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

Under Council Regulation (EC) No 343/200, the Member State responsible for determining the Member State responsible for an asylum application must make that determination. Another Member State cannot assume that function because of an alleged failure by the responsible State to investigate or comply with its duties. A removal carried out under the lawful operation of immigration control will be disproportionate only in exceptional circumstances. The proportionality assessment must take account of the claimant’s circumstances, the destination State’s status and connection with the claimant, the temporary nature of the removal, and the practical consequences for family life.

The claimant, an Afghan citizen, entered Hungary and applied for asylum before entering Austria and then the United Kingdom. Hungary agreed to take him back under Article 16.1(c) of Council Regulation (EC) No 343/200. The Secretary of State decided to remove him to Hungary and certified his Article 8 claim as clearly unfounded.

The claimant argued that the United Kingdom was responsible under Article 6, that Hungary had failed to comply with its obligations under Article 20, and that removal would be disproportionate interference with family life. The court also considered whether the certification was lawful.

1. Regulation responsibility. The Regulation required Hungary, as the State where the claimant first applied for asylum while present in its territory, to determine the Member State responsible for examining the claim. Article 6 did not transfer that responsibility to the United Kingdom. The relevant date was the date of the Hungarian application, when the claimant was accompanied by his adult cousin. His United Kingdom uncle was not his guardian for the purposes of the Regulation.
2. The Secretary of State had complied with Article 20 by providing the information required when requesting Hungary to take the claimant back. There was no evidence that Hungary had failed to make the necessary inquiries. In any event, a possible breach by Hungary could not justify the United Kingdom’s breach of its obligation to respect Hungary’s exclusive responsibility. The appropriate remedy would be proceedings in Hungary or before the European Court.
3. Article 8 proportionality. The court assumed that removal would interfere with family life with sufficient gravity to engage Article 8. The interference was in accordance with law and pursued a legitimate aim under Article 8(2). Only exceptional cases would make a decision taken pursuant to lawful immigration control disproportionate.
4. The circumstances were materially different from Lekestaka v IAT. Hungary was a European Community Member State; the claimant had previously lived there, had applied for asylum there, had a cousin there, and could maintain contact with his uncle. He was about 17, in reasonable health and able to care for himself. Hungary would be an interim home pending determination of his asylum claim, rather than the destination for a final refusal of protection. Removal was therefore proportionate.
5. The application for judicial review was dismissed.

First-instance judicial review application. No earlier decision is stated in the judgment.