Lika, R (on the application of) v Secretary of State for the Home Department

An unincorporated international treaty does not confer enforceable rights on individuals or govern the exercise of statutory powers unless domestic law gives it that effect. The Dublin Convention regulates responsibility between participating states. It does not ordinarily create a legitimate expectation enforceable by an individual asylum seeker, particularly where the Secretary of State’s published policy explains how the statutory power will be used.

Once another state accepts responsibility under the Convention, the allocation of responsibility is generally a matter between the states and is not justiciable in domestic judicial review proceedings. The Secretary of State may nevertheless review the case, but need not undertake further investigation or consultation where the material is properly for consideration by the accepting state and does not justify departing from the statutory procedure.

The appellant, an ethnic Albanian from Kosovo, claimed asylum in the United Kingdom after travelling from France. Germany accepted responsibility for examining his application under article 8 of the Dublin Convention, and the Secretary of State certified the claim under section 2 of the Asylum and Immigration Act 1996.

The appellant argued that he had returned to Kosovo after an earlier German asylum claim and that article 10(3) therefore relieved Germany of responsibility. He also argued that the Convention gave rise to a legitimate expectation and permitted judicial review of the Secretary of State’s interpretation of it. Jackson J dismissed the judicial review claim. The appeal concerned only the Convention’s effect in domestic law.

1. Appeal dismissed. The Convention was not incorporated into domestic law. Sections 2 and 3 of the Asylum and Immigration Act 1996 supplied the domestic mechanism for dealing with cases falling within the Convention.
2. The Convention governed the allocation of responsibility between member states. It was not concerned directly with conferring rights or entitlements on individual asylum seekers. The appellant therefore could not rely directly on article 10(3), or require the Secretary of State to determine whether Germany remained responsible under that provision.
3. The observations in Ex parte Shefki Gashi and ex parte Artan Gjoka, approved in R v Secretary of State for the Home Department, Zeqiri, were correct. Once Germany accepted responsibility, the issue became one between the United Kingdom and Germany. Whether Germany considered that article 10 affected its obligations was not justiciable in the domestic courts.
4. The Convention did not itself create an enforceable legitimate expectation in the appellant’s favour. In any event, paragraph 345 of HC 395 stated the Secretary of State’s policy and displaced any expectation said to arise solely from treaty ratification. The applicable expectation was limited to treatment under section 2 and that policy, which imposed no obligation to consult the asylum seeker or the third-state authorities.
5. The Secretary of State had reconsidered the new material. He was entitled to regard it as material for Germany to consider and to conclude that it did not justify departing from the Dublin procedure. The inconsistencies in the appellant’s account supported that conclusion. No further investigation or consultation was required.
6. R v Secretary of State for the Home Department ex parte Launder did not assist. That case concerned judicial review of the legality or rationality of a decision expressly taking human-rights obligations into account, not domestic enforcement of the Dublin Convention.

• Court of Appeal (Civil Division): The appeal from Jackson J was dismissed.
• Administrative Court, Queen’s Bench Division: Jackson J dismissed the appellant’s judicial review claim on 21 May 2002.