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

Under Dublin II, a requesting member state is not generally required to pass on new information suggesting that responsibility has ceased after the requested state has accepted responsibility. At least where the asylum seeker had a fair opportunity to provide the information before acceptance, withholding later information is not unfair. Allocation under Dublin II may nevertheless be challenged on human-rights or rationality grounds where appropriate.

A certificate that a human-rights claim is clearly unfounded requires application of that statutory threshold. A conclusion that removal would not breach Article 8, or that removal would be proportionate, does not itself establish that the claim is clearly unfounded.

The claimant, a Sri Lankan national, sought judicial review of decisions to transfer him to France for determination of his asylum claim under EC Council Regulation No. 343/2003 (Dublin II). France had accepted responsibility after earlier correspondence about whether responsibility had ceased because the claimant had allegedly spent more than three months outside the European Union.

The claimant later relied on evidence said to show that he had been in Sri Lanka for the required period. He also challenged the maintenance of a certificate under paragraph 5(4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004, following his marriage to a British citizen and in light of his family connections in the United Kingdom. The issues were whether the Secretary of State had acted unfairly by not forwarding the later evidence, and whether the Article 8 claim had lawfully been certified as clearly unfounded.

1. The application succeeded only in relation to the Article 8 certification. The decision certifying the claim as clearly unfounded was quashed. The remainder of the application was dismissed.

2. Dublin II requires a request to assume responsibility to be made on the prescribed form with the relevant proof, circumstantial evidence and relevant elements of the asylum seeker’s statement. The Secretary of State had complied with those requirements. The claimant had been told that another state might be responsible and had ample opportunity to provide accurate information about his movements before France accepted responsibility.

3. In the circumstances, the Secretary of State acted fairly in failing to pass to France information received many months after France had accepted responsibility. The judge substantially agreed with the reasoning in R (Chen) v Secretary of State for the Home Department [2008] EWHC 437 (Admin), while leaving the wider point undecided. The claimant’s later evidence did not make the Secretary of State’s earlier conduct unfair.

4. The judge noted that removal to a third country may be challenged where it would breach Convention rights, and that allocation under Dublin II may also be challenged on rationality grounds: R (AA) v Secretary of State for the Home Department [2006] EWCA Civ 1550. This did not alter the conclusion on the facts.

5. Paragraph 5(4) of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 required certification unless the Secretary of State was satisfied that the claim was not clearly unfounded. Applying ZT (Kosovo) v Secretary of State for the Home Department [2009] 1 WLR 348, the decision-maker had to apply that threshold. The letter appeared to maintain certification because removal was considered non-violative and proportionate under Article 8. That applied the wrong test: a claim may fail on the balance of probabilities without being clearly unfounded. The claimant’s marriage and close lawful family connections in the United Kingdom supplied sufficient features to make certification irrational.