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MM (AP) AGAINST THE SECRETARY OF STATE FOR THE HOME DEPARTMENT


Submitted: 30 May 2017

Web Blue CoS

OUTER HOUSE, COURT OF SESSION

[2017] CSOH 82

 

P822/15

OPINION OF LADY WISE

In the cause

MM (AP)

Petitioner

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Petitioner:  Forrest;  Drummond Miller LLP

Respondent:  Pirie;  Office of the Advocate General

30 May 2017

Introduction
[1]        This case involves the interpretation of certain articles of Council Regulation (EC) 604/2013 (“Dublin III”), an instrument which sets out the criteria and mechanisms for resolving which Member State will be responsible for determining an application for asylum lodged in one of the Member States concerned by a Third Country National (“TCN”).  In essence, Dublin III creates an obligation on the Member State responsible to take back a TCN whose application for asylum is being examined and where that TCN has made a second application for asylum in another Member State. 

[2]        The petitioner is a national of Iran, born on 5 May 1981.  He seeks to reduce decisions of the respondent dated 3 and 28, both of July 2015 that it is safe to remove him to France and that he should be so removed.  In summary, the petitioner’s contention is that on a correct interpretation of Article 19(2) of Dublin III the obligation on the part of France to take him back has ceased.  There is no longer any challenge to the way in which the Secretary of State exercised her discretion.  The respondent has a plea in law to the relevancy of the petition and the hearing before me was restricted to an argument that the petition should be dismissed as being irrelevant in law. 

 

The Respondent’s Argument
[3]        Mr Pirie presented his argument that the petition is irrelevant into four sections:  (i) the legal and factual background, (ii) the relevant provisions of Dublin III, (iii) the correct interpretation of Articles 19(2) and 27(1) of Dublin III and (iv) a comparison of the respondent’s contended interpretation Articles 19(2) and 27(1) with the petitioner’s averments.

 

1.  Legal and Factual Background
[4]        It is uncontroversial that the respondent has a statutory power to remove someone in the UK who was here without leave to enter or remain.  An exception that applies where a person claims asylum is contained in section 77 of the Nationality, Immigration and Asylum Act 2002, which renders the respondent unable to remove that person before their claim is determined unless, by virtue of Schedule 3 to the Asylum and Immigration (Treatment of Claimants, etc) Act 2004, removal to one of a list of safe countries is permitted.  France is included in the list of safe countries to which an asylum seeker may be removed.  Paragraph 4 of Part 2 of Schedule 3 to the 2004 Act provides that section 77 of the 2002 Act shall not prevent removal from the UK to one of the listed states.  The background to this case was that the petitioner was found in the UK by immigration authorities in 2015.  He was interviewed in relation to his travel history.  The transcript of his screening interview (7/2 of process) records him (at para 4.3) as stating:  “I claimed asylum in France in 2010, it was refused.”  He claimed that he had been returned to Iran by the French authorities. 

[5]        That information was sufficient for the respondent to make further checks on the position.  There was also evidence that the petitioner had been finger printed in France on 20 April 2010.  He had offered no supporting documentation relevant to his claim.  He said at interview that he had come from Iran in 2015 but that he would not be producing any supporting evidence about that. 

[6]        On the basis of the available information, the respondent made a “take back” request to France on a standard form, No 7/1 of process.  Details of the previous application for asylum in France that the petitioner said he had made in 2010 were inserted together with a note of his claim that he was returned to Iran by the French authorities.  However the respondent indicated that she was unclear whether any decision had actually been taken on the application.  The French authorities responded to the application on 30 June 2015 by letter to the respondent’s department stating: 

“I agree to the request to take back the asylum seeker referred to above, under Article-18-1d of Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013.”

 

Article 18-1d applies to situations where the application has been determined in the country to whom the request has been made. 

[7]        On 3 July 2015 the respondent wrote to the petitioner certifying that the conditions in paragraphs 4 and 5 of Part 2 of Schedule 3 of the 2004 Act were satisfied and that he would be returned to France.  (No 6/2 of process).  Removal directions were subsequently issued on 28 July 2015 (No 6/1 of process) although these were cancelled in accordance with the usual policy when this petition was raised.  Mr Pirie referred to the decision of the First Division in MIAB (AP) & others v Secretary of State for the Home Department [2016] CSIH 64 in which there is a statement, albeit obiter, that a particular ground of review in that case based on Article 12 of Dublin III did not have a reasonable prospect of success.  Mr Pirie submitted that the reasoning in that case included the interpretation of Article 12 which could in turn be read across to Article 19.  The only ground of review left in this petition was in terms of Article 19(2) of Dublin III, namely that the claimant says that he left the Member State in question (France) and was then outside the EU for more than three months.  He has produced a letter purporting to be from an employer in Iran although it should be noted that the document was not before the Secretary of State when she made her decision.  No other information is produced.  Mr Pirie stated that from a conventional judicial review perspective the petitioner would necessarily fail because the court can only look at material that was before the decision maker.  The petitioner could succeed only if he convinces the court that the scope of Article 27 of Dublin III is wider than the usual judicial review reach, although the scope of judicial review procedure itself would require to be adapted in order to allow that argument.  Two concessions are made by the respondent in that respect.  First, judicial review can and should be adapted where necessary to provide the effective remedy required by Article 27 and secondly, the correct scope of Article 27 includes the right to challenge the statutory decisions in this case on the basis of an infringement of Article 19(2).  Accordingly, if a petitioner had evidence such as a stamp in his passport giving a date of entry into another country, that would be relevant. 

 

2.  Dublin III
[8]        Reference was first made to some of the recitals to the Regulations.  Recital 4 sets out that a common European asylum system should include a clear and workable method for determining the Member State responsible for the examination of an asylum application.  Recital 5 narrates that fair criteria both for the State and the person concerned must lie behind any method adopted and in particular the need for rapid processing of applications is emphasised.  Recital 18 sets out the need for a personal interview with the applicant to facilitate the determination of the responsible State.  Recital 19 is important and states: 

            “In order to guarantee effective protection of the right of the persons concerned, legal safeguards and the right to an effective remedy in respect of decisions regarding transfers to the Member State responsible should be established, in accordance, in particular with Article 47 of the Charter of Fundamental Rights of the European Union.  In order to ensure that international law is respected, an effective remedy against such decisions should cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred.”

 

[9]        So far as the substance of the Regulation is concerned Article 1 makes clear that the purpose of the Regulation is to lay down the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a Third Country National or a stateless person.  Article 3 starts to set out the procedure and confirms that the application shall be examined by a single Member State, known as the Member State responsible.  Article 3.2 provides that: 

            “Where no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State in which the application for international protection was lodged shall be responsible for examining it.”

