Citizens UK v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Soole |
| Judgment Date | 18 September 2017 |
| Neutral Citation | [2017] EWHC 2301 (Admin) |
| Docket Number | Case No: CO/5255/2016 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 18 September 2017 |
[2017] EWHC 2301 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Soole
Case No: CO/5255/2016
Michael Fordham QC, Charlotte Kilroy and Michelle Knorr (instructed by the Migrants' Law Project at Islington Law Centre) for the Claimant
David Manknell and Amelia Walker (instructed by the Government Legal Department) for the Respondent
Hearing dates: 23–26 May 2017
This is the application of the Claimant NGO ('CUK') for judicial review of the procedures adopted by the Defendant ('SSHD') shortly before and in the aftermath of the French Government's closure in October 2016 of the camp in Calais known colloquially as 'the Jungle' and the subsequent dispersal of its occupants to accommodation centres called CAOMIs (Centres d'accueil et d'orientation pour mineurs isoles). The procedures related to over 2000 young people in the camp and CAOMIs who were seeking to come to the UK as unaccompanied minors in order to join family members and claim asylum. Permission to proceed with the claim was granted by Lang J at a renewed application on 28.2.17.
In particular the case concerns the so-called 'expedited process' established by the British and French Governments. Its effect was to transfer approximately 750 children formerly resident in the camp/CAOMIs. Of this total about 200 were transferred under the provisions of s.67 of the Immigration Act 2016 (the 'Dubs amendment'). This case is not concerned with those who were considered under that statutory provision. The balance of the applicants, in excess of 1000, were unsuccessful and remained in France.
CUK, through its project 'Safe Passage UK' (SPUK), was a central participant in providing help and assistance to the young people in the camp/CAOMIs. It welcomes the transfers which were effected under this process but submits that the procedures adopted were legally flawed and unfair to the disadvantage of those who failed in their applications. In addition to declaratory relief it seeks orders compelling the SSHD to consider afresh the applications of those who failed.
CUK's essential case is twofold.
First, that the expedited process 1 was in substance the operation of the system known as Dublin III Regulation (EU No. 604/2013: 'Dublin III'). This and its related instruments contain procedural safeguards to ensure fair process; and those safeguards were not complied with.
Secondly and alternatively, that if and to the extent that the expedited process was 'outside' Dublin III, it was subject to common law standards of procedural and substantive fairness; which in the circumstances of the case were no less demanding than those provided by Dublin III.
The SSHD accepts that the procedures did not match the Dublin III safeguards in every respect. However she contends that the expedited process was an ad hoc measure, agreed with the French Government in the exceptional and short-term circumstances which prevailed, and which stood outside Dublin III. In all the circumstances the procedures satisfied common law standards of fairness. If (contrary to her case) the procedures were unlawful, there is no basis for any further relief. It is still open to any of the applicants to make a claim for asylum within the Dublin III process; and in any event it is not open to the Court to make orders which would depend upon taking action within another sovereign state.
CUK responds that the potential availability of a fresh application under Dublin III does not satisfy the need for the expedited process to have been carried out lawfully and fairly. However, recognising the practical issues which arise in respect of action in another sovereign State, it submits that any question of relief should be reviewed at a further hearing.
The original application for judicial review (14.10.16) focussed on the provisions of a Joint Declaration dated 20.8.15 between the two governments and contended that this gave rise to public law obligations on the SSHD. This was and is disputed. The application was amended in the light of events concerning the expedited process which began later in October 2016. Although the justiciability of the Joint Declaration remains at issue, the focus of oral argument was on the independent issues arising from the expedited process. The judgment follows that course.
The issues raised in this claim were considered by the Upper Tribunal (Immigration and Asylum chamber: McCloskey J (President) and Upper Tribunal Judge Allen) in the course of applications for judicial review by five individual claimants (unaccompanied minors) issued in March 2017 and heard in May 2017. The leading judgment is in the case of AM v. SSHD (JR/2486/2017). The hearing in that case was on 5.5.17 and 11.5.17. On the day before the start of the hearing in this matter (23.5.17) with the Tribunal's permission I was provided with a copy of its judgment in AM pending formal hand-down.
