Habte v Secretary of State for the Home Department & Ors

The Dublin II system provides the procedural framework for allocating responsibility between Member States for an asylum claim. Where a Member State is asked to take back an applicant whose earlier claim was rejected, domestic procedural fairness does not require additional enquiries, legal advice, evidence-gathering opportunities or delay beyond that framework. Article 41 of the Charter does not apply to the allocation decision or to consequential removal to the responsible Member State. A request to take back an applicant is not irrational merely because the applicant claims to have spent more than three months outside the Member States; that issue is for the requested state to assess on the prescribed evidence. A further request after an initial refusal is expressly contemplated where the refusal may involve a misappraisal, even without new evidence. Removal to the responsible state may be proportionate under Article 8 ECHR where the applicant’s United Kingdom family and private life was formed while immigration status was precarious and the asylum claim remains capable of determination there.

Two judicial reviews concerned proposed transfers under the Dublin II Regulation. Biruk Habte had previously claimed asylum in Germany, later claimed asylum in the United Kingdom, and asserted that he had spent more than three months outside the European Union. Germany accepted responsibility and agreed to take him back. He challenged the Secretary of State’s procedural approach, the transfer decision, the application of Article 41 of the Charter, and certification of his Article 8 ECHR claim as clearly unfounded.

RH and her son DY had previously claimed asylum in Belgium. Belgium initially refused a take-back request, referring to their claimed absence from the Schengen territory, but accepted a further request after the Secretary of State supplied a fuller account. They challenged both requests as irrational. The central issues were whether additional procedural obligations applied and whether the requests and removal decisions were unlawful on domestic public law or human-rights grounds.

1. Procedural obligations. The claims were dismissed. The Dublin II Regulation and the Commission Regulation establish the relevant procedure for allocating responsibility and taking back an applicant whose earlier asylum claim was rejected. The applicant has no right to require a particular Member State to determine the asylum claim. The detailed provisions therefore leave no basis for adding domestic procedural duties to investigate further, identify required evidence, arrange legal advice, allow time for evidence-gathering or defer a take-back request.
2. The request sent for Mr Habte contained sufficient information to enable Germany to check responsibility. The incorrectly completed form was regrettable, but the accompanying comments recorded his account sufficiently. Later evidence could not retrospectively affect the lawfulness of the earlier request or Germany’s acceptance.
3. Charter. Article 41 did not apply. Following R (AR (Iran)) v Secretary of State for the Home Department, [2013] EWCA Civ 778, the allocation phase does not determine an asylum seeker’s substantive rights. Consequential removal to the responsible Member State is part of that first phase and is not an individual measure adversely affecting the applicant for Article 41 purposes.
4. Rationality. The request for Belgium to take RH back was rational because Belgium was the responsible state and the question whether its obligation had ceased was for Belgium to assess. Continuing the request after refusal was also rational. Article 5.2 of the Commission Regulation expressly permits reconsideration where the requesting state considers that the refusal resulted from a misappraisal, whether or not new evidence exists.
5. Article 8. Taking the claim at its reasonable highest, removal pursued legitimate aims, including effective immigration control and operation of the Dublin system, was in accordance with law, and was proportionate. The relationship and private-life ties had been formed while Mr Habte’s presence was unlawful or precarious, and he could pursue his asylum and Article 8 arguments in Germany. The certification as clearly unfounded was lawful. Both claims for judicial review were dismissed.

First-instance judicial reviews in the Administrative Court. The judgment records earlier Court of Appeal authorities but no appeal from these proceedings.