 

[10]      Article 7 provides, inter alia, that the Member State responsible in accordance with the hierarchy of criteria set out in Chapter III of the Regulation shall be determined on the basis of the situation pertaining when the applicant first lodged his or her application for international protection with a Member State.  One of the various criteria of Chapter III is contained in Article 12 which provides that where an applicant is in possession of a valid residence document the Member State which issued that document shall be responsible for examining the application for international protection.  That article was the subject matter of discussion in the case of MIB v SSHD referred to earlier where the Inner House made clear that any argument that such a residence document was issued on the basis of false information or forgery was a point that could only be raised by a receiving State.  Article 18 provides that the Member State responsible under the Regulation is obliged to take charge of an applicant who has lodged an application in a different Member State and take back an applicant whose application is under examination.  The responsible Member State must examine or complete the examination of the application for international protection made by the applicant.  Importantly, once an obligation to take back is accepted by a Member State a transfer decision must be made by the requesting State under Article 26.1. 

[11]      The most significant provisions for the purposes of the argument in relation to this petition are contained in Articles 27 and 19.  Article 27 relates to remedies and provides, in Article 27.1: 

            “The applicant or another person referred to in Article 18(1)(c) or (d) shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal.”

 

Mr Pirie sought to draw attention to the distinction between an appeal in fact and in law and the more restrictive review available by judicial review.  As the judicial review route was the available mechanism in this jurisdiction, it is not for the court to decide what the facts are. 

[12]      The first paragraph of Article 19(2) of the Regulation is in the following terms: 

            “The obligations specified in Article 18(1) shall cease when the Member State responsible can establish, when requested to take charge or take back an applicant or another person as referred to in Article 18(1)(c) or (d), that the person concerned has left the territory of the Member State for at least three months, unless the person concerned is in possession of a valid residence document issued by the Member State responsible.”

 

Mr Pirie questioned what right it was that the petitioner had a remedy to protect in this case.  If he has no right as an individual conferred by Article 19(2) of the Regulation then the provisions of Article 27 for an effective remedy simply do not apply.  It was important to note, according to Mr Pirie, that the remedy provisions of Article 27 apply only after a transfer decision has been made.  Article 19(2) gave the petitioner no right to object to a transfer decision if France had already accepted responsibility.  He submitted that the contrary interpretation would lead to internal inconsistency between the provisions of the Regulation.  The lawfulness of the decision to take back relied on arrangements between Member States.  If a petitioner could override that by using Article 27 he would be afforded a remedy without any corresponding right.  As a matter of law it was not sufficient for the petitioner to produce some sort of evidence that he might have been away from France for more than three months.  It is only France that can establish in terms of the Regulation that the petitioner has been away from that country for more than three months but that it would take him back anyway.  The scope of Article 27 was restricted to situations where the Chapter III criteria had not been properly or correctly applied. 

[13]      Counsel referred to the procedural provisions in Articles 20, 21 and 22 of the Regulation.  Article 20 refers back to certain prescribed information that the applicant has a right to receive including the criteria for determining the Member State responsible, the right to a personal interview and information that a transfer decision may be made.  That information has to be provided in a language that the applicant can understand.  Part A of Annex X of the implementing Regulation (118/2014) lists the information to be given to an applicant, who is provided with a “common leaflet” explaining how Dublin III works.  It is an integral part of the Regulation that other than in very particular circumstances an interview is always required (Article 5.1) before any decision to transfer can be made.  The combination of these provisions results in an applicant having both early notice of the Dublin criteria, an opportunity to make representations about them, an interview, and access to the interview summary.  The procedure is accordingly designed to involve the asylum seeker from the very beginning of the procedure until a transfer decision is made.  Articles 21 and 22 set out the procedures for submitting and replying to a take charge request.  The standard form used by the respondent in this case is that referred to in Article 23.4. 

[14]      Reference was made also to Commission Regulation 1560/2003 which was adopted before Dublin III and was concerned with its predecessor, Dublin II.  The Regulation was subsequently amended by EU Regulation 118/2014 in a number of ways including new provisions for the preparation of requests for taking charge and taking back.  Article 4 provides that where a request for taking back is based on data supplied by the EURODAC Central Unit (which it was in this case) and checked by the requesting Member State: 

“… the requested Member State shall acknowledge its responsibility unless the checks carried out reveal that its obligations have ceased under the second subparagraph of Article 4(5) or under Article 16(2), (3) or (4) of Regulation (EC) No 343/2003.  The fact that obligations have ceased on the basis of those provisions may be relied on only on the basis of material evidence or substantiated and verifiable statements by the asylum seeker.”

 

It could be seen, therefore that there was some continuity between certain aspects of Dublin II and the current Regulation.  Unless checks showed that responsibility had ceased, the requested Member State had to acknowledge its responsibility. 

 

3.  Correct Interpretation of Articles 27(1) and 19(2)
[15]      It was submitted that the correct interpretation of Article 19(2) was that it was a necessary condition for the cessation of responsibility that the requested Member State (in this case France) has established absence of the applicant for more than three months.  That was the only interpretation possible on an ordinary reading of that article.  If it was sufficient for the applicant himself to establish the absence then most of Article 19(2) would be unnecessary.  Mr Pirie submitted that such an interpretation was supported, by analogy with the correct interpretation of Article 12(5) of Dublin III as given, albeit obiter, by the Lord President in MIAB v SSHD [2016] CSIH 64.  In that case the applicant in question had produced a false identity card and sought to rely on the provisions of Article 12(5).  In paragraph 68 of the judgment the Lord President expressed the following view: 

            “It does not follow, however, that each article of Dublin III enshrines a right which is vested in the applicant.  In particular, as with Dublin II, many of the time limits are solely intended to regulate the position as between different Member States.  They permit, for example, a member state into which an applicant has first entered, to refuse to receive back that applicant from another Member State if certain time limits have expired or other circumstances exist.  However, if the receiving Member State does found upon a particular matter, and is content to receive back the applicant, that will remain the default position in the application of Dublin III as it was with Dublin II;  viz that the first Member State into which an applicant has entered has the primary responsibility to determine the application.  That, of course, presupposes that the correct procedures have been followed and the correct criteria applied.”

 

Further, at paragraph 71 of the opinion, the Lord President makes clear, in respect of Article 12(5) that it is for the receiving State to raise any point about a fraudulent document. 

