolving issues of fact.  It was suggested that the issue of fact finding by way of judicial review was not a question of principle but one of practicality and it was impractical to have cases such as the present ones aired in judicial review proceedings in the Court of Session.  Immigration judges were the specialist and expert in these areas and that these matters should be dealt with in that tribunal format.

[38]      Finally I heard submissions in respect of the certification decisions but I shall deal with these under a separate heading.  I should perhaps highlight at this stage that no separate argument on the unlawfulness or unreasonableness of the removal directions was presented in this case other than in the context of a failure to implement Article 27 of the Dublin III regulation.

 

Submission in relation to the first petitioner
[39]      It was submitted that having failed to make provisions in the national law to implement Article 27 the respondent was not entitled to rely on Article 49 of Dublin III which kept alive the provisions of Dublin II in respect of the first petitioner’s removal.  Reference was made to the case of El Dridi, alias Soufi Karim - Case C-61/11PPU, [2011] 3 CMLR 6 in which the court had held that a Member State may not seek to restrict the scope of EU provisions unless and until it had complied with its own obligations to transpose those provisions into its domestic law.  As I understood the respondent’s response to this particular submission it was agreed in principle.  It was not agreed however that the United Kingdom had actually failed in its responsibilities to any extent.

 

Submissions by respondent
[40]      The respondent’s counsel presented the following separate propositions:  (i) There was no obligation on the United Kingdom to make provisions in national law that comply with the provisions of Article 27 of Dublin III;  (ii) the United Kingdom has made provisions in national law that comply with the provisions of the Article;  (iii)  esto the United Kingdom has failed to make provisions in national law which comply with the provisions of Article 27, it is not a consequence of that failure that the removal decisions are unlawful;  (iv) esto the removal decisions are unlawful because the United Kingdom has failed to make provisions in national law that comply with Article 27 of Dublin III, the court ought to refuse to reduce them in the exercise of its discretion because the petitioners have suffered no prejudice as a result of the failure.

[41]      Mr Pirie relied upon a number of the principles of European Union Law, the first being its primacy.  Reference was made to section 2 of the European Communities Act 1972 (the 1972 Act) and paragraph 16 of Autologic Holdings Plc v Inland Revenue Commissioners [2006] 1 AC 118.  There was no obligation on the United Kingdom to transpose Dublin III into national law.  Dublin III is a regulation and accordingly, in terms of Article 288 of the Treaty on the Functioning of the European Union, is “binding in its entirety and directly applicable in” the United Kingdom.  At the end of the Dublin III regulation it concludes with the words:

“This Regulation shall be binding in its entirety and directly applicable in the Member States in accordance with the treaties.”

 

In Fratelli Variola SpA v Amministrazione Italiana Delle Finanze [1973] ECR 981, paragraph 10 the court stated:

“The direct application of a regulation means that its entry into force and its application in favour of or against those subject to it are independent of any measure of reception into national law.”

 

Mr Pirie compared the position of directives which “must be implemented by appropriate implementing measures carried out by the Member States” (Commission v Belgium [1980] ECR 1473 at paragraph 12).  He submitted that to the extent that the United Kingdom has any obligation to make provision in national law for the obligations set out in Article 27 it did not need to create new laws to fulfil that obligation.  An analogy was drawn with the law on directives by reference to the case of Commission v Italy C-456/03 at paragraph 51 which stated:

“While it is therefore essential that the legal situation resulting from national implementing measures is sufficiently precise and clear to enable the individuals concerned to know the extent of their rights and obligations, it is none the less the case that, according to the very words of the third paragraph of Article 249 EC, Member States may choose the form and methods for implementing directives which best ensure the result to be achieved by the directives, and that provision shows that the transposition of a directive into national law does not necessarily require legislative action in each Member State. The Court has thus repeatedly held that it is not always necessary formally to enact the requirements of a directive in a specific express legal provision, since the general legal context may be sufficient for implementation of a directive, depending on its content. In particular, the existence of general principles of constitutional or administrative law may render superfluous transposition by specific legislative or regulatory measures provided, however, that those principles actually ensure the full application of the directive by the national authorities and that, where the relevant provision of the directive seeks to create rights for individuals, the legal situation arising from those principles is sufficiently precise and clear and that the persons concerned are put in a position to know the full extent of their rights and, where appropriate, to be able to rely on them before the national courts.”

 

[42]      In Scotland, judicial review makes the creation of new legal provisions superfluous.  The authorities on the scope and nature of judicial review have established that, taken with the principles of constitutional and administrative law in the common law and the 1972 Act, judicial review is a procedure by which a person can exercise his right under Article 27 to an effective remedy:

“The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument.”

 

(West v Secretary of State for Scotland 1992 SC 385 at 412-413 and Axa General Insurance Co Ltd v Lord Advocate 2012 SC (UKSC) 122 at paragraph 44.)  The Secretary of State issued removal directions in exercise of the power conferred under section 10 of the 1999 Act, accordingly those decisions and any removal directions that the Secretary of State made to give effect to them are within the supervisory jurisdiction of this court.

[43]      Mr Pirie turned to the question of the suspension of the transfer decision until a decision on the first suspension request is taken.  While Article 27.3(c) provides:

“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”

 

Mr Pirie adapted these words to read:

“Member States shall ensure that an effective remedy is in place by suspending the transfer until the decision on the application for suspension ad interim is taken”.

 

He submitted that that does not prescribe the procedure or legal mechanism by which the transfer must be suspended.  Whether the petitioners’ assertion that the law of Scotland does not provide for that right is correct ought to make no practical difference because the Secretary of State has a published policy on when she will cancel removal directions, namely, after the granting of the first orders in judicial review.  The respondent had checked records from July 2012 to date and there had been no application for suspension ad interim in any case where the Secretary of State had decided to remove a person to a country which had accepted responsibility under Dublin II or Dublin III for the examination of his asylum application.  An application for interim suspension of the transfer decision is available under judicial review.  The procedures as currently operated by judicial review taken together with the Secretary of State’s policy as disclosed in the Home Office Guidance, fulfil the requirements in terms of Article 27.3(c).  Article 27.3(c) does not require that the transfer is suspended the instant the “first suspension request” is made.  It provides for suspension as a means of “ensuring that an effective remedy is in place” rather than as an end itself.  That suggests that the time by which the act of suspension must take place is fixed by reference to its ability to provide an effective remedy.  The act need not be instant for there to be an effective remedy.  There will be an effective remedy if the act takes place before the transfer.  That is what currently happens in the procedure presently adopted.  The Article does not insist that it is a court which requires to ensure suspension of the transfer until a decision on the first suspension request is taken.  Each Member State is entitled to have its own procedures which may be administrative arrangements to ensure that an effective remedy is in place.

