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

Dublin I pursues two linked aims: assigning responsibility among Member States and ensuring that asylum applications are dealt with without undue delay. A failure to comply with its transfer period does not, by itself, give an asylum claimant a domestic right to have the claim determined in the United Kingdom. The Secretary of State’s decision to transfer remains reviewable on ordinary Wednesbury grounds, but unexplained and substantial delay alone is insufficient where the receiving State continues to accept responsibility and there is no risk of a claimant being left without a State to examine the claim. Any Article 8 case must be properly raised and decided on its merits; a bare assertion cannot transform delay-related prejudice into irrationality.

AA, an Afghan national, claimed asylum in Austria and later in the United Kingdom. Austria accepted responsibility under Dublin I, but the Secretary of State did not transfer him for more than two years before issuing removal directions. Bean J granted judicial review, holding that transfer after the delay would be wholly unreasonable and that AA was entitled to have his claims heard in the United Kingdom: [2006] EWHC 318 (Admin).

AA later voluntarily returned to Austria, making the proceedings academic. The parties nevertheless agreed that the Court of Appeal should decide the important issue whether the delay removed the obligation to transfer him or made the Secretary of State’s decision unlawful on Wednesbury grounds.

Appeal allowed. The Court of Appeal entertained the otherwise academic appeal because it concerned an important public-law issue and both parties agreed that it should be decided.

1. Dublin I had a composite purpose. It assigned responsibility for asylum claims between Member States, but also sought to ensure that applications were dealt with speedily and that applicants were not left in prolonged uncertainty. The judge below was therefore entitled to consider the effect of the substantial delay.
2. Under Omar [2005] EWCA Civ 285, Dublin I operated as a treaty on the international plane. Breach of the Article 11(5) transfer period did not itself confer a domestic-law right to have the asylum claim determined substantively in the United Kingdom. Nevertheless, a decision to transfer remained open to challenge on ordinary Wednesbury grounds. The broad reading of the earlier dictum in Simba [1998] EWHC Admin 799, that agreement between States closed the matter, could not govern a case involving a gross breach of the transfer period.
3. The respondent had not properly advanced an Article 8 case before Bean J. The grounds and skeleton argument did not present the merits of such a claim, and a bare assertion at the hearing could not create an entitlement to have the issue determined by the Asylum and Immigration Tribunal. The Court added, for good measure, that Huang [2006] QB 1 indicated a truly exceptional threshold for condemning removal to another State on Article 8 grounds.
4. Once Article 8 was removed from consideration, the unexplained delay, although deplorable and far longer than the period in Article 11(5), did not make the transfer perverse or unreasonable. The court could not quash removal directions merely to punish or discipline the Home Office. Austria had consistently accepted responsibility, so the respondent was not a refugee in orbit. Article 3(4) also entitled the Secretary of State, as a matter of international law, to examine the claim in the United Kingdom. The decision was therefore a straightforward domestic-law challenge to executive discretion, not a sensitive judgment about international relations.

The order granting judicial review was set aside and the Secretary of State’s appeal was allowed.

1. Court of Appeal (Civil Division): allowed the Secretary of State’s appeal and set aside the order granting judicial review. [2006] EWCA Civ 1550.
2. Administrative Court: Bean J granted judicial review of the removal directions and held that, after the delay, transfer to Austria would be wholly unreasonable. [2006] EWHC 318 (Admin).