R Baa and Another v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Sir Stephen Irwin,Phillips LJ,Bean LJ |
| Judgment Date | 08 October 2021 |
| Neutral Citation | [2021] EWCA Civ 1428 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2020/1474 |
[2021] EWCA Civ 1428
Lord Justice Bean
Lord Justice Phillips
and
Sir Stephen Irwin
Case No: C2/2020/1474
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
MR JUSTICE LANE
JR/467/2020
Royal Courts of Justice
Strand, London, WC2A 2LL
Rory Dunlop QC and Hafsah Masood (instructed by the Government Legal Department) for the Appellant
Charlotte Kilroy QC and Michelle Knorr (instructed by Bhatt Murphy Solicitors) for the Respondents
Hearing dates: 23 and 24 June 2021
Approved Judgment
Background and facts
This is an appeal by the Secretary of State [“SSHD”] from a decision of Mr Justice Lane, sitting as the President of the Upper Tribunal (Immigration and Asylum Chamber). The decision was promulgated on 29 June 2020.
The first respondent [“BAA”] was at all material times an unaccompanied asylum-seeking minor [“UAM”], who was 17 years of age at the time of the decision appealed. He was born on 1 September 2002. The second respondent [“TAA”] is his cousin. Both are Syrian. TAA is a refugee, residing in the United Kingdom. BAA left Syria, travelled to Greece and there claimed international protection.
On 7 October 2019, Greece requested the United Kingdom to take charge of BAA's international protection claim, pursuant to Article 17(2) of regulation 604/2013 of the European Parliament and Council [“Dublin III”], as BAA wished to join his cousin, with whom he wished to resume a family life. The Greek authorities appended a form setting out information as to the history and circumstances of BAA, the basis of the claim, the death and disruption which had arisen within the family, BAA's vulnerabilities, and the fact that TAA had established and maintained close contact with BAA since the latter arrived on his own in Greece [Best Interests Information]. In the course of giving this information (erroneously, as it later transpired) it was stated that TAA had left Syria when BAA was about 2 years old.
The SSHD requested information and evidence concerning that take-charge request [“TCR”] on 28 October 2019. The SSHD also notified the relevant local authority of the TCR, asking for any information they might hold, but indicating they were not then asking for a family assessment.
The SSHD refused the TCR on 5 November 2019. Lane J found that refusal to be unlawful on public law grounds, a conclusion which is conceded by the SSHD.
Greece requested re-examination on 25 November 2019. By then the SSHD had received a response from TAA to the earlier request for information. This was a completed form concerning the availability of accommodation and confirming support for BAA, offering to take him into his home. TAA did not refer to BAA's age at the time when TAA left Syria. He did not give the date of his own departure from Syria.
On 25 November 2019, Greece made a formal request that the SSHD should re-examine the TCR. The re-examination request was refused on 16 January 2020. Again, Lane J found that refusal to be unlawful on public law grounds. Once again, that is conceded by the SSHD.
In neither of these refusals did the SSHD raise the matter of the age of BAA when TAA left Syria. In substance, the position taken was a general point that a cousin was an insufficiently close relationship to fall within Article 17(2) of Dublin III. In addition, the SSHD was subsequently found to have breached his own declared policy by failing to refer the case for a local authority assessment.
On 5 February 2020, Greece made a second request that the SSHD should re-examine the TCR.
By this time, on 4 February 2020, BAA filed a judicial review claim challenging the initial refusal of the TCR and the first refusal of re-examination. The claim was accompanied by witness statements from TAA, a further brother [IAA] and from BAA's solicitor. BAA was described as an ‘extremely vulnerable’ child. None of this evidence addressed the age of BAA when TAA left Syria.
On 14 February 2020 the SSHD sent a response to the letter of claim. On 18 March the Upper Tribunal granted BAA permission to apply for judicial review, and granted expedition. On 21 April 2020 the SSHD sent the response to the second re-examination request to Greece, refusing the TCR, and on the same day filed detailed Grounds of Defence. Amongst a number of other factual and legal points, the issue of the age of BAA when TAA left Syria was for the first time raised by the SSHD in this response. Once again, Lane J found that refusal was unlawful, again conceded by the SSHD to be correct.