[44]      The procedures in Scotland by virtue of the policy forbid the removal to a Member State that has accepted responsibility under Dublin III for at least five working days’ notice.  It is ample time for a petitioner to apply for an order for suspension ad interim from the court.  It is, in terms of the Article, “a reasonable period of time”.  Such applications require to be dealt with rapidly.  The court is familiar with applications for emergency orders and can sit out of hours and at short notice.  An application for suspension ad interim brought within the period of notice amounts to a suspension of the transfer within the meaning of Article 27.3(c).  The Secretary of State is prohibited in terms of her policy from removing an applicant prior to the expiry of the five working days.  (Secretary of State for the Home Department v Rahman [2011] EWCA Civ 814 at paragraph 42; DM v The Secretary of State for the Home Department [2014] CSIH 29 at paragraph 19.)  That period allows the petitioner to apply for interim suspension from a court.  Accordingly the procedure and legal mechanisms described do not make the rights under Article 27.3(c) impossible in practice to exercise. 

[45]      The respondent’s contention is that the application for first orders does not of itself suspend the transfer decision.  The granting of first orders provides the petitioner the opportunity to request the Secretary of State to suspend the transfer in terms of Article 27.4 which provides that a competent authority:

“may decide, acting ex officio, to suspend the implementation of the transfer decision pending the outcome of the appeal or review.”

 

This is where the policy of the Secretary of State comes into effect.  If the petitioner does not wish to rely on the policy he has the ordinary legal remedy by applying for interim suspension from the court.  The United Kingdom has fulfilled its obligations in terms of Article 27.

[46]      In addressing the table of cases Mr Pirie provided me with the following facts.  In the case of Syed A, intimation of first orders was received at a point when it was too late to cancel the removal directions.  That was not the fault of the Secretary of State.  In the case of FK the respondent did not accept that the proposed removal of FK and her child within five days of the removal directions being set was a breach of the five working day notice period since this case fell within one of the exceptions as referred to in section 3.1.2 of Chapter 60 of the Enforcement Instructions and Guidance (Process no 7/3).  In any event FK was able to obtain first orders within two days of removal directions being set, accordingly it belies the petitioners’ assertion that it is excessively difficult and, in practice, impossible to obtain first orders within five days.  In the case of Mr G, first orders were obtained by his solicitors but they faxed a certified copy of the interlocutor to the wrong airport and no intimation was made to the Secretary of State.  In respect of SAR, removal directions were served 10 days before the removal date.  His flight was due to leave at 6.25am on that day.  On the ninth day first orders were obtained.  A fax was sent to a number of the Secretary of State’s office which is used only between 9am and 5pm.  (I was led to believe that a different fax number was available for out of hours’ communications.)  The fax arrived at 4.25pm but the wrong interlocutor was attached to the fax.  By the time the issue was investigated and resolved SAR had been removed.  The error was however corrected as SAR was returned to the United Kingdom on the instructions of the Secretary of State.  In the case of HS, removal directions were intimated to him on 25 November and removal to Hungary was scheduled for 3 December 2014.  First orders were obtained on 2 December.  There was a dispute as to whether the interlocutor granting first orders had been properly intimated to the Home Office.  It is not necessary for the purpose of this opinion to detail all of the information I was provided in relation to this, partly because it was unclear precisely what had occurred.  The respondent however did not accept that there was any error on the part of the Secretary of State.  In any event as soon as there was a realisation that first orders had been granted, HS was returned to the United Kingdom.  If there had been any error on the part of the Secretary of State, which was not accepted, it was an aberration.  All of these cases revealed examples of human error and not a failure in the system.  These were isolated incidents and are not a basis for concluding that the law is inadequate.  No system can be expected to be perfect.  Aberrations will occur.  The United Kingdom has fulfilled its obligations in terms of Article 27.3 (c) in respect that asylum applicants have the opportunity to request, within a reasonable time, a court to suspend implementation of a transfer decision pending the applicant’s appeal or review of that transfer decision.

[47]      It was submitted also that the 1972 Act provides for the rights conferred in the second sentence of Article 27.3(c) to be available without transposition by virtue of the direct application of the regulation.  To the extent that in their terms or operation the Rules of Court in Chapter 58 are necessarily inconsistent with Article 27.3, then, by virtue of the primacy of EU law, they fell to be disapplied or construed or operated in a way consistent with the obligations imposed by Article 27.3.  In addition to the extent that the court’s ordinary procedural rules might require it to be satisfied that there is a prima facie case and that the balance of convenience favours it, and to honour any caveat, it must disapply those rules.  The court’s duty to apply EU law over any national law which may be inconsistent with EU law is well established (Road Sense v Scottish Ministers 2011 SLT 889).  When the court grants an order such as suspension ad interim it will order intimation on the Secretary of State and on receipt of that intimation the Secretary of State cannot under national law remove the petitioner until the Secretary of State has successfully sought recall of the suspension ad interim.

[48]      Mr Pirie addressed some of the specific criticisms of judicial review procedures in the context of these types of cases, the first of which related to the “amenability” of judicial review procedures to consider issues of fact.  It was submitted that judicial review is determined by the same judges who determine issues of fact in other types of civil proceedings while in the same court.  Chapter 58 of the Rules of Court is flexible, for instance, RC 58.4(c) and 58.9(2)(b)(ix) which provide that the court may make such order in relation to procedure as it thinks fit or order a second hearing on such issues as shall be specified by the Lord Ordinary.  The grounds of judicial review are not closed and are capable of being adapted in accordance with the development of administrative law and can vary from case to case (Axa General Insurance Co Ltd cit supra at paragraph 58 and Kennedy v The Charity Commission [2014] UKSC 20 at paragraph 51).  The resolution of factual disputes may not often arise in judicial review proceedings but when it does it does not “create any particular conceptual or procedural problems” (Trim v North Dorset District Council [2011] 1 WLR 1901 at paragraphs 24 and 25; Kennedy at paragraph 54).  I was referred to a number of cases in which a determination of factual questions on evidence was required in judicial review procedure.  These included the Scottish cases of Napier v Scottish Ministers 2005 SC 229 and Greens v Scottish Ministers 2011 SLT 549.  Mr Pirie submitted that even if judicial review procedures were not in principle amenable to reviewing issues of fact, the court would have to adapt those procedures to the extent that any review of removal decisions is required by Article 27.  Currently the only jurisdiction in Scotland under which removal decisions fall to be considered is the supervisory jurisdiction of the Court of Session.  He submitted that it follows from the primacy of EU law that judicial review can and must be adapted to the extent necessary for the domestic legal order to comply with Article 27 (T‑Mobile (UK) Ltd v Office of Communications [2009] 1 WLR 1565, paragraph 29).

[49]      In relation to the petitioners’ assertion that there was a requirement for written reasons to be issued in cases where a Lord Ordinary refused to suspend implementation of the transfer decision, the respondent’s position was that written reasons were not required in terms of Article 27.3(c).  Applying the principle of national procedural autonomy, Article 27.3(c) is satisfied as long as reasons are given.  These could be oral and this would not make the right to reasons under Article 27.3(c) impossible to achieve in practice.

[50]      Further submissions were made and where necessary I shall deal with these separately in the course of this opinion.  Although important they were not material to my decision.  I have also not found it necessary to refer to all of the authorities contained within the written submissions.  I would wish to record that those written submissions, supplemented by oral argument, were extremely helpful.

