The Administrative Court has dismissed our client’s judicial review on one of the grounds of whether the UK authorities had taken over responsibility for examining the asylum claim pursuant to Article 17(1) Dublin by arranging and conducting the client’s substantive asylum interview. The second ground challenging the legality of the client’s historical detention under immigration powers pending his removal to Italy has been stayed.
The Claimant, a national of Eritrea, travelled through Italy to the UK. Italy accepted responsibility for his claim for asylum under Dublin III. The SSHD then invited our client to a substantive asylum interview which was conducted and his asylum claim was fully explored. The SSHD later decided to remove him to Italy and set removal directions. In response, our client issued proceedings challenging the transfer decision and the legality of his immigration detention on the basis that by having interviewed him, the UK had become responsible under Dublin III for processing his claim for asylum.
We argued in the grounds that the interview was part of the “examination of an application for international protection” under Article 2(d) of Dublin III and that by having started “examining” the asylum claim, the SSHD had become the responsible member state.
We relied on Fathi v Predsedatel na Darzhavna agentsia za bezhantsite (Case C-56/17) to establish that the decision to interview constituted a decision by the UK to accept responsibility for examining the asylum claim pursuant to Article 17(1) of Dublin III (a provision which transfers responsibility for a claim for asylum from one Member State to another).
The SSHD submitted that for responsibility to transfer, a Member State had to take a decision pursuant to Article 17.
The court accepted that by arranging and conducting the asylum interview, the SSHD had taken steps to examine the claim for asylum, however that did not amount to a decision to exercise the discretion conferred by Article 17(1).
The decision further states that whilst Fathi was authority for the proposition that no formal decision to assume responsibility had to be taken to engage Article 17, there nevertheless needed to be a decision to apply Article 17 in order for responsibility to transfer. The letter inviting our client to the interview was not sufficient on its own to indicate that the UK had exercised its discretion under Article 17(1)
We have recently made an application to appeal to the Court of Appeal and are awaiting a decision.
The client was represented by immigration and public law solicitor Pardeep Somel. Counsel instructed in the matter is Louise Hooper of Garden Court Chambers.