[16]      Counsel for the respondent submitted that the language of Article 19(2) is in identical terms to Article 12 on this particular point such that the decision in MIAB that it is for the receiving State to raise a point applies equally to Article 19.  However, even if a contrary interpretation of Article 19(2) was to be preferred, Article 27(2) made no express provision about the scope of the effective remedy of appeal or review, such that any direct remedy available to the petitioner raised two questions.  First, could he rely on evidence not on the list contained in Annex II to Regulation 1560/2003?  Secondly, can an applicant such as the petitioner rely on evidence not before the decision maker in a review of this type?  Mr Pirie submitted that the correct interpretation of Article 27 required both those questions to be answered in the negative.  He referred to the case of Ghezelbash v Staatssecretaris van Veiligheid en Justitie, Case C – 63/15 a judgment of the Grand Chamber of the CJEU dated 7 June 2016.  The question in that case was whether Article 27(1) of Dublin III provided a greater remedy than that conferred by the previous Regulation, Dublin II.  The court answered that question in the affirmative.  However, there were differences between that case and the current one.  In Ghezelbash the situation was that the responsibility of the Member State was ongoing whereas in the present case it had ceased.  Also the relevant documents supporting the applicant’s argument were before the decision maker at the time.  The case involved the application of the criteria in Chapter 3 of Dublin III.  The specific ruling of the court appears at the end of the decision and is to the effect that Article 27(1) must be interpreted as meaning that in a situation such as that before the court in Ghezelbash, an asylum seeker is entitled to plead, in an appeal against a decision to transfer him, the incorrect application of one of the criteria for determining responsibility laid down in Chapter III of the Regulation, in particular the criterion relating to the grant of a visa set out in Article 12 of the Regulation. 

[17]      Mr Pirie submitted that there are eight relevant points arising from the court’s decision in Ghezelbash.  First, it was not a decision that the scope of the Article 27 remedy includes evidence that is not on the lists or that was not before the decision maker.  Secondly, the correct interpretation of Article 27 depends on the wording, general scheme and purpose of the Regulation.  Thirdly, that purpose can be found in the Recitals, especially Recital 19.  Fourthly, Recital 19 establishes the purpose of a “proper application” of the Regulation which is a reference to the “conduct of the process” of establishing responsibility.  Fifthly, Article 27(1) should be interpreted in such a way that does not thwart the procedural rights contained in Article 4 and 5, in particular the interview.  Sixthly, the scope of Article 27 is to ensure that Dublin III has been applied correctly or promptly.  Seventhly, the only example that the court gave of an incorrect application of Dublin III was the failure to take account of information provided by the asylum seeker.  Finally, although Article 27 contains no express limitation of its scope, the court appeared to find limitations, for example the review must be within the framework established by Dublin III and in “take charge” cases that was restricted to the lists, proof and circumstantial evidence. 

[18]      The case of Karim v Migrationsverket Case C-155/15 was also referred to, that case having been decided together with Ghezelbash.  The questions in Mr Karim’s case included whether that individual could challenge a transfer decision on the basis of a breach of the second paragraph of Article 19(2).  The court had decided that he could make such a challenge.  The judgment in Ghezelbash is referred to and it was reiterated that Article 27(1) of Dublin III, read in the light of Recital 19 thereof, provides an asylum applicant with an effective remedy against a transfer decision made in respect of him, which may, inter alia, concern the examination of the application of the Regulation and which may therefore result in a Member State’s responsibility being called into question, even where there are no systemic deficiencies in the asylum process or in the reception conditions for asylum applicants in that Member State such as it might breach ECHR.  The court emphasised also that the rule set out in the second subparagraph of Article 19(2) establishes the framework within which the process must be conducted when the Third Country National in question, after having made a first asylum application in a Member State, left the territory of the Member State for a period of at least three months before making a new asylum application in another Member State.  Mr Pirie submitted that what can be drawn from the cases of Ghezelbash and Karim is that the scope of the effective remedy is concerned only with the process the Member States adopted and whether the criteria were correctly applied in that process. 

[19]      It was submitted that the only evidence that can be used in an appeal or review for the purposes of Article 27(1) is evidence on the lists in Annex II to Regulation 1560/2003 for two reasons.  First, because such a restriction was consistent with the whole scheme of Dublin III and secondly by analogy with the case of Ghezelbash the ability to challenge the take charge request was on the basis that the applicant had evidence on the lists.  The whole issue of whether a Member State has an obligation to “take back” an applicant is determined on the basis of evidence included on the lists.  Article 23(4), for example, refers to proof or circumstantial evidence as described in the two lists in Article 22(3).  The requesting Member State has to provide evidence on lists then that forms what the responsible Member State must check.  If a decision to “take back” is based on evidence on the lists there is an effective remedy where there is alleged to be a deficiency in the process, then it followed that only the evidence on the lists was part of the process that was subject to review.  That was the effect of the decision in Ghezelbash and the position should be the same for take back requests. 

[20]      Mr Pirie submitted that there were four reasons why the evidence on which an applicant seeks to rely has to be before the decision maker before a failure to take it into account would give rise to a right of review.  First, on its ordinary meaning, the word “review” in Article 27(1) indicates assessment of the lawfulness of a transfer decision only on the basis of the material before the decision maker.  The mechanisms of appeal or review are clearly alternatives and the UK has chosen to provide for review.  In accordance with the usual rule in applications for judicial review the lawfulness of a decision is assessed on the basis of what was known to the decision maker when he or she made the decision.  It was not possible for a decision maker to err in relation to information not before him – R (Fardous) v Secretary of State for the Home Department [2015] EWCA Civ 931 at paragraph 42.  Secondly, a clear objective of Article 27 was to allow the courts to ensure review of the proper application of the Regulation and verify whether the criteria for determining responsibility have been correctly applied following a proper application of the process for determining the Member State responsible – Ghezelbash at paragraphs 40, 44, 53 and 54.  Accordingly the scope of the effective remedy is restricted to ensuring that the criteria are correctly applied.  In the Ghezelbash case the only example given in relation to the Article 27 remedy was a failure to take account of material that had actually been put before the Member State.  That was in stark contrast to the present case.  The participatory rights of an applicant already referred to were important and their purpose could be thwarted unless the effective remedy under Article 27 was restricted to founding on material before the decision maker at the time.  It was important that the participatory rights are afforded before the transfer decision is made.  Thirdly, to permit the Third Country National to introduce evidence to the court that he did not put before the decision maker would defeat the object of Dublin III, in particular its objectives for having a workable method for determining the Member State responsible and one that involves rapid processing (Recitals 4 and 5).  Further, the importance afforded to Recital 19 was emphasised in Ghezelbash.  The proper conduct of the process was what could be scrutinized and evidence not put before the decision maker was simply not part of that process.  Fourthly, the scheme of Dublin III suggests that the evidence should be restricted to that before the decision maker.  The Third Country National provides his evidence before responsibility is determined.  It should not be thought that this interpretation of Dublin III would leave the applicant without a remedy.  The petitioner in this case has never asked the respondent to review the transfer decision in light of the new material now provided.  It would have been open to the petitioner, as with any applicant who produces evidence late, to put the new material before the respondent and ask for a review of a decision already made. 

