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

Under the Dublin Convention, expiry of the one-month transfer period does not itself confer a statutory right to have an asylum claim determined in the requesting state. It does, however, prevent the Secretary of State from treating delay as legally irrelevant. A substantial and unexplained delay, combined with significant prejudice, may make transfer unlawful as wholly unreasonable, even where the case does not satisfy the exceptionally high threshold for an Article 8 claim. The claimant obtains a right to have the asylum and human-rights claims considered in the United Kingdom, not a right to any particular outcome.

The claimant, an Afghan national, claimed asylum in the United Kingdom after first claiming in Austria. Austria accepted responsibility under the Dublin Convention, but the United Kingdom took no steps to transfer him for more than two years. Removal directions were later issued, and the claimant sought judicial review.

The court considered whether the Convention required transfer despite the delay and, if not, whether the Secretary of State could lawfully transfer the claimant against his wishes. The court also considered the significance of prejudice arising from the claimant’s established support network in the United Kingdom.

1. Dublin Convention. Article 11(5) does not provide that responsibility automatically shifts to the requesting state when the one-month transfer period is exceeded. Omar v Secretary of State for the Home Department [2005] EWCA Civ 285 established that the provision did not confer a statutory right to remain in the United Kingdom. The present questions concerning substantial delay were not decided in that case.
2. The Convention’s purpose includes preventing asylum applicants from being left in uncertainty or placed in limbo. Its time-limit provisions must therefore be read with that objective in mind. Dublin I did not require transfer after the delay in this case, and did not make delay irrelevant.
3. In domestic public law, the Secretary of State’s decision could be unlawful where the delay was substantial and unexplained and the claimant suffered significant prejudice. The delay exceeded the Convention’s period by a very substantial margin. The prejudice included the loss of the practical support of the claimant’s partner, friends and lawyers in the United Kingdom. It was not necessary for the claimant to establish a truly exceptional Article 8 case.
4. The claimant was entitled to have his asylum claim and subsidiary human-rights claim heard in the United Kingdom. That conclusion did not determine the merits of either claim and did not create a general right to asylum or humanitarian leave in the United Kingdom.
5. The Secretary of State’s removal directions were quashed. Permission to appeal was refused, although the Court of Appeal remained able to grant permission. The Secretary of State was ordered to pay the claimant’s costs.

This was a first-instance judicial review claim. The judgment records that Sullivan J granted permission to apply for judicial review on 11 July 2005. The removal directions were quashed, and permission to appeal was refused.