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

Dublin II governs obligations between Member States and does not confer enforceable rights on individual asylum seekers in respect of the transfer time limits. A public authority may adopt and depart from a policy, provided it takes the policy into account, treats it as a relevant consideration and gives it appropriate weight. A failure to follow a policy does not automatically make a decision unlawful. Judicial review is unsuitable for resolving extensive, contested factual disputes. The court dismissed the claim because the Secretary of State was entitled to treat the claimant as an absconder, rely on the resulting time-limit extension, and conclude that the removal arrangements fell within the range of lawful public decision-making.

The claimant, an Iraqi national who had claimed asylum in the United Kingdom, challenged the Secretary of State’s decision to remove him to Austria under Dublin II. He alleged that the transfer exceeded the applicable time limit, that the manner of removal breached the UK Border Agency’s Operation Enforcement Manual, and that Austria had not been properly informed of his age and circumstances. He sought a declaration and damages, including damages for alleged unlawful detention during the removal. The claimant had already been returned to the United Kingdom following an order of Mr Justice Collins and had subsequently been granted asylum. The central issues were whether the removal decision was unlawful and whether the disputed matters could properly be determined on judicial review.

1. Outcome. The claim was dismissed. Permission to appeal was refused, with the claimant required to seek permission elsewhere.
2. Dublin II. Article 20’s time limits regulate obligations between Member States. They do not confer individual rights on asylum seekers. The claimant could not therefore challenge his removal on the basis that the six-month period had expired. Migrationsverket v Petrosian was concerned with how the period was calculated where an appeal had suspensive effect. It did not support the claimant’s wider contention.
3. Absconder status. It was inaccurate initially to describe the claimant as an absconder merely because he was absent from his accommodation overnight. However, his later failure to report weekly for four weeks entitled the Secretary of State to treat him as an absconder under her policies. The resulting extension of the transfer period was justified and was not Wednesbury unreasonable.
4. Policy. Paragraph 26.4 of the Operation Enforcement Manual applied to the removal of unaccompanied children, including third-country cases. The Manual was a practical policy document rather than a statute. The Secretary of State had taken it into account, treated it as relevant and given it weight. Her decision not to notify Richmond in advance, and her assessment of the arrangements in Austria, did not make the removal unlawful.
5. The distressing or heavy-handed nature of the removal did not itself establish unlawful detention or invalidate the removal decision. The court could not resolve extensive factual disputes concerning Richmond or the claimant’s treatment in Austria on judicial review. Any dispute concerning arrangements in Austria was for the Austrian courts.

The judgment records that Mr Justice Collins previously ordered the claimant’s return to the United Kingdom. The present Administrative Court claim was nevertheless dismissed. Permission to appeal was refused.