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

An effective remedy under Article 27(1) of Dublin III does not require a tribunal to conduct a fresh fact-finding exercise or to consider post-decision evidence. A challenge to a transfer decision alleging breach of the second subparagraph of Article 19(2) is determined on traditional public law grounds.

The power to make a transfer decision depends on another Member State's actual or deemed acceptance of a take charge or take back request. It does not depend on prior proof of the Article 19(2) facts as precedent facts. However, a material failure to provide the requested state with the information required by Article 23(4) may make the transfer decision procedurally unlawful and justify quashing it.

The applicant sought judicial review of a decision of 30 November 2015 declining to examine her asylum claim, certifying it, and proposing her transfer to France. The Secretary of State had made a take back request after discovering that the applicant had previously claimed asylum in France.

The applicant maintained that she had subsequently left the European Union for more than three months. The request to France inaccurately stated that she had not claimed to have left Member State territory. France accepted responsibility.

The application, for which permission was granted by Upper Tribunal Judge Coker on 23 November 2016, raised whether Article 27(1) of Dublin III required a merits-based factual review, and whether the defective request under Article 23(4) rendered the transfer decision unlawful.

1. The application for judicial review was allowed. The transfer decision of 30 November 2015 was quashed.

2. Article 27(1) of Dublin III, read with recital 19 and Article 47 of the Charter, requires an effective remedy in fact and law. It permits a review rather than requiring a full appeal. The Regulation does not prescribe the intensity of review, which remains governed by national procedural rules. Traditional judicial review is an effective remedy: it permits scrutiny for illegality, irrationality and procedural unfairness, without requiring the Tribunal itself to find the primary facts or admit post-decision evidence.

3. The applicant's asserted absence from Member State territory was not a precedent fact limiting the Secretary of State's power. Under the structure of Dublin III, that power arose once France accepted the take back request. On the evidence available when the decision was made, the Secretary of State's conclusion that the applicant had not established a three-month absence was rational.

4. The Secretary of State nevertheless breached Article 23(4) by inaccurately telling France that the applicant had not asserted that she had left Member State territory. That procedural failure was relevant to the lawfulness of the transfer decision and to the evidential weight properly attached to France's acceptance. It had a sufficiently possible consequence to make the decision unlawful.

5. Section 15(5A) of the Tribunals, Courts and Enforcement Act 2007 did not apply because the permission application had been received before 8 August 2016. Exercising ordinary discretion, the Tribunal considered the later communication with France and all evidence bearing on any fresh decision. In the circumstances, the decision was quashed. The respondent was ordered to pay 75% of the applicant's costs. Permission to appeal was refused.

• Upper Tribunal (Immigration and Asylum Chamber): Judicial-review application lodged on 5 April 2016. Permission was granted by Upper Tribunal Judge Coker on 23 November 2016. The application was allowed and the transfer decision was quashed.