Salah Ali Eisa, R (on the application of) v The Secretary of State for the Home Department

Judicial review is sufficiently flexible to provide the effective review in fact and law required for a Dublin III transfer decision. It may determine factual issues bearing on the lawfulness of transfer or a human-rights objection.

Where national law gives an applicant a right to remain pending that review, it constitutes suspension for the purposes of Article 27(3). The six-month transfer period is therefore suspended.

Article 17 confers a discretion, not an obligation, to examine a claim for which another Member State is responsible. A refusal to exercise that discretion is reviewable only on ordinary public-law grounds. Relief will ordinarily require wholly exceptional compassionate or family circumstances where the transfer is otherwise lawful.

The applicant, a Sudanese national, claimed asylum in the United Kingdom after travelling through Italy. The Secretary of State decided that Italy was responsible for his claim under Dublin III and refused to consider the claim substantively. A later Article 3 claim was refused and certified as clearly unfounded.

After an earlier refusal of permission, Judge Freeman allowed a renewed application on a limited issue. The question was whether judicial review supplied the effective review in fact and law required by Article 27(1), including a challenge based on whether the Secretary of State should exercise the discretionary power in Article 17 to examine the claim in the United Kingdom.

1. The judicial-review application was dismissed. Judicial review is capable of satisfying Article 27(1) of Regulation (EU) No 604/2013 (Dublin III). Its flexibility permits the Tribunal to determine factual issues where they bear directly on the lawfulness of transfer, including alleged breaches of Article 3 rights. It is not confined to a Wednesbury review in such human-rights matters.
2. Article 27(1) requires effective scrutiny of both the application of the Regulation’s responsibility criteria and the legal and factual position in the proposed receiving Member State. Ghezelbash v Staatssecretaris van Veiligheid en Justitie [2016] 1 WLR 3969 confirmed that an incorrect application of the responsibility criteria may be judicially scrutinised. That requirement does not turn the domestic remedy into a general merits appeal.
3. Under Article 27(3), the domestic practice allowing an applicant to remain while judicial review of a Dublin transfer decision is determined operates as a suspension of transfer. Accordingly, the six-month period in Article 29 does not run while that review is pending.
4. Article 17(1) is a discretionary derogation from the normal responsibility criteria. It does not form part of the Article 27 review where the transfer decision is otherwise lawful. A separate refusal to exercise the discretion remains judicially reviewable, as recognised in ZT [2016] 1 WLR 4894, but only on Wednesbury grounds. In the absence of a defect in the transfer decision, relief would require very strong compassionate circumstances or material family considerations.
5. Permission was refused on the remaining issues. There was no order for costs save for the usual Legal Aid order.

• Upper Tribunal: Upper Tribunal Judge Hanson initially refused permission on 16 November 2015.
• Upper Tribunal: On renewal, Judge Freeman granted permission on the limited Article 27(1) issue. The present judicial-review application was dismissed and permission was refused on the remaining issues.