 

4.  A Comparison of the Submissions made against the Petitioner’s Pleadings
[21]      While there were two decisions challenged in the petition, the decision of 28 July to remove the petitioner was no longer relevant and it was only the decision that it was safe to remove the petitioner to France that could now be challenged.  Reference was made to statement in fact 6 in the petition (as amended).  The only basis now stated for the respondent having erred in law was that the obligation of France to take the petitioner back and examine his asylum claim had ceased following the expiry of three months after he left that country.  The petition then seeks to rely on Article 18(1)(b) although it was actually Article 18(1)(d) that was in point.  In any event, Article 19(2) is relied on by the petitioner in support of a contention that the effect of Articles 18 and 19 was that France’s obligations had ceased three months after the petitioner left France.  It is claimed that the petitioner left France in around December 2013 and remained in Iran until in or around June 2015.  The petition then contains the following admission: 

            “… admitted that the French authorities did not establish that the petitioner had left France for at least three months before his request.”

 

There were two main reasons why the petitioner’s pleadings were irrelevant.  First he has failed to aver a necessary fact for an infringement of Article 19(2) namely that France established, when requested to take back, that the petitioner had been absent for three months.  He offers to prove only his absence, which on a correct interpretation of Article 19(2) is not enough.  Secondly, even if the preceding argument for the respondent was incorrect, the petitioner had failed to aver two necessary facts for success in an Article 27 review on the basis of an infringement of Article 19(2).  The first necessary fact is that he had evidence of a type mentioned on the lists that established that he had left the Member States for more than three months. The second necessary fact is that there was evidence the petitioner had been absent from France for more than three months before the respondent when she made the decision under review.  For these reasons the petitioner’s pleadings were irrelevant and the petition should be dismissed. 

[22]      The substantive point was that if the respondent’s argument about the scope of Article 27 was correct, then the petitioner could not succeed by simply offering to prove that he had been away from France for more than three months.  There is a particular type of evidence required to establish that fact.  Accordingly, even if it was thought best not to decide the matter on the basis of legal relevance, the respondents’ third plea in law could still be sustained on the basis that the petitioner does not offer any facts that would allow him to succeed.  The petitioner of course contends that the letter can be regarded as a document on the list, submitting (at paragraph 5.2) that the evidence falls into the category of “circumstantial evidence”.  The respondent’s position was that the letter, No 6/4 of process, did not fall into that category.  The letter (6/4) purports to be from “Tehran Cement” and appears to be dated 20 July 2015.  There is no indication as to who translated the letter or what the qualifications of the translator are and so it cannot be regarded as a certified translation at all.  It appears on the face of it to be a job reference written six months after the petitioner’s employment is said to have come to an end.  Indeed, although the same first and surnames as the petitioner appear on the letter there is nothing else in it to identify him as the subject matter.  There is no suggestion that the author of the letter has met the petitioner in person and although certain dates of employment are given the letter does not confirm that the petitioner actually attended for work during that period.  Reference was made to the case of Tanvar Ahmed v SSHD [2002] UK IAT 439 and R (on the application of Chen) v SSHD [2008] EWHC 437.  In Chen, the issue arose as to whether the claimant had been in China for more than three months in the Dublin II context.  She had no passport, flight ticket or similar document.  She produced medical records but without confirmation that she was the same person referred to in those.  The documents themselves did not show she was in China and there was no witness statement that properly tied up the documents with her sworn testimony.  Accordingly her claim was dismissed. 

[23]      Turning to the applicable lists, these are contained in Annex II to Regulation 118/2014.  List A provides the means of proof that can be used in determining the State responsible for examining an application for international protection.  So far as departure from the territory of a Member State in terms of Article 19(2), this is covered by paragraph 9 of List A which states in terms that the means of proof required is prohibitive evidence such as an exit stamp, an extract from a third country register, tickets conclusively establishing departure from or entry at an external frontier and so on.  List B contains types of circumstantial evidence that may also be relied on.  Paragraph 9 of that list again provides the list of indicative (circumstantial) evidence that can be accepted.  This includes (1) detailed and verifiable statements by the applicant (2) reports/confirmation of the information by an international organisation such as UNHCR (3) reports/confirmation of the information by another Member State and (4) in relation in particular to Article 19(2) exit stamps, reports or confirmation of family or travelling companions, finger prints, tickets, hotel bills, appointment cards, information showing that the applicant has used the services of a courier or travel agency and “other circumstantial evidence of the same kind”.  Mr Pirie contended that the letter now produced by the petitioner could only be, at best, “other circumstantial evidence of the same kind”.  That expression clearly meant that the document produced had to be similar to something like tickets, hotel bills, appointment cards which could support or verify the applicant’s position.  An uncertified translation that could not be linked to the petitioner at all did not fall within that category.  The case of Tanvar Ahmed provided the context as being the difficulty in relying on documents from certain countries such as Iran against the backdrop of the objectives of Dublin III which required rapid and workable decision making.  Each of the items on the list in paragraph 9 of List B are evidence of a type chosen for their apparent reliability on the issue of a person’s absence from the Member State.  It was important that the catch all provision for other circumstantial evidence of the same kind did not amount to an evidential “free for all”;  its use would be restricted to specific evidence of the same type as stamped documents which were on their face reliable.  The absence of any certified translation itself rendered the letter inherently unreliable.  It was noticeably different from each of the other listed types of document included as indicative evidence in paragraph 9 of List B.  Mr Pirie submitted that on a correct construction of the list the letter simply could not fall within any of the descriptions.  However, even if that issue was decided against the respondent, an important point arose in this case as to whether any evidence produced by an applicant in the petitioner’s position required to be on the lists in order to be taken into account and the respondent would welcome a ruling on that.  In all the circumstances Mr Pirie submitted that the petition was irrelevant and should be dismissed. 

