(1) The Queen (on the application of RSM, a child by his Litigation Friend ZAM) v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Peter Jackson,Lady Justice Arden,Lord Justice Singh |
| Judgment Date | 18 January 2018 |
| Neutral Citation | [2018] EWCA Civ 18 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2017/1318 |
| Date | 18 January 2018 |
[2018] EWCA Civ 18
Lady Justice Arden
Lord Justice Peter Jackson
and
Lord Justice Singh
Case No: C2/2017/1318
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
UPPER TRIBUNAL (IMMIGRATION AND ASYLUM CHAMBER)
MCCLOSKEY P AND JUDGE FINCH
Royal Courts of Justice
Strand, London, WC2A 2LL
Lisa Giovannetti QC and David Manknell (instructed by Government Legal Department) for the Defendant/Appellant
Michael Fordham QC, Charlotte Kilroy and Michelle Knorr (instructed by Bhatt Murphy Solicitors) for the Claimants/Respondents
Hearing dates: 21–22 November 2017
Judgment Approved
INTRODUCTION
This is an appeal about the Secretary of State's obligations to an unaccompanied child asylum seeker, RSM, under an EU legislative measure known as Dublin III. This measure specifies how the member states of the EU are to determine which of them is responsible for processing an asylum application. Thus, the first stage in the asylum process is to determine which state (by which I mean unless otherwise stated, a member state of the EU) should examine his claim. The second stage is to determine the claim itself.
RSM, when aged 13 years, had travelled to Italy from Yemen with an adult, SB, his father's cousin. He was originally from Eritrea. He and his mother and younger brother had left Eritrea some years before and gone to Yemen, but they had to flee Yemen because of the civil war there. They decided to go to Italy by boat. RSM travelled with SB, his father's cousin, and arrived in Italy in April 2016, but his mother and younger brother were drowned taking a similar journey in June 2016. RSM claimed asylum in Italy, which began the process to determine his claim. He was accommodated at the time of the proceedings by the Italian authorities in Rome.
The Italian authorities went no further than the first stage. In August 2016, SB and RSM made it clear to them that RSM wished to live with his aunt, ZAM, who had obtained refugee status in the UK. On 13 September 2016 RSM was officially recognised by the Italian authorities as an unaccompanied minor. He was given the date of 4 January 2017 for the next stage in his asylum claim, which was an asylum interview. The respondents, ZAM for herself and in her capacity as RSM's litigation friend, asked the Secretary of State to approach the Italian authorities so as to take over RSM's asylum claim under Dublin III. The Secretary of State took no action. These judicial review proceedings were brought in November 2016 in the Upper Tribunal to force the Secretary of State to take action.
The Upper Tribunal (McCloskey P and HHJ Finch) found in RSM's favour and announced its decision on 19 December 2016 with reasons to follow. These were contained in its judgment handed down on 12 April 2017. By its order of the same date, it decided that the Secretary of State had failed to exercise her discretion under Article 17.1 of Dublin III (explained below), and made a mandatory order against the Secretary of State to admit RSM to the UK. The Secretary of State appeals against that order.
I will analyse the judgment in more detail below. The Upper Tribunal initially granted an order to admit the child to the UK with liberty to apply. On further application, the Upper Tribunal imposed and extended time limits for complying with the order, as explained below (paragraph 53). In the event, on 10 January 2017, shortly after RSM's asylum interview, the Italian authorities made a request to the UK to take charge of RSM and the UK accepted this request. It not clear to this Court whether the existence of proceedings in this jurisdiction had an effect on the timing of the request.
RSM is now living with ZAM in this country, and this appeal will not affect his position in any way. This Court has permitted this appeal to continue because the Upper Tribunal has made similar orders in other cases and the Secretary of State wishes to test the extent of the obligations imposed by Article 17.1 of Dublin III and also the effect of the European Convention on Human Rights (“the Convention”) in RSM's situation. The fundamental issue is whether the Secretary of State should have taken proactive steps, using powers conferred by Article 17.1, to short-circuit the processes that might otherwise apply to bring him from Italy to the UK.
