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

A published immigration policy must be construed in its statutory, European Union and human-rights context. It should not be read as requiring substantive consideration of an asylum claim where the Dublin II Regulation makes another Member State responsible. The Regulation contains no general exception for unaccompanied minors. An unaccompanied minor who first claimed asylum, or had the opportunity to claim asylum, in another Member State will ordinarily be dealt with there, subject to any applicable exceptional considerations. Article 8 does not generally prevent such transfer. A challenge based on an alleged obligation to grant discretionary leave fails where the policy properly construed creates no such obligation.

The claimant, an Eritrean national born in 1988, was an unaccompanied minor who claimed asylum in Italy before travelling to the United Kingdom and claiming asylum there. Italy formally accepted responsibility under Council Regulation (EC) No 343/2003, and the Secretary of State certified the proposed removal under the Asylum and Immigration (Treatment of Claimants, etc) Act 2004.

The claimant sought judicial review, arguing that the Home Office asylum policy instruction on discretionary leave required consideration of his claim in the United Kingdom or the grant of leave until he reached majority. He also relied on Article 8 of the ECHR and the Secretary of State’s general discretion. The central issue was whether the policy displaced the Dublin allocation of responsibility in the case of an unaccompanied minor.

1. Application dismissed. The Secretary of State lawfully treated Italy as the Member State responsible for examining the claimant’s asylum application and lawfully declined to consider it substantively in the United Kingdom.
2. The court accepted the approach in Gangadeen & Khan v Secretary of State for the Home Department [1998] Imm AR 116: considerable weight should be given to the policy-maker’s construction of a policy, provided that construction is not plainly unreasonable and does not conflict with domestic law, directly applicable European Union law, or obligations under the Human Rights Act 1998 and the Strasbourg Convention.
3. The policy instruction on discretionary leave was directed to cases in which an asylum or humanitarian protection claim had been substantively considered. Properly construed with the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, Immigration Rule 345 and the Dublin Regulation, it did not require the United Kingdom to determine the merits of claims falling within the Regulation.
4. Articles 5 and 6 of the Dublin Regulation meant that Italy was responsible because it was the first Member State in which the claimant had applied for asylum. Article 6 did not create an exception for unaccompanied minors with no family member present in another Member State. Italy was accepted to be a safe country with appropriate reception facilities for unaccompanied minors.
5. The claimant’s Article 8 case was insufficient. His private and family ties in the United Kingdom fell well short of the truly exceptional circumstances identified in Razgar and Huang.
6. The Secretary of State’s relevant decision-making task was to ask whether the Dublin Regulation applied and whether the case should exceptionally be considered substantively in the United Kingdom. Both questions were lawfully answered against the claimant. The request for a Community Legal Service detailed assessment was granted, with no order for costs otherwise.

First-instance judicial review decision. No prior appellate decision is stated in the judgment.