Right to family life should not interfere with EU system for allocating asylum responsibility

24 October 2011 by Rosalind English

N.A. (Iran) v Secretary of State for the Home Department  [2011] EWCA Civ 1172 – read judgment 

This application raises a significant issue about the treatment of vulnerable asylum-seekers and their children following certification of their claim as clearly unfounded.

It concerned the interface between state authorities’  obligations under the EU system of determining responsibility for examining asylum claims under the Dublin II Regulation (2003/34/EC), on the one hand, and their obligations under the European Convention of Human Rights on the other. Although Convention rights theoretically form part of the “principles” of EU law, this case is a neat illustration of how the states’ duties under the two regimes are subtly different, and how attentive the courts have to be to the individual circumstances of the case.

The case

The facts can be stated briefly. The husband and wife claimants left Iran in 2009 and claimed asylum in Latvia before travelling on to the UK.  The Latvians accepted responsibility  under the Dublin II Regulation for processing the asylum claim. The couple however resisted removal to Latvia on the basis that their Convention rights would be violated. These claims were rejected and in May 2010 the claimant’s husband was removed to Latvia. By then, however, she was pregnant, and their daughter was born here. Her human rights claim accordingly therefore now included the wellbeing of the child, in addition to her own welfare under Article 3 and Article 8 of the Convention. Her psychiatrist adduced evidence of depression and possible suicide ideation if she were to be removed.

The judgment

Even so the court was not satisfied that conditions in Latvia would fall short of its obligations under the Minimum Standards Directive (2003/9/EC) for the reception of asylum seekers.  For the court to interfere with removal proceedings under the Dublin convention there must be reliable evidence that there is a high risk that an individual’s Article 3 or Article 8 rights will be violated in the primary state, which has initial responsibility for processing the asylum application under the Dublin II Regulation. In Sir Stephen Sedley’s view, that threshold had not been crossed. The evidence before him

describes a deeply troubled woman, concerned both for herself and for her child, who seeks asylum from the Iranian regime and is fearful of how Latvia will treat her, both as an asylum-seeker and as a patient in need of healthcare to enable her to care for her daughter and herself. But this court cannot act on those fears: they are taken to be answered by the international arrangements to which Latvia and the United Kingdom are parties.

The purpose of removal in a Dublin II case is not to enforce the departure of someone with no right to be here. It is simply to ensure that an asylum claim is dealt with by the member state in which the first landfall was made. The often powerful public interest in consistent immigration control presently reaches no further than this.

The application for judicial review was refused.

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