France is a ‘safe’ third country per Schedule 3 AI(TC)A2004: however, the Secretary cannot certify any challenges as manifestly unarguable purely because of this if there is any question of mistreatment on her deportation: thus in this respect, the Regulations improve on the old Convention. Further, unlike for the old Convention, if there is any question that she may be deported back to Algeria because her application is likely to fail unreasonably in France, or if France interprets the provisions of protective legislation too narrowly, this could also be ground to challenge its ‘safety’. A high risk of deportation to Algeria where there is a civil war would be contrary to her right to life under the ECHR.
Dublin II contains an overall objective to preserve family unity. Under Chapter III, there are criteria, in hierarchal order, which should be considered in determining which state will be responsible for the asylum application. The first consideration for BB will be Article 7 which provides:
“Where the asylum seeker has a family member, …who has been allowed to reside as a refugee in a Member State, that Member State shall be responsible for examining the application for asylum, provided that the persons concerned so desire”.
If BB’s UK/German family have refugee status, then the State in which they reside has responsibility for examination of BB’s claim, with BB’s consent. Similarly, Article 8 would make the UK or Germany the responsible country if the decision as to her family’s status were pending.
Assuming BB’s relatives do not have refugee status, or a pending application, Articles 10 and 18 will be applicable. Under Article 18, the discovered ferry ticket may provide circumstantial evidence that she irregularly crossed the Moroccan-Spanish border three months ago and, if the evidentiary value is deemed ‘coherent, verifiable and sufficiently detailed’, Spain may be responsible for examining her asylum application. Spain will not be absolved of responsibility under Article 10 as the ticket suggests the apparent illegal border crossing took place within the last twelve months. Under the old Convention, the ticket would unlikely be sufficient as ‘tangible evidence’.
Otherwise, if no State can be identified as responsible from these criteria, the first Member State in which BB made her application for asylum will be responsible for examining the application (presumably but not necessarily the UK). However, any State may, for humanitarian reasons such as those relating to family or cultural issues, examine the application at the request of another State, with BB’s approval. BB could request the UK or Germany examine her application because of her family ties there, given the overall objective of family unity aforementioned. If the factors have not been properly considered, she may have a case for judicial review. As can be seen, Dublin II largely retains the substance of the old Convention and deals with some, but not all of its problems, leading some to conclude that it has not improved the process significantly.
The decision to remove BB to the safe country is discretionary provided the legal conditions for doing so are fulfilled. However, the decision as to whether to exercise this discretion favourably to a claimant can be challenged on human rights grounds. BB may also therefore challenge her deportation under the ECHR, provisions of which are incorporated into UK law under the Human Rights Act 1998. Section 6 HRA1998 makes it unlawful for authorities to act in a way incompatible with the ECHR. Further, Section 65 Immigration Act 1999 gives asylum-seekers the right to challenge any decision relating to their entitlement to enter or remain in the UK on the grounds that the decision may breach his or her Human Rights. Thus, in Asaratnam, the Court held if a claimant had a valid human rights claim not to be removed, they had an entitlement to stay.
Article 8(1) ECHR guarantees the right to respect for family life; imposing negative duties not to interfere with the right to privacy, and positive obligations on States to take measures to prevent parties from interfering with the rights it affords. Of note to BB, ‘Family’ has a wide meaning and includes, for example, grandparents, adoptive and foster parents so could include her stepmother. ‘Respect for family life’ includes taking measures for uniting a family, although refusal to grant citizenship where, for example, there is no actual separation of relationship has been held not to violate the right under Article 8. BB could argue that because she has family in the UK (or Germany) her removal would constitute disproportionate interference with right of respect for family and/or private life. Article 8 is the most common reason behind Strasbourg case reports relating to immigration decisions that separate family members, although Strasbourg jurisprudence under Article 8 does not provide much hope for immigrants. Article 8 does not impose an obligation on States to allow entry to non-nationals but on occasion, the Courts have found that a close family relationship is entitled to respect. The immigration rules can distinguish between various relationships, however. The key issue will be whether the Secretary of State’s decision was proportionate.
In addition to the challenge under Article 8, BB can argue that her removal will impact her liberty and security as some form of detention will have to take place pending removal. Under the Immigration Rules a deportation order authorises the detention of the person to whom it concerns, until they are removed. An unnecessary period of detention can be grounds for judicial review of the decision to remove.
