CK & Ors, R (On the Application Of) v Secretary of State for the Home Department

Decisions under the Dublin II Regulation are generally not susceptible to judicial review at the instance of an asylum seeker. The exception is where transfer would create a real risk of inhuman or degrading treatment. An error concerning the exercise of the Article 15.2 discretion does not justify relief where the error caused no prejudice and the decision-maker would inevitably have reached the same result. Article 15.2 requires dependency connected with pregnancy, a new-born child, serious illness, severe handicap or old age, together with family ties in the country of origin. Article 3.2 does not require responsibility to be assumed merely because another state may be less suitable to determine the claim. Article 8 and section 55 cannot be used to reopen the merits of a lawful Dublin transfer.

The claimants were a family of Afghan Sikh asylum seekers who had entered France before travelling to the United Kingdom. France accepted responsibility for examining their asylum claims under the Dublin II Regulation, and the Secretary of State directed their removal to France.

The claimants asked the Secretary of State to exercise the discretionary powers under Articles 3.2 and 15.2 so that their claims would be examined in the United Kingdom, relying also on Article 8 of the European Convention on Human Rights 1950 and section 55 of the Borders, Citizenship and Immigration Act 2009. Permission to seek judicial review was initially refused but later granted. The issues were whether the decision was justiciable and, if so, whether it was unlawful.

1. Justiciability. The claim failed because decisions implementing the Dublin II Regulation could not generally be challenged by an asylum seeker through judicial review. The recognised exception applied where transfer would expose the person to a real risk of inhuman or degrading treatment. That exception was not alleged on the facts.
2. Article 15.2. The Secretary of State had erred in law by treating a request from another member state as necessary before Article 15.2 could be considered. K v Bundesasylamt Case C-234/11, [2013] 1 WLR 883 established that no such request was required. However, the error caused no prejudice. The decision-maker had separately found that the Second Claimant was not financially, physically or emotionally dependent on her relatives. It was therefore inevitable that Article 15.2 would not have been applied.
3. Before Article 15.2 could require consideration of keeping asylum seekers with relatives, the evidence had to establish dependency, a specified ground such as pregnancy, and family ties in the country of origin. There was no public law duty to make further inquiries where the information supplied did not establish those prerequisites.
4. Article 3.2. The Secretary of State was under no duty to exercise the discretion in the claimants’ favour. The fact that the United Kingdom might be better placed to determine the claims was inconsistent with the Dublin scheme’s allocation of responsibility and did not make the refusal irrational.
5. Article 8 and section 55. The family-life interference resulted from the lawful application of Article 10. The claimants accepted that interference was proportionate and did not establish the flagrant breach required to challenge the Dublin decision. The Secretary of State had considered the child’s welfare under section 55, and the weight given to the limited family contact was for her, not the court.
6. The judicial review claim was dismissed. The court added that, if Article 15.2 had applied, its wording would normally impose an obligation to keep or bring relatives together, subject only to an exceptional situation. That observation was unnecessary to the result.

The judgment was a first-instance decision in a judicial review claim. Permission was initially refused by HHJ Inglis on 18 June 2013, but was granted after an oral hearing by Elizabeth Cooke QC on 3 October 2013.