AR (Iran), R (On the Application Of) v Secretary of State for the Home Department

The Dublin II regime allocates responsibility for asylum claims between member states. It does not confer individual rights or procedural safeguards enabling an asylum seeker to challenge that allocation.

A member state which declines to examine a claim after another state accepts responsibility acts “in accordance with” Dublin II for the purposes of article 25.1 of the Procedures Directive. The asylum seeker's article 6.2 right does not require the first state to examine the claim.

The right to be heard under article 41 of the Charter of Fundamental Rights of the European Union does not enable an applicant to contest the Dublin allocation merely because another member state is preferred.

The appellant, an Iranian national, had claimed asylum in Belgium before later claiming asylum in the United Kingdom. The Secretary of State asked Belgium to take him back under Council Regulation (EC) No 343/2003, known as Dublin II. Belgium accepted responsibility, although the appellant asserted that its obligation had ceased because he had spent more than three months outside the European Union.

Mitting J dismissed the appellant's judicial review challenge in [2012] EWHC 1207 (Admin). On appeal, the appellant argued that the United Kingdom remained obliged to examine his claim under articles 6.2 and 25.1 of the Council Directive 2005/85. Alternatively, he contended that procedural defects in the Secretary of State's communications with Belgium invalidated the Dublin decision.

The central issues were whether Dublin II conferred rights allowing the appellant to contest the interstate allocation and whether article 41 of the Charter of Fundamental Rights of the European Union imposed a relevant duty to hear him or make further enquiries.

1. The appeal was dismissed. The United Kingdom and Belgium had followed the Dublin II procedure, and Belgium had accepted responsibility for the asylum claim. Once it did so, intervention by the United Kingdom authorities or courts would have been inconsistent with the principle that an asylum application should be examined in only one member state.

2. The phrase “in accordance with” in article 25.1 of the Council Directive 2005/85 was capable of meaning action taken under Dublin II rather than strict conformity with every rule of that Regulation. The United Kingdom had, as a matter of fact, declined to examine the claim under Dublin II. Article 25.1 therefore excluded the application from the Directive, and article 6.2 did not require the United Kingdom to examine it.

3. Article 6.2 did not create the underlying right to seek asylum. It recorded a pre-existing right derived from the obligations of states under the Geneva Convention. The references to Dublin II in article 25.1 and recital 29 preserved the division between allocating responsibility and substantively examining a claim.

4. Where a take-back request was based on EURODAC data, article 4 of Regulation 1560/2003 required the requested state to acknowledge responsibility unless material evidence or substantiated and verifiable statements showed that its obligation had ceased under article 16.3 of Dublin II. No such material had been provided when Belgium received the request. Belgium was therefore obliged to acknowledge responsibility.

5. Dublin II allocated duties between member states and did not confer individual rights or procedural safeguards upon an asylum seeker. The appellant consequently lacked a right under that Regulation to litigate whether the allocation accepted by both states was improper.

6. Article 41 of the Charter of Fundamental Rights of the European Union did not assist the appellant. Allocation to Belgium was not an adverse measure merely because he preferred the United Kingdom to determine his claim. The Dublin system assumed mutual confidence between member states and separated the threshold allocation stage from the fully justiciable examination of the asylum claim. In any event, an asylum seeker could not invoke alleged procedural defects in the interstate process when Dublin II created no individual procedural rights.

7. The case turned on established principles of European Union law, so no reference to the Court of Justice was required. The removal to Belgium could proceed, allowing the substantive asylum claim to be considered there.

Sir Richard Buxton delivered the judgment. Underhill and Moore-Bick LJJ agreed.

1. Court of Appeal (Civil Division): The appeal was dismissed in [2013] EWCA Civ 778. The court upheld the conclusion that the United Kingdom was not required to examine the appellant's asylum claim and that the Dublin allocation could not be challenged on the asserted grounds.

2. High Court, Administrative Court: Mitting J dismissed the judicial review claim in [2012] EWHC 1207 (Admin). He held that the United Kingdom had declined to examine the application under Dublin II and that the appellant was effectively seeking to challenge Belgium's acceptance of responsibility in a British court.