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

A delay in transferring an asylum applicant under the Dublin Convention does not itself confer a right to have the asylum claim determined in the United Kingdom. The Court of Appeal’s decision in Omar v Secretary of State for the Home Department remained binding: Article 11(5) did not directly confer enforceable rights, and breach of its time limit did not transfer responsibility for the claim.

Whether enforcement after an unexplained and exceptional delay could nevertheless be Wednesbury unreasonable remained arguable in light of the closely analogous decision in Ahmadzai v Secretary of State for the Home Department. Any weak Article 8 claim based on residence, friendships and language ability would carry little, if any, weight as prejudice.

The claimant, an Afghan national, had previously claimed asylum in Austria. Austria accepted responsibility under the Dublin Convention, but the removal directions were issued about 27 months later. The claimant sought judicial review, relying on the delay and contending that removal to Austria would be unlawful or Wednesbury unreasonable.

The application was a renewed application for permission after refusal on the papers. A closely analogous Administrative Court decision, Ahmadzai v Secretary of State for the Home Department, had treated comparable delay and prejudice as sufficient to permit the claimant’s challenge. The central issue was whether the present claim was arguable despite the binding authority of Omar v Secretary of State for the Home Department.

1. Permission. Permission to apply for judicial review was granted. The claim was arguable principally because Ahmadzai v Secretary of State for the Home Department, although not binding, was a full judgment of a fellow Administrative Court judge on materially similar facts.
2. Effect of the Dublin time limit. Article 11(5) of the Dublin Convention required transfer within one month after acceptance, subject to the relevant exceptions. The court accepted the binding Court of Appeal authority in Omar v Secretary of State for the Home Department: the provision did not directly confer rights on the claimant, and delay did not transfer responsibility for deciding the asylum claim to the United Kingdom.
3. Possible domestic-law challenge. The court considered that there was a powerful argument that Ahmadzai had approached the binding authority in Omar incorrectly by treating applicant preference, following unexplained delay, as sufficient to prevent enforcement of the Dublin Convention. The Court of Appeal might reconsider both issues.
4. Prejudice. If prejudice caused by delay were relevant, a weak Article 8 claim based on residence in the United Kingdom, friendships and increased English-language ability would carry very little weight. It was unresolved whether prejudice was required at all, or whether enforcement after exceptional delay was independently Wednesbury unreasonable.
5. The substantive hearing was stayed pending the outcome of the application for permission to appeal in Ahmadzai and, if permission were granted, pending that appeal. An expedited transcript was ordered and costs were reserved.

This was a renewed application for permission after refusal on the papers by Stanley Burnton J. The judgment also recorded that an application for permission to appeal was pending in the related decision of Ahmadzai v Secretary of State for the Home Department. No appeal in the present case was decided.