R (on the application of Habte) v Secretary of State for the Home Department [2020] EWHC 967

Alan Payne QC acted for the Secretary of State in R (on the application of Habte) v Secretary of State for the Home Department, which concerned Member States’ responsibilities under the Dublin III regulations. 

The Claimant, a national of Eritrea, travelled through Italy to the UK where he claimed asylum. Italy accepted responsibility for his claim for asylum under Dublin III. The SSHD then mistakenly interviewed him before then deciding to transfer him to Italy. In response the Claimant issued proceedings challenging the transfer decision saying that, having interviewed him, the UK had become responsible under Dublin III for his claim for asylum. 

It was common ground that the interview was part of the “examination of an application for international protection” under of Article 2(d) of Dublin III. The question therefore was whether, by having started “examining” the claim, the SSHD had become responsible for it. 

The Claimant relied on Fathi v Predsedatel na Darzhavna agentsia za bezhantsite (Case C-56/17) to establish that the decision to interview constituted a decision by the UK to accept responsibility for examining the asylum claim pursuant to Article 17(1) of Dublin III (a provision which transfers responsibility for a claim for asylum from one Member State to another). The SSHD on the other hand submitted that for responsibility to transfer a Member State had to take a deliberate decision pursuant to Article 17. As such, since the mistaken decision to interview the Claimant did not amount to a decision to exercise the power under Article 17 responsibility had not transferred to the UK.

The court accepted the SSHD’s argument and held that taking a step to examine a claim for asylum did not amount to a decision to exercise the discretion conferred by Article 17(1). The Court held that, whilst Fathi was authority for the proposition that no formal decision to assume responsibility had to be taken to engage Article 17, there nevertheless needed to be a decision to apply Article 17 in order for responsibility to transfer.

The judgment settles the long standing and much litigated issue relating to the type of decision required in order for a Member State to become responsible for deciding a person’s asylum claim and the impact and scope of Fathi.