Scottish court rules non-compliance with time limits under Dublin III not in breach of ‘take back’ transfer

A Scottish court has ruled that a failure to comply with time limits provided for under The Dublin III Regulations (“Dublin III”) would not have been in breach of a ‘take back’ transfer.

An Albanian national, Bahri Mucaj, arrived in Belgium in November 2011. After unsuccessfully claiming asylum in Belgium, Mucai entered the UK seeking asylum in late December 2014. The petitioner then sent a ‘take back’ request to Belgium under Dublin III asking for his original asylum application to be reconsidered. The ‘take back’ provisions of Dublin III require other European countries to take back failed asylum seekers from third-country nations in the event that they make an application to another European country or are currently on the territory of another European country. According to Article 29 there is a 6-month time limit for return of individuals under the take back procedure.

The take back request was accepted by the Belgian authorities in early 2015 and as a result the Scottish Secretary of State declined to examine the asylum application on the basis that there was a safer country to which the applicant could be sent.

The petitioner then wrote to the Secretary of State submitting that returning him to Belgium would be a violation of Article 8 and 3 of the European Convention on Human Rights. The petitioner claimed that he and his family had endured sub-standard living conditions whilst in Belgium and would likely be forced to return to similar conditions. This claim was refused and removal directions were issued – which the petitioner went on to challenge. In June 2015, the Secretary of State cancelled the removal directions pending the decision of the court, in line with her policy at the time given a number of similar cases being taken.

The dominant issue before the court was whether the 6 month time limit had been suspended during the transfer appeal. While Dublin III provides for suspension of the time limit pending the outcome of appeal, the petitioner argued this must be enforced by the courts and did not apply as the removal directions were cancelled rather than suspended.  As the transfer had not taken place with the 6 months, the petitioner claimed that Belgium had been relieved of its obligations to take back the family and responsibility had been transferred to the UK to make its own substantive decision on the asylum claim.

The court looked at a previous interpretation of Article 29 in Miab v The Secretary of State for the Home Department in concluding that the aim was to “place a limit on the time it takes for the transferring state to act after acceptance of the transfer, subject to the existence of an ongoing review process at the instance of the applicant”. The court held that the petitioner’s arguments were not conducive to this aim, and that there was no breach of the time limit as it had been suspended by the cancellation of the transfer in June 2015.

The court went on to conclude that, nonetheless, the petitioner would not have been able to rely on a failure to comply with the time limits as the regulations did not confer a right on applicants, but merely regulated the procedure between countries.

Click here for the judgment in Mucai v Advocate General for Scotland.  



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