On 4 May 2020, the Upper Tribunal gave permission to BAA to serve additional evidence in the judicial review. The application had been made on 28 April 2020. The relevant statements were dated 23 or 28 April. They do not address the ‘age at TAA's departure’ issue. The application sought permission to introduce evidence from an independent social work expert, Mr Peter Horrocks. His report was dated 9 May 2020, and was served on 12 May. Mr Horrocks considered the family history in detail, and set it out fully, concluding that BAA would have been 9 or 10 years of age when TAA left Syria. The age given in the Best Interests Information prepared by Greece was ‘clearly incorrect’.
The hearing before Lane J took place remotely on 21 and 22 May 2020.
In the course of the hearing before us, following helpful assistance from junior counsel for the SSHD, our attention was drawn to an Agreed Note drawn up following argument below. The UT's conclusion was that, had a local authority family assessment been conducted, then the error as to BAA's age on TAA's departure would probably have been discovered (as it was by Mr Horrocks).
Following the hearing, the Upper Tribunal handed down judgment on 29 June 2020, and granted the following relief: (1) a declaration that the SSHD's decisions breached the Respondents' rights' under Dublin III, Article 8 of the ECHR and Article 7 of the CFR (2) an order quashing the SSHD's decisions and (3) an order requiring the SSHD to take a new decision on the TCR.
On 7 July 2020 the SSHD applied for leave to appeal. However, on 14 July 2020, the SSHD accepted the TCR which had been made by Greece on 7 October 2019. As a consequence, BAA entered the United Kingdom on 6 August 2020 and joined TAA.
On 28 August 2020, BAA informed the SSHD that he no longer sought any damages.
On 4 February 2020, Popplewell LJ granted leave to appeal on three grounds, subject to the provision by the SSHD of an indemnity as to the Respondents' costs. Provision of such an indemnity was confirmed on 3 March 2020.
The relevant provisions of Dublin III
Extensive reference was made by counsel in the course of argument to the provisions of Dublin III. The relevant provisions are set out in Annex 1 to this judgment. It should be noted that on 1 January 2021, Dublin III ceased to apply to the United Kingdom, subject to saving and transitional provisions, but that does not affect the present appeal.
It appears to be common ground that the best interests of a child are a primary consideration: see paragraphs 13, 16, 17 and 19 of the Preamble, and Article 6 of the Regulation. The Regulation “seeks to ensure full observance of the right to asylum….as well as the rights recognised under Articles….7… [of the CFR]”: see paragraph 39 of the Preamble.
Article 2 defines “family members” and “relative”: see sub-paragraphs (g) and (h). Neither definition would encompass a cousin.
Article 6 sets out a number of guarantees for minors. Article 8 makes specific provision in relation to minors. In each case there is express reference to “family members” and “relatives”. Under these Articles there is no reference to “family relations”, a phrase which appears in Article 17. It appears to be accepted by both sides that this term is broader than “family members” or “relatives”.
Article 17 contains two discrete discretionary clauses. Article 17 (1) relates to a case where a member state, in which an application for international protection is lodged decides to examine an application for international protection even where that state would not be thought responsible for the individual concerned under the criteria laid down in the Regulation. That is clearly not our case, but featured as a matter of contrast in the course of argument.
Article 17(2) is the central provision in this case. Under this provision, a state examining a claim for international protection “… may… request another member state to take charge of an applicant in order to bring together any family relations, on humanitarian grounds based in particular on family or cultural considerations, even where that other member state is not responsible under the criteria laid down in articles 8 to 11 and 16.” The “request to take charge shall contain all the material in the possession of the requesting member state to allow the requested member state to assess the situation. The requested member state shall carry out any necessary checks to examine the humanitarian grounds cited….”
Section II of Chapter VI of the regulation sets out the procedure for TCRs, including a timetable culminating in a default provision (article 22(7)), with the effect that failure by the requested state to act within the timetable “shall be tantamount to accepting the request, and entail the obligation to take charge of the person….” Article 29 has a similar effect in relation to the transfer itself.
Article 27(1) provides that any applicant under the regulation shall have the right “to an effective remedy, in the form of an appeal or review, in fact and in law, against a transfer decision, before a...
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