The Immigration and Asylum Act 1999 section 11
provides for the removal from the United Kingdom of asylum claimants.
A claimant for asylum may be removed from the United Kingdom to a Member State
where a certificate has been issued by the Secretary of State under Section
11(2).
Such a certificate will be issued where (a) the Member State has accepted
responsibility under the Dublin Convention for dealing with the applicants'
claim for asylum and (b) the Secretary of State is of the opinion that the
claimant is not a national or citizen of the Member State to which he is to be
sent.
Under section 11(1) a Member State is not to be regarded as a place (a) where a
person's life or liberty is threatened or (b) from which a person will be sent
to another country otherwise and in accordance with the Refugee Convention.
[4] In the Immigration Rules (HC 395) paragraph 345
deals with "Third country cases."
Where the Secretary of State is satisfied that the conditions of Section 11 of
the 1999 Act are fulfilled he will normally refuse the asylum application and
issue a section 11 certificate without substantive consideration of the
applicant's claim.
Paragraph 345(2) provides that the Secretary of State shall not remove an asylum
applicant without substantive consideration of his claim unless (i) the asylum
applicant has not arrived in the United Kingdom directly from the country in
which he claims to fear persecution and has had the opportunity to seek the
protection of a third country or (ii) there is no other clear evidence of his
admissibility to a third country.
If the Secretary of State is satisfied on the above criteria he is under no
obligation to consult the authorities of the third country before the removal of
the asylum applicant to that country.
The applicants
[5]
In addition the first applicant had included in his grounds for Judicial Review
the rejection of his appeal made on human rights grounds. However this matter
was not advanced as a separate ground either in the first applicant's skeleton
argument or at the hearing. The respondent contends that the appeal on human
rights grounds was considered by the respondent and rejected as clearly
unfounded and there is no basis for setting aside that conclusion.
Wade and Forsythe's Administrative Law (7th
ed.) at page 533 caution against the conclusion that an applicant's
representations "would make no difference" as that might compromise the
principle that the procedures and the merits should be kept strictly apart.
Nevertheless it is recognised that there may be exceptional cases where it is
acceptable to consider whether the absence of the irregularity would alter the
outcome. Bingham LJ adopted such an approach in R v Chief Constable of Thames
Valley Police ex parte Cotton [1990] IRLR 64 where he set out six reasons
why such a holding should be a rare event. The six reasons were set out again in
Bingham LJ's article "Should Public Law Remedies be Discretionary?" {1991] PL 64
at 72 –
(1) Unless the subject of the decision has had an opportunity to put his case,
it may not be easy to know what case he could or would have put if he had had
the chance.
(2) As memorably pointed out by Megarry J in John v Ross [1970] Ch 345. 402,
experience shows that that which is confidently expected is by no means always
that which happens.
(3) It is generally desirable that decision makers should be reasonably
receptive to argument, and it would therefore be unfortunate if the
complainant's position became weaker as the decision maker's mind became more
closed.
(4) In considering whether the complainant's representations would have made any
difference to the outcome, the court may unconsciously stray from its proper
province of reviewing the propriety of the decision making process into the
forbidden territory of evaluating the substantial merits of the decision.
(5) This is a field in which appearances are generally thought to matter.
(6) Where a decision maker is under a duty to act fairly the subject of the
decision may properly be said to have a right to be heard, and rights are not be
lightly denied.
[23] The first applicant appealed against the decision
for removal. He set out six grounds of appeal, the first three being under the
European Convention and the other three being under the additional grounds
referred to above.
The first ground was that the decision was incompatible with Article 3 of the
European Convention, being the right not to be subjected to inhuman and
degrading treatment, and in that regard he relied on the medical condition of
his wife and daughter.
The second ground was that the decision was incompatible with the Article 6
right to a fair trial. The particulars were that there had been no substantive
consideration of his asylum application; that he had not been advised of the
request under the Dublin Convention and had been denied the right to make
representations; that he had not been provided with a copy of the request under
the Dublin Convention so as to determine compliance with the Convention; that
United Kingdom asylum applications are dealt with more promptly and that there
was an obligation to afford best protection to the applicants rights.
The third ground was that the decision was incompatible with the applicant's
Article 8 right to respect for private and family life. The particulars were
that the applicant had settled and formed relationships and had support in
Northern Ireland and again relying on the medical condition of his wife and
daughter and that the removal of the applicant was not necessary and was
disproportionate.
The fourth ground concerned the status of the applicant's daughter as an Irish
citizen with a right to reside in the United Kingdom.
The fifth ground was that the decision was not in accordance with the law in
that by requiring a substantive application the applicant had a legitimate
expectation that his case would be considered in the United Kingdom and that the
decision failed to take account of all relevant considerations and was
unreasonable.
The sixth ground relied on the above considerations to establish that the
discretion should have been exercised differently.
[25] The first applicant further set out in argument
the grounds on which he would have relied had the opportunity been given to make
representations on the transfer of the asylum application to the Republic of
Ireland.
The first ground was that the United Kingdom retains the discretion to deal with
the asylum application even if the case falls within the terms of the Dublin
Convention. This is provided by Article 3(4) of the Dublin Convention and
Article 3(2) of Council Regulation (EC) 343/2003. This residual discretion is
recognised in the Home Office letter of 24 July 2003 where it is contemplated
that there may be compassionate or compelling reasons that would warrant
departure from what is described as the usual practice, namely returning the
applicant to a third country. Further the Home Office letter of 11 July 2003
refers to the Immigration Rules that provided that an asylum application will
"normally" be refused without substantive consideration and transfer will be
made to a safe third country and it was stated that there were no grounds for
departing from that practice in the applicant's case. So consideration was given
to the existence of any grounds for not transferring the applicant in the
present case.
The applicant's second ground alleges failure to take account of the rights of
the applicant's daughter. It is contended that with the applicant's removal his
daughter would be "constructively removed" and the respondent would thereby fail
to apply it own criteria that provides that removal to a third country involves
applicants who are not nationals or citizens of the country of destination.
However the status of the applicant's daughter is well to the fore in the
grounds of appeal already advanced. In her statement Ms Mortlock refers to the
birth of the applicant's daughter and to the decision of the Supreme Court of
Ireland in Fajujonu [1995] IR 151 and of the further decision of the
Supreme Court in O and L [January 2003].
The third ground refers to a Home Office policy where the claimant would not
normally be removed on third country grounds if he had a minor child in the
United Kingdom. Authorities to the effect that the removal of a minor had been
held to be cruel were not relied on.
The fourth ground questions the basis of the "many reasons including case
specific reasons and administrative reasons" why Dublin Convention cases might
be considered in the United Kingdom. Reference is made to a number of other
applicants from Zimbabwe who were said to have been properly returnable under
the Dublin Convention but have had their substantive asylum claims dealt with in
the United Kingdom. The respondent deals with one example where the respondent
had been suspicious but had been unable to establish that the applicant had
entered the United Kingdom from a safe third county.
The applicant's fifth ground relies on the "constructive removal" of the
applicant's daughter and the related community rights to travel in the community
and reside in a Member State. Ms Mortlock states that the applicant has failed
to demonstrate either that the child is exercising free movement rights to
receive services or that she has sufficient resources to live without recourse
to public funds. The applicant does not advance dependent community rights.
[28]