 

Discussion regarding Article 27 of Dublin III
[51]      Article 27 of Dublin III provides certain remedies for “third-country nationals” or stateless persons who are not members of the European Union and who apply for asylum in a Member State in situations where they have previously entered and sought asylum in another Member State and where the Member State in which they ultimately seek asylum chooses to invoke the provisions of Dublin III and return or transfer the applicant back to the Member State in which the applicant first sought asylum (“the Member State responsible”).  The remedy allows that applicant the right to appeal or review that “transfer decision”.  More particularly Article 27.1 provides that such applicants “shall have” an “effective remedy in the form of an appeal or review, in fact and in law… before a court or tribunal” against such transfer decisions.  Paragraph 2 of Article 27 obliges Member States to provide a reasonable period of time to permit applicants to exercise the right to appeal or review the transfer decision.  Pending that appeal or review, the Article, at 27.3, provides certain rights to remain and/or to apply for suspension of the transfer decision while the appeal or review is considered.  It appeared to be agreed between parties that Article 27 sets out at 27.3 three options for Member States to implement the obligation to provide in national law a procedure by which the asylum applicant can remain or apply to remain in the country pending the review or appeal of the transfer decision.  The precise meaning of the Article 27.3 was not agreed however.  As I interpret that Article, option “(a)” confers on the asylum applicant a right to remain in the Member State pending the outcome of his appeal or review.  Option “(b)” provides for an automatic suspension of the transfer decision until the lapse of a “reasonable period” during which a court or tribunal “after a close and rigorous scrutiny shall have taken a decision whether to grant suspensive effect to an appeal or review”.  Option “(c)” requires that an asylum applicant has  “an opportunity to request within a reasonable period of time a court of tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal or review.” It was in respect of both Article 27.1 but more particularly Article 27.3 that it was submitted that the use of the judicial review procedure in Scotland fails in a number of respects to fulfil the obligations as set out in the regulation.  So far as 27.1 was concerned, and as far as I could determine, the only criticism appeared to be that judicial review procedure is not amenable to determining issues of fact.  The main thrust of the argument was directed towards the failure to specify in national law which option had been adopted by the United Kingdom and a failure to provide procedures to implement one of the options listed in Article 27.3.

[52]      While not wishing to imply any criticism of the lengthy submissions as to the meaning of Article 27.3 and as to how it should be read, I am of the view that the language used is quite clear.  It requires a Member State to provide in its national law a method by which an asylum seeker can remain in the country for a period to enable him to challenge the decision to transfer him to the Member State responsible for his asylum application.  That can be by providing a right to remain pending appeal or review, automatic suspension of the transfer decision or an opportunity to request suspension of the transfer decision pending the appeal or review.

[53]      Having regard to all of the information placed before me as to the current practice I am of the view that the option which operates in Scotland is option “(c)”.  There is nothing in our national law whether by statute, regulation or government policy which gives a right to remain in the United Kingdom pending the outcome of the review or appeal of the transfer decision (option “(a)”).  There is nothing in our law or government policy which gives the applicant an automatic suspension of the transfer decision pending a decision by a court or tribunal on whether to grant suspension or not (option “(b)”).  As I trust will become clear, it is obvious that the United Kingdom is operating under option “(c)” because judicial review procedures, taken together with the policies of the Secretary of State as set down in the Home Office Guidance, do provide a mechanism for an applicant to exercise his or her rights in terms of the Article, both in respect of an appeal or review of the transfer decision and in respect of an opportunity to apply for suspension of the transfer decision pending such an appeal or review.

[54]      I did not follow the argument of the petitioners to the effect that when a petition for first orders in judicial review is presented to the Lord Ordinary it would not be known or apparent, without specific additional provisions in the national law, which option was applicable in Scotland.  If it is not obvious from the practices and procedures which currently operate, petitions for judicial review ought to make clear, as most do, which statutory provisions and regulations apply to the decision of which review is sought.  If government policies are relevant in the context of such decisions, as in the present case, these policies or the relevant parts of them ought to be stated or referred to.  If the petition is not sufficiently clear then in terms of Rule of Court 58.7(2) the Lord Ordinary would not be entitled to refuse first orders or any interim order without a hearing.  At such a hearing appropriate submissions could be made to identify the relevant option as operated in Scotland.

[55]      The first sentence of Article 27.3(c) provides that a person such as the second petitioner 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.”  This is, of course, in the context of an “appeal or review of the transfer decision” itself.  For that right to be effective, the second sentence in option “(c)” sets out, in my view, a requirement on Member States to provide a mechanism  (an “effective remedy”) to ensure that a transfer decision is delayed until a decision on a “first suspension request” is made.  That must mean allowing time for an applicant to make a request for interim suspension of his transfer decision pending his appeal or review of the transfer decision.  The applicant must have a method of applying to a court or tribunal to suspend his transfer pending a decision on his review or appeal, namely, an opportunity to make a “first suspension request” before that court or tribunal.  The third and fourth sentences provide that any decision whether to grant that “first suspension request” must be taken within a reasonable time while permitting a close and rigorous scrutiny of the suspension request and that any decision not to suspend implementation of the transfer decision, after that close and rigorous scrutiny, must be given with reasons.  I agree with the approach taken by Mr Pirie to the effect that each of these sentences creates different obligations however it is important to record, in my view, that where a Member State selects option “(c)” it must ensure that it fulfils, in some way, each of those obligations.

[56]      I do not agree with the petitioners’ contention that all three options imply automatic suspension of the transfer decision.  A simple examination of the wording of the options belies such a suggestion.  For instance, option “(b)” uses the words “automatically suspended” while option “(c)” requires that an application to suspend the transfer decision be made to a court or tribunal and envisages that the application to suspend can be refused, providing of course it is done after a close and rigorous scrutiny of that request.  While a reasonable period requires to be given to enable the person to apply for suspension, that is not the same as an automatic suspension as envisaged in option “(b)”.  If, as suggested by Mr Dewar, Article 27.3(c) implies that there is an automatic suspension, the question has to be, by what means is it activated?  It is not activated by the issue of the removal directions.  I consider that automatic suspension after the issue of removal directions could only be covered by option “(b)” and as I have indicated, I was referred to no provision or government policy which provided for or implied automatic suspension.

[57]      Option “(c)” requires there to be an “effective remedy” in place to suspend the transfer while a decision is taken by a court or tribunal to suspend the implementation of the transfer decision pending the appeal or review of that transfer decision as referred to in Article 27.1.  To engage a “first suspension request” some action has to be taken and there requires to be a procedure in place to activate the suspension request.  Mr Dewar suggested that it should be when petitions such as the present were “lodged” in court and once that was done there ought to be a system in place to “ensure an automatic suspension” with the onus placed on Court of Session staff to inform the Secretary of State that such a petition had been lodged.  Such a system would lessen the potential for error, it was submitted.  Alternatively it was argued that there ought to be automatic suspension on the granting of first orders and while Mr Dewar acknowledged that there needed to be a procedure whereby the grant was intimated to the Secretary of State in order that she knows to cancel the removal directions pending a final decision on the petition, Mr Dewar again suggested that it ought to be done by the court staff rather than simply intimated by the party seeking the orders.  That would obviate the error which occurred in the case of Mr Syed A and others.  I do not agree with that particular approach.  Any system is susceptible to errors.  They should not happen but they do.  Even if the responsibility had been on the officials of this court to advise the Secretary of State’s office of the grant of first orders that would not necessarily be foolproof.  At present, in terms of the published policy, removal directions are cancelled after the Secretary of State has received intimation of the grant of first orders by a Lord Ordinary.  So the question remains what amounts to a “first suspension request”?