Appeal against the order is made under National Immigration and Asylum Act 2002. If this relates to the ECHR, the relevant provision is s.84(c), or s.84(g) if it relates to the Geneva Convention. BB cannot appeal under Section 82 whilst in the UK if the Secretary has already issued a certificate in relation to her; however, if she makes a human rights claim and the Secretary has not certified it to be clearly unfounded, it can be pursued. If a certificate has been made however, this can be challenged by judicial review.
Bibliography
- A Berry, ‘Border trouble’ (New Law Journal, 158 NLJ 201, 8 February 2008)
- C Sawyer and P Turpin, ‘Neither Here Nor There: Temporary Admission to the UK’ (International Journal of Refugee Law, IJRL 2005 17 (688), 1 December 2005)
-
European Commission, ‘ Transmission of asylum applications between member states plus Norway and Iceland - DubliNet now operational’ (16th September 2003)
-
G Clayton, Textbook on Immigration and Asylum Law (Oxford University Press, 2Rev Ed edition, Aug 2006)
- Halsbury’s Laws of England Constitutional Law and Human Rights (Volume 8(2) Reissue)
- Halsbury’s Laws of England, Administrative Law (2001 Reissue) Volume 1(1)
- Halsbury’s Laws of England, British Nationality, Immigration and Asylum (2002 Reissue) Volume 4(2)
-
J Salvinder, A Guide to the Asylum and Immigration (Treatment of Claimants, Etc) Act 2004 (Routledge Cavendish, May 2005)
- K. Browne, Welfare Benefits and Immigration Law (College of Law Publishing, Guildford, 2008) 301
- M-T Gil-Bazo, 'The Practice of Mediterranean States in the context of the European Union's Justice and Home Affairs External Dimension. The Safe Third Country Concept Revisited' (International Journal of Refugee Law IJRL 2006 18 (571) 1 December 2006)
- Refugee Council, 'The Dublin Convention on asylum applications: What it means and how it’s supposed to work' (August 2002, London)
-
Secretary of State for the Home Department, ‘Faster, Fairer, Firmer: A Modern Approach to Immigration and Asylum’ (Cm 4018, July 1998)
- UNHCR, 'Background Paper No. 2: The application of the “safe third country” notion and its impact on the management of flows and on the protection of refugees' (Geneva, May 2001)
Cases
- Abdulaziz, Cabales and Balkandali v United Kingdom A 94 (1985), 7 EHRR 471, ECtHR
- Andersson v Sweden A 226 (1992), 14 EHRR 615, ECtHR
- Application 14112/88 X v United Kingdom [1989] 86 LS Gaz R 45, EcomHR
- Application 5302/71 X and Y v United Kingdom 44 CD 29 (1974), EComHR
- Application 9993/82 X v France 31 DR 241 (1982), EComHR
- Beldjoudi v France (1992) 14 EHRR 801
- Berrehab v The Netherlands (1988) 11 EHRR 322
- Boultif v Switzerland [2001] 2 FLR 1228, ECtHR
- Chahal v United Kingdom (1997) 23 EHRR 413
- Ciliz v Netherlands [2000] 2 FLR 469, ECtHR
- Cruz Varas v Sweden A 201 (1991), 14 EHRR 1, ECtHR
- Edore v Secretary of State for the Home Department [2003] 3 All ER 1265
- Gaskin v United Kingdom A 160 (1989), 12 EHRR 36, ECtHR
- Gül v Switzerland (19 February 1996, unreported), ECtHR
- Marckx v Belgium A 31 (1979), 2 EHRR 330, ECtHR.
