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] 