[58]      In terms of option “(c)” the only proper way in my view in which an applicant can formally apply for suspension of the transfer decision pending a full hearing on his appeal or review of that transfer decision would be by an application for interim suspension under judicial review procedure.  While I acknowledge that practitioners do not in fact seek such an order, no doubt because of the Secretary of State’s published policy, it cannot be said that those seeking to review or appeal their removal have no procedure available to them to apply to suspend the transfer.  Of course the right of applicants does not end there because there requires to be an opportunity within a reasonable period of time to apply to a court for interim suspension and once that application is made there requires to be an “effective remedy” to ensure that the transfer is suspended pending a decision on the “first suspension request”, namely, interim suspension.  While an application for interim suspension can be dealt with quickly the subject of removal requires to have time to prepare and lodge the petition.  It is clear from the Secretary of State’s policy that a period of notice requires to be given during which time the subject of the transfer decision cannot be removed.  As is agreed by parties the Secretary of State would not be permitted to act contrary to the published policy.  In my view this provides both an opportunity to request interim suspension and it provides an “effective remedy” because the policy allows a minimum of five working days to enable applicants to take any necessary action, if so wished, to apply to a court or tribunal for interim suspension of the transfer decision.  Thereafter it will be for the court to decide whether or not to grant the first suspension request.

[59]      The policy of the Secretary of State also provides that on the granting of and intimation of first orders, removal will be suspended.  It is clear from that policy [section 16] that there is no requirement to seek an order for interim suspension by the court.  However there are limited exceptions to that part of the policy.  They are as follows:

“Where a person has been granted First Orders, you must not automatically defer removal where:

 

  • there has been less than three months since a JR (in Scotland or elsewhere in the UK) or statutory appeal has been concluded on the same or similar issues; or

 

  • there has been less than three months since a previous JR (in Scotland or elsewhere in the UK) or statutory appeal has been concluded and the issues being raised could reasonably have been raised at that previous JR or statutory appeal; or

 

  • The person is being removed on a charter flight.

 

This list is not exhaustive, so you must always seek advice from the Litigation Unit/OSCU when you are considering whether to defer removal.”

 

The petitioners argue that the existence of exceptions leads to the law being unclear and it also means that the rights conferred by Article 27.3(c) are not provided to those included in the exceptions.  I do not agree.  Reading further on in the policy it states:

“If you decide that removal will not be deferred, you must immediately notify the person or his legal representatives in writing that removal will go ahead unless they obtain an interim order preventing removal.  If an interim order is granted, removal cannot take place until the petition is determined.”

 

On a proper reading of this policy the effect is that, in the case of exceptions, the transfer will be delayed until the individual has an opportunity to apply for interim suspension which would, in these circumstances, have to be an emergency application and could be dealt with very quickly.

[60]      In practice the Secretary of State will cancel removal directions where first orders are granted, subject to limited exceptions which I have quoted above.  However I do not consider that the lodging of a petition for judicial review or the granting of first orders in a petition for judicial review amounts to a “first suspension request”.  In terms of the regulation a decision on a first suspension request has to be taken by a court or tribunal and that request under our current procedure in my view can only be engaged by an application for interim suspension of the transfer decision since its determination requires to be by a court or tribunal.  Clearly that is unnecessary in most cases because of the operation of the government policy.  Where the Secretary of State instructs cancellation of the removal directions after intimation of first orders there is in my view no live first suspension request to be determined.  Regulation 27.4 allows Member States to:

“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.”

 

That is precisely what the Secretary of State is doing by virtue of her policy.  The applicant remains in the United Kingdom until the petition for judicial review is determined.  He or she has achieved all he seeks to achieve pending his or her appeal or review.

[61]      The petitioners argue that in terms of the Rules of Court the Lord Ordinary could refuse interim suspension.  That is correct but under our procedures that would necessitate a hearing during which there would require to be, in terms of the regulation, a close and rigorous scrutiny of the suspension request.  The Article does not say that a first suspension request has to be granted.  Refusal is an option provided that there is a close and rigorous scrutiny of the application.

[62]      It is also argued that the Lord Ordinary could refuse first orders.  While I agree this is possible, no example of such a refusal in cases such as the petitioners was provided to me and in any event, if the Lord Ordinary was considering doing this, there would require to be a hearing and the relevant provisions, including Article 27, could be put before the court.  If petitioners in such a situation do not request interim suspension then there is in my view no first suspension request for the court to consider and providing the applicant has had an opportunity to make that suspension request there has been no breach of the regulation.

[63]      The petitioners pray in aid the fact that no new provisions or procedures were introduced in Scotland after the implementation of Dublin III and accordingly there has been a failure to transpose those regulations into our domestic law.  It was submitted that the Secretary of State had thus attempted to “shoe-horn” what is required under the regulations into the practices and procedures of this court in terms of judicial review procedures.  She had failed to provide the petitioners the remedies which the regulation obliges Member States to provide.  In response the respondent submitted, inter alia, that the regulation, having direct effect there is no obligation to transpose the provisions directly into our domestic law.  In any event judicial review procedures combined with the policies of the Secretary of State provide persons such as the petitioners all that is required of this Member State.

[64]      It is perfectly clear that the provisions of a regulation do not require to be “transposed” into domestic law.  From a proper reading of  section 2 of the 1972 Act, from the statement at the end of the Dublin III regulation and having regard to terms of Article 288 of the Treaty on the Functioning of the European Union, the provisions of Dublin III have direct effect and do not require to be “transposed”.  If indeed there was any inconsistency between national law and the regulation, which I do not accept exists, the principle is well established that EU law has primacy (Road Sense v Scottish Ministers cit supra).  I am of the view that the United Kingdom has provided all that it is required to provide to fulfil its obligations in terms of Dublin III by operation of the Secretary of State’s policy together with the availability of a process to challenge transfer decisions by means of judicial review.

[65]      The provisions regulating judicial review as contained in Chapter 58 of the Rules of Court are clear.  So also is the published policy of the Secretary of State.  If there is any inconsistency between the two, the terms of Article 27 of Dublin III are also very clear and in the event of any inconsistency, the regulation has primacy.  There is in my view no merit in the submission which asserts that what is provided for in the national law of Scotland in terms of judicial review procedures as set out in the Rules of Court, Chapter 58 and as supplemented by government policy contained in the Home Office Enforcement Instructions and Guidance, Chapter 60, has failed to meet the requirements of being adequately accessible and sufficiently precise to enable the citizen to regulate his conduct with reasonable certainty.