 

The Petitioner’s Response
[24]      Mr Forrest for the petitioner invited me to repel the respondent’s plea to the relevancy and send the case for a second hearing with a by order before that to determine the scope of such a second hearing.  It is clear that the case against the petitioner was that the case currently pled was deficient in two respects, namely the alleged lack of entitlement on the part of the petitioner to challenge the respondent’s decision, such entitlement lying only with the Member States.  Secondly, the question of what the lists say about the nature of the circumstantial evidence that can be provided and whether the petitioner can bring himself within those.  Mr Forrest characterised the first of these arguments as “the locus” argument and the second one as the lists point and dealt with each in turn. 

 

The Locus Argument
[25]      Mr Forrest also emphasised Recital 19 of Dublin III and its focus on providing an effective remedy.  Whereas the predecessor Regulation, Dublin II, contained no clear reference to the asylum seeker having this protection, one of the aims of Dublin III was to give such asylum seekers more of a voice in the proceedings.  In the submission of counsel for the petitioner Dublin III does two main things relevant to this case.  First it creates obligations particularly of the Member States themselves and secondly it has clear rules when these obligations come to an end.  The present case is concerned with the cessation of a Member States obligation.  A reliance was placed on the case of Ghezelbash particularly at paragraphs 34 and 35 where the court contrasted the previous position, where the only circumstances in which the asylum seeker had any locus  to challenge a decision was if there were systematic deficiencies or flaws in the receiving States process.  Recital 19 changes that and provides those in the position of the petitioner with a right to challenge decisions about their transfers. 

[26]      Turning to Article 19(2) Mr Forrest contended that the argument advanced by counsel for the respondent would effectively empty Article 19(2) of any meaning.  It would not make any sense to interpret it in the way suggested.  It was wrong to interpret the provision such that only a Member State could raise issues arising from it.  It should be understood as meaning that the obligations in Article 18(1) cease where it can be established that the person in question has left the territory of the Member State for at least three months.  In essence, Mr Forrest argued that there are not only two but three bodies or persons involved in construction of Article 19(2) and contended that it was reasonable to conclude that all three bodies, the two Member States and the asylum seeker, become entitled to enforce its provisions.  Article 19(2) itself is subdivided into two parts.  It is the first part that the arguments in this case were concerned with.  However the second part makes clear that any application lodged after a period of absence referred to in this first paragraph (ie of more than three months) shall be regarded as a new application giving rise to a new procedure for determining the Member State responsible.  What this meant was that in any case where an asylum seeker was away from the first Member State for at least three months one required to go back to the Chapter III procedure for determining which Member State would be responsible.  If no Member State appeared to be responsible on the criteria listed then it would be for the Member State in which the application was lodged to take responsibility.  In this case that would be the United Kingdom as the application was lodged after the lengthy period of absence from France. 

[27]      So far as Article 27(1) of Dublin III was concerned there had been no equivalent in the Dublin II Regulation.  What Article 27 provides is that someone in the petitioner’s position has the right to an effective remedy against a transfer decision and that that remedy will take the form of an appeal or review in fact and in law.  It was accepted that judicial review procedure was sufficient to comply with Article 27(1) although it had to be noted that the provision also allowed appeal in fact.  Accordingly, this was not a case in which the traditional judicial review rules applied.  Because the provision is one of European law and provides for a review of fact and law the supervisory jurisdiction required to be adapted.  In MIAB v Secretary of State for the Home Department [2016] CSIH 64 the Inner House (at paragraphs 62 and 63) acknowledged that it was not always possible for a judicial review petition and answers to proceed to a determination at first hearing, albeit that the court ought to encourage that as the norm rather than the exception.  A flexible view required to be taken allowing the court to take account of new matters – King v East Ayrshire Council 1998 SC 182 at 196.  This flexible view would allow consideration of late documentation such as the letter now produced by the petitioner even if that would not normally be permitted on a traditional or conventional approach.  In relation to the passages in MIAB that comment on the applicant’s rights in terms of Dublin III (paragraphs 67 and 68) the court’s view that not each Article of Dublin III enshrines a right vested in the applicant was noted.  However that obiter dicta would support the idea of there being only two bodies rather than three with enforceable rights and that would appear to be inconsistent with the case of Karim v Migrationsverket.  Mr Forrest accepted that while on one view the case of Karim could be regarded as entirely in the petitioner’s favour, on the other hand it could be restricted only to those situations where it is established that the asylum seeker has been away for more than three months.  In other words the case of Karim may be restricted to the second subparagraph of Article 19(2).  What was clear from  paragraph 22 of the decision in Karim was that the application of the three month rule in Article 19(2) can be called into question by an Article 27(1) appeal on the part of an asylum seeker.  The letter now produced by the petitioner, No 6/4 of process, placed at the very least a question mark over whether he had been in France in the crucial period.  Accordingly, if Karim could be interpreted such as to give an asylum seeker who claims he has been away for more than three months the right to invoke Article 27(1) to the production of such information, the petition is relevant and a determination on the facts in required. 

 

The Lists Point
[28]      Two issues had been focused in the respondent’s argument about the document (6/4 of process).  The first was the nature of the document and questions about its authenticity and secondly the issue about when it had been intimated.  It was accepted that Article 22 of Dublin III requires a certain type of documentation with its reference to the two lists which it was agreed are those contained in the Annex II Regulation 118/2014.  The section on “indicative evidence” was circumstantial evidence that could be allowed to prove departure from the territory of the Member States.  It was a non-exhaustive list of the type of evidence that could be used to support a contention of having been away for more than three months.  Mr Forrest argued that the expression “other circumstantial evidence of the same kind” did not exclude evidence of the type now before the court in the letter No 6/4 of process.  Such a letter could be regarded as “of the same kind” as the other things on the list.  That letter, taken with what the petitioner is recorded to have said at No 7/2 of process was sufficient for him to argue that he had been absent from France for more than three months.  The statement provided at 7/2 of process included the following: 

            “I was in France Iran in 2012 til 15/5/2015.  I left inside a truck and went to Istanbul, Turkey.  I was there for 10 days.  I got three different trucks travelling through some European countries.  I don’t know which until I got to UK…”

 

The letter 6/4 supported that statement.  It confirms the petitioner’s employment in Iran between 10 April 2014 and 30 January 2015.  Mr Forrest accepted that the letter does not confirm any presence in Iran after January 2015 but the petitioner’s statement goes beyond the dates of the letter.  The letter fitted with the understanding of circumstantial evidence which is secondary evidence supportive of the primary evidence.  The petitioner’s statement was the primary evidence and the letter was sufficient to support it even though not every detail was covered. 

