CK (Afghanistan) & Ors, R (on the application of) v The Secretary of State for the Home Department

The Dublin II Regulation confers no individual right to challenge the allocation of responsibility for an asylum claim between Member States. That restriction does not prevent an individual from challenging removal on an independent ground, notably article 8 of the European Convention on Human Rights.

The Dublin system has profound weight in the article 8 proportionality balance. An asylum seeker must establish an especially compelling case before removal to the responsible Member State may be refused. Where the Secretary of State certifies an article 8 claim as clearly unfounded, the question is whether a reasonable immigration judge could uphold it.

The appellants were an Afghan Sikh family who had first entered the European Union in France. France accepted responsibility for examining their asylum claims under the Dublin II Regulation. After joining relatives in the United Kingdom, the appellants asked the Secretary of State to examine their claims here by reference to articles 3 and 15 of the Regulation, article 8 of the European Convention on Human Rights and section 55 of the Borders, Citizenship and Immigration Act 2009.

The Secretary of State refused and certified their human rights claims as clearly unfounded. A Deputy High Court Judge dismissed their applications for judicial review. She held principally that a Dublin II decision was not susceptible to an individual challenge except where removal risked treatment contrary to article 3, but also concluded that the claims would fail on their merits.

The central issue on appeal was whether, apart from article 3, an individual could challenge removal to the responsible Member State on ordinary public law or article 8 grounds. If an article 8 challenge was available, the court also had to decide whether the certificate could stand.

1. The appeal was dismissed unanimously. Dublin II regulates at the inter-State level which Member State must examine an asylum claim. It confers no freestanding individual right to challenge that allocation or to require a particular Member State to determine the claim.

2. The absence of an individual right under Dublin II does not make the ensuing removal immune from challenge on an independent legal ground. In particular, an individual may contend that removal to the responsible Member State would violate article 8 of the European Convention on Human Rights. The inter-State Dublin regime and the autonomous protection of Convention rights must be kept analytically distinct.

3. K v Bundesasylamt, Case C-245/11, did not establish a right to challenge the merits of a Dublin II allocation. It decided how article 15(2) operates where its conditions are satisfied. The dependency in that case was a premise of the question referred, rather than an issue decided by the Court of Justice. A plainly unsustainable conclusion about article 15(2) would fall to be considered through the prism of article 8.

4. The existence and purposes of Dublin II have profound weight in the article 8 proportionality balance. The Regulation is a legal instrument of major importance for distributing responsibility for asylum claims. Treating it as merely presumptive would critically undermine its purpose. An especially compelling case is therefore required to prevent removal following a Dublin II determination.

5. Because the Secretary of State had certified the claims as clearly unfounded, the merits question was whether she could properly decide that the article 8 case was bound to fail, or whether a reasonable immigration judge might uphold it. The appellants' contact with relatives in the United Kingdom and their asserted need for emotional support could not satisfy the especially compelling threshold. Contact could be maintained from France and the evidence disclosed nothing beyond the ordinary support expected between adult relatives. The article 8 case was unsustainable and the certificate stood.

1. Court of Appeal (Civil Division): The appeal was dismissed unanimously: [2016] EWCA Civ 166.

2. Administrative Court: Ms Geraldine Clark, sitting as a Deputy High Court Judge, dismissed the applications for judicial review on 30 July 2014. She held principally that Dublin II decisions were not open to individual challenge except where removal would lead to inhuman or degrading treatment. She also held that the claims would have failed on their merits. No citation for that decision is stated.