In R (Habte) v Secretary of State for the Home Department [2020] EWHC 967 (Admin), the High Court has decided that conducting a substantive asylum interview does not amount to assuming responsibility for the asylum claim under Article 17(1) of the Dublin Regulation.

The situation arose because the Home Office, apparently accidentally, conducted a substantive asylum interview of Mr Habte while it was going through the Dublin III procedure to remove him to Italy. The interview lasted four hours and involved 126 questions. Mr Habte might understandably have got the impression that the UK authorities had decided to consider his asylum claim here rather than removing him to Italy.

When directions were set to remove him to Italy, he challenged the decision by judicial review, arguing that the UK had assumed responsibility for his claim under Article 17(1) of the Dublin III Regulation.

Choosing to take on another country’s asylum case

Article 17(1) says:

By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation…

It has previously been considered by the Court of Appeal in RSM (Eritrea) and another [2018] EWCA Civ 18. The judgment in that case explained that Article 17(1) exists to protect national sovereignty by allowing a member state to consider an asylum claim even if another state is technically responsible under Dublin III.

The meaning of “examine an application for international protection” is defined in Article 2(d) as:

any examination of, or decision or ruling concerning, an application for international protection by the competent authorities in accordance with Directive 2013/32/EU and Directive 2011/95/EU, except for procedures for determining the Member State responsible in accordance with this Regulation.

The issue presented by Mr Habte was how these provisions should be applied where there has been accidental examination of an asylum claim, which could have been ignored. In Case C-56/17 Fathi v Predsedatel na Darzhavna agentsia za bezhantsite, the Court of Justice of the European Union emphasised that there was no need for an express decision activating Article 17(1) before a member state can proceed to consider an asylum claim, but there is no direct authority on this issue.

How Article 17(1) should work

Consider the legislative context. The Dublin III Regulation provides a mechanism for avoiding duplicate claims in different member states, quick determination of the responsible member state, and safeguards to ensure that asylum seekers themselves are involved in the process. These purposes were recognised by the Court of Appeal in RSM (Eritrea).

In light of them, it seems obvious that a straightforward interpretation of the legislation should be adopted: the UK examined the claim within the meaning of Article 2(d) and therefore it assumed responsibility under Article 17(1). It would be confusing for Mr Habte to be removed having explained his claim in full to the UK authorities, and it would defeat the purpose of Dublin III for Italy to have to start the asylum process from scratch.

How the High Court thinks Article 17(1) works

Nonetheless, Mr Justice Murray decided in favour of the Home Office. He found that since there was no actual decision to activate Article 17(1), the UK had not assumed responsibility for considering the claim:

In my judgment, the decision by the defendant to conduct a substantive interview with the claimant on 17 June 2016 in respect of his asylum claim, whether or not that decision was made “in error”, is not sufficient to amount to a decision by the defendant, on behalf of the UK, to exercise the discretion conferred by Article 17(1) of Dublin III. It is common ground that the conduct of the interview falls within the words of Article 2(d), but Mr Payne is correct to say that that, without more, is not sufficient to engage Article 17(1). The decision of the defendant, on behalf of the UK, needs to be taken pursuant to that provision. There is no evidence in this case that that happened.

This formal approach to the Dublin III Regulation is wrong. Accidental decisions are still decisions and have legal consequences. Sometimes a public authority will be able to avoid the consequences by revoking an accidental decision, but here the decision to conduct a substantive asylum interview immediately engaged Article 17(1) and should have had the legal effect of absolving Italy from responsibility for considering Mr Habte’s claim. It is not fair for an asylum seeker to be shunted around Europe, having to explain his claim multiple times in different member states.