- Mohammad, Manoharan, Sakhee, Yogarajah v Secretary of State for the Home Department CO/1149/2409/2721/3941/4024/01 High Court of Justice Queen's Bench Division (The Administrative Court) 24 January 2002 Neutral Citation Number: [2002] EWHC 57 (Admin) 2002 WL 45129
- Moustaquim v Belgium (1991) 13 EHRR 802
- Nasri v France (1995) 21 EHRR 458
- Nasseri v Secretary of State for the Home Department [2007] EWHC 1548 (Admin); [2008] 2 W.L.R. 523; [2008] 1 All E.R. 411; [2007] H.R.L.R. 36; [2007] U.K.H.R.R. 1008; Times, August 3, 2007
- R (on the application of AA (Afghanistan)) v Secretary of State for the Home Department [2006] EWCA Civ 1550, (2006) Times, 29 November, 150 Sol Jo LB 1570, [2006] All ER (D) 302 (Nov)
- R (on the application of Ibrahim) v Secretary of State for the Home Department [2001] EWCA Civ 519
- R v Secretary of State for the Home Department, ex p Mehari [1994] QB 474, [1994] 2 All ER 494, [1994] Imm AR 151
- R v Secretary of State for the Home Department, ex parte Sivakumaran and conjoined appeals (UN High Commissioner for Refugees intervening) (1988) 1 All ER 193
- R. (on the application of Yogathas) v Secretary of State for the Home Department, R. (on the application of Thangarasa) v Secretary of State for the Home Department, [2002] UKHL 36; [2003] 1 A.C. 920; [2002] 3 W.L.R. 1276; [2002] 4 All E.R. 800; 14 B.H.R.C. 185; [2003] Imm. A.R. 227; [2002] I.N.L.R. 620; (2002) 146 S.J.L.B. 240; Times, October 18, 2002; Official Transcript
- Regina v. Secretary of State for the Home Department ex parte Adan and Aitseguer 2001 2 AC 477
- Salah Sheekh v Netherlands (App no 1948/04) 2007] ECHR 1948/04
- Secretary of State for the Home Department v Adan and Aitsegeur [2001] 2 WLR 143
- TI v United Kingdom [2000] I.N.L.R. 211 ECHR
- X and Y v Netherlands A 91 (1985), 8 EHRR 235, ECtHR para 22
Legislation
- Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (“AI(TC)2004”)
- Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953) Cmd 8969) (“ECHR”)
- Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (Official Journal L 304 , 30/09/2004 P. 0012 – 0023)
-
Council Regulation (EC) 1560/2003 2nd September 2003
-
Council Regulation (EC) No 343/2003 18th February 2003
- Dublin Convention: Convention determining the state responsible for examining applications for asylum lodged in one of the member states of the European Communities (Dublin, 15 June 1990; TS 72 (1997); Cmd 3806).
- Human Rights Act 1998
- Immigration Act 1971
- Immigration Rules: Updated February 2008 (available online: http://www.bia.homeoffice.gov.uk/policyandlaw/immigrationlaw/immigrationrules/)
- Nationality, Immigration and Asylum Act 2002 (“NIA2002”)
- Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525)
- UK Borders Act 2007
- United Nations Convention Relating to the Status of Refugees (Geneva, 28 July 1951; TS 39 (1953), Cmnd 9171) and Protocol (New York, 31 January 1967; TS 15 (1969); Cmnd 3906)
- Universal Declaration of Human Rights (Paris, 10 December 1948; UN 2 (1949); Cmd 7662)
Appendices
Appendix 1: Council Regulation (EC) No 343/2003 (6)
“(6) Family unity should be preserved in so far as this is compatible with the other objectives pursued by establishing criteria and mechanisms for determining the Member State responsible for examining an asylum application.”
Appendix 2: Council Regulation (EC) No 343/2003 Article 8
“If the asylum seeker has a family member in a Member State whose application has not yet been the subject of a first decision regarding the substance, that Member State shall be responsible for examining the application for asylum, provided that the persons concerned so desire”.
