How would the Human Rights Act help the following situation.

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BB says she is fleeing the civil war in Algeria and arrives in the United Kingdom, via France. She is French speaking but says she has family members in the United Kingdom though she does not know where they are. Her estranged step-mother lives in Germany. The UK immigration authorities also discover in her pocket is a three month old ferry ticket from Morocco to Spain in another name. Despite having lodged her asylum claim in the United Kingdom, she faces deportation to France. Examine the various legal strategies under the Dublin Convention (entered into force 1997) and the Human Rights Act 1998 to appeal against the imminent deportation order.  

Everyone has a right to ‘seek and enjoy asylum’ from persecution.  BB is fleeing the civil war in Algeria and has arrived in the UK: her claim for asylum will therefore be considered in accordance with the UK’s obligations under the 1951 Convention and 1967 Protocol: if she satisfies their criteria, she will be considered a ‘refugee’.  To return her to Algeria where she faces persecution on account of her race, religion, nationality, etc, if her fear of this is well founded, would be in breach of the UK’s obligation under the 1951 Convention, and would impinge on her right to life under Article 2(1) European Convention on Human Rights.

We are told BB is ‘French-speaking’: French is widely studied in Algeria, but is not nationally spoken.  Assuming she has no other documents on her, establishing nationality will be very difficult.  Because BB has European relatives and can speak French, it is advised that efforts should be made to establish if she is a former EU citizen who could perhaps reacquire her lost nationality.    

Failing this, the provisions of the Dublin Convention will apply, now superseded by Dublin II.  Where an asylum-seeker travels through a country or a number of countries, the original Convention determined which country would consider their application for asylum, thus preventing multiple asylum applications being made throughout the EU and halting the 'refugees in orbit' phenomenon.  But the Convention was considered substantially flawed.  It put an end to the ‘gentlemen’s agreement’ between the UK and France, under which France re-admitted asylum-seekers who had passed through its territory: requiring the UK provide practically unattainable tangible proof of this, resulting in unreasonable delays to the claim.

Once removed, there was no system for monitoring what happened to the asylum-seeker.  Further, it allowed application of States’ varying national laws, meaning there was still a significant possibility of being returned to the country they had fled from.  Additionally, Article 3(5) permitted states to remove asylum-seekers to potentially unsafe non-EU third countries, with no process for challenge.   These problems, coupled with concerns about the confidentiality of information exchanged between countries, made the old Convention ‘impracticable and ineffective’.  Such exchanges required by Dublin II are now made using two secure systems: DubliNet and EURODAC.

Under Dublin II, the UK may only return BB to a ‘safe country’ that has an obligation to provide BB asylum, and which can be expected to comply with the requirements of the 1951 Convention.  This rule is based on the ‘safe third country’ notion although Dublin II deals with the unfairness of this rule on Southern European countries who take a higher influx of refugees ‘passing through’, by virtue of their geographical location.  Thus, a so-called 'Sangatte clause' was included in Dublin II, that absolves Member States of responsibility they would otherwise have had over asylum seekers for whose entry they were responsible, where another Member State is subsequently responsible for their unlawful stay, if the individual had managed to be undetected during a period of at least five months.

We are told that the UK has already made a deportation order with a destination of France.  The question is, therefore, who alternatively could consider BB’s asylum application, as (presumably) a ‘third-country national’.  She has arrived in the UK from Algeria, a non-EU county, but arrived via France (an EU state), and it is possible that she has also crossed the border from Morocco (a non-EU state) to Spain (an EU state) under an assumed name. She has family members in the UK and Germany (both of course EU states) but only the location of those in Germany is known.  

For BB to be removed, the Secretary of State must certify that France, the receiving Member State, has accepted that, under standing arrangements it is the ‘responsible State’ in relation to BB’s claim for asylum. Further, the Secretary must certify that, in his opinion, BB is not a national or citizen of the member state, and the certificate (to remove) has not been set aside on an appeal. Where the Secretary of State is satisfied that the specified conditions are fulfilled, he is entitled to refuse BB’s asylum claim and issue a certificate, without substantive consideration of BB’s asylum claim.  The UK Home Office will not remove an asylum seeker unless the State receiving them has accepted responsibility.  

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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 ...

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