Art 17(2) of Dublin III and challenge of discretion on public law grounds
R (MA) v SSHD  UKUT (Unreported) (12th April 2017)
On 12th April 2017 the Upper Tribunal Judge Reeds handed down her judgment on R (MA) v SSHD  UKUT (Unreported), a case concerning a failure on part of the Secretary of State to exercise discretion and accept responsibility for assessing MA’s claim and whether such failure can be challenged on public law grounds.
MA is a Somali national. She arrived in the UK on 19th November 2015 and sought asylum on the grounds that she had a well-founded fear of persecution for a Convection reason. During a screening interview, she asserted that she had a sibling in the UK. A Eurodac search revealed that she had claimed asylum in Germany on 02nd November 2015. On 18th January 2016 Germany accepted responsibility for assessing MA’s claim for asylum. On 21st January, the Secretary of State refused to grant MA asylum and certified her claim on third country grounds.
On 23rd January, removal directions were set for MA’s removal to Germany on 26th February. On 22nd February, MA served a Pre-Action Protocol Letter, explaining her reasons why she should not be removed to Germany. By this stage, further evidence of MA’s family connection in the UK was obtained. The PAP letter asserted that MA had a sibling, her brother-in-law and a number of other relatives, such as aunties and cousins. MA sought specifically that the Secretary of State ought to exercise discretion under Art 17(2) and accept responsibility for assessing her claim given that she had her sibling and a number of other relatives, including aunties and cousins, who had all been beneficiaries of international protection and were now lawfully residing in the UK. The Secretary of State failed to reply by the deadline set by MA’s solicitors. On 25th February, MA sought judicial review of the Secretary of State’s failure to exercise her discretion under Art 17(2) of Dublin III to accept responsibility for assessing her asylum claim. Permission to apply for judicial review was refused by the UT Judge Chalkey, but granted at an oral hearing by the UT Judge Kebede on 26th July. The matter then came before the UT Judge Reeds.
The main issue in the case was whether an alleged failure to exercise discretion under Art 17(2) of Dublin III was justiciable, and if so, was the Secretary of State unlawful on the facts of this case. There were some other issues, but there are not relevant for the purpose of the main argument in the case. By the time of the hearing of the claim on 01st December, the Secretary of State had issued two supplementary decisions, on 26th February and 23rd November, aimed at addressing MA’s criticism to the decision-making process and an alleged failure to engage with her argument.
Judge Reeds set out the argument of the parties (at -) of her judgment:
“12. Mr Bahja’s submissions can be summarised as follows:-
(i) The Applicant is entitled to challenge a transfer decision under Article 27 (alongside Recital 19) by alleging a breach of Article 17 which is justiciable;
(ii) He relies on the CJEU decisions of Ghezelbash and Karim and that those decisions are not confined to Chapter III but extend to discretionary criteria in Chapter IV;
(iii) He places reliance on the decision made by other Member States relating to justiciability;
(iv) He places significant weight and reliance upon the dicta of Beatson LJ in the decision of ZAT;
(v) Therefore, he submits the discretionary clause of Article 17 demonstrate the scope of review is present when considering an exercise of discretion on humanitarian and compassionate grounds to bring together family reunification.
13. Mr Harland on behalf of the Secretary of State takes the opposite view that Article 17 is not justiciable either on its own or when read with Article 27 and Recital 19. Thus he submits:-
(i) The cases in respect to Dublin II are still applicable and the exercise of discretion set out in Article 17(2) is not justiciable because it confers a discretion on a state to act in a certain way rather than bestowing a right upon individuals;
(ii) The CJEU decisions only go so far as finding that under Article 27 an asylum seeker can challenge the incorrect application of one of the criteria for determining responsibility laid down by Chapter III of the Regulations (and following Karim the way in which the criteria are assessed under Article 19). Thus he submits it does not extend to a challenge to a discretionary clause in Chapter IV;
(iii) The decisions of other Member States are of limited value; and
(iv) The decision of ZAT was not a case concerning Dublin III and that the comments of Beatson LJ are obiter dicta and they should not be followed.
After a review of authorities on exercise of discretion under Dublin II and Dublin III, Judge Reeds (at ) of her judgment held: “…I reach the conclusion that [failure to exercise discretion under] Article 17 when taken with Article 27 can be challenged by way of judicial review on public law grounds”. The Judge rejected a submission to the effect that exercise of discretion under Art 17(2) of Dublin III is not justiciable.