Article 14 Universal Declaration of Human Rights (Paris, 10 December 1948; UN 2 (1949); Cmd 7662) art 23(1)
Article 1 UN Convention relating to the Status of Refugees (Geneva, 28 July 1951; TS 39 (1954); Cmd 9171) (“Refugee Convention”) and Protocol (New York, 31 January 1967; TS 15 (1969); Cmnd 3906)
Article 1 Refugee Convention; see also Council Directive 2004/83/EC and Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525)
Council Regulation (EC) No 343/2003 (2); Article 1 Refugee Convention
R v Secretary of State for the Home Department, ex parte Sivakumaran and conjoined appeals (UN High Commissioner for Refugees intervening) (1988) 1 All ER 193
Immigration Rules Para 327
Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953) Cmd 8969) (“ECHR”): Articles 2-12 and 14, and Articles 1 to 3 of Protocol 1 and Protocol 6 ECHR incorporated into UK law by Human Rights Act 1998
The national languages are Algerian, Arabic or Tamazight
Secretary of State for the Home Department, ‘Faster, Fairer, Firmer: A Modern Approach to Immigration and Asylum’ (Cm 4018, July 1998) para 11.27
Convention determining the state responsible for examining applications for asylum lodged in one of the member states of the European Communities (Dublin, 15 June 1990; TS 72 (1997); Cmd 3806)
Council Regulation (EC) No. 343/2003 ('Dublin II') of 18 Feb. 2003 and Commission Regulation (EC) No. 1560/2003 of 2 Sept. 2003 generally superseding the Dublin Convention (Convention determining the state responsible for examining applications for asylum lodged in one of the member states of the European Communities (Dublin, 15 June 1990; TS 72 (1997); Cmd 3806)), which per Regulation 343/2003 (19) “remains in force and continues to apply between Denmark and the Member States that are bound by this Regulation”, including Iceland and Norway; incorporated into UK Law by Asylum and Immigration (Treatment of Claimants, etc) Act 2004 Sch 3, implemented via DubliNET: R (on the application of AA (Afghanistan)) v Secretary of State for the Home Department [2006] All ER (D) 302 (Nov) i and Salah Sheekh v Netherlands (App no 1948/04)
e.g. R (on the application of AA (Afghanistan)) v Secretary of State for the Home Department [2006] All ER (D) 302 (Nov) i and Salah Sheekh v Netherlands (App no 1948/04)
[2007] ECHR 1948/04
Refugee Council, 'The Dublin Convention on asylum applications: What it means and how it’s supposed to work' (August 2002, London) 3
Refugee Council (n.110) 3
Refugee Council (n.110) 3-4
European Commission, ‘ Transmission of asylum applications between member states plus Norway and Iceland - DubliNet now operational’ (16th September 2003)
K. Browne, Welfare Benefits and Immigration Law (College of Law Publishing, Guildford, 2008) 301
On this, see UNHCR, 'Background Paper No. 2: The application of the “safe third country” notion and its impact on the management of flows and on the protection of refugees' (Geneva, May 2001)
Article 10; M-T Gil-Bazo, 'The Practice of Mediterranean States in the context of the European Union's Justice and Home Affairs External Dimension. The Safe Third Country Concept Revisited'
(International Journal of Refugee Law IJRL 2006 18 (571) 1 December 2006)
Section 5 Immigration Act 1971
i.e. not a citizen of the EU within the meaning of Article 17(1) EC Treaty
Asylum and Immigration (Treatment of Claimants, etc) Act 2004 Sch 3
Immigration Rules para 345(1) as amended, see Statement of Changes in Immigration Rules (HC Paper (1993–94) no 395; Halsbury’s Laws of England, British Nationality, Immigration and Asylum (2002 Reissue) Volume 4(2) 241. Exception to consideration of asylum claim where there is a safe third country.
i.e. under Regulation 343/2003 or the Dublin Convention
Mohammad, Manoharan, Sakhee, Yogarajah v Secretary of State for the Home Department CO/1149/2409/2721/3941/4024/01 High Court of Justice Queen's Bench Division (The Administrative Court) 24 January 2002 Neutral Citation Number: [2002] EWHC 57 (Admin) 2002 WL 45129
