CK (Afghanistan) v Secretary of State for the Home Department

On a renewed application for permission to appeal, the court grants permission where the proposed grounds have a reasonable prospect of success. The permission decision does not determine the merits of the underlying asylum-transfer challenge. Arguable issues included whether decisions under the Dublin II scheme are generally justiciable, whether the Article 8 threshold had been treated as requiring a flagrant breach, whether dependency under Article 15.2 is a distinct inquiry, and whether a certification challenge asks if the claim could lawfully be certified as clearly unfounded. The court may link a permission application with another appeal raising the same central issue and extend time where appropriate.

The applicants, an Afghan Sikh family, arrived in France before seeking asylum in the United Kingdom. France accepted responsibility for considering their claims under Dublin II. They asked the Secretary of State to exercise discretions under Articles 3.2 and 15.2 and relied on Article 8 of the European Convention on Human Rights.

The High Court dismissed their judicial review challenge. The Deputy High Court Judge held that challenges to decisions under Dublin II were not justiciable, subject to Article 3 of the Convention, and rejected the claims on their merits. The applicants renewed their application for permission to appeal on three grounds: justiciability, the relationship between Article 15.2 dependency and Article 8, and the correct approach to certification as clearly unfounded.

Lady Justice Sharp was concerned only with permission to appeal. She did not determine the merits of the applicants’ challenge to removal to France.

1. The renewed application was granted. The court was satisfied that each of the three proposed grounds had a reasonable prospect of success.
2. The first ground raised an arguable question whether decisions under Dublin II are never justiciable, except insofar as they concern Article 3 of the European Convention on Human Rights.
3. The second ground raised an arguable distinction between the dependency inquiry under Article 15.2 and the assessment under Article 8. It was arguable that the lower court had treated the conclusion under Article 8, including the alleged requirement of a flagrant breach, as determinative of the Article 15.2 issue. The citation to Mozaffar Baradaran [2014] EWCA Civ 854 appeared in the account of the lower court’s reasoning; the Court of Appeal did not determine the correctness or scope of that authority.
4. The third ground raised the correct approach to a certification challenge. The applicants argued that the question was whether the Secretary of State could lawfully certify the claim as clearly unfounded, rather than whether the Court itself considered that Article 8 had been breached. That issue was sufficiently arguable for permission.
5. Because the central justiciability issue also arose in Jayaipan Jeyasuthan, the appeals were linked pending further order. An extension of time was granted because the application had been made out of time.

1. Court of Appeal (Civil Division) — On the renewed application, permission to appeal was granted on three grounds. The appeal was linked with Jayaipan Jeyasuthan, and time was extended.
2. High Court, Administrative Court — The judicial review challenge to the Secretary of State’s decision to remove the applicants to France under Dublin II was dismissed. The court treated the decision as non-justiciable, subject to Article 3 of the Convention, and rejected the alternative merits arguments.