United Kingdom: Musud Dudaev, Kamila Dudaev and Denil Dudaev v Secretary of State for the Home Department, 12/6/2015

Country of Decision:
Country of Applicant:
Date of Decision:
12-06-2015
Citation:
Musud Dudaev, Kamila Dudaev and Denil Dudaev v Secretary of State for the Home Department [2015] EWHC 1641
Court Name:
High Court of Justice, Queen's Bench division
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Headnote: 

The case concerns a removal from the United Kingdom to Sweden under the Dublin II Regulation. In the present case the court considered compatibility of Schedule 3 paragraph 3(2) of the Asylum and Immigration Act with the EU Charter of Fundamental Rights and whether the presumption that Sweden would comply with its international legal obligations was rebutted. 

Facts: 

The Applicants were of Chechen origin. They had applied for political asylum in Sweden and were refused. Afterwards they entered the UK irregularly lodging another asylum application. The Home Office refused to exercise discretion under Art. 3(2) of Dublin II. Regulation and contacted the Swedish authorities, who accepted their obligations under the Dublin II. Regulation. The Applicants refused to be returned to Sweden, arguing that there was a real risk they would be refouled to Russia and thus returning them to Sweden would constitute a violation of UK’s obligations under the Refugee Convention 1951, ECHR and EU Charter of fundamental Rights.

Decision & Reasoning: 

First, the Applicants argued that the irrebuttable presumption under Schedule 3 paragraph 3(2) of the Asylum and Immigration Act 2004 is incompatible with EU law. The judge held that the Schedule did not apply to any claim under EU law. Indeed the schedule specifies that it does not apply to any claim founded in European Union law, and thus has no bearing on a claim under EU law, specifically under the EU Charter. Furthermore, the statutory provisions do not violate the principle of effectiveness, as judicial review provides an effective means of enforcing EU laws and is in line with requirements of Article 19(2) of the Dublin II Regulation. Similarly, the statutory provisions are compatible with the principle of equivalence. The judge stated that: „Whether a claimant in a Dublin II case is relying upon the Refugee Convention, the Convention or the Charter, but the Secretary of State decides nonetheless to transfer him to another member state, the remedy is the same: judicial review.”

Secondly, the Applicants argued that Sweden would not comply with its legal obligations. According to the Applicants the decisions of the Migration Board and appellate courts in Sweden were irrational in a Wednesbury sense. The High Court found that the English case-law cited in support of their argument concerned irrationality or serious procedural irregularity in an administrative decision, however,  in the present case no evidence showing that decisions were not properly considered was presented to the court. Also, by accepting their argument, the kind of scrutiny the judge would have to submit a decision of the courts of another member state to, would oppose judicial comity between the courts of two democratic states.

The court deemed that there was not enough evidence to conclude that the decision maker was irrational or that the Swedish authorities would fail to abide by their legal obligations. Furthermore, the ECHR case law (MSS and Tarakhel) cited to support a claim that the Secretary of State should have investigated what would happen should the applicants be returned to Sweden was too general and did not prove the point the applicant was trying to make. The judge suggested that the applicants could have informed the Swedish authorities of their arrival and the course of action they would like to pursue, i.e. submitting a fresh claim with the relevant material, in order not to be returned to Russia right away. The court further found that the lack of legal assistance in Sweden to lodge such a claim did not hinder the claimants. In the least of cases the court advanced that it seemed highly improbable that the applicants’ lawyer in Sweden would not deny them assistance. Alternatively, there was still the possibility of using the rule 39 procedure before the Strasbourg court.

 The judge concluded that the Home Office had rightly come to the conclusion that the presumption about Sweden complying with its international legal obligations was not rebutted.  

Outcome: 

Application denied.

Observations/Comments: 

Research by the ELENA network on Rule 39 interim measures was cited by the court as was a statement from Anders Sundquist testifying the difficulties in submitting a fresh application as well as re-opening an asylum claim in Sweden. 

 

This case summary was written by Viktoria Skrivankova, a gradute of LLB Law and Human Rights at Essex University and a graduate of LLM European Law at Leiden University.

Case Law Cited: 

UK - R(AI) v Secretary of State for the Home Department [2015] EWHC 244 (Admin)


ECtHR - T.I. v United Kingdom (Application no. 43844/98)

ECtHR - KRS v United Kingdom (Application no. 32733/08)

UK - NS (Afghanistan) v. Secretary of State for the Home Department [2013] QB 102

UK - R (Kheirollahi-Ahmmadroghani) v. Secretary of State for the Home Department [2013] EWHC 1314 (Admin)

UK - E1/(OS Russia) v Secretary of State for the Home Department [2012] EWCA Civ 357

UK - FA (Iraq) v Secretary of State for the Home Department [2010] 1 WLR 2545

UK - R v Secretary of State for the Home Department ex parte Dahmas Ionel [1995] Imm AR 410

UK - R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin)

UK - R (EM (Eritrea)) v Secretary of State for the Home Department [2013] 1 W.L.R. 576 – Court of Appeal

UK - R (MK Iran) v. Secretary of State for the Home Department EWCA Civ 115

UK - R (Nasseri) v. Secretary of State for the Home Department [2010] 1 AC 1

UK - R (EM (Eritrea)) v Secretary of State for the Home Department [2014] 2 WLR 409

UK - R v Secretary of State for the Home Department CA (unrep 17 November 1999)