Note on a recent Dublin III judicial review decision from Upper Tribunal – Mark Symes

ILPA documents

With thanks to Mark Symes of Garden Court Chambers for providing this note.

In R (HSF) v SSHD (unreported) [2019] UKAITUR JR112832014 the UK’s Upper Tribunal looks at a Dublin III case where it was argued that the third country’s responsibility for the asylum claim had lapsed given three months’ absence outside the EU. A Eurodac hit had detected the applicant having been fingerprinted in Bulgaria. However, he explained that he had been trafficked out of the EU to Turkey where he had stayed for around six months. Then he made his way to the UK in the back of a lorry, unaware of which countries through which he passed.

Although informed of the claimed departure from the EU at interview, the Home Office did not investigate the question further at the interview stage and nor was the issue addressed in her original refusal letter. She then argued that any information provided after the third country return decision had been made should be treated as inadmissible “post-decision” evidence on JR proceedings, as the process for determining Member State responsibility for the asylum claim was complete.

The UT accepted that

  • the SSHD had acted unfairly in rejecting the truthfulness of the claim without a more active investigation pre-decision, and
  • that it was appropriate to determine whether the asylum seeker had truly departed the EU for three months by admitting relevant post-decision evidence: this included not only witness statement evidence but oral evidence received at the substantive JR hearing.

Mark Symes appeared for the Applicant instructed by Emma Terenius of Wilson Solicitors LLP.