Court of Appeal grants permission to appeal in the case of MH (Eritrea) v SSHD (C4/2020/1023), which challenges the High Court judgment in Habte, R v SSHD [2020] EWHC 967 (14 April 2021)

In Habte the High Court considered one of the grounds in the application for judicial review, the question of whether the UK authorities had taken over responsibility of examining the asylum claim pursuant to Article 17(1) Dublin by arranging and conducting his substantive asylum interview.

The High Court dismissed the application for judicial review on that ground whilst the unlawful detention claim was 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 High Court dismissed the application by coming to the conclusion 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 invitation 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).

The Court of Appeal has granted MH’s application for permission. In the grounds of appeal it was argued that the judge erred:

1. In determining that the discretion contained in Art. 17 is a discretion to assume responsibility for the application for international protection [§55] as opposed to a discretion to examine that application (as per the CJEU in in Bahtiyar Fathi v Predsedatel na Darzhavna agentsia za bazhantesite Case C-56/17 at [§53];


2. Construing Article 17(1) of Dublin as requiring an express decision and/or other evidence of intention to accept responsibility for the application before being fixed with the consequences of having taken a decision to examine the claim.

More recently the SSHD have agreed to consider MH’s asylum claim in the UK and served him a ‘drop out letter’.


MH is represented by Pardeep Somel, a solicitor in Duncan Lewis’ immigration and public law department, and counsel Louise Hooper of Garden Court Chambers.