AA (Somalia) v Secretary of State for the Home Department

Under Dublin II, responsibility for an asylum application is determined through a single-stage process, by reference to the situation established by the first Member State when the application was lodged. Later-discovered family facts do not require renewed screening in another Member State. Article 15 provides an inter-State mechanism for addressing humanitarian and family-unity concerns, not a freestanding substantive right for an applicant. A guardian means a person formally constituted by law or custom; mere de facto care is insufficient. Facts arising after the first application cannot alter the allocation criteria. The appeal was dismissed, but limited judicial review permission was granted on an arguable Article 20 time-limit issue and that issue was remitted.

The appellant, a Somali national treated as a minor, had first claimed asylum in Italy and later claimed asylum in the United Kingdom. The Secretary of State sought his return to Italy under Dublin II. The appellant argued that his half-sister or brother in the United Kingdom was a family member or guardian, making the United Kingdom responsible under Article 6. He also raised Article 8 rights, but that issue was not before the Court of Appeal.

The Administrative Court had refused renewed permission for judicial review. The appeal concerned the date at which the Dublin II criteria had to be assessed, the meaning of guardian, and, as a late point, whether the six-month transfer period under Article 20 had expired.

Disposition. The appeal was dismissed on the principal Dublin II arguments. The Court nevertheless granted judicial review permission on the discrete Article 20 time-limit issue and remitted that issue to the Administrative Court.

1. Single-stage allocation. Article 5(2) requires responsibility to be determined by reference to the outcome of the enquiry conducted by the Member State where the asylum application was first lodged, at the time of lodging. The structure of Dublin II, including its hierarchy of criteria and taking-back provisions, contemplated one screening process. A later Member State therefore had no power or duty to undertake a second screening process based on newly discovered or newly asserted facts. The Court found Wilson J’s reasoning in R (G) v Secretary of State [2004] EWHC Admin 2848 persuasive and applied it. Article 15 provided the appropriate inter-State mechanism for later family or humanitarian considerations. It did not confer a freestanding substantive right on the applicant, as explained in the appeal in G [2005] EWCA Civ 546.
2. Guardian. In the context of Article 2(i)(iii), guardian meant a person formally constituted by law or custom. Custom required a formal assumption of responsibility under an external rule or practice. Article 4(3) supported that construction, because the accompanied minor’s claim was treated as indissociable from that of the parent or guardian. Mere de facto care was insufficient. In any event, the appellant’s relatives were not caring for him when he first claimed asylum in Italy, and later events could not satisfy the Article 5(2) reference point.
3. Article 20. The Court did not finally decide whether the six-month period ran from Italy’s deemed agreement under Article 20(1)(c) or its later formal acceptance under Article 20(1)(d). The wording of Article 10 of Commission Regulation No 1560/2003 made the issue sufficiently arguable. Because it had been raised very late and the Secretary of State was not ready to address it substantively, permission was granted on that ground alone and the matter was remitted.
4. The Court also observed that the High Court was not bound by its own earlier decisions, although such decisions warranted considerable respect: R v Greater Manchester Coroner, ex parte Tal [1984] 3 All ER 240.

• Court of Appeal (Civil Division): dismissed the appeal on the construction of Dublin II, but granted judicial review permission on the Article 20 six-month time-limit issue and remitted that issue to the Administrative Court.
• High Court of Justice, Queen’s Bench Division, Administrative Court: Toulson J refused the appellant’s renewed application for permission to seek judicial review. An earlier paper refusal had been made by a deputy High Court judge. Keene LJ initially refused permission to appeal on the papers; Maurice Kay LJ later restored the application and granted permission to appeal.