Kheirollahi-Ahmadroghani v Secretary of State for the Home Department

The Dublin II Regulation establishes an administrative system for allocating responsibility between Member States. Its direct applicability does not, without more, confer on an asylum seeker a personal right to insist that a particular Member State examines the claim, or make an alleged breach actionable at the asylum seeker’s suit. Challenges may nevertheless arise on ordinary public-law irrationality or human-rights grounds.

Where the requested Member State fails to respond within the period prescribed by Article 18(1), Article 18(7) treats that failure as acceptance and imposes an obligation to take charge. A subsequent acceptance may also reasonably be relied upon where the receiving State was entitled to accept responsibility under another applicable criterion.

The claimant, an Iranian national, sought judicial review of the Secretary of State’s refusal to examine her asylum application. Germany had accepted responsibility under the Dublin II Regulation, following a request based principally on Article 9(4). The claimant argued that she had left Germany for Iran and that Article 9(4) therefore did not apply. She contended that Article 13 made the United Kingdom responsible and that the Regulation gave her a directly enforceable right to require the United Kingdom to examine her claim.

The Secretary of State relied on Germany’s acceptance, the claimant’s assertion that she held a visa valid until 15 December 2011, and the automatic effect of Germany’s failure to respond within the Article 18(1) period.

1. The claim was dismissed. The claimant had not shown that the Secretary of State acted irrationally in requesting Germany to accept responsibility, relying on Germany’s acceptance, or declining to examine the asylum claim.
2. The Dublin II Regulation is concerned with allocating responsibility between Member States and preventing asylum shopping while ensuring examination by one Member State. Its purpose, recitals and travaux préparatoires did not indicate an intention to create a personal right to require examination by the Member State identified by the hierarchy of criteria.
3. The Regulation is directly applicable, but direct applicability does not automatically mean that every provision creates an individually enforceable right. The authorities, including R (MK (Iran)) v Secretary of State [2010] EWCA Civ 115, R (G) v Secretary of State [2005] EWCA Civ 546, AA (Somalia) v Secretary of State [2006] EWCA Civ 1540 and R (YZ and others) v Secretary of State [2011] EWHC 205 (Admin), supported the conclusion that alleged breaches are not independently actionable, subject to irrationality and human-rights grounds.
4. The claimant’s reliance on Omar v Secretary of State [2005] EWCA Civ 285 was rejected. The relevant majority reasoning concerned the consequences of breach of a transfer time limit. Dicta suggesting directly enforceable rights were not part of the ratio.
5. Under Article 17(3), the requesting State supplies relevant evidence and statements, while the requested State checks whether it is responsible. The Secretary of State was therefore entitled to refer the claimant’s account to Germany. Germany’s failure to decide within two months engaged Article 18(7), which was sufficient to impose an obligation to take charge.
6. In any event, the evidence did not establish that Germany was unable to accept responsibility. The claimant had consistently stated that she held a valid visa until 15 December 2011. Germany could have been responsible under Article 9(1) or Article 9(2), even if Article 9(4) was unavailable because she had left the Member States’ territories.

The removal directions and refusal to examine the claim were therefore lawful.

The judgment describes an earlier refusal of permission by Hickinbottom J on 5 July 2012, followed by the grant of permission at an oral hearing before HH Judge Stephen Davies sitting as a High Court judge on 12 July 2012. The present judicial review was then dismissed.