R (on the Application of Zat and Others) v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | McCloskey J |
| Judgment Date | 29 January 2016 |
| Neutral Citation | [2016] UKUT 61 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 29 January 2016 |
[2016] UKUT 61 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Honourable Mr Justice McCloskey, President
Mr CMG Ockelton, Vice President
R (on the application of ZAT and Others) v Secretary of State for the Home Department (Article 8 ECHR — Dublin Regulation — interface — proportionality) IJR
(i) EU Regulation number 604/2013 (the “Dublin Regulation”) and the Human Rights Act 1998, while separate regimes, are not in competition with each other.
(ii) Where the two regimes pull in different directions, full cohesion, or harmonisation, may not be achievable and some accommodation must be found.
(iii) Where an interference with a person's rights under Article 8 ECHR in consequence upon full adherence to the Dublin Regulation regime is demonstrated, the question to be determined is proportionality.
(iv) In the proportionality balancing exercise, the Dublin Regulation will be aconsideration of undeniable potency. Vindication of an Article 8 challenge will require a strong and persuasive case and such cases are likely to be rare.
Having considered all documents lodged and having heard Mr M Fordham QC, Ms C Kilroy, Ms A Pickup, Ms M Knorr and Ms J Sane, all of counsel, on behalf of the Applicants, instructed by the Migrants' Law Project of Islington Law Centre and Bhatt Murphy Solicitors, respectively and Mr D Mankell and Mr T Sadiq, of counsel, on behalf of the Respondent, at a hearing at Field House, London on 18 and 20 January 2016
Decision: Permission to apply for judicial review is granted, the substantive application succeeds and the Applicants are granted a mandatory order in the terms appended to this judgment.
(1) All of the Applicants are granted anonymity on account of their ages and vulnerabilities. The effect of this discrete order is that any communication or publication which either identifies any of the Applicants or could have this effect is prohibited.
(2) This application for judicial review raises issues of the keenest difficulty for the determination of individual rights against the background of the rule of law and for the exercise of a jurisdiction that is at the same time humanitarian and alive to the national and international regulatory context. The first four Applicants are in France. They are at a makeshift camp the features of which we describe in the next few paragraphs. It is said that they wish to claim the status of refugee under the United Nations Convention Relating to the Status of Refugees. The other three Applicants are in the United Kingdom. They have been recognised as refugees under the Convention. It is claimed that each is a sibling of one or two of the first four Applicants. All of the Applicants seek an order that will enable them to be together in the United Kingdom, in various combinations, while refugee claims by the first four Applicants are determined.
(3) The spotlight in these proceedings is on an area just across the English Channel from Dover. It has become known colloquially as “the jungle”. This is a bleak and desolate place adjacent to Calais on the coast of northern France. It attracts this appellation not without good reason. Unlike other jungles, this place is inhabited by human beings, not animals.
(4) “The jungle” did not materialise overnight. Its development has, rather, been an organic process. The eyes of Europe, with a mixture of shock and revulsion, have been fixed firmly on this location during most of the past year. The description of the jungle in some parts of the evidence as a camp, or settlement, is misleading. It is more accurately described in the uncompromising language of the substantial number of organisations and individuals who have shown an interest and have attempted to provide some alleviation for the occupants.
(5) The evidence adduced in these proceedings regarding “the jungle” speaks unremittingly with a single voice. It is unnecessary to reproduce it in extenso. One example will suffice. In early January 2016 a concerned English public representative stated:
“ I have just returned from the camps in Calais and Dunkirk where thousands of migrants have temporary homes. The conditions are so bad that describing them &.. cannot capture the squalor. You have to smell conditions like these and feel the squelch of mud mixed with urine and much else through your boots to appreciate the horror.”
Descriptions such as “a living hell” abound. The evidence includes graphic photographs which speak for themselves. Elaboration is unnecessary. It is estimated that “the jungle” has some 6,000 occupants at present. In summary, the conditions prevailing in this desolate part of the earth are about as deplorable as any citizen of the developed nations could imagine.
(6) It seems likely that there is no real basis for many of its occupants remaining indefinitely in “the jungle” and enduring the conditions that obtain there. Many are probably not refugees in any general sense or in any sense entitled to recognition. Rather, they are migrant nationals of a number of countries outside the European Union, who, while intending to make a claim for refugee status, decline to make the claim in France due to perceived advantages, correct or otherwise, of doing so in the United Kingdom. Like the United Kingdom and other member states of the European Union, France has obligations to asylum claimants and because of the United Kingdom's ‘opt out’ of recent relevant EU legislation, the duties owed by France are in many respects more onerous than those applying in the United Kingdom. In general terms there is no basis at all for thinking that a person who claims asylum in France will not be treated properly and will not have the benefit of the reception and other facilities which those duties entail. The first four Applicants, however, are in a special, indeed unique, situation because of their ages, their vulnerability, their psychologically traumatised condition, the acute and ever present dangers to which they are exposed in “the jungle”, the mental disability of the fourth Applicant, the (claimed) relationships linking all seven Applicants, the particular relationship between the third and the fourth Applicants and the firm likelihood that the outcome of asylum applications made by the first four Applicants in France would be a “take charge” acceptance by the United Kingdom.
(7) This is a so-called “rolled up” application for permission to apply for judicial review. The Respondent is the Secretary of State for the Home Department (the “ Secretary of State”). The thrust of the Applicants' case is that the refusal of the Secretary of State to admit the first four Applicants to the United Kingdom forthwith is unlawful. The relief sought consists of mandatory and declaratory orders. Expedition was granted and an inter partes hearing followed.
(8) We observe at the outset that in the Secretary of State's pleading, there are no denials of the various assertions made on behalf of the Applicants. It is, however, formally pleaded that the assertions relating to the ages of the first four Applicants, the mental health condition of the fourth Applicant, the asserted relationship of dependency between the third and fourth Applicants, the sibling relationship of the first four Applicants with the final three Applicants, the historical sufferings of the first four Applicants, the conditions in which they have been residing recently, their attempts to reach the United Kingdom and their treatment by the French authorities are not admitted. Having acknowledged this, we summarise the factual matrix on which the Applicants advance their case in the following terms.
(9) While mindful that judicial review proceedings do not provide a paradigm fact finding forum, we are conscious that the onus rests on the Applicants to make good their key assertions to our satisfaction, that is to say on the balance of probabilities. We have considered all of the evidence presented through this prism. We have also taken into account that, given the speed at which this litigation has progressed, it has not been realistically possible for the Secretary of State to investigate fully the evidence upon which the Applicants rely and/or to present contrary evidence. This is a factor which we weigh in our consideration of whether the main factual elements of the Applicants' challenges have been established to the necessary standard. Bearing in mind, inter alia, that this judgment is urgently required, we consider it inappropriate to attempt a comprehensive resume of the evidence. We have considered all of the evidence with care, paying particular attention to its most significant and salient aspects.
(10) Another intrinsic feature of judicial review litigation is that it is not ideally suited to the exercise of resolving disputed factual issues. This is one of the reasons for the imposition on applicants (or claimants) of a burden of proof which entails establishing material facts to the standard of the balance of probabilities. These proceedings have generated a substantial quantity of evidence. The contributors include some of the Applicants, their legal representatives, lawyers practising in France, representatives of humanitarian organisations and others. This evidence has been provided mainly in the form of detailed witness statements and reports. It is of notable pedigree and consistently satisfies the requirements of reliability and objectivity. We have evaluated all of this evidence with care and have conducted the penetrating analysis required by the principle of heightened scrutiny. Having done so, we are satisfied that the core...
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