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

The Dublin II system allocates responsibility for examining asylum claims between Member States. It does not confer a free-standing individual right to challenge that allocation in the courts of the Member State where a later asylum claim is made. Once the responsible Member State accepts responsibility, the second Member State is relieved of the obligation to examine the claim, subject to limited exceptions. Those exceptions include systemic failure by the responsible state and personal circumstances engaging fundamental rights, such as a sufficiently serious risk of suicide on removal. The second Member State need not determine whether the responsible state was correct to accept responsibility.

The claimant, an Iranian national, had previously claimed asylum in Belgium and later made a further asylum claim in the United Kingdom. After consulting Eurodac, the Secretary of State requested Belgium to accept responsibility under the Dublin II Regulation. Belgium accepted responsibility despite being informed of the claimant’s account that he had left the Member States for several years.

The Secretary of State declined to examine the United Kingdom claim, certified that the relevant conditions under Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004 were satisfied, and proposed removal to Belgium. The claimant sought judicial review, arguing that the United Kingdom courts had to determine whether Belgium remained responsible under Article 16.3 of the Dublin II Regulation.

1. Claim dismissed. The Secretary of State was entitled to decline to examine the claimant’s asylum application and to proceed with removal to Belgium. The claimant could not challenge in the United Kingdom the Belgian authorities’ acceptance of responsibility under the Dublin II Regulation.
2. The Dublin II Regulation regulates responsibility between Member States. As recognised in R(G) v Secretary of State [2005] EWCA Civ 54, it does not confer a free-standing substantive right on individual applicants.
3. Article 25.1 of the Procedure Directive concerns cases in which an application is not examined in accordance with the Dublin II Regulation. It does not require the second Member State to determine whether the first Member State correctly accepted responsibility. The phrase refers to the factual position in the state receiving the second application. Here, the United Kingdom had not examined the claim because it had declined to do so under the Regulation.
4. Under the Regulation, Belgium’s acceptance of responsibility under Article 13 relieved the United Kingdom of the obligation to determine the asylum claim. The claimant’s proposed challenge would require an English court to assess both the facts concerning his movements and how Belgian authorities and courts would determine responsibility. The European legislation did not envisage such a procedure.
5. There were limited exceptions. The second Member State may have to exercise its discretion under Article 3.2 where the responsible state has systematically failed in its obligations, or where personal circumstances, such as a sufficiently high risk of suicide engaging Articles 2 or 3 of the European Convention on Human Rights, make removal unlawful.
6. The judge left open whether a person fundamentally misidentified as having claimed asylum in another state could challenge removal on that basis, expressing doubt but deciding that issue was unnecessary.

Permission to appeal was refused. Removal directions were stayed for 14 days to permit an application to the Court of Appeal. The claimant was ordered to pay the defendant’s costs, subject to detailed assessment and section 11 of the Access to Justice Act.