Omar v Secretary of State for the Home Department

A majority held that, during the transitional period in Article 29 of Council Regulation (EC) No. 343/2003, direct effect was given only to the Dublin Convention’s allocation criteria in Articles 4–8, not to its transfer mechanisms in Article 11(5). The whole court held that a delay in transferring an asylum seeker to the Member State responsible under those criteria did not transfer responsibility to the State where the application was lodged, or give the applicant a right to remain there. Any enforceable right arising from Article 11(5) would be a right to prompt transfer to the responsible State.

The appellant, a Somali national, claimed asylum in the United Kingdom after entering Italy, the first European Union Member State he had entered. The United Kingdom requested Italy to take charge of his claim under the Dublin Convention. Italy accepted responsibility, but removal directions were set more than one month after that acceptance.

Mitting J dismissed the appellant’s judicial-review claim. The appellant contended that Article 29 of Council Regulation (EC) No. 343/2003 made Article 11(5) of the Convention directly effective during the transitional period, with the result that the United Kingdom had become responsible for determining his asylum claim. The central issue was whether the missed transfer time limit had that consequence.

Appeal dismissed. The court unanimously held that the appellant had no right to require the United Kingdom to determine his asylum claim or to prevent his transfer to Italy.

1. Sir Swinton Thomas held, with whom Latham LJ agreed, that Article 29 of Council Regulation (EC) No. 343/2003 referred only to the Dublin Convention’s criteria for identifying the responsible Member State. Those were the criteria in Articles 4–8. The wording did not incorporate the Convention’s distinct procedural mechanisms, including the one-month transfer period in Article 11(5). Clear words would have been needed to produce that result.

2. The Convention and the Regulation deliberately distinguished criteria from mechanisms. Unlike Article 19(4) of the Regulation, Article 11(5) of the Convention contained no provision transferring responsibility when the transfer deadline was missed. A late transfer could therefore not alter the allocation of responsibility under the applicable criteria.

3. Sir Swinton Thomas further held that, even if Article 11(5) conferred directly effective rights, its effect could only be to require a transfer to Italy within the prescribed period. Latham LJ likewise considered that ordinary administrative-law remedies could secure an applicant’s right to have the claim determined by Italy, not by the United Kingdom.

4. Chadwick LJ reached the same result by a different route. He was prepared to regard Article 29 as capable of conferring a direct right to require the requesting State to initiate and complete transfer to the State identified by the Convention’s criteria. But that possible right did not become a right not to be transferred, nor did delay make the requesting State responsible. Italy remained the responsible State.

• Court of Appeal (Civil Division) — dismissed the appeal: [2005] EWCA Civ 285 .
• High Court of Justice, Queen’s Bench Division, Administrative Court — Mitting J dismissed the appellant’s claim for judicial review on 9 June 2004. No citation for that judgment is stated.