The Judge’s conclusion on this point is consistent with the dicta of Beatson LJ in Secretary of State for the Home Department v ZAT & Ors (Syria)  EWCA Civ 810 (02nd August 2016). His Lordship (at ) of his judgment said this in relation to exercise of discretion under Art 17: “…Mr Eadie suggested, or came close to suggesting, during the course of the hearing that a refusal to exercise the power under Article 17 was not justiciable. That, in my judgment, is unsound in principle and also finds no support in the authorities. Abdullahi v Bundesasylamt recognised only that the second Member State has a wide margin of discretion in deciding whether to assume responsibility pursuant to the provision in the Dublin II Regulation that is the equivalent of Article 17. In a context in which the exercise of power relates to relations between two Member States as to the operation of a treaty arranging for the allocation of responsibility for examining applications for asylum between Member States, this is clearly correct…But subject to the effective scope of judicial review being narrower for this reason, the exercise by the Secretary of State of her discretion is subject to the ordinary public law principles...”. I accept that ZAT does not deal with Art 17 of Dublin III, but it does not follow that dicta of Beatson LJ in ZAT was irrelevant to the issue of principle that the UT had to decide.
In Upjohn (Case C-120/97) judgment of 21st January 1999 the ECJ (now the CJEU) (at  of its judgment set out the correct approach regarding exercise of discretion in context of the EU law: “According to the Court's case-law, where a Community authority is called upon, in the performance of its duties, to make complex assessments, it enjoys a wide measure of discretion, the exercise of which is subject to a limited judicial review in the course of which the Community judicature may not substitute its assessment of the facts for the assessment made by the authority concerned. Thus, in such cases, the Community judicature must restrict itself to examining the accuracy of the findings of fact and law made by the authority concerned and to verifying, in particular, that the action taken by that authority is not vitiated by a manifest error or a misuse of powers and that it did not clearly exceed the bounds of its discretion (see, in particular, Joined Cases 56/64 and 58/64 Consten and Grundig v Commission  ECR 299, Case 55/75 Balkan-Import Export v Hauptzollamt Berlin-Packhof  ECR 19, paragraph 8, Case 9/82 Øhrgaard and Delvaux v Commission  ECR 2379, paragraph 14, Case C-225/91 Matra v Commission  ECR I-3203, paragraphs 24 and 25, and Case C-157/96 National Farmers' Union and Others  ECR I-2211, para 39)”.
Authorities of the Court of Justice of European Union do not support the Secretary of State’s position on the justiciability of discretion under Art 17. Upjohn makes it clear that judicial authorities in a Member State must ensure that a measure which implements the EU law does not constitute a manifest error of law or misuse of powers and that it did not clearly exceed the bounds of its discretion.
The Judge was correct (at - of her postscript judgment to reject the Secretary of State’s contention based on the judgment of the CJEU in CK and Others (Judgment)  EUECJ C-578/16 (16th February 2017) to the effect that an exercise of discretion under Art 17(2) is not justiciable. In my view, CK does not affect the issue of principle that the UT had to decide in this case, namely whether an applicant is entitled to challenge the Secretary of State’s failure to exercise her discretion under Art 17(2) on rationality grounds in context of a transfer decision.
The conclusion of CK (at [98(2)]) that: “Article 17 (1) of Regulation No 604/2013, read in the light of Article 4 of the Charter of Fundamental Rights of the European Union, cannot be interpreted as requiring, in circumstances such as those at issue in the main proceedings, that Member State to apply that clause”, gives no indication whatsoever that the exercise of discretion is not justiciable. The absence of an obligation on part of Slovenian authorities in CK reflects the nature of discretion which means “choice”. A public body which is vested with discretionary power has a choice to make in deciding how to exercise that discretion. However, when that body makes a choice which is wrong in law, this can be challenged on rationality grounds.
I also accept that the existence of discretion does not imply an obligation to take a particular course of action in so far that that course of action is justified on rationality grounds. If, however, the Secretary of State’s interpretation of Art 17(2) of Dublin III is to be preferred, it is bound to produce an absurd result and a situation where a public body in a Member State is vested with an absolute power which is unlimited in scope and uncontrolled in substance by anybody, even by the courts of a Member State. The purpose of discretion is to create flexibility rather than grant absolute or unlimited power to the decision-maker which is not justiciable.
MA establishes that a failure to exercise discretion under Art 17(2), when taken in conjunction with Art 27 of Dublin III, can be challenged on public law grounds, although the case failed on the facts. It adds valuable contribution to the interpretation of the scope of discretion under Art 17(2) and the means available to a court or tribunal in challenging or controlling such discretion as a matter of EU law.
OTS Solicitors acted for MA in this case.
Tomor BAHJA was instructed by OTS Solicitors to represent MA.
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Posted on: Monday, 22 May, 2017