Children now form a sizeable proportion of Europe's refugees. Some are unaccompanied or separated. Some travel with unrelated adults under arrangements which exploit them. Governments seek to identify unaccompanied children, and ensure they receive appropriate protection and treatment. Article 3 of the UN Convention on the Rights of the Child (“the UN Convention”) provides that the best interests of the child must be a primary consideration in all decisions affecting children. The position of child migrants is given specific attention in Articles 20 and 22, which places obligations on states to provide special protection and assistance to a child “temporarily or permanently deprived of his or her family environment” or seeking refugee status. Article 35 of the UN Convention requires states to take all appropriate measures to prevent “the abduction of, the sale of or trafficking of children for any purpose or in any form”. States are urged to assist in the unification of refugee children with their families.
The issues about unaccompanied children came to greater public attention as a result of what the media called “the Calais jungle”. Unaccompanied children seeking asylum were waiting over a year to have their claims determined in France in squalid conditions in a makeshift camp, and some of them had family members in the UK. Two things happened that are of relevance to this case. First, on 20 January 2016 the Upper Tribunal ordered the Secretary of State to admit some of the Calais children (and a vulnerable adult) into the UK. This Court heard an urgent appeal from this order in which it had to consider the effect of Dublin III on their situation, in claims for judicial review against the Secretary of State brought on the claimants' behalf, of attempts to bypass the French process for giving effect to Dublin III: R (ZT (Syria)) v Secretary of State for the Home Department [2016] 1 WLR 4894. I will come to that judgment in due course. Unlike the respondents in that case, RSM seeks to use one of the provisions of Dublin III, namely Article 17.1. Second, Lord Dubs drew public attention to the Immigration Bill then before Parliament which required the Secretary of State to accept a specified number of these children. This procedure is outside Dublin III and will result in some 480 children being transferred to the UK.
ISSUES TO BE DECIDED ON THIS APPEAL
The parties have helpfully analysed the grounds of appeal into four issues with sub-issues. In summary, the four issues concern the questions (1) whether the discretion under Article 17 was available to be exercised when RSM's claim was being examined by the Italian authorities (this is essentially the fundamental issue described in paragraph 6 above), (2) whether the Upper Tribunal was right to rely on certain ministerial statements which it identified, (3) whether a stage had been reached when the respondents were entitled to claim that the Secretary of State had violated Article 8 of the Convention and finally (4) whether the mandatory order made by the Upper Tribunal was an appropriate remedy in any event.
I have set out the detailed agreed issues in the final paragraph of this judgment with a summary of my answers for the reasons given in this judgment to each of the issues and sub-issues. As a result of those answers, I would allow this appeal.
To interpret Article 17 correctly, it is important to see what function it plays in Dublin III and to consider what help in determining its meaning can be derived from the jurisprudence of the Court of Justice of the European Union (“the CJEU”), and the case law in this jurisdiction. So I propose first to examine the relevant provisions of Dublin III and then the main points in that jurisprudence. I will then describe the events which followed RSM's arrival in Italy, which are relevant to the third and fourth issues. After that I will summarise the judgment of the Upper Tribunal. Then I will turn to the issues on this appeal, which I will take individually.
ARTICLE 17 IN THE CONTEXT OF DUBLIN III
EU Regulation 604/2013 of 26 June 2013, which I call Dublin III, establishes, as I have explained, a method for allocating responsibility for determining which of the signatory states should process a claim for asylum. Dublin III replaced EU Regulation 343/2003 (“Dublin II”). In this part of my judgment, I identify the provisions of Dublin III most relevant to this appeal. I have put the text of those provisions into the Appendix to this judgment (for convenience I have included all the relevant provisions even if extracts appear within the body of the judgment).
One of the aims of Dublin III is that there will only be a single state responsible for dealing with an asylum claim, namely the state where the claimant is physically present. This would prevent an asylum applicant being repeatedly transferred from one state to another. Article 3.1 contains the foundational provision:
Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter...
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