 

5 day working policy
[66]      There is no doubt that the 5 working day policy between the setting of removal directions and the removal date is quite a tight schedule to adhere to.  In actual fact a longer period appears to be given by the Secretary of State, as illustrated in the table provided to me.  One of the questions that I require to consider is whether this time period is reasonable.  There is no evidence or information before me that petitioners have been unable to work within the 5 working day policy, as it is currently operated.  The simple fact that the table shows that first orders were obtained after five working days does not mean that they could not have been obtained before then.  They were all obtained before the removal date.  There have been instances of removal in error but that appears more to do with human error in relation to intimation rather than the length of the time limit.  Whatever time limit is set it is inevitable that practitioners will work to that time schedule or limit and no matter what the deadline is errors are bound to occur.  That is regrettable.  But the fact that there were errors in intimating first orders to the Secretary of State does not in my view mean that the time limit is unworkable.  If petitioners are required to or choose to seek interim suspension in cases such as the present, the court is well used to dealing with emergency out-of-hours hearings such as interim interdict or interim suspension.  The fact that such hearings are inconvenient to those involved does not mean that the procedure is unworkable.  The procedure is available to relevant parties.  I can see the justification of such a tight time schedule on the basis that many if not all persons subject to removal directions will be detained in custody.  As a general principle it is important in my view that those persons, if they are to be kept in custody, should have their status determined speedily.  While I accept that five working days is a tight schedule I cannot say that it is unreasonable.

 

The amenability of judicial review in determining matters of fact
[67]      It is clear from previous cases both in England and Scotland that judicial review is capable of dealing with the hearing of evidence and determining issues of fact where necessary.  While I can accept that cases such as those under consideration in the present petitions might be more easily dealt with by some of the specialist tribunals which consider immigration and asylum cases that is not the issue I am being asked to consider.  What I am being asked to rule on is a rather stark proposition:  “Judicial review is not amenable to reviewing issues of fact.”  (Statement 11 of the first petitioner’s petition and statement 14 of the second petitioner’s).  The issue about an assessment “on fact and in law” relates to the appeal or review of the transfer decision (Article 27.1).  In my view judicial review is able to accommodate the hearing of evidence where necessary and the judges hearing these cases are well used to making determinations in both fact and law.  (For example, Napier v Scottish Ministers; Greens v Scottish Ministers; Trim v North Dorset District Council both cit supra).  So far as the decision on a first suspension request is concerned, what is required is “a close and rigorous scrutiny” [Article 27.3(c)].  That does not necessarily require the hearing of evidence at that stage although it would depend on what information was available at that time and it could imply seeking further information by way of reports, statements, affidavits or submissions.  In my view the close and rigorous scrutiny could be undertaken by the Lord Ordinary in chambers, as is done with a number of requests for interim orders.  If the Lord Ordinary is considering refusing an interim order, an opportunity must be given to parties to be heard, [RC 58.7(2)].  It cannot be said however that Judicial Review procedures are not “amenable” to determining issues of fact.

 

The requirement of written reasons
[68]      The other related issue is whether a refusal to suspend the implementation of the transfer decision requires written reasons.  In my view, while it would be desirable that written reasons are provided, it is not necessary.  Any decision to refuse a suspension request would have to be dealt with after a hearing.  Many decisions are given orally and ex tempore and providing reasons are given for that decision that is all that is required in terms of the regulation.  If the Lord Ordinary is not prepared to give an ex tempore decision then a written opinion will be issued later and this will no doubt provide reasons.  There is however nothing in my view in the regulation which requires “written reasons”.

 

Decision re Article 27
[69]      For the reasons set out in the preceding paragraphs I am of the view that the United Kingdom has not breached any of its obligations under Article 27 of Dublin III and more particularly Article 27.3.  The only argument presented to the court regarding the lawfulness of the removal directions was in relation to Dublin III.  Accordingly, that being the case, to that extent I would have repelled the second petitioner’s third plea in law.  The issues in relation to the lawfulness of his detention and the lawfulness of his removal on Article 8 grounds is still live accordingly I am unable to repel the third plea in law at this stage.

 

Decision re the first petitioner on Dublin II
[70]      It was accepted by parties that if I took the view that there was no breach of Article 27 of Dublin III by the United Kingdom there would be no merit in the submission that the respondent was not entitled to rely on Article 49 of Dublin III which kept alive the provisions of Dublin II in respect of the first petitioner’s removal.  Accordingly to that extent I repel the first part of this petitioner’s first and only plea in law.  I note that the plea refers, erroneously, to removal to Austria.

 

The issue of prejudice
[71]      Mr Pirie submitted that even if I were to take the view that the United Kingdom had failed to make provision in national law  complying with Article 27 of Dublin III, I ought not to exercise my discretion to reduce the removal directions in both petitions as no prejudice had been suffered by either petitioner.  Each has obtained all that they have requested, including an effective interim suspension of the transfer decision which occurred on the day that first orders were granted and intimated to the Secretary of State.  There had been no refusal to suspend either transfer decision accordingly there was no requirement for “written” reasons, if that was necessary, which was not accepted.  The petitioners have not been adversely affected.  Both petitioners will remain in the United Kingdom until they have exercised their right under Article 27.1.  As no prejudice has been suffered by the petitioners I was invited to exercise my discretion to refuse to reduce the decisions about which the petitioners complain.  I was referred to the cases of R (Mevagissey Parish Council) v Cornwall Council [2013] EWHC 3684 (Admin) paragraphs 73 and 76; and Walton v Scottish Ministers [2012] UKSC 44 at paragraphs 133, 135 and 138-139; and BM v SSHD 2011 SC 726.

[72]      In response Mr Dewar submitted that the cases referred to were very different from those in the present petitions.  They were both planning cases and the quashing of the grant for planning permission which was what was sought would have had major implications for a number of interests not represented in those proceedings.  In the present cases the liberty of the individual was at stake and also his removal from the United Kingdom.  No other interests other than those of the petitioners are involved.  Accordingly it was submitted that in the exercise of the court’s discretion the remedies sought in the present cases point in favour of the remedies being granted.

[73]      I disagree with the approach taken by the petitioners' senior counsel.  It seems to me that, having regard to the number of cases awaiting this decision, a number of other interests are indeed dependent on it.  I accept that the liberty of individuals is at stake, albeit for limited periods and while a decision on interim suspension of the transfer decision is taken administratively or decided by a court.  I also accept that the applicants’ removal from the United Kingdom is a serious matter.  As I trust is clear from this opinion, I have taken the view that the United Kingdom is not in breach of any of its obligations in relation to Article 27.  I would only be considering the exercise of my discretion to refuse to reduce the removal decisions if indeed I took the view that the United Kingdom was in breach of its obligations.  The petitioners have in my view suffered no prejudice whatsoever, having achieved all that they intended to achieve.  In addition the decision to remove them from the United Kingdom does not mean that their asylum applications will be extinguished as the Member State responsible will require to deal with those asylum applications.  They are being returned to what the United Kingdom considers are safe countries.  In addition, the out of country right of appeal has not been extinguished.  There is a well established principle that the court, when considering applications for judicial review, is entitled to exercise its discretion to refuse to reduce an unlawful decision for want of prejudice.  In these circumstances, had it been necessary, I would have exercised my discretion in favour of the respondent and refused to reduce the removal decisions on the grounds that no prejudice had been suffered by either petitioner.

 

Lawfulness of the removal decisions
[74]      The only other matter which I should perhaps deal with is the question of the lawfulness of the removal decisions even if judicial review does not satisfy the requirements of Article 27.  I am reluctant to express a view in a test case where I have already taken the view that the United Kingdom is not in breach of its obligations.  It is correct to state, as Mr Pirie submitted, that there was no argument on the part of the petitioners in relation to the lawfulness of the removal decisions either in fact or in law, apart from the argument in terms of Article 27.  Accordingly, having regard to the fact that I only had arguments from the respondent on this matter, had I found against the respondent in the main argument, I would have sought further submissions from the petitioners.  In view of the decision I have come to I see no need for this.

