Safe Passage International v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeLord Justice Dingemans,Mr Justice Dove
Judgment Date02 July 2021
Neutral Citation[2021] EWHC 1821 (Admin)
CourtQueen's Bench Division (Administrative Court)
Docket NumberCase No: CO/2663/2020

[2021] EWHC 1821 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Dingemans,

VICE-PRESIDENT OF THE QUEEN'S BENCH DIVISION

and

Mr Justice Dove

Case No: CO/2663/2020

The Queen on the Application of

Between:
Safe Passage International
Claimant
and
Secretary of State for the Home Department
Defendant

Charlotte Kilroy QC, Victoria Laughton and Michelle Knorr (instructed by Islington Law Centre) for the Claimant

Alan Payne QC and Gwion Lewis QC (instructed by The Government Legal Department) for the Defendant

Hearing dates: 25 and 26 May 2021

Approved Judgment

Lord Justice Dingemans

Introduction

1

This is the hearing of a challenge to parts of guidance published by the Respondent, the Secretary of State for the Home Department (“the Secretary of State”) to Home Office caseworkers, about the application of EU Regulation 604/2013 (“Dublin III”) to unaccompanied minors seeking asylum (“UAM's”). The challenge is brought by Safe Passage International (“Safe Passage”).

2

Safe Passage is a registered charity which provides assistance to UAM's in the UK and Europe. It was common ground and the evidence showed that UAM's, who are also referred to as unaccompanied children seeking asylum (“UASC's”), are among the most vulnerable persons in society.

3

Dublin III provides a system for allocating responsibility for determining applications for international protection from asylum seekers to member states of the European Union (“EU”). In very broad terms Dublin III provides that UAM's should be reunited with any family members or relatives legally present in another member state, and that the application for international protection should be made in the member state where the family members or relatives reside.

4

Parts of Dublin III continued to apply pursuant to the Immigration, Nationality and Asylum (EU Exit) Regulations 2019, (“the 2019 Regulations”), made pursuant to powers set out in the European Union (Withdrawal) Act 2018, so that outstanding requests under Dublin III could be processed. There was some (immaterial, as it turned out) confusion in the oral submissions before the court about what parts of Dublin III had been retained, but the position is set out in paragraphs 28 to 42 of the detailed grounds of defence. Part III of Schedule 2 of the 2019 Regulations provided for the processing of ‘Take Charge Requests’ (“TCR's”) which were outstanding before the day on which the UK withdrew from the European Union.

The respective cases

5

The challenge is to three policy guidance documents published by the Secretary of State. The first, entitled ‘Dublin III Regulation Policy Guidance, version 3.0’ (referred to by the parties and in this judgment as “Policy v.3”) was published for Home Office staff on 30 April 2020. The second, entitled ‘Dublin III Regulation Policy Guidance, version 4.0’ (“Policy v.4”) was published for Home Office staff on 14 August 2020. It replaced Policy v.3. The third document challenged is entitled ‘Requests made to the UK under the Dublin III Regulation prior to the end of the Transition Period, version 1.0’ (“Policy v.5”). This was published for Home Office staff on 31 December 2020. It replaced Policy v.4 and set out how the Dublin III Regulation would apply in the UK following the end of the transition period for leaving the European Union.

6

The claim was brought in July 2020 and therefore originally related only to Policy v.3. As the policy guidance has been updated between that time and the hearing of the claim, Safe Passage amended its statement of facts and grounds with permission and now challenges Policy v.3, Policy v.4 and Policy v.5.

7

Safe Passage submits that the guidance set out in each successive policy document is unlawful on three main grounds. First, it is submitted that the guidance inaccurately states the investigatory duties imposed by the Dublin III Regulation on the UK following receipt of a TCR from another Member State. It was submitted that the relevant guidance provides only for information to be obtained from the local authority once the family link had been established, which came too late in the process to allow for relevant information to be obtained to inform the assessment. It was said that there was no process for case workers to give UAM's notice of concerns before refusing TCR's, which had led to errors in a number of cases. Further it was said that the use of the word “onus” in the guidance was inaccurate.

8

Secondly, it is said that the guidance wrongly states that TCRs can be summarily refused if the SSHD's investigation has not been completed within the two month time limit imposed by the Dublin III Regulation.

9

Thirdly, it is said that the guidance sets out a practice in relation to re-examination requests which is unlawful because it misapplies the decision of the Court of Justice of the European Union (“CJEU”) in X and X v Staatssecretaris van Veilgheid en Justitie [2019] 2 CMLR 4.

10

The Secretary of State denies that the guidance in any of the policy documents misstates the law. The Secretary of State claims that the challenges to Policy v.3 and Policy v.4 should not now be entertained because those policy versions have been superseded and are now academic.

11

As to the three main grounds the Secretary of State submits first that the guidance concerning investigatory duties is not wrong in law and the complaint merely relates to drafting suggestions. It is said that when read as a whole it is apparent that appropriate inquiries are required to be made by the case workers with all relevant bodies, including local authorities. It is said that there is no need to set out in the guidance principles of public law required to give effect to overarching principles of fairness. The use of the word “onus” was both correct and could not be read as requiring case workers to exclude evidence which had been located.

12

Secondly the Secretary of State submitted that the guidance concerning refusal of TCRs is correct and has been mischaracterised by