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

Under the Dublin Regulations II, responsibility for an asylum claim is allocated by applying the prescribed criteria when the claim is first lodged. A later assertion that the asylum seeker had left the Member States for at least three months does not reopen an accepted take-back request where the governing scheme contains no power to withdraw it. Reliance on that exception requires material evidence or substantiated and verifiable statements. An asylum seeker generally cannot challenge the inter-State allocation of responsibility, subject to possible human-rights or irrationality grounds. The court also expressed the provisional view that advance notice of invocation of the Regulations was not required, although it did not decide that issue because notice had in any event been given.

The claimant, a Chinese national, had previously claimed asylum in France. After claiming asylum in the United Kingdom, the Secretary of State requested that France take her back under Council Regulation (EC) No 343/2003, and France accepted responsibility. The claimant later asserted that she had spent more than three months in China, which would have ended France’s obligations under article 16(3), and argued that she should have been notified before the request and that the Secretary of State should reconsider the transfer after receiving the later information.

The court considered the evidence concerning the alleged stay, the notification issue, and whether the Dublin allocation could be revisited after France’s acceptance.

1. The claim was dismissed. The evidence did not establish that the claimant had been in China for the requisite period. The medical, bank and telephone material did not prove her presence, the duration of any stay, or that she had personally made the relevant transactions. Her late assertion and lies about her previous asylum claim and fingerprints further undermined her case. It would have been Wednesbury unreasonable to reject the Secretary of State’s contrary case.
2. Article 16(3) of the Dublin Regulations II could be relied on only on the basis of material evidence or substantiated and verifiable statements, under article 4 of the Implementation Regulations. The claimant had not met that evidential requirement.
3. The court did not need to decide whether article 3 of the Dublin Regulations II required advance notification before the Regulations were invoked. Its provisional view was that no such right existed. In any event, the claimant had been informed by letter that her claim was being considered under the Regulations, and the letter was treated as received.
4. The Dublin scheme required responsibility to be determined rapidly and by reference to the position when the asylum application was first lodged. Once France had accepted the take-back request, neither Regulation contained a provision requiring or enabling the United Kingdom to withdraw it merely because later information was supplied. The later assertion therefore came too late to affect the certification.
5. Consistently with R (G) v Secretary of State for the Home Department [2004] EWHC 2848 (Admin) and AA (Somalia) v Secretary of State for the Home Department [2006] EWCA Civ 1540, the allocation process was treated as occurring once, with the first application. The court also relied on R (AA Afghanistan) v Secretary of State for the Home Department [2006] EWCA Civ 1550 and Mota v Secretary of State for the Home Department [2006] EWCA Civ 1380 in holding that an individual could not challenge the inter-State allocation, absent possible human-rights or irrationality grounds, neither of which applied.

First-instance judicial review in the Administrative Court. Permission to bring the claim had been granted by Lloyd Jones J. The court dismissed the claim on every issue.