 

Certification decisions - discussion
[75]      An argument was presented in respect of both petitioners to the effect that the Secretary of State’s certification decisions in terms of paragraphs 4 and 5 of Part 2 of Schedule 3 of the Asylum and Immigration (Treatment of Claimants etc) Act 2004 ought to be reduced as being unreasonable, unlawful and outwith the range of reasonable decisions open to her.  The only paragraph relating to this in the petition for the first petitioner is statement 18 which says the following:

“In certifying an unlawful decision the Secretary of State has acted in a manner that is unlawful et separatim unreasonable as the absence of any agreement between the United Kingdom and Hungary that is applicable in United Kingdom law makes it so”.

 

There is a similar statement in the petition in relation to the second petitioner at statement 20.  The meaning of these statements is not entirely clear and I was not specifically referred to them in the course of the oral hearing.  The second petitioner’s petition continues with pleadings in relation to his detention and certification in terms of his Article 8 rights but as I have already indicated this matter was not fully argued before me.  However the pleadings in relation to the certification aspect of this case are, to say the least, sparse.  The respondent’s reply to the petitioners’ statements is contained in answer 18 of the first petitioner’s case and appears to be answered in the case of the second petitioner in answer 20 although it also contains answers to averments not contained within the petitioner’s pleadings.  In any event the response appears to be that the Secretary of State has acted within the provisions of the relevant legislation and the decisions were well within the range of reasonable decisions that were open to her.  As I understood the submissions made in the course of the May 14 diets, the issue of certification was not to be insisted upon but it was subsequently raised at the November diet in a wholly different way, necessitating the subsequent lodging of further written submissions by the respondent.  This was done by agreement.

[76]      In May, senior counsel for the petitioners submitted that the effect of the certification provisions in Part 2 of Schedule 3 of the 2004 Act mean that the petitioner or applicant cannot appeal to an immigration judge whilst remaining in the United Kingdom although it does not extinguish the right to appeal.  The basis of the argument that the certification decisions were unlawful was that the United Kingdom had failed to put in place a mechanism compliant with Article 27.  Accordingly having failed to comply with Article 27 of Dublin III a certificate removing the only potentially effective in-country right of appeal or review of the petitioners was unlawful.  This argument was based, at least in respect of the terms of the petitioners’ original written submissions at paragraph 76, on an attack on the “clearly unfounded” certificate which applies in the context of a human rights claim.  As I understand the legislation where a person intends to raise a human rights claim he may not bring an immigration appeal from within the United Kingdom if the Secretary of State certifies his claim as “clearly unfounded”.  As I have indicated this part of the argument was not insisted upon.

[77]      Mr Pirie submitted that the decisions taken by the Secretary of State, both in relation to the removal decisions and also in relation to certification, were decisions taken under statute and accordingly were lawful.  He set out a summary of the statutory framework as follows.  Section 10 of the 1999 Act gives the power to the Secretary of State to remove a person who has no leave to remain in the United Kingdom.  Section 77 of the 2002 Act provides that a person may not be removed while a person’s asylum claim is pending.  Paragraph 4 of Part 2 of Schedule 3 of the 2004 Act disapplies that provision where removal is to one of the list of safe countries listed in paragraph 2 of the same Schedule and provided that the Secretary of State certifies that in her opinion the person is not a citizen or national of that state.  This certificate is referred to as “a third country certificate”.  Paragraph 3(2) provides that each country listed:

“shall be treated as a place (a) where a person’s life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion, (b) from a which a person will not be sent to another state in contravention of his Convention rights and (c) from which a person will not be sent to another state otherwise in accordance with the Refugee Convention”.

 

There was no dispute that Hungary and Germany are on that list.  Mr Pirie submitted that these are immigration decisions, the significance of which is to give a statutory right of appeal but only after the applicant has left the United Kingdom.  Such certification decisions are not dependent on any arrangements between states and Dublin II or Dublin III.  I was referred to Macdonald’s Immigration Law & Practice, paragraph 12.148 and paragraphs 12.154 to 156.  I was also referred to Immigration Rule No. 345(1) as follows:

“345.(1)            In a case where the Secretary of State is satisfied that the conditions set out in paragraphs 4 and 5(1), 9 and 10(1), 14 and 15(1) or 17 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 are fulfilled, he will normally decline to examine the asylum application substantively and issue a certificate under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 as appropriate.

 

(2)        The Secretary of State shall not issue a certificate under Part 2, 3, 4 or 5 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, Etc) Act 2004 unless:

 

(i)         the asylum applicant has not arrived in the United Kingdom directly from the country in which he claims to fear persecution and has had an opportunity at the border or within a third country or territory to make contact with the authorities of that third country or territory in order to seek their protection, or

 

(ii)        there is other clear evidence of his admissibility to a third country or territory”.

 

Provided that she is satisfied that a case meets the criteria, the Secretary of State is under no obligation to consult the authorities of a third country or territory before the removal of an asylum application to that country or territory.  Certification is not dependent on any arrangements between Member States under Dublin II or Dublin III.  Mr Pirie had also prepared detailed submissions in relation to provisions dealing with “clearly unfounded” certificates but he took the view that those submissions related to the human rights argument to be presented by the second petitioner and ought to be dealt with at a second hearing.

[78]      At the November diet the argument in relation to certification was presented for the petitioners by junior counsel, Mr Caskie.  He submitted that while acknowledging that ex facie certification is independent of the Dublin regime, to recognise it as such is to “close one’s eyes to reality”.  The type of certification arises to reflect implementation of Dublin III.  It is largely because of Dublin III that the Secretary of State has taken the decision and exercised her power to certify.  The domestic legislation was interlinked with the Dublin regime and its development.  It was submitted that the Secretary of State is cutting off the opportunity to appeal.  Mr Caskie submitted that for instance the list of countries can be amended.  Accordingly the provisions in Part 2 are not independent of the Dublin regime.

[79]      I was referred to an exchange between the Minister for Immigration and a member of Parliament during the second delegated legislation committee’s debate on 8 November 2010.  The committee was considering the Draft Asylum (First List of Safe Countries) (Amendment) Order 2010.  The specific terms of that discussion were lodged as process no 6/6/13 in the process related to the second petitioner.  Mr Caskie made clear that he was not using the exchange as an aid to interpret the statutory provisions, but the exchange “goes directly to the reasonableness of the certification decision”.  I have to say that I had difficulty in following what Mr Caskie was asking me to take from this exchange particularly since he accepted that it could not be used as a tool to interpret a statute (Pepper v Hart 1993 AC 593).  Mr Pirie appeared to interpret Mr Caskie’s submissions as supporting the suggestion that the passage demonstrated that the legislation relating to certification was not “stand alone”.

[80]      Mr Caskie submitted that all individuals in the situation covered by these petitions have a right to appeal in the United Kingdom and that right has been provided by Dublin II and Dublin III regulations.  In his submission the Secretary of State cannot certify a case upon which Dublin III impinges.  On the basis that under the current law a person can only challenge the decision to remove him to a particular country after he has been returned to that particular country, this implies that the decision to certify is therefore unreasonable because the individual can only appeal after removal.  Such a decision is unreasonable, irrational and unlawful.

