Mucaj, Re Judicial Review,  CSOH 17 – read judgment.
Asylum seeker’s claim that he cannot be returned to Belgium under the Dublin III Regulations due to non-compliance with time limits by authorities fails.
The petitioner in this case, Bahri Mucaj, was an Albanian that arrived in Belgium in November 2011. After unsuccessfully claiming asylum in Belgium, the petitioner entered the UK and sought asylum here in late December 2014. The petitioner then sent a “take back” request to Belgium under The Dublin III Regulations (“Dublin III” – available here) in order for the Belgian authorities to reconsider his original application. This request was accepted on 7 January 2015 by the Belgian authorities. Consequently, the Secretary of State refused to consider the petitioner’s asylum application due to the fact that there was the possibility to send the individual back to a “safe” country – Belgium. The petitioner then wrote to the Secretary of State alleging that sending him back to Belgium would result in violations of both Article 3 and 8 of the European Convention on Human Rights. This claim was based on the living conditions that they had endured whilst originally in Belgium and the likelihood that they would be subject to similar conditions on return. This claim was refused and removal directions were issued to return the petitioner and his family to Belgium. The petitioner subsequently challenged this removal decision.
As was her policy at the time, the Secretary of State cancelled her removal directions pending the court’s decision. At this point, in mid-2015, there were a number of similar Judicial Review requests concerning the return of asylum seekers to European countries under Dublin III and the potential violation of Article 3. Following the leading decision in AL v Advocate General for Scotland,  CSOH 95, which found in favour of the respondents, the petitioner in the current proceedings made amendments to their arguments. Instead of pursuing substantive challenges to the removal decision based on human rights grounds, the petitioner argued that the authorities had not complied with the time limits for return in Dublin III.
The Dublin III Regulations (paras. 9-17)
The “take back” provisions of Dublin III require other European countries to take back failed asylum seekers from third-country nations in the event that they make another application to another European country or are currently on the territory of another European country. According to Article 29(1) there is a 6-month time limit for return of individuals under the “take back” procedure:
“The transfer of the applicant or of another person as referred to in Article 18(1)…(d) from the requesting Member State to the Member State, after consultation between the Member State concerned, as soon as practically possible, and at the latest within six months of acceptance of the request by another Member State to … take back the person concerned or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3)” (emphasis added).
The central issue in the present proceedings was whether this time limit has been suspended or not.
Submissions (paras. 19-21)
Under Article 27(1), each individual subject to a transfer can appeal this decision. During such an appeal, as was pursued by the petitioner in mid-2015, the may suspend the transfer pending the outcome of the appeal (Article 27(3)). If the court suspends implementation of the transfer, this has the effect of also suspending the time limit – the “suspensive effect” referred to in Article 29(1). Since this “suspensive effect” had not been triggered by the court taking a decision to halt transfer, the petitioner submitted that the transfer should have instead taken place 6 months after the acceptance of the “take back” request by the Belgian authorities. According to the petitioner, the clock had never stopped ticking. Failure to comply with this time limit, in the petitioner’s submissions, prevented UK authorities from returning him and required them to make a substantive decision on his asylum application.
In support of this submission, the petitioner pointed to the difference in wording between Dublin II and Dublin III with regards to the suspensive effect. In Dublin II the time limits were suspended pending review “when the courts or competent bodies so decide” (emphasis added. Article 20(1)(e), Dublin II – available here). Whereas in Dublin III, it was only the court that could suspend the time limit. The petitioner stated that the suspension of the transfer pending the outcome of the review had been taken by the Secretary of State (under Article 27(4)). Whilst this may have had a suspensive effect under Dublin II, the change in wording in Dublin III made it clear that the Secretary of State’s decision to halt the transfer had no impact on the running of the time limit – only a decision by the court to halt the transfer had any impact on the time limits.
The respondent argued that the petitioner’s interpretation of Article 29(1) was flawed. Instead, it was submitted that the time limit was suspended until the on-going legal proceedings had concluded. Any other interpretation would frustrate the objectives of Dublin III to increase the effectiveness of the “take back” procedure and increase protection for asylum-seekers. Additionally, if only a the court could suspend the time limits, then the Secretary of State’s power to halt transfer pending legal proceedings (under Article 27(4)) would be useless. The power to delay transfer in order to allow determination by a court would not be utilised in practice if the 6-month limit continued to run.
Decision (paras. 22-27)
Lord Ericht began by looking to the Lord President’s interpretation of Article 29(1) in Miab v The Secretary of State for the Home Department,  CSIH 64. In Miab, the Lord President (the most senior judge in Scotland) stated that:
“The purpose of Article 29 is to place a limit on the time it takes for the transferring state to act after acceptance of the transfer, subject to the existence of an ongoing review process at the instance of the applicant. A question about whether the time limit has been exceeded should be answered at the point when, but for the judicial process, the original removal direction would have had effect. This view accords with such a purposive interpretation”
Lord Ericht therefore considered that ongoing proceedings reviewing the transfer decision would have a suspensive effect irrespective of whether the transfer had been halted by a court or the authorities. The aim of Article 29 was to “place a limit on the time it takes for the transferring state to act after acceptance of the transfer, subject to the existence of an ongoing review process at the instance of the applicant”. The applicant’s interpretation, which resulted in halting of the transfer by the courts being the sole way in which the time limits could be suspended, would not comply with this aim. There was nothing in the travaux préparatoires, EU policy documents, or academic commentaries that supported the petitioner’s stance.
As a result of this interpretation, the cancellation of the transfer by the Secretary of State in June 2015 stopped the 6-month clock from ticking. There had therefore not been a failure to comply with the time limits.
Whilst this conclusion would have been satisfactory to dispose of the issue, Lord Ericht continued to consider whether the petitioner could have relied on a failure to comply with time limits in order to prevent his return to Belgium. Again, Lord Ericht answered this in the negative. The purpose of Article 29(1), as mentioned above, was to regulate the procedure as between countries. Not every provision of Dublin III “enshrines a right which is vested in the applicant”. This conclusion, again, was in line with the Lord President’s judgment in Miab (see para. 67-68).
The final rejection of the petitioner’s submissions was due to the fact that he had suffered no prejudice. First, there was no suggestion that UK authorities would have considered his asylum claim any differently from the Belgian authorities, which had previously refused his application in late-2011. Secondly, whilst the review was taking place he was able to remain in the UK at liberty.
This judgment centred on the interpretation of the “take back” procedure in Dublin III and the changes made to its predecessor. Had the re-draft of Dublin II resulted in only courts having the ability to stop the clock?
It would appear that the interpretation taken by Lord Ericht, which was heavily influenced by the decision of the Inner House, has upheld the purpose of the Regulations whilst also ensuring that the petitioner suffered no real prejudice. The decision to halt the transfer had the effect of stopping the clock. The issue was, ultimately, relatively straightforwardly decided – emphasised by the fact that Lord Ericht quickly rejected the alternative argument to refer the issue to the Court of Justice of the European Union.