A and B v Secretary of State for the Home Department
| Jurisdiction | Scotland |
| Judge | Lord Ericht |
| Judgment Date | 02 December 2022 |
| Court | Court of Session (Outer House) |
Lord Ericht
COURT OF SESSION
European Union law — Dublin Regulation — take charge requests — Article 8(2) of Regulation 604/2013/EU — meaning of ‘take care’ — no requirement for unaccompanied minor to live with relative — Home Office guidance unlawful
The Claimants, citizens of Syria, were twin brothers who sought asylum in Greece as unaccompanied minors. Prior to the United Kingdom's withdrawal from the EU, the Greek authorities formally requested that the United Kingdom take charge of the Claimants under Article 17(2) of Regulation 604/2013/EU (‘Dublin III’). The request was made to allow the Claimants to join their uncle who lived in the United Kingdom. Article 8(2) of Dublin III provided that where an applicant was an unaccompanied minor and had a relative legally present in another Member State who could ‘take care’ of him, that Member State should unite the minor with his relative and be the Member State responsible if it was in the best interests of the minor. The Secretary of State for the Home Department rejected the take charge request on 10 December 2021. She explained that the Housing Association had advised that additional persons would not be permitted to live in the property where the Claimants' uncle lived because it would be overcrowded, and there was no suitable alternative property available. The Secretary of State concluded that since the Claimants could not live with their uncle in the United Kingdom, the ‘take care’ element of the application could not be met, and it was not in the best interests of the Claimants to be transferred to the United Kingdom. Home Office guidance dated 31 December 2020 entitled ‘Requests made to the United Kingdom under the Dublin III regulation prior to the end of the Transition Period’ (‘the Guidance’) stated, in relation to the ‘take care of requirement in Article 8(2), that ‘there must be evidence the United Kingdom-based qualifying relative(s) are able to accommodate and support the child’.
In the instant proceedings, the Claimants submitted that the Guidance was unlawful in terms of Article 8(2) of Dublin III in that it did not permit any discretion regarding applicants having to live in the same accommodation as their sponsor. It also conflated the requirement for a sponsor to be able to take care of an applicant with the requirement to be able to accommodate them. The Claimants complained that the Secretary of State had failed to acknowledge that they were entitled to their own accommodation, having obtained the age of majority since making their claims. Their uncle could provide them with care regardless of whether they lived with him. The Secretary of State submitted that a wide interpretation should be given to the term ‘take care’ so that it included a requirement for the relative and minor to live in the same residential property. She submitted that even if she was wrong in that respect, the error was not material in this case because she had in any event found that it was not in the best interests of the Claimants to be transferred to the United Kingdom.
Held, allowing the applications:
(1) To determine the meaning of the words ‘take care’ in Article 8(2), it was necessary to consider the context and purpose of Dublin III. The importance of family unity within the same country was stressed in the recitals to Dublin III. Accordingly, the principle of family unity was to be given effect when applying a teleological interpretation. Turning to the wording of Dublin III, the concept of ‘taking care’ of an unaccompanied minor was referred to in various places without specifying that living together was an essential component. In recital (16), the phrase was used in the context of ensuring full respect for the principle of family unity. The emphasis was on family unity in the same Member State, not in the same residential property. The phrase was also used in the definition of ‘unaccompanied minor’ in Article 2(j), where the emphasis was on taking responsibility for the minor, not on living together. On the ordinary use of language, taking responsibility for someone was not the same as living with them (paras 18 – 24).
(2) There was no specific requirement in Article 8(2) of Dublin III for the relative and minor to live in the same residential property. If the intention had been to impose such a requirement it would have been a simple matter of drafting for Dublin III expressly to do so. The ordinary English language meaning of ‘take care’ was to look after or keep safe. The wording of Dublin III itself used ‘take care’ in the sense of ‘take responsibility for’ as could be seen from the definition in Article 2(j). Whether in any case a relative could take care of a minor only if they were living at the same residential address would be a matter of fact and circumstance. In many cases, particularly for younger children, for someone to take responsibility for and take care of a child it would be necessary for them to live in the same property, but even for young children that might not always be the case. For older minors, there might be less necessity to live at the same address to preserve family unity. Under Dublin III ‘minors’ covered persons from birth to age 18. Recital (13) recognised that what was appropriate for one minor would not be appropriate for another with a greater age or maturity. Just as the age and maturity of a minor was considered in assessing best interests, it could also be relevant in assessing whether a minor could be taken care of only in the same residential property as his relative (paras 25 – 29).
(3) One of the objectives of Dublin III was family unity in the one country up to the age of 18. That took a person beyond the age of 16, at which point they acquired the legal capacity to enter any transaction. The principle of family unity in the one country until 18 would be frustrated if it did not apply to a particular 16 to 18-year-old based on whether they lived with the adult family member. The Implementing Regulation 118/2014 did not detract from those conclusions. An unaccompanied minor could be brought together with relatives or family in the same country without necessarily living in the same property. Accordingly, the Secretary of State's interpretation of the words ‘take care’ in regulation 8(2) was incorrect. In rejecting the take charge request on the ground that the ‘take care’ element of the application could not be met because the Claimants could not be accommodated in the same residential property as their uncle, the Secretary of State erred in law. That error was a material one. The Secretary of State did not address the question of best interests separately from the question of accommodation and did not explain why it would not be in the best interests of the Claimants to be reunited in the same country as their uncle but living in separate accommodation. In those circumstances the error was material to the decision on the proviso to Article 8(2), as well as the main part of that article (paras 30 – 34).
(4) It followed that the Guidance was erroneous as it proceeded on an incorrect interpretation of ‘take care’. The Guidance was declared to be unlawful insofar as it proceeded on the basis that it was a necessary condition of accepting a take charge request that there must be evidence that the United Kingdom-based qualifying relative(s) were able to accommodate the minor (paras 35 – 36).
Bundesrepublik Deutschland v SW, BL and BC (Cases C-273/20 and C-355/20)
Bundesrepublik Deutschland v XC (Case C-279/20)
KV and Others v R [2011] EWCA Crim 2342
Majid Shiri v Bundesamt för Fremdenwesen und Asyl (Case C-201/16); [2018] WLR 3384; [2018] 2 CMLR 3; [2018] Imm AR 340
R (on the application of A) v Secretary of State for the Home Department [2021] UKSC 37; [2021] 1 WLR 3931; [2022] 1 All ER 177
Walumba Lumba (previously referred to as WL (Congo)) v Secretary of State for the Home Department; Kadian Mighty (previously referred to as KM (Jamaica)) v Secretary of State for the Home Department[2011] UKSC 12; [2012] 1 AC 245; [2011] 2 WLR 671; [2011] 4 All ER 1; [2011] UKHRR 437
X v Glasgow City Council [2022] CSOH 35
Age of Legal Capacity Act 1991, section 1 Commission Implementing Regulation No. 118/2014/EU
Immigration, Nationality and Asylum (EU Exit) Regulations 2019, paragraph 9 of Schedule 2
Regulation No. 604/2013/EU (‘Dublin III Regulation’), Articles 2, 8 & 17(2); Recitals (13) – (16)
Mr Winter instructed by Drummond Miller LLP (acting for Katani and Co. Solicitors), for the Claimants;
Mr Maclver instructed by the Office of the Solicitor to the Advocate General, for the Secretary of State.
Lord Ericht:
[1] Article 17(2) of Regulation (EU) No 604/2013 of the European Parliament and of the Council (the “Dublin III Regulation”) provides a process...
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