[81]      Mr Pirie submitted in response that there was no support for the proposition posed by the petitioners.  The legislation gives the Secretary of State the power to make a certification decision in terms of the Schedule of the 2004 Act.  Paragraph 4 of Part 2 of Schedule 3 to the 2004 Act sets out two criteria for the exercise of that power and neither criterion relates to Dublin III.  It was submitted that, had Parliament intended to restrict the exercise of the power to cases in which Dublin III or any of the predecessors does not apply it would have made provision to that effect in the legislation that confers it.  In any event there was no provision of Dublin III that forbade certification decisions.  The certification decision permits the Secretary of State to remove an asylum seeker from the United Kingdom to a country on the list in paragraph 2 of Part 2 of Schedule 3 without his application for asylum being determined in the United Kingdom.  There is nothing incompatible between the Secretary of State’s power to certify with Dublin III regulation because an asylum seeker has a right under Article 27.1 to “an effective remedy…against a transfer decision”. 

[82]      Mr Pirie accepted that the legislation gives the Secretary of State discretion to make certification decisions rather than requiring her to make them and that the exercise of that power is reviewable on Wednesbury grounds.  The petitioners were however wrong to assert that the certification decisions are thus unreasonable.  He relied on a combination of factors namely:  the statutory criteria for certification decisions are met;  the receiving Member States (the responsible Member States) have accepted responsibility for the petitioners’ applications for asylum and have agreed to take back the petitioners;  the petitioners do not suggest that applying the criteria of Dublin II or III any Member State other than the receiving Member State has responsibility for the determination of the petitioners’ application for asylum;  there is a significant evidential presumption that the receiving Member States will obey their international obligations under EU law and the European Convention of Human Rights in their treatment of the petitioners [R (EM) (Eritrea) v Secretary of State for the Home Department 2014 2 WLR 409 at paragraph 64];  the Secretary of State is required by statute to treat the receiving Member States as states in which the petitioners’ life and liberty are not threatened by reason of their races, religion, nationality, membership of particular social groups or political opinions and from which the petitioners will not be sent to another state in breach of their rights under the Refugee Convention or ECHR;  the petitioners have not suggested they will suffer ill-treatment in the receiving Member States; and it makes no difference to the outcome that their asylum application will be determined by the receiving Member States rather than United Kingdom [R (AR (Iran)) v Secretary of State for the Home Department 2013 EWCA Civ 778, paragraph 29].  I was also referred to Lord Stewart’s opinion in the case of WKR Ptr [2012] CSOH 188 and in particular paragraph 19 where Lord Stewart said inter alia:

“Once the German authorities had accepted UKBA’s reprise (take-back) request, the United Kingdom authorities acted in the only way in which reasonable decision makers could have acted”. 

 

Mr Pirie submitted that in the present cases, in making certification decisions and removal decisions, the Secretary of State acted in the only way in which she could have acted.

[83]      I understood the petitioners’ contention to be that it was not reasonable to make certification decisions because of Article 27 of Dublin III in the sense that it was inconsistent with that Article.  Mr Pirie’s position was that there was no such inconsistency since certification decisions only had the effect that the part of the schedule of the 2004 Act gave them.  It did not purport to prevent an asylum seeker exercising his right under Article 27.  If it did, which was not accepted, the certification decision would to that extent have no legal effect because of the principle of supremacy of EU law.  A certification decision was a necessary condition for removal without determination of the asylum seeker’s claim.  When the Secretary of State made a certification decision she would be unaware as to whether the asylum seeker would wish to exercise the right under Article 27.  It was logical for the Secretary of State to take a step that was necessary in terms of domestic legislation to effect the removal, leaving the asylum seeker to seek a remedy under Article 27 if so advised.  The existence of a right of appeal against a certification decision cannot be a sufficient condition for the Wednesbury unreasonableness of that decision.  Otherwise the decision could never lawfully be taken and the right of appeal against the decision would, contrary to the intention of the instrument that creates it, be replaced with the right not to have the decision made.

[84]      Mr Pirie then dealt with the contention by the petitioners that certification decisions were unreasonable because they were unnecessary.  I do not propose to deal with this particular aspect because, like Mr Pirie, I found the petitioners’ submission impossible to follow.  It is clear in my view that without certification in terms of paragraph 4 of Part 2 Schedule 3 of the 2004 Act removal would not be lawful because of section 77 of the 2002 Act.  Certification is accordingly necessary.

[85]      A further subsidiary argument was presented, albeit very briefly, by Mr Dewar suggesting that the certification decisions were Wednesbury unreasonable because, as required in Article 4(d) of Dublin III neither the certification decisions nor removal decisions gave notice of a right to appeal or challenge these decisions.

[86]      Article 4.1(d) provides the following:

“1        As soon as an application for international protection is lodged within the meaning of Article 20(2) in a Member State, its competent authorities shall inform the applicant of the application of this regulation and in particular of:

 

(d)        the possibility to challenge a transfer decision and where applicable to apply for a suspension of the transfer”.

 

[87]      The petitioners’ contention was that there was no proper notification of a right to challenge the transfer decision in the certification decisions and removal decisions.  The respondent conceded that in the decision letters, as intimated to the petitioners, they were not informed at that stage of the petitioners’ rights under Article 27.  However, the Article provides that such information requires to be given but it does not provide that it must be given when the certification decision or removal decision is made and intimated.  The Article provides that such notification has to be given earlier, namely, when the asylum application is submitted.  The first petitioner applied for asylum on 4 October 2013 and the certification and removal decisions were made on 12 November 2013.  In the case of the second petitioner, he applied for asylum on 13 December 2013 and the certification and removal decision were made on 21 January 2014.  There was no averment in the petition nor any suggestion that there was any evidence or any submission to the effect that the Secretary of State had failed to inform the petitioners of their rights.  Accordingly there was no foundation to this particular argument.

[88]      I agree with the respondent in regard to this subsidiary argument.  Article 4.1(d) is clear in its terms.  When an applicant for international protection lodges his or her application he or she must be told that a challenge can be made to transfer decision or that an application for suspension of that transfer decision may be made.  The Article does not state the manner in which that information should be provided and no information was placed before me to suggest that the petitioners were not told of their right to challenge the transfer decision.  The Article requires that information must be given as soon as the application for international protection is made, not later such as at the point of intimation of the transfer decision or of the intimation of the removal date.  No material was placed before me to support the contention that the United Kingdom has failed in its obligations in terms of Article 4.1(d).

