RM, R (on the application of) v Secretary of State for the Home Department (Dublin; Article 27(1); procedure)

Factual and Procedural Background

This opinion concerns an application for judicial review lodged on 5 April 2016, with permission granted by Upper Tribunal Judge Coker on 23 November 2016. The Applicant, a national of the Democratic Republic of Congo, challenged two decisions made by the Secretary of State for the Home Department ("SSHD"). The first decision, dated 30 November 2015 (served on 23 March 2016), notified the Applicant that the SSHD declined to examine her asylum application, certified the application under domestic legislation, and proposed her removal to France. The second decision, dated 22 March 2016, provided removal directions for 6 April 2016.

The Applicant contended that she had made an asylum application in France in April 2013, subsequently left the territory of the EU Member States for over three months by returning to the Democratic Republic of Congo, and then re-entered the United Kingdom. The SSHD disputed this, particularly the claim that the Applicant left France and returned to the DRC. The SSHD also inaccurately represented to the French authorities that the Applicant had not asserted leaving the EU territory after making her asylum claim in France. The French authorities accepted responsibility for the Applicant's asylum claim, leading to the challenged transfer decision.

The judicial review challenges the lawfulness of the transfer decision and the process by which it was reached, focusing on the application and interpretation of Council Regulation (EC) No 604/2013 ("Dublin III").

Legal Issues Presented

1. What is the scope of the challenge to a transfer decision under Article 27(1) of Dublin III, specifically regarding the Applicant's assertion that she left the territory of the Member States for a period exceeding three months?
2. Whether the SSHD's failure to provide accurate information to the French authorities in the take back request (Article 23(4) of Dublin III) renders the transfer decision unlawful.
3. Whether the Tribunal must undertake an independent fact-finding exercise considering evidence not before the SSHD at the time of the decision.

Arguments of the Parties

Appellant's Arguments

• The Tribunal must determine, as a matter of fact and law, whether the Applicant left the territory of the Member States for more than three months, including consideration of evidence not before the SSHD at the time of the transfer decision.
• Article 27(1) of Dublin III and Article 47 of the Charter require an effective remedy, which includes a review of both legal and factual bases of the transfer decision.
• Excluding post-decision evidence would make it excessively difficult for the Applicant to exercise her EU law rights.
• The issue of whether the Applicant was absent from the EU territory for the requisite period is a question of precedent fact, requiring judicial fact-finding.
• The SSHD's failure to provide accurate information to the French authorities deprived the Applicant of procedural fairness and led to an irrational weighting of evidence in the transfer decision.
• The Tribunal should disregard or give little weight to the post-decision communications between UK and French authorities due to lack of evidence about their content.

Respondent's Arguments

• The challenge should be resolved on traditional public law grounds without re-assessment of facts or consideration of evidence not before the SSHD at the time of decision.
• Article 7(3) of Dublin III governs the admissible evidence and restricts evidence to that produced before acceptance of take back/take charge requests; Article 27 does not extend this.
• The principle of effectiveness is maintained by the judicial review procedure, which is flexible and does not require a full appeal or fact-finding role.
• The failure to provide accurate information under Article 23(4) is acknowledged but argued to be non-justiciable and without prescribed consequences under Dublin III.
• The SSHD rectified the error by providing relevant information to the French authorities post-decision, who confirmed the Applicant's presence in France during the disputed period.
• The transfer decision was rational and lawful based on the evidence available at the time.

Table of Precedents Cited

Court's Reasoning and Analysis

The Tribunal began by clarifying the scope of judicial review challenges under Article 27(1) of Dublin III, emphasizing that the challenge is limited to traditional public law grounds such as irrationality, illegality, or procedural unfairness. The Tribunal rejected the Applicant’s submission that the Tribunal must undertake a full fact-finding role including consideration of evidence not before the SSHD at the time of decision. It reasoned that the power to make a transfer decision depends on acceptance by the requested Member State of a take back request, not on the prior establishment of the factual issue concerning the Applicant’s absence from the EU territory.

The Tribunal considered the procedural requirement under Article 23(4) of Dublin III, noting the SSHD’s failure to provide accurate information to the French authorities. It held that while Dublin III does not specify consequences for such failure, the judicial review must include assessment of procedural compliance and the probative value of evidence. The failure was found to be a procedural irregularity sufficient to render the transfer decision unlawful.

In exercising discretion, the Tribunal acknowledged subsequent communications rectifying the error but found that, considering all evidence including that produced by the Applicant, it was appropriate to quash the transfer decision. The Tribunal concluded that the transfer decision was rational on the evidence before the SSHD but procedurally flawed due to the inaccurate information provided to the French authorities.

Holding and Implications

The Tribunal GRANTED the application for judicial review.

The transfer decision dated 30 November 2015, declining to consider the Applicant’s asylum claim, certifying the claim under domestic legislation, and proposing removal to France, was quashed due to procedural irregularity arising from the failure to comply with Article 23(4) of Dublin III. Removal directions were cancelled, and the Applicant was afforded an effective remedy under Article 27(1) of Dublin III and Article 47 of the Charter.

The Tribunal ordered the Respondent to pay 75% of the Applicant’s costs, to be assessed if not agreed, and refused permission to appeal to the Court of Appeal. No new precedent beyond the application of established principles of judicial review and procedural fairness in the context of Dublin III was set. The decision underscores the importance of procedural compliance and accurate information exchange between Member States in transfer decisions under the Dublin III Regulation.