[29]      So far as the case of Tanvar Ahmed v SSHD [2002] UKIAT 439 on which the respondent had relied was concerned, Mr Forrest pointed out that that case concerned an immigration appeal process where there is an onus on the asylum seeker.  It was in that context that comments were made about countries known to produce fraudulent documents.  If the suggestion on the part of the respondent was that the court should be cautious about placing any reliance on the letter 6/4 of process the response on behalf of the petitioner to that was that this was an argument about legal relevance and no fact finding process has yet taken place.  It would be premature to test the document as a piece of evidence in that context.  Accordingly, the letter could not be dismissed as unreliable at this stage.  So far as the Chen case was concerned, that had been decided under Dublin II where there was a more restricted scope for review on the part of an applicant such as the petitioner. 

[30]      So far as the timing of the letter being lodged was concerned, Mr Forrest accepted that it had been presented four months after first orders were granted in the case although the petition has been sisted between August and December 2015.  He submitted that it did not matter how late a document in such a case was either intimated directly to the respondent or introduced into appeal or review proceedings.  At Dublin III’s broad principles, aims and purposes had to be taken into account.  The court could take into account events that happened or information that became available after the respondent’s decision so long as it was accepted that traditional judicial review grounds were to be extended.  Material that was subject to appeal or review should not be restricted to material before the decision maker at the time.  When asked why the letter had not been sent to the respondent with a request that she review the transfer decision, Mr Forrest answered that as the point at issue was the petitioner’s human rights and this could not be regarded as a strictly traditional judicial review process there was no need for him to do so.  Distinction had been drawn between judicial review involving domestic law and the same type of procedure be invoked in a case involving European Union law or International law.  The court should take account of the human rights background to the case in reaching a view. 

[31]      Mr Forrest accepted that if the matter was decided in the petitioner’s favour such that he was found to have pled a relevant case, that case was whether he had in fact left France over three months prior to his later application in this country.  That would logically result in the court repelling the respondent’s preliminary plea and allowing a form of Proof on that issue, the scope of which could be decided at a By Order hearing.  A second hearing would be required to ascertain where the petitioner had been between 2012 and 2015.  Evidence would be required either by way of affidavit or orally from the petitioner and from somebody who could speak to the letter and its translation. 

 

The Respondent’s Reply
[32]      Mr Pirie sought to reply to one or two aspects of the argument as it had been developed in Mr Forrest’s submissions.  First, he argued that the present proceedings did not involve an issue of human rights being at stake at all, the case was only about transfer to a safe country.  Any human rights argument could be taken in France.  Secondly, as the petitioner had conceded that appeal or a review are alternatives in Article 27 and that judicial review procedure satisfies one of them, there was no reason to deviate from the usual principle that a document produced after the decision sought to be reviewed is unacceptable.  The case of MIAB v Secretary of State for the Home Department supported the contention that the ordinary principles of judicial review would apply in the context of an Article 27(1) remedy. 

[33]      Turning to the lists and the definition of circumstantial evidence, what was clear was that, for the purposes of Dublin III, circumstantial or indicative evidence is what the Regulation states it includes, namely, amongst other things a detailed and verifiable statement by an applicant.  The statement made by the petitioner contained in No 7/2 of process could on no view be regarded as a detailed and verifiable statement.  If neither the letter nor the interview could be regarded as circumstantial evidence within the meaning of the Regulation then the petitioner has failed to show that he has any evidence at all. 

[34]      Insofar as the points made about the division of Article 19(2) into two separate paragraphs, it had to be understood that the context of the discussion was an attack on the petitioner’s pleadings which refer only to the first paragraph of 19(2).  It was not in dispute from the authorities that a petitioner who has been away for more than three months and where the Member States has then made a wrong decision can invoke the second paragraph of Article 19(2).  The two separate paragraphs of Article 19(2) achieve different things or at least have different consequences.  The first paragraph thereof gives the Member State a chance to “take the point” in relation to absence for more than three months and thus to avoid responsibility for the applicant.  The second paragraph requires the Member State making the request to start Dublin III procedure over again.  The scope of the review available to the petitioner was restricted to the correctness of the process.  The petitioner had simply not met the argument against him in relation to a petition founding on the first paragraph of Article 19(2).  Even if the petitioner had relied in his pleadings on the second paragraph of Article 19(2) and the court concluded that the process ought to have started of new, the court still had a discretion not to reduce the decision.  The usual rules about whether any error made by the respondent was material would apply.  In essence, the petitioner could not now argue a case not already pled in answer to an argument that his pleadings were irrelevant. 

 

Discussion
[35]      The legal and factual background to this petition was summarised by counsel for the respondent as narrated at paragraphs 4 - 7 of this opinion and no issue was taken in relation to that by counsel for the petitioners.  Similarly, the relevant provisions of Dublin III with which the argument was concerned are all referred to in paragraphs 8 - 15.  The petitioner seeks to reduce a decision authorising his removal to France on the basis that the respondent erred in so authorising because the obligation on France to take him back ceased due to his absence from that jurisdiction for a period of more than three months. 

[36]      The issue raised in the petition involves the interplay between Articles 19.2 and 27.1 of Brussels III.  It may be useful to set these out together.  They provide: 

Article 19

           

                       “2.    the obligations specified in Article 18(1) shall cease when the Member State responsible can establish, when requested to take charge or take back an applicant or another person as referred to in Article 18(1)(c) or (d), that the person concerned has left the territory of the Member States for at least three months, unless the person concerned is in possession of a valid residence document issued by the Member State responsible.

 

            An application lodged after the period of absence referred to in the first subparagraph shall be regarded as a new application giving rise to a new procedure for determining the Member State responsible.”

 

Article 27

 

               “1.    The applicant or another person referred to in Article 18(1)(c) or (d) shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal.”

The way in which the argument is focused in the petition takes no account of the two distinct paragraphs in Article 19.2.  It is for that reason that the obiter dicta of the Lord President in MIAB (AP) & others v Secretary of State for the Home Department [2016] CSIH 64 has a bearing on this matter.  In paragraph 68 of the opinion in that case, the Lord President cautions that not every article of Dublin III enshrines a right which is vested in an applicant personally.  An example of time limits intended solely to regulate the position as between different Member States is given.  It seems to me that the first paragraph of Article 19 does not enshrine a right vested in an applicant such as the petitioner.  It is applicable only as between Member States.  The second paragraph on the other hand, when taken together with the right to an effective remedy under Article 27.1, does appear to provide scope for a Third Country National such as the petitioner challenging a transfer decision by way of appeal or review.  A judicial review petition such as this is the form of review available to someone in his position present in the United Kingdom. 