 

Decision on the lawfulness of certification decisions
[89]      It is conceded by the respondent that the certification decisions are discretionary and can be subject to challenge on Wednesbury principles.  In my view there is no merit in the argument that the certification decisions in either of these petitions was unreasonable, unlawful or outwith the range of reasonable decisions open to the Secretary of State.  The Dublin regulations, including the current regulation Dublin III and its predecessor Dublin II, are concerned with the obligations of Member States inter se to determine which Member State should be responsible for an asylum application where an asylum seeker may have entered more than one country seeking protection.  It does not remove the right to have that asylum application determined.  The Secretary of State is entitled to return an asylum applicant to the Member State responsible and to refuse to consider any fresh asylum application within the United Kingdom.  Before returning the asylum seeker under the Dublin regulations however there requires to be a procedure to entitle her to do so.  That procedure is provided in my view by the provisions of Schedule 3 of the 2004 Act.  Section 77 of the 2002 Act prohibits removal while a claim for asylum is pending.  In order to engage the regime under Dublin III in terms of paragraph 3(2) of Schedule 3 the Secretary of State has the option to certify that the asylum applicant is not a national or citizen of the Member State responsible.  She is also entitled to certify that the state to which the applicant is to be removed is a state to which this part of the Act applies and the state to which this part of the Act applies shall be treated as a place where a person’s life and liberty are not to be threatened etc and the person will not be sent to another state in contravention of his Convention rights and will not be sent to another state otherwise than in accordance with the Refugee Convention.  Certain conditions require to be fulfilled before the Secretary of State can exercise the option to certify in terms of the Schedule.  Without certification the asylum applicant would not be able to be removed because of the provisions set out in section 77 of the 2002 Act.  If, as is suggested by the petitioners, the Secretary of State is not entitled to certify in any cases involved in the Dublin regime then as soon as a person to whom Dublin would normally apply enters the United Kingdom and makes an asylum application he could not effectively be removed.  That seems to me to be a wholly illogical and unreasonable argument.  The existence of certification does not mean that the asylum applicant cannot exercise his rights under Article 27.  In these circumstances I see no merit in the assertion that any decisions made in relation to certification are Wednesbury unreasonable. Accordingly I shall repel the second part of the first petitioner’s only plea in law.  In respect of the second petitioner I shall repel the third plea in law to the extent that it refers to certification.

[90]      While I do not consider the certification decisions were unreasonable I should perhaps express a view on the suggestion by the respondent that the certification provisions are entirely independent of the Dublin regime.  While I can see the force of such an approach it cannot be said that those provisions are entirely separate from the Dublin regulations.  As I understand the 2004 Act it is designed in part to deal with situations where it is deemed that a country other than the United Kingdom is best placed to consider someone’s asylum or human rights claim substantively.  Schedule 3 identifies countries which the United Kingdom accepts are safe countries and certification in terms of paragraph 4 of Schedule 3 is necessary to get round section 77 of the 2002 Act.  That provision prohibits removal from the United Kingdom while an asylum claim is pending.  There is an obvious interconnection between the Dublin regime and the provisions of the Schedule requiring certification.  To that extent, had I decided that the United Kingdom had failed to fulfil its obligations under the Dublin regulations then I would most probably have taken a different view in relation to certification decisions.

 

Questions for preliminary ruling to the European Court of Justice
[91]      I was invited by the petitioners to seek preliminary rulings in terms of Chapter 65 of the Rules of the Court of Session, from the European Court of Justice on the interpretation of Article 27, particularly Article 27.3 and also whether the certifications decisions were Wednesbury unreasonable in light of Article 4.1(d) and 27 of Dublin III.

[92]      Mr Dewar for the petitioners submitted that the issues arising in these cases may be found to be “not clear cut” and could be interpreted differently by the courts in the different Member States.  The stage at which such questions should be submitted should be as early as possible.  It was desirable however that they were taken after the national proceedings had reached the stage at which the national court is able to define the factual and legal context of the question so that the Court of Justice has available to it all the information necessary to check, where appropriate, that European Union law applies to the main proceedings.  The petitioners referred me to the case of R v Stock Exchange ex parte Else (1993) QB 534.  There it was held that a reference was appropriate where the court was unable with complete confidence to decide the matter itselfI was referred to a passage by Sir Thomas Bingham MR at page 545 as follows:

“I understand the correct approach and principle of a national court (other than a final court of appeal) to be quite clear:  if the facts had been found and the Community law issue is critical to the court’s final decision, the appropriate course is ordinarily to refer the issue to the Court of Justice unless the national court can with complete confidence resolve the issue itself.  In considering whether it can with complete confidence resolve the issue itself, the national court must be fully mindful of the differences between national and Community legislation, of the pitfalls which face a national court venturing into what may be an unfamiliar field, of the need for uniform interpretation throughout the Community and of the great advantages enjoyed by the Court of Justice in construing Community instruments.  If the national court has any real doubt, it should ordinarily refer”.

 

Sir Thomas Bingham then referred to some of the leading cases and from which he had extracted “their essential point”.  (HP Bulmer Ltd v J Bollinger S.A. (1974) Ch.401; C.I.L.F.I.T (S.r.l) v Ministry of Health (Case 283/81) [1982] ECR 3415 and the case of Reg v Pharmaceutical Society of Great Britain, Ex parte Association of Pharmaceutical Importers [1987] 3 CMLR page 951.)

[93]      Mr Dewar suggested that the present case involves Member States having new rights and obligations, the limits of which are to date undefined in any case law.

[94]      In response Mr Pirie urged me not to remit the case to the European Court of Justice.  I was referred to the Article of the Treaty on the functioning of the European Union governing references to the Court of Justice as follows:

“The Court of Justice of the European Union shall have jurisdiction to give preliminary rulings concerning

 

(a)        the interpretation of the Treaties;

 

(b)        the validity and interpretation of facts of the institutions, bodies, offices or agencies of the Union;

 

Where such a question is raised before any court or tribunal of a Member State, that court or tribunal may, if it considers that a decision on the questions necessary to enable it to give judgment, request the court to give a ruling thereon.

 

Where any such question is raised in a case pending before a court or tribunal of a Member State against whose decisions there is no judicial remedy under national law, that court or tribunal shall bring the matter before the court”.

 

Mr Pirie submitted that the Outer House of the Court of Session is not a court against whose decisions there is no judicial remedy under national law.  Accordingly any decision to refer is discretionary.  He submitted three reasons why I should not refer the questions.  Firstly, the court could answer the questions with complete confidence, even if the court were to reject the respondent’s submissions about the correct interpretation of Article 27.  Rule of Court 58.7(2) would not be incompatible with the requirements of Article 27 because, applying the principle of the primacy of the EU law, the court is required to exercise its discretion under that rule compatibly with those requirements.  Secondly, the question was not critical to the court’s decisions.  Mr Pirie then repeated in his last written submissions a number of the propositions put to me in the course of the main argument and finally he submitted that I ought not to exercise my discretion to refer as this would lead to even further delay of these petitions and those others awaiting the decision in the present case.

[95]      Clearly having made the decisions I have made I consider it unnecessary to remit these questions to the European Court of Justice for a preliminary ruling.  No information was put before me to suggest that any other Member State had difficulty in interpreting the parts of the Dublin III regulation with which I was concerned.  As may be apparent from my reasons I found the interpretation of Article 27 not unclear and I am of the view that there is no breach of the regulation.  In relation to the unreasonableness of certification decisions and the application of Wednesbury principles that is an issue with which the Court of Session is familiar and can be determined by this court.

 

Further Procedure

[96]      I shall put this case out by order to determine further procedure in respect of the outstanding matters in the case of the second petitioner.  I shall also hear parties on the question of expenses which I reserve meantime.