R (ZT (Syria) and Others) v Secretary of State for the Home Department

Hearing dates: 27 and 28 June 2016

Judgment Approved

I. Introduction

This is an expedited appeal by the Secretary of State for the Home Department against the order of the Upper Tribunal (McCloskey P and Ockelton V-P) dated 20 January 2016 and with its permission. The Upper Tribunal granted the seven respondents permission to apply for judicial review. It also ordered the Secretary of State to admit to the United Kingdom ZAT, IAJ, KAM, and AAM, three unaccompanied minors and a disabled adult who at that time were in a makeshift camp on approximately 18 hectares of land near Calais colloquially known as "the jungle". They are the first four respondents to the appeal. The other three respondents, MAT, MAJ, and LAM, are adults with refugee status in the United Kingdom who are or claim to be the siblings of the first four respondents. MAT is ZAT's brother and LAM is KAM and AAM's brother. MAJ claims to be IAJ's brother, but the Secretary of State has not admitted or denied this.

The order required the Secretary of State to admit the first four respondents with a view to determining their applications for refugee status under Regulation (EU) 604/2013 of the European Parliament and of the Council of the European Union, the "Dublin III" regulation. It did so provided they sent a letter to the French authorities claiming asylum. The tribunal's reasons are in its full judgment, R (ZAT and others) v Secretary of State for the Home Department (Article 8ECHR – Dublin Regulation – interface – proportionality) IJR[2016] UKUT 00061 (IAC), and are summarised at [32] – [39] below. The first four respondents were admitted to the United Kingdom on 21 January 2016.

In the present case, none of the first four respondents applied for asylum in France, where they were at the material time. The respondents maintain that the United Kingdom is the Member State responsible for examining their application. However, before their arrival in the United Kingdom on 21 January pursuant to the order of the Upper Tribunal, the first four respondents had made no formal application to the United Kingdom authorities for asylum or leave to enter. Their requests were contained in letters before claim dated 11 November and 4 December 2015. These proceedings were issued on 15 December 2015.

The Dublin III Regulation is one of the components of the Common European Asylum Policy ("CEAS"). The question before this court concerns the relationship of its procedures and processes (summarised at [12] – [16] below) with the right to respect for private and family life enshrined in Article 8 of the European Convention on Human Rights ("ECHR"). In what circumstances can the processes and procedures of the Dublin III Regulation for determining the Member State responsible for processing an application for asylum be bypassed because of rights under the ECHR, in particular the right to family life under Article 8? When, if at all, can an individual who is not in the United Kingdom decide not to apply for asylum in the first Member State he or she enters and ask another Member State directly that it "take charge" of his asylum application, and, either directly or through a family member, require that other Member State to consider an application, or to admit him or her?

Mr Eadie QC, on behalf of the Secretary of State, accepted that, in principle, ECHRArticle 8 co-exists with the Dublin III processes and procedures. But he argued that, since the Dublin procedures are premised on the importance of children's rights, it should not be possible to bypass the procedural mechanism at the initial stage for determining which Member State is responsible. He accepted that despite the principle of mutual confidence between Member States that fundamental rights will be observed in all Member States, there is an exception. The exception is where an applicant can show that the legal system of the Member State in which the individual is present will not react to the claim and cannot be expected to act in accordance with the Dublin processes, including their reflection of the importance of family life. The respondents' position is that the Dublin process in France failed to vindicate and protect the rights under the ECHR of the three unaccompanied minors and the fourth respondent. They also maintain that, in any event, they have a freestanding right to assert the right to family life under ECHRArticle 8 and to claim that as a result the United Kingdom was under a positive substantive obligation to admit the first four respondents to the United Kingdom.

Since the decision of the Upper Tribunal and the arrival of the first four respondents in the United Kingdom, the Secretary of State has accepted that the United Kingdom is the correct place for their asylum claims to be determined substantively. She does not seek their return to France. Indeed, in May 2016 she granted refugee status to IAJ, the second respondent, and, after the hearing, on 5 July 2016, to KAM, the third respondent. She has, as yet, made no decision on the applications by ZAT and AAM, the first and fourth respondents. In the light of the developments since the decision of the Upper Tribunal and the position of the Secretary of State at the hearing, the court inquired as to the purpose of the appeal. Mr Eadie QC, on behalf of the Secretary of State, submitted that the appeal was necessary because the approach of the Upper Tribunal has potentially far-reaching and serious consequences for the ability of the United Kingdom to control its borders and for the integrity of the Dublin III system. The Secretary of State's case is that the Upper Tribunal erred in granting relief to individuals who had refused to claim asylum in France and to make use of the Dublin III mechanism and also had made no application in the United Kingdom for asylum or for leave to enter, and had, for example, provided no biometric data before their arrival. A decision by this court would clarify the position.

Permission was given to the Office of the United Nations High Commissioner for Refugees ("UNHCR") to intervene by way of written and oral submissions, and to the AIRE Centre to intervene by way of written submissions. The court is grateful for the written submissions of Ms Demetriou QC and Mr McIntyre, on behalf of the UNHCR, and those of Mr Husain QC, Ms Dubinsky, Ms Meredith and Mr Pobjoy on behalf of the AIRE Centre, and for Ms Demetriou's oral submissions. The court also has before it a copy of a study by the UNHCR on the Dublin III Regulation, which is currently in draft form.

For the reasons given at [81], [82] and [87] – [95], I have concluded that, notwithstanding statements by the tribunal about the importance and potency of the Dublin Regulation, it erred in its approach to the test required to permit the processes and procedures of the Dublin III Regulation to be bypassed because of the right to family life under ECHRArticle 8 at the initial procedural stages in the determination of which Member State is responsible for processing an application for asylum. An application for entry by an unaccompanied minor, without first invoking the appropriate Dublin III procedures in the relevant Member State, can only be justified in an especially compelling case.

In the light of the psychiatric evidence before the Upper Tribunal about the first four respondents and the evidence of the French lawyers and the NGOs adduced by the respondents suggesting that there would be a delay of just under one year in the French system and that there was no possibility of expedition, the result the tribunal reached may have been justifiable: see [90] and [91]. I am, however, not entirely persuaded that, had the tribunal applied the correct test, it must inevitably have reached the same conclusion. In those circumstances, the appropriate course would normally have been to remit the matter to the tribunal for reconsideration. However, in the current circumstances and in the light of the position of the Secretary of State set out at [6] above, I have concluded that it would be inappropriate to take that course. I would therefore simply allow the appeal and make no further order.

II. The evidence

Before the Upper Tribunal, the only evidence was that adduced on behalf of the respondents. The tribunal accepted (see [26]) that, because of the urgency and the manner in which the cases came before it, with proceedings instituted on 15 December 2015, ten days before Christmas, and a hearing on 18 and 20 January 2016, there was little or no opportunity...