[37]         The distinction between the two separate paragraphs of Article 19 was emphasised in the case of Karim v Migrationsverket, Case C-155/15.  There, at paragraphs 15 and 16 of the court’s consideration of the questions referred to in that case, the following view is expressed: 

            “… it is true that the first subparagraph of Article 19(2) of Regulation No 604/2013 provides that, in principle, the obligations to take charge of or take back an asylum applicant arising under Article 18(1) of that Regulation cease if the Member State responsible can establish, when requested to take back an asylum applicant, that the person concerned left the country of the Member States for a period of at least three months.

 

            16. However, the second subparagraph of Article 19(2) of that Regulation states that an application lodged after such a period of absence is to be regarded as a new application giving rise to a new procedure for determining the Member State responsible.

 

            …

 

            18. Consequently… Article 19(2) of Regulation No 604/2013 must be interpreted to the effect that that provision, in particular its second subparagraph, is applicable to a Third-Country National who, having made a first asylum application in a Member State, provides evidence that he left the territory of the Member States for a period of at least three months before making a new asylum application in another Member State.”

 

[38]      Accordingly, it seems clear that, while the first paragraph of Article 19(2) confers  no particular right on the petitioner in pursuance of which he must have an effective remedy, the second subparagraph, as interpreted by the Grand Chamber of the CJEU  gives him such a right in certain circumstances  I acknowledge that counsel for the respondent advanced his first argument, namely that the provisions of Article 19(2) gave the petitioner no such right partly because of the way in which the petition has been framed.  Much of Mr Pirie’s argument proceeded on the basis that an interpretation permitting, in principle, a remedy to someone in the petitioner’s position might be given.  The real question becomes whether the petitioner has made a relevant challenge to the decision made by the respondent of the type permitted by a combination of the second subparagraph of Article 19(2) taken with the right to an effective remedy contained in Article 27.1.  In Ghezelbash v Staatssecretaris van Veiligheid en Justitie, Case C – 63/15 the CJEU answered in the affirmative a question posed about whether an asylum seeker is entitled to plead, in an appeal against a decision to transfer him, the incorrect application of one of the criteria for determining responsibility laid down in Chapter III of the Regulation, in particular the criterion relating to the grant of a visa set out in Article 12 of the Regulations.  Mr Pirie pointed out a number of differences between the court’s decision in Ghezelbash and the circumstances of the present case.  In essence, in that case there had been a failure to take account of important verifiable information provided by an asylum seeker in the form of a visa.  A failure to take account of that information could constitute failure to apply properly the criteria required by the Regulations.  The case of Karim v Migrationsverket is of greater relevance to the petitioner’s situation.  As already indicated, it supports a contention that the second subparagraph of Article 19(2) can be invoked by a Third Country National who provides evidence that he left the territory of the Member States for a period of at least three months before making a new asylum application in another Member State.  While Mr Pirie submitted that the decisions in both Ghezelbash and Karim are to the effect that the scope of the effective remedy in Article 27 is concerned only with the process the Member States adopted and whether the criteria were correctly applied in that process, it does seem to me that Karim goes a little further than that.  The material passages of that decision read as follows:

“21. …..it is necessary to determine whether Article 27(1) of Regulation No 604/2013, read in the light of recital 19 thereof, must be interpreted to the effect that, in a situation such as that at issue in the main proceedings, an asylum applicant may, in an action challenging the transfer decision made in respect of him, invoke an infringement of the rules set out in Article 19(2) of that regulation.

 

22. ……it is clear from paragraphs 30 to 61 of the judgment of 7 June 2016 in Ghezelbasch (C-63/15) that Article 27(1) of Regulation No 604/2013, read in the light of recital 19 thereof, provides an asylum applicant with an effective remedy against a transfer decision made in respect of him, which may, inter alia, concern the examination of the application of that regulation and which may therefore result in a Member State’s responsibility being called into question, even where there are no systemic deficiencies in the asylum process or in the reception conditions for asylum applicants in that Member State….

 

23. Furthermore, although the application of Regulation no 604/2013 is based essentially on that process that is conducted to establish the Member State responsible……it must be stated that the rule set out in the second sub-paragraph of Article 19(2) of that regulation establishes the framework within which that process must be conducted when the third-country national in question, after having made a first asylum application in a Member State, left the territory of the member States for a period of at least three months before making a new asylum application in another Member State”

 

Then, at paragraph 2, it is explained that in order to satisfy itself that the contested transfer decision was adopted following a proper application of the process for determining the Member State responsible, the court dealing with an action challenging a transfer decision must be able to examine the claims made by an asylum applicant who invokes an infringement of the rule set out in the second subparagraph of Article 19(2) of that Regulation.  However, the ruling laid down in Karim is restricted to situations where the third country national provides evidence of having been absent from the Member States for more than three months in seeking to argue an infringement of the rule set out in the second subparagraph of Article 19(2).  In that case Mr Karim’s passport had an entry visa for Lebanon that supported his absence from the Member States for more than three months.  It is not difficult to conclude that a failure to acknowledge or take account of that evidence could amount to an improper application of the process required by Dublin III such that he was entitled to invoke Article 27(1).  On the face of it, Mr Karim had established that he had been away for more than three months and so could challenge a decision that would only be appropriate where he had not had such a period of absence.  There was material that established an infringement of the rule set out in the second subparagraph of Article 19(2) and that gave the individual a right to pursue a remedy.

[38]      I conclude that Mr Pirie was correct to submit that the petition is irrelevant insofar as it seeks to invoke a remedy based on the first subparagraph of Article 19(2).  That subparagraph does not confer a right vested in an individual applicant.  Such an interpretation is consistent with the clear wording of the provision and the obiter dictum of the Lord President in MIAB v SSHD.  As already indicated, the current focus of the petition is restricted to the first sub paragraph of Article 19(2) and no application to amend that in light of the respondent’s argument has been made.  Insofar as Mr Forrest relied on the first subparagraph of Article 19(2) I reject his submission.  The petitioner admits that the relevant Member State (France) has not established a period of absence of more than three months.  Once the distinction between the separate subparagraphs of Article 19(2) is understood, there is no inconsistency between MIAB v SSHD and the case of Karim.  However, it seems to me that the ability of an individual to invoke the second subparagraph in challenging a transfer decision is not open ended, it is restricted to situations where the available material establishes the requisite period of absence from the Member States.  That requires consideration of the circumstances in which a relevant review of a transfer decision can be pled.  Notwithstanding the deficiencies in the petitioner’s pleadings it would be unsatisfactory in the circumstances to determine this issue on a pure pleadings point when the argument about the distinction between the two subparagraphs was focused in argument before me and in the authorities discussed.

