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Update on France Dublin II Test Challenges (3 August 2016)

Date: 03/08/2016
Duncan Lewis, Legal News Solicitors, Update on France Dublin II Test Challenges

The Court of Appeal (Underhill LJ) has now directed that AG (Sri Lanka) be listed together with AI (Sudan) as a rolled-up hearing. AG had applied for permission to appeal against the judgment of UTJ Coker refusing permission to Judicial Review following an oral hearing. Underhill LJ made it clear that the reason for not granting permission was not to do with the merits of the arguments.

The matters are now listed to be heard either on the 31st October 2016 or the 1st November 2016, with a revised time estimate of two days.

The Appellant in AG (Sri Lanka) is a national of Sri Lanka. The terms of Council Regulation (EC) 343/2003 (‘the Dublin II regulation’) mean that France would normally be the country with responsibility for processing the AG’s asylum claim. However, it is AG’s argument that the United Kingdom should determine his claim on the basis of:

a. France’s approach to the determination of asylum claims; and
b. Because of the presence of the AG’s 3 brothers, who have all been recognized as refugees, within the United Kingdom.

The Court will be grappling with the following issues in AG, with some overlap with AI:

a. Whether the AG’s removal will arguably amount to a violation of article 3 of the European Convention on Human Rights (‘article 3’) (as well as articles 4, 18 and 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’)). In IM v France app 9152/09 the ECtHR found that article 3 and article 13 of the European Convention on Human Rights had been violated by France’s handling of the applicant’s asylum claim;

b. Whether the Secretary of State for the Home Department has acted unlawfully by failing to give substantive consideration to AG’s asylum claim in light of the claims made by his brothers. Both domestic public law and article 8 of the European Convention on Human Rights (‘article 8’) are relied upon to argue that the decision of the SSHD is unlawful. AG argues that it is open to him to challenge his removal in reliance upon the Dublin II regulation on both public law grounds and/or grounds that removal will breach article 8 (CK(Afghanistan)). In CK (Afghanistan) it was held that: ‘…an especially compelling case under Article 8 would have to be demonstrated to deny removal of the affected person following a Dublin II decision…’ (§31); and

c. Whether the Court of Appeal has jurisdiction to consider fresh arguments. At the hearing before Underhill LJ, the Secretary of State for the Home Department accepted that it does. Section 15(3) of the Senior Courts Act 1981 essentially provides that the Court of Appeal ‘shall have all the authority and jurisdiction’ of the Upper Tribunal (Immigration and Asylum Chamber).

The Appellant in AI (Sudan) sought to challenge his removal to France and relies upon rights provided for in the Charter of Fundamental Rights of the European Union (2010/C 83/02), that is, the right of asylum (Article 18), the right not to be subjected to torture or inhuman or degrading treatment or punishment (Articles 4 and 19.2) and the right to an effective remedy (Article 47). Beatson LJ granted permission to appeal against the judgment of Ms. Gill, sitting as a Deputy High Court Judge. Issues on appeal include, inter alia, the correct legal test for a challenge to certification, duty to inquire into disparity between French and the UK approach to claims to be a member of a non-Arab Darfuri tribe and the question of how the statutory scheme operates in relation to rights under EU law (recently considered in Dudaev v SSHD [2015] EWHC 1641 (Admin)). For the AI (Sudan) judgment that is under appeal, click here.

Both Appellants are being represented by Duncan Lewis Solicitors.

About the author: Raja Rajeswaran Uruthiravinayagan

Raja Rajeswaran Uruthiravinayagan is currently attached to the Public Law Department. He specialises in Judicial Review claims related to his main practice areas. He is committed to improving access to justice and to achieving social justice through the use of law.

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