Who is running the asylum?
The recent decision in Regina (Nasseri) v Secretary of State for the Home Department was a case about an Afghan asylum seeker who entered the United Kingdom illegally and claimed asylum upon his detention. When he made his claim to asylum his fingerprint demonstrated that he had previously claimed asylum in Greece. Under the terms of Dublin II, Council Regulation 343/2003/EC his claim should have been determined in Greece, and Greece pursuant to that regulation accepted responsibility for the asylum claim. Therefore he was to be removed to Greece, a member of the EC and also a signatory to the European Human Rights Convention.
^ TOPRegulation vs convention
Given that the entire purpose of the regulation was to ensure that the first member state in which an asylum seeker arrived/claimed asylum would determine the claim, to avoid an argument or examination of the particular procedures in the particular state, under provisions of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004 (schedule 3 Para 3) effectively Greece was to be treated as a place where his rights under the European Convention on Human Rights would be respected. Hence there would be no objection to his being removed there.
Mr Justice McCombe held that that statutory provision in the 2004 Act was incompatible with his rights under the European Convention and accordingly issued a declaration of incompatibility pursuant to section 4 of the Human Rights Act 1998 .
^ TOPT.I. vs United Kingdom
Whilst this might seem at first blush surprising (is it appropriate or desirable for the courts of one member state to effectively sit in judgment on how the courts of another member state protect Convention rights which should be identical in both?) in fact the Judge had no option but to reach this decision. This was because of the decision of the European Court of Human Rights in T.I. v United Kingdom on 7 March 2000 where the Court said that the United Kingdom could not: "rely automatically ..........on the arrangements made in the Dublin Convention concerning the attribution of responsibility between European countries for deciding asylum claims. ..............while the Dublin Convention may pursue laudable objectives, its effectiveness may be undermined in practice by the differing approaches adopted by Contracting States to the scope of protection offered.". This was precisely why before the 2004 Act had been passed warnings of potential incompatibility had been given by, amongst others, Mr Justice Ouseley, then President of the Immigration Appeal Tribunal.
^ TOPJurisdictional shopping
However in an EC context such a decision simply will not do. The remedy for a failure to comply with the Convention would lie against each signatory and hence each member state. If the view is that the protection offered in a particular country is regarded as inadequate, the remedy should be against that member state. Jurisdictional forum shopping is inappropriate and undesirable in an asylum context. The more so when the effect will be to undermine the clear basis of allocation which EC member states have decided.
^ TOPAllowed to work
There can be no room for legal system chauvinism or an effective view that some states should be treated as more compliant than others. Whilst this was not the intent of the judgment (which more or less inevitably followed from the binding authority) it leads to an unworkable position, against which the government should hold firm. If the European Court considers that any member state is failing its obligations, then the obvious thing to do is to deal with that state in cases brought against it. If the Dublin Convention pursue laudable objectives, as the judgment above quoted seems to accept, at the very least it should be allowed to work.