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Public law and Regulation

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04 JUL 2013

Kheirollahi-Ahmadroghani v Secretary of State for the Home Department [2013] EWHC 1314 (Admin); (2013) PLLR 082

Immigration - Asylum - Member States

Those making applications to seek asylum had no right to choose which EU Member State bore the responsibility for considering their application. As Germany had previously accepted responsibility, pursuant to the Dublin II Regulations, it was the appropriate state to examine the Claimant's application.

22 May 2013

Adminstrative Court

Stalden J

(1)        The Claimant, an Iranian national, raised the issue of whether the UK government was required to accept responsibility for considering her asylum application under Council Regulation (EC) No 343/2003 of 18 February 2003 (‘the Dublin II Regulation') despite Germany having already accepted that it was the state responsible for examining the application.

(2)        The Defendant contended that the Dublin II Regulation did not confer rights on asylum seekers to insist on which country should consider their application.

(3)        The parties were not in dispute about the fact that the Article 9(4) Regulation criterion did not apply because the Claimant had ‘left the territories of the Member States'. Article 13 of the Dublin II Regulation specified that where other criteria were no longer applicable, the first Member State in which the asylum application was lodged was responsible for its examination.

(4)        The Claimant alleged that:

(a)        The basis for the original acceptance of responsibility by Germany had been erroneous.

(b)        Relying upon Omar v SSHD [2005] EWCA Civ 285, if the criteria indicated that the UK was responsible for examining an asylum claim that result could be insisted upon by an application to the court. 

(c)        Transferring her to Germany would be contrary to the Dublin II Regulation and irrational.

(5)        HELD: The Court did not accept that the decision in Omar conferred a right on asylum seekers to require the UK to determine their application if the criteria identified the UK as the Member State responsible.

(6)        The Court determined, under Article 18(7) of the Dublin II Regulations, that by failing to make a decision on the Claimant's application within 2 months, Germany became lawfully obliged to take charge of the Claimant. The failure to act was deemed tantamount to an acceptance to take charge of the Claimant. Even if Germany had not become the responsible state by virtue of its failure to respond within the two month period, it's subsequence acceptance entitled the Defendant to decline to examine the Claimant's application and set removal directions.

(7)        The Court found that the Dublin II Regulation did not confer rights on individuals and alleged breaches were not actionable by individuals. This finding was based on the interpretation of the preparatory documents and the wording of the Regulation itself.

(8)        The objectives of the Dublin Regulation were to provide ‘a speedy and efficient administrative system to enable Member States as between themselves to identify the Member State responsible'. There was nothing in the Regulation or the preparatory documents to suggest that the Regulation intended to confer upon asylum seekers the right to have their asylum application determined in a particular Member State.

(9)        The system was designed to prevent asylum shopping, and this case was said to be a classic example of this: the Claimant had only alleged her right to have her application examined in the UK after she had formed a relationship here; initially she had been willing to be returned to Germany.

(10)     The Court determined that the Claimant had not demonstrated that there had been a Wednesbury unreasonable decision and the request for Germany to accept responsibility for the examination of the claim was not unreasonable.

(11)     There was insufficient evidence to indicate that Germany was not obliged or entitled to accept responsibility for the Claimant's claim for asylum and, in any event, the Claimant's action would fail.

(12)     The Court thus held the claim to fail and fall to be dismissed.

Claim dismissed.

Key Paragraphs

[42] - Decision.

[98] - Omar not applicable.

[136] - Germany obliged.

[153] - Breaches not actionable.

[166] - English authority conclusion.

[196] - No individual rights.

[204] - Asylum shopping. 

[208] - Conclusions.

[211] - Failed respond two months.

[213] - Entitled to decline.

[214] - Lack evidence Iran.

[216] - Fail in any event. 

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