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Where there was no risk of fundamental rights being breached, there was no basis for a claim to be brought challenging the Defendant's failure to exercise her discretion so as to hear the Claimant's asylum claim in the UK as opposed to another Dublin II Member State.
20 February 2014
Philip Mott QC
(1) The Claimant challenged the Defendant's decisions to return him to Cyprus under the provisions of the EU Council Regulation 343/2003 (‘Dublin II').
(2) The Claimant is a Sri Lankan Tamil who fled to Cyprus in November 2006, but left by 23 April 2012. In the interim, he sought asylum in Cyprus. The Claimant arrived in the UK on 7 May 2012 and the Defendant issued a decision letter indicating that the Claimant would be removed to Cyprus, as the responsible country for dealing with the asylum claim under the terms of Dublin II.
(3) The Claimant argued that the Defendant should have exercised her discretion under Article 3(2) of Dublin II to determine the Claimant's asylum claim in the UK. The challenged raised three issues:
(a) What was the extent of the discretion under Article 3(2), when considered in light of the whole Regulation, in particular the Preamble and Article 15;
(b) Was the Defendant's decision not to exercise her discretion reviewable before this Court;
(c) If yes, was the decision lawful?
The Claimant contended that there were two features of his case that led to the decision being open to challenge. The first was that the Claimant's brother was granted refugee status in the UK on 10 March 2011, and consistency required the Claimant's asylum claim to be made in the same jurisdiction. The second was that the Claimant has family connections in the UK and ought to be permitted to stay and have his asylum claim dealt with here on humanitarian grounds.
(4) HELD: As to issue (a), the Court noted that there were substantial domestic and European authorities as to this issue. The European Court of Justice had made clear in NS v Secretary of State for the Home Department C-411/10 that it is only if no Member State can be identified to which the asylum seeker can be transferred because of a risk of inhuman or degrading treatment can the Member State in which he is located examine the asylum claim itself. The Court thus held that there was no duty to invoke Article 3(2) and no right for the asylum seeker to force the Member State to do so.
(5) Any action must arise from a breach of fundamental rights, and not a failure to exercise a discretion. In this case the Claimant had no arguable basis for claiming a breach of his fundamental rights. The discretion in Article 3(2) is a matter solely between the UK and Cyprus, and was no justiciable in this Court.
(6) It would be contrary to Dublin II to require detailed consideration of facts at the stage of identifying the responsible Member State. There was nothing in the consistency argument which came close to a successful public law challenge. Further, the humanitarian grounds were equally doomed to fail.
(7) Once a decision-maker has applied the Dublin II criteria and concluded that another Member State is responsible, so long as it has concluded that this fully addressed any human rights issues it was sufficient simply to say so. As such, the decision letter was sufficient to deal with the case. The claim was thus held to fail.
 - NS.
 - No duty invoke Article 3(2).
 - Not justiciable.
 - Contrary to Dublin II.
 - Consistency.
 - Humanitarian grounds.
 - Decision letter sufficient.
 - Conclusion.
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