In its judgment the Upper Tribunal accepted the arguments of Counsel for AM (Junior Counsel for CUK in this case) which I have outlined above. It held that Dublin and its associated instruments applied to the expedited process and that in consequence AM and the other individual applicants had been deprived of the requisite procedural safeguards. In the alternative, the Tribunal held that the same conclusion was reached by the route of the common law and Article 8 of the ECHR. Although the cases included consideration of their specific facts, the Tribunal's reasoning on the generic issue which arises in this present claim was central to its conclusions.
By way of remedy the Tribunal made orders quashing the refusal to transfer the applicant in each case from France to the UK in November/December 2016; and ordering her to make all necessary and immediate arrangements for transfer to the UK using best endeavours and by not later than midnight on 22.5.17 and to begin and complete a final decision-making process by the same deadline. Four of the five decisions are subject to applications for permission to appeal to the Court of Appeal.
CUK submits that the Upper Tribunal was exercising a jurisdiction of equivalent status; and that in consequence I must follow its reasoning on the generic point unless convinced or 'satisfied' that it was wrong: see e.g. R. v. Greater Manchester Coroner, ex parte Tal [1984] 1 QB 67; also Totel Ltd. v. HMRC [2014] UKUT 0485. Thus each case fell within s.15 of the Tribunals Courts and Enforcement Act 2007 which empowers the Upper Tribunal to grant such relief; provides that the relief has the same effect and is enforceable as relief granted by the High Court on an application for judicial review; and requires that in deciding whether to grant such relief it must apply the principles that the High Court would apply.
I did not understand Counsel for the SSHD, Mr David Manknell, ultimately to dissent from the proposition, which I accept. In any event a decision of this specialist Tribunal (including its President) deserves special respect and should not be departed from save on the same basis. I will return to consideration of the Upper Tribunal's judgment at a later stage.
Dublin III
Before turning to the narrative of events, I should set out the central principles of Dublin III. Their outline can conveniently be taken from the summary given by the Court of Appeal in the 'Calais' case of R (ZT (Syria)) v. SSHD [2016] 1 WLR 2894 in particular at paras. 2, 4, 13 and 14.
Dublin III is one of the components of the Common European Asylum Policy. It establishes the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person: see Article 1.
It restricts examination of an asylum application to a single EU Member State and provides for transfer of the asylum seeker to the Member State responsible for processing an asylum application if asylum is sought elsewhere in the European Union. 'Examination' denotes determination of the application on its merits. This may be preceded by an initial, more limited, decision by a host Member State to transmit to a second Member State a request to 'take charge' of the person applying for international protection.
Thus Article 3 provides that 'Member States shall examine any application for international protection' by any person who applies on their territory or at the border. Its second sentence provides that the application shall be examined by a single Member State which 'shall be the one which the criteria set out in Chapter III indicate is responsible'.
Chapter III contains the criteria for determining the Member State responsible and a hierarchy of those criteria. These begin with Article 8 which contains mandatory provisions in respect of 'Minors'.
Chapter IV contains discretionary provisions including Article 17, on which CUK also relies.
Chapter VI then contains procedures for 'take charge requests' (TCRs); also for requests to 'take back'.
Chapter II contains 'General principles and safeguards' including 'Right to Information' (Article 4), 'Personal Interview' (Article 5) and 'Guarantees for Minors' (Article 6).
The recitals to Dublin III acknowledge that it sits alongside the Directives which also include procedural safeguards for unaccompanied minors. The UK is a party to Procedure Directive (EC) No. 1560/2003, Reception Directive 2003/9/EC and Qualification Directive 2004/83/EC; but has opted out of the subsequent recast Directives. In addition it is a party to the Implementing Regulation 1560/2003 as amended by 118/2014.
Dublin III: Articles
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