Habte, R (On the Application Of) v Secretary of State for the Home Department

Under Dublin III, a substantive asylum interview may constitute an examination of an application for international protection under Article 2(d). It does not, without more, transfer responsibility to the interviewing Member State under Article 17(1).

Article 17(1) requires evidence that the Member State has substantively exercised its sovereign discretion to derogate from the ordinary allocation rules and assume responsibility for the claim. No formal or express decision is necessary, but the evidence must engage with that statutory purpose. An invitation to interview, or the interview itself, is insufficient where there is no other evidence of such a decision.

The claimant, an Eritrean national, sought judicial review of the defendant’s decision to transfer him to Italy under Regulation (EU) No 604/2013 (Dublin III). Italy had been identified as responsible after failing to respond to a take-charge request within the prescribed period.

The claimant had nevertheless been invited to, and attended, a substantive asylum interview in the United Kingdom. The issues were whether that interview was an examination under Article 2(d), whether it engaged Article 17(1) so as to transfer responsibility to the United Kingdom, and whether any erroneous decision could later be rescinded. The detention challenge was stayed separately.

1. Article 2(d). The substantive asylum interview fell within the words “examination of … an application for international protection” in Article 2(d) of Dublin III. The parties agreed on that point.
2. Article 17(1). That conclusion did not itself engage the sovereignty clause or transfer responsibility to the United Kingdom. Article 17(1) derogates from the otherwise prescriptive allocation rules in Article 3(1) and Chapter III. It requires an exercise of sovereign discretion pursuant to Article 17(1), with the purpose of assuming responsibility for the claim.
3. No formal decision required. The decision in Fathi v Predsedatel na Darzhavna agentsia za bezhantsite (Case C-56/17) established that no formal or express decision under Article 17(1) was required. However, there still had to be evidence of a substantive decision engaging with the purpose of Article 17(1).
4. Application. The invitation to attend an asylum interview and the subsequent interview did not, alone, provide sufficient evidence that the United Kingdom intended to exercise its sovereign discretion under Article 17(1). There was no evidence that the defendant had decided to examine the claim pursuant to that provision with a view to derogating from the normal Dublin III procedure.
5. The court did not need to decide the width of the Article 17(1) discretion, including whether compelling reasons or particular political, humanitarian or practical considerations were required. The question whether an erroneous decision could be rescinded was likewise unnecessary to determine.
6. The application for judicial review was dismissed. The detention aspect of the claim remained stayed.

This was a first-instance judicial review. Permission was initially refused on the papers, then granted on renewal. The substantive claim was subsequently stayed in part pending related European and domestic authority. The challenge to detention remained stayed pending consideration of R (Hemmati) v Secretary of State for the Home Department [2019] UKSC 56.