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

Article 3(2) of the Dublin II Regulation does not confer an enforceable personal right on an asylum seeker to require the United Kingdom to determine an asylum claim which another Member State is responsible for examining. Its exercise is ordinarily a matter between Member States and is not reviewable at the asylum seeker’s instance, absent a breach of fundamental rights or unreasonable delay. The discretion cannot be used to create a “near miss” extension of the specific family-unity and humanitarian provisions in Articles 7 and 15. Even assuming ordinary public law review applied, rapid allocation of responsibility means that no general duty of inquiry or detailed reasoning arises.

The claimant, a Sri Lankan Tamil, challenged four decisions proposing his removal to Cyprus under the Dublin II Regulation. His brother had refugee status in the United Kingdom, and the claimant argued that consistency of decision-making and humanitarian family considerations required the Secretary of State to exercise the discretion under Article 3(2) and determine his asylum claim in the United Kingdom.

Permission was granted on that ground alone. The court proceeded on the assumption that Cyprus was a safe third country and that no claim under Articles 3, 5 or 8 of the Convention arose. The central issues were the scope and justiciability of Article 3(2), and, alternatively, whether the Secretary of State’s refusal was unlawful or irrational.

1. Article 3(2) and justiciability. The claim failed on jurisdiction. The Regulation allocates responsibility between Member States and does not ordinarily create an enforceable individual right to compel the United Kingdom to assume responsibility. The CJEU authorities, particularly Germany v Puid and NS v Secretary of State for the Home Department, show that Article 3(2) may become relevant where transfer would expose an applicant to a real risk of inhuman or degrading treatment and no other responsible Member State can be identified. No such circumstances arose here.
2. The claimant could not use Article 3(2) to enlarge the defined categories in Articles 7 and 15. Those provisions did not apply to a relationship between adult siblings in the circumstances of this case. Dublin II contained no “near miss” principle requiring a Member State to accept responsibility merely because the facts resembled a case within those provisions.
3. The claimant’s legitimate public law interests were protected by the assumption that it would not matter where in the Community the asylum application was heard. The discretion was therefore a matter solely between the United Kingdom and Cyprus and was not reviewable at the claimant’s instance. The court added that domestic public law principles would be relevant in few, if any, cases.
4. Alternative merits analysis. Even if the decision were reviewable, the consistency argument failed. The Devaseelan principles, as applied in Ocampo v Secretary of State for the Home Department and explained in AA (Somalia) v Secretary of State for the Home Department, require claims to arise from the same factual matrix, not merely to contain overlapping evidence. The brothers’ principal experiences occurred at different times and places.
5. The humanitarian argument also failed. The claim was assumed to fall below the Article 8 threshold; Cyprus was assumed safe; and the claimant’s asylum claim was assumed to have the same prospect of success there. There was consequently no compelling or exceptional basis for exercising Article 3(2).
6. Assuming a public law duty existed, no extensive inquiry or detailed reasons were required. It was sufficient to identify that another Member State was responsible and that no grounds existed for departing from the normal practice. The four decision letters, read together, were adequate and rational. The claim failed both on jurisdiction and on the merits.

The judgment states that permission to appeal on other grounds had been sought from the Court of Appeal, with the application adjourned to be heard with similar cases on 6 March 2014. Those grounds were not before this court.