CK & Ors v Secretary of State for the Home Department  EWHC 2635 (Admin); (2014) PLLR 089
Queen’s Bench Division, Administrative Court, Geraldine Clark 30 July 2014
Decisions taken under the Dublin II Regulation to refuse discretion to hear an asylum claim in the UK are not susceptible to challenge by judicial review proceedings save where the enforcement of the decision would lead to inhuman or degrading treatment.
(1) This case considers the question of whether asylum seekers can bring judicial review proceedings to challenge the defendant’s refusal to exercise her discretion under the Dublin II Regulation to permit their asylum claims to be examined in the United Kingdom.
(2) The claimants, a family who are all Afghan nationals, arrived in France in 2012, where they were briefly detained and fingerprinted as asylum-seekers. The first claimant then entered the UK (where he had family members) on a false passport, and when his presence was detected, he claimed asylum. His wife and daughter subsequently joined him in the UK, immediately claiming asylum.
(3) Under Chapter III of the Dublin II Regulation (Council Regulation (EC) No. 343/2003), the claimants’ asylum application should have been examined by French authorities, as that was where the claimants had first irregularly entered a member state. France accepted this responsibility, and the UKBA informed the claimants that they would be removed to France.
(4) The claimants made written representations to the defendant asking that she exercise her discretion under Articles 3.2 and 15 of the Dublin II regulation to consider their asylum claims in the UK, relying on their ECHR Article 8 rights due to the presence of their family members in the UK and the defendant’s obligations towards the child claimant under s.55 of the Borders, Citizenship and Immigration Act 2009.
(5) The second claimant also relied on her ‘plainly dependent’ state as a result of her pregnancy and anxiety and noted the importance of her family ties.
(6) The key issue in the case was the justiciability of this claim. The claimants submitted that that a judicial review challenge is appropriate where the decision was contrary to established public law principles or made without proper regard to claimants’ Article 8 rights.
(7) The defendant contended that such claims are never justiciable, except for the rare case where a refusal to exercise discretion would result in the claimant’s being returned to a country where there was an obvious risk that the claimant’s human rights would be abused.
(8) HELD: The claim for judicial review failed. Decisions taken under the Dublin II Regulation are not susceptible to challenge by judicial review proceedings save where the enforcement of the decision would lead to inhuman or degrading treatment, which was not alleged here. The court found substantial case law from the High Court, Court of Appeal and European Court of Justice supporting this premise.
(9) The court distinguished the present matter from K v Bundesasylamt, finding that the question of justiciability was not before that court. As there was no claim that being removed to France would subject the claimants to inhuman or degrading treatment, the decision may not be challenged.
(10) The court went on to consider the merits of the application for judicial review in case it was mistaken on the issue of justiciability. The claimants advance a number of grounds.
(11) The court agreed that the defendant committed an error of law in believing that she was only required to consider exercising her discretion under Article 15.2 to examine an asylum application if a request to do so had been received from another member state. The court found that the Secretary of State was obliged to consider the Article 15.2 claims even though they could have been more clearly stated. However, the error caused the claimants no prejudice, as there was not sufficient information before the defendant to conclude that the second claimant was dependent on her family members living in the UK. The defendant specifically addressed this issue and was under no duty to make further enquiries to obtain evidence of the claimant’s dependence.
(12) The claimants further submitted that the refusal to use the defendant’s discretion under Article 3.2 was irrational as the UK was better suited to determining the claimants’ asylum status than France. The court found that this conception was misconceived, and the defendant had no obligation to exercise her discretion in the claimants’ favour.
(13) The claimants argued that their Article 8 rights were breached by the defendant’s refusal to consider their case under Article 15.2. The court found that the alleged breach was insufficiently flagrant to allow for challenge on these grounds.
(14) The claimants finally contented that Section 55 (as above) had been breached with regard to the child claimant. The court found that the temporary loss of contact with his UK-based extended family was relatively trivial and added nothing to the case.
 – Conclusion  – Justiciability - – Justiciability  – Consideration of Article 15 challenges  – Article 15 discretion  – Prejudice from errors of law  – Article 15 discretion  – Dependence on family members  – Prejudice from errors of law  – Article 3.2 discretion  – Article 8  – Section 55  – Conclusion