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

The Dublin screening process is undertaken once, by the Member State with which the asylum application is first lodged, and by reference to the situation established at that time. A later Member State must not re-open the hierarchy of responsibility merely because further or different facts are asserted. The humanitarian clause confers a discretionary power, not an enforceable obligation, and may operate only through the procedure initiated by the responsible Member State. A human-rights claim cannot be used to bypass that procedure or restrain return where the evidence does not establish a substantial family life or an unlawful and disproportionate interference with it. A certificate that a human-rights claim is clearly unfounded is lawful where the Secretary of State is entitled to reject disputed factual premises on the evidence.

The claimant, a Somali national, sought judicial review of the defendant’s certificate that her human-rights claim was clearly unfounded. The certificate prevented her appealing in the United Kingdom against a removal decision made under the Dublin arrangements, under Nationality, Immigration and Asylum Act 2002, section 93.

She claimed that she was a minor, unmarried, and living with and dependent upon a refugee cousin in the United Kingdom. She argued that the Dublin provisions required the United Kingdom to examine her asylum claim, or that removal to Italy would unlawfully interfere with family life under Article 8 of the Convention of 1950. The central issues were whether the screening process could be re-opened, whether the humanitarian clause required United Kingdom consideration, and whether the certificate was rationally open to the defendant.

1. The claim was dismissed. The court held that the Dublin screening process is conducted once, by the Member State where the asylum application was first lodged, and by reference to the situation established through that enquiry at the time of lodging. The later State has no power or duty to repeat the screening process merely because further facts are asserted. The taking-back mechanism in the Regulation was inconsistent with such a power. (See paras [22]–[29].)
2. The hierarchy of criteria therefore did not have to be reconsidered in the United Kingdom. In any event, the claimant’s cousin was not a relevant family member for Article 6 because the family relationship had not existed in the country of origin. Nor was the cousin a guardian for Article 7: “guardian” connoted formal responsibility externally invested by law or custom. (See paras [30]–[33].)
3. Article 15 was directly effective, but it conferred only a power to accept responsibility on humanitarian grounds. It did not impose a duty. The request had to arise through the procedure contemplated by the Regulation and the Commission Regulation, normally following a request by the State responsible for the substantive examination. The claimant could not invoke Article 15 indirectly, through her human-rights claim, to bypass that procedure. The court accepted the defendant’s analogy with R (on the application of Ekinci) v SSHD [2003] EWCA Civ 765. (See paras [34]–[38].)
4. The defendant was entitled to reject the claimant’s asserted age and marital status. Dr Michie’s report made it irrational to proceed on the basis that she was aged 20, but it did not establish that she was a minor. The inconsistent explanations surrounding her earlier account entitled the defendant to decline to accept the later account. The evidence of shared residence, care and dependency was extremely weak. Even if family life existed, the defendant was entitled to regard interference with it as clearly proportionate and justified by the Dublin arrangements. The certificate was therefore lawful. (See paras [39]–[41].)

Permission to appeal was not granted by the judge, who considered that the proposed grounds had no reasonable prospect of success. There was no order as to costs, subject to detailed assessment of the claimant’s publicly funded costs. (See paras [47] and [53].)

This was a first-instance judicial review. The claim challenging the certificate was dismissed. The judge considered that the proposed appeal had no reasonable prospect of success; any further application for permission had to be made to the Court of Appeal.