YZ & Ors, R. (On the Applications Of) v Secretary of State for the Home Department

The Dublin II Regulation principally allocates responsibility between Member States. Its provisions do not ordinarily confer directly actionable personal rights on asylum seekers. A claimant may nevertheless rely on domestic public-law principles or human-rights protections where applicable.

The Secretary of State is a competent body capable of suspending the Dublin transfer timetable under Article 20(1)(e). She may do so by applying a published policy to the individual case, provided the policy does not unlawfully fetter consideration of relevant circumstances. A Eurodac fingerprint match, supported by the safeguards in the Regulations, may establish a previous asylum claim unless there is cogent contrary evidence.

Three Eritrean nationals sought judicial review of decisions certifying their asylum claims for transfer to Italy under the Dublin II Regulation. Italy had accepted, or was deemed to have accepted, responsibility on the basis of Eurodac matches and related information.

The claims concerned the six-month transfer period, whether the Secretary of State could suspend that period when judicial review proceedings were issued, and whether the alleged previous asylum claims in Italy were jurisdictional or precedent facts requiring fuller fact-finding. Permission had previously been refused by Hickinbottom J, and Richards LJ had granted permission for the issues to be examined further in [2010] EWCA Civ 275.

1. Directly actionable rights. The claims were dismissed. Although the Dublin II Regulation is directly applicable, it principally regulates relations between Member States and does not itself create personal rights to have an asylum claim determined by a particular state or within a particular period. A challenge may arise where the Secretary of State acts irrationally in the Wednesbury sense or breaches an individual’s human-rights protections. The court followed the approach in AA (Somalia), [2006] EWCA Civ 1540, AA (Afghanistan), [2006] EWCA Civ 1150, R (MK (Iran)), [2010] EWCA Civ 115, and R (J), [2009] EWHC 1182 (Admin).
2. Suspension under Article 20(1)(e). “Competent bodies” is broad enough to include the Secretary of State. “Review” may include an internal administrative review by the authority responsible for initiating the Dublin process. The Regulation did not require an independent court or tribunal to make the suspension decision.
3. The requirement that suspension be decided “on a case-by-case basis” did not prevent the Secretary of State from applying a published policy to an individual case. The policy deferred removal where judicial review proceedings had been properly instituted, subject to stated exceptions. It was not alleged to constitute an unlawful fetter. This approach was consistent with British Oxygen Co Ltd v Board of Trade, [1971] AC 610, and Re Findlay, [1985] AC 318.
4. The evidence showed that Italy had been notified that each claimant had taken suspensive judicial action and that extensions of time had been requested. The Secretary of State was not under a separate duty to notify the claimants that the timetable had been suspended. The second issue therefore also failed.
5. Eurodac and precedent fact. Whether an applicant had previously claimed asylum in another Member State was not a jurisdictional or precedent fact in the relevant sense. The Dublin system treated a Eurodac match, checked under the Implementation Regulation, as establishing responsibility unless supported by material evidence or substantiated and verifiable contrary statements. In any event, the evidence entitled the Secretary of State to conclude that YM and MT had claimed protection in Italy.
6. The failure of the IS86 form to state the Article 18(1)(e) rights of access to and rectification of Eurodac data was accepted. The court considered that amendment of the form should be considered, but the omission did not make the decisions unlawful on the facts. The claims for judicial review were dismissed.

• Court of Appeal: Richards LJ granted permission for the linked claims to proceed on the identified issues in [2010] EWCA Civ 275.
• High Court (Administrative Court): Hickinbottom J refused permission on the renewed applications on 8 February 2010. Beatson J subsequently dismissed all three claims.