[39]      Accordingly, I will address the question of the type of evidence that can be used by someone in the petitioner’s situation in an appeal or review for the purposes of Article 27(1), where the second subparagraph of Article 19(2) is relied on.  

[40]      The respondent contends that any relevant challenge has to offer evidence contained from the lists in Annex II to Regulation 1560/2003.  The respondent’s position is that an applicant such as the petitioner could not simply offer to prove he had been away from the Member States for more than three months.  A particular type of evidence was required.  In the event the petitioner did not seriously contend that evidence not on the lists would be sufficient.  He argued that the letter now produced No 6/4 of process fell within the category of circumstantial evidence of the same kind as the other material listed in List B to Annex II. 

[41]      The starting point is what the petitioner is recorded to have said in his statement at interview, namely that he was in “France Iran in 2012 til 15/5/2015”.  The statement includes extremely vague information about travelling to Europe thereafter.  It cannot be categorised as a “detailed and verifiable statement” as required by the list.  So far as the letter is concerned,  in order to be regarded as a means of proof that can be used in determining the state responsible for examining an application for international protection, it would require to be of the same kind as (1) detailed and verifiable statements by the applicant (2) reports/confirmation of the information by an international organisation such as UNHCR (3) reports/confirmation of the information by another Member State and (4) in relation in particular to Article 19(2) exit stamps, reports or confirmation of family or travelling companions, finger prints, tickets, hotel bills, appointment cards, or information showing that the applicant has used the services of a courier or travel agency.  The difficulty with treating the letter No 6/4 of process as circumstantial evidence of this type is that the production itself is not in English and the English translation provided is not a certified translation of any kind.  Accordingly there is nothing to support its authenticity at all.  Items such as travel tickets will bear a date and/or a stamp that supports contention that they were issued on a particular date.  An unauthenticated translation of a letter may or may not refer to the petitioner does not, in my view, fall within the category “other circumstantial evidence of the same kind” as that listed above.  I derive some assistance in reaching this conclusion from the case of R (on the application of Chen) v SSHD [2008] EWHC 437.  In that case, albeit in a Dublin II context, the importance of documents said to support a statement that someone had been outside the Member States for more than three months being capable of verifying the applicant’s account was emphasised.  It seems to me that the same applies in this case and the letter takes the petitioner no further forward in seeking to establish  that he had been absent from the Member States for a period in excess of three months.  For the reasons given the petitioner in this case has not produced something that is properly capable of verifying his account of having been in Iran until May 2015, even if that account amounted to the necessary detailed and verifiable statement.  An unauthorised translation of a letter that cannot be linked by a date stamp and/ or details identifying the petitioner as the person about whom the author of the letter writes is in a very different category to the entry visa stamped in the passport in the Karim case. Notwithstanding the apparent “ catch all” provision of “ circumstantial evidence of the same kind”, to regard this unauthenticated letter as falling within that description would be to open the door to what Counsel for the respondent described as an “ evidential free for all”. Regardless of the country from which the letter had emanated, I would not have regarded it, in its current form, as falling within the type of circumstantial evidcne required by the lists.

[42]      In any event, even if the letter was a document capable of providing the petitioner with a platform to pursue such an argument, it is a document that was not before the decision maker in this case at the time she reached her decision.  It could have been provided to the respondent at any time after it became available with a request that she review her decision.  That was not done.  While to some extent judicial review procedure in this context has to be adapted to take account of the obligations imposed by Dublin III, I do not consider that the usual rule that a decision cannot be said to have been made in material error in relation to information that was not before the decision maker can be disregarded.  As Mr Pirie pointed out, in the Ghezelbash case the only example given in relation to the Article 27 remedy was a failure to take account of material that had actually been put before the Member State.  There is no suggestion in this case that the petitioner was not afforded all of the protections afforded by Dublin III, in terms of the provision of information, a right to an interview and so on.  These were described as “participatory rights”.  They are afforded before a transfer decision is made and all of that was done in this case.  A failure by the respondent to take account of material put before her that on its face establishes absence from the Member States for the requisite period referred to in Article 19(2) is challengeable in proceedings of this type; a decision made in the absence of such material is not capable of a relevant challenge. As the Court of Appeal clarified in Fardous v Secretary of State for the Home Department [2015] EWCA Civ 911, in determining the lawfulness of a decision made by the respondent, the court must examine the decision “…on the basis of the evidence as known to the secretary of State when she made the decision” (para 42).  In my view, the fact that the background is one of a claim for asylum makes no difference to that because the petitioner does not seek to rely on any breach of his human rights so far as the respondent’s decision making process is concerned.  A TCN such as the petitioner has a right to challenge a transfer decision by way of judicial review if there has been an illegality or significant irregularity in the process leading to the decision to transfer, such as a failure to acknowledge material establishing his absence from the Member States.  The respondent has made appropriate concessions about the adaptation of judicial review procedure where that is required to ensure the obligation to provide an effective remedy against transfer decisions. I reject the contention that flexibility in this context extends to allowing review of a decision on the basis of new material not previously put before the decision maker.  The proper course where new material comes to light is to put that material before the decision maker and ask for a review in light of its content.  The decision made thereafter would be susceptible to judicial review in appropriate circumstances.

 

Conclusions and Disposal

[43]      In conclusion, I have reached the view that the petitioner has not pled a relevant case for challenge of the respondent’s decisions.  His pleadings seek to invoke the first subparagraph of Article 19(2) of Dublin III, something that cannot be supported either through ordinary rules of interpretation or on the basis of the authorities.  He could, in principle, invoke the second subparagraph of Article 19(2) if he had material establishing his absence from the Member States for the requisite period of more than three months, but only if that material was of a type accepted as being capable of proving that matter through its inclusion on the lists contained in Annex II to Regulation 118/2014 and where it is alleged that the respondent wrongly failed to acknowledge or take account of it during the transfer decision process.  The petition proceeds only on the basis of an unsubstantiated claim of absence from the Member States.  That is not a sufficient basis for a relevant challenge to the respondent’s decision to transfer him to the safe country in question.  Nor is a document that was not before the respondent at the material time and which has not been submitted with a request for review a relevant or sufficient basis for reducing the decisions made in relation to the petitioner.  As a result, the petition must be dismissed.  I will reserve meantime any question of expenses.