Nasseri v Secretary of State for the Home Department [2007] EWHC 1548 (Admin); [2008] 2 W.L.R. 523; [2008] 1 All E.R. 411; [2007] H.R.L.R. 36; [2007] U.K.H.R.R. 1008; Times, August 3, 2007; Official Transcript (overruling R (on the application of Ibrahim) v Secretary of State for the Home Department [2001] EWCA Civ 519l)
TI v United Kingdom [2000] I.N.L.R. 211 ECHR; R. (on the application of Yogathas) v Secretary of State for the Home Department, R. (on the application of Thangarasa) v Secretary of State for the Home Department, [2002] UKHL 36; [2003] 1 A.C. 920; [2002] 3 W.L.R. 1276; [2002] 4 All E.R. 800; 14 B.H.R.C. 185; [2003] Imm. A.R. 227; [2002] I.N.L.R. 620; (2002) 146 S.J.L.B. 240; Times, October 18, 2002; Official Transcript; Regina v. Secretary of State for the Home Department ex parte Adan and Aitseguer 2001 2 AC 477
Secretary of State for the Home Department v Adan and Aitsegeur [2001] 2 WLR 143
Article 2(1) ECHR (n.102)
Article 7, Council Regulation (EC) No 343/2003 of 18 February 2003
Article 8 Council Regulation (EC) No 343/2003 of 18 February 2003
Article 18(3)(b), 4 and 5, Council Regulation (EC) No 343/2003 of 18 February 2003
Article 10 Council Regulation (EC) No 343/2003 of 18 February 2003
Article 15 Council Regulation (EC) No 343/2003 of 18 February 2003
i.e. Regulation 343/2003 (6)
K. Browne (n.116) 329-330
Refugee Council (n.110) 4
Immigration Rules para 345(1) (as substituted and amended)
R v Secretary of State for the Home Department, ex p Mehari [1994] QB 474, [1994] 2 All ER 494, [1994] Imm AR 151
Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71; Cmd 8969) incorporated into UK Law by the Human Rights Act 1998
Human Rights Act 1998: Articles 2-12 and 14, and Articles 1 to 3 of Protocol 1 and Protocol 6 ECHR; Halsbury’s Laws of England: Constitutional Law and Human Rights (Volume 8(2) Reissue) 102. Protection of fundamental rights and freedoms.
Asaratnam Kumarakuraparan v SSHD [2002] EWCA Civ 1102
Halsbury’s Laws of England: Constitutional Law and Human Rights (Volume 8(2) Reissue) 151. Respect for family life; Convention for the Protection of Human Rights and Fundamental Freedoms (1950) Art 8(1)
X and Y v Netherlands A 91 (1985), 8 EHRR 235, ECtHR para 22
Marckx v Belgium A 31 (1979), 2 EHRR 330, ECtHR.
Gaskin v United Kingdom A 160 (1989), 12 EHRR 36, ECtHR; Application 9993/82 X v France 31 DR 241 (1982), EComHR
Andersson v Sweden A 226 (1992), 14 EHRR 615, ECtHR
Application 5302/71 X and Y v United Kingdom 44 CD 29 (1974), EComHR
Cases in which has been used include: Abdulaziz v United Kingdom (1985) 7 EHRR 471; Boultif v Switzerland [2001] 2 FLR 1228, ECtHR; Berrehab v Netherlands (1988) 11 EHRR 322; Ciliz v Netherlands [2000] 2 FLR 469, ECtHR; Moustaquim v Belgium (1991) 13 EHRR 802; Beldjoudi v France (1992) 14 EHRR 801; Nasri v France (1995) 21 EHRR 458
Abdulaziz, Cabales and Balkandali v United Kingdom A 94 (1985), 7 EHRR 471, ECtHR; Application 14112/88 X v United Kingdom [1989] 86 LS Gaz R 45, EComHR; Cruz Varas v Sweden A 201 (1991), 14 EHRR 1, ECtHR; Gül v Switzerland (19 February 1996, unreported), ECtHR; Halsbury’s Laws of England Constitutional Law and Human Rights (Volume 8(2) Reissue) 151. Respect for family life
Berrehab v The Netherlands (1988) 11 EHRR 322 at para 21
Edore v Secretary of State for the Home Department [2003] 3 All ER 1265
Chahal v United Kingdom (1997) 23 EHRR 413
Immigration Rule 362; and under Section 36 UK Borders Act 2007, not yet in force: A Berry, ‘Border trouble’ (New Law Journal, 158 NLJ 201, 8 February 2008
R (on the application of AA (Afghanistan)) v Secretary of State for the Home Department Citation information only [2006] EWCA Civ 1550, (2006) Times, 29 November, 150 Sol Jo LB 1570, [2006] All ER (D) 302 (Nov)
On this, see R. (on the application of Yogathas) v Secretary of State for the Home Department, R. (on the application of Thangarasa) v Secretary of State for the Home Department, [2002] UKHL 36; [2003] 1 A.C. 920; [2002] 3 W.L.R. 1276; [2002] 4 All E.R. 800; 14 B.H.R.C. 185; [2003] Imm. A.R. 227; [2002] I.N.L.R. 620; (2002) 146 S.J.L.B. 240; Times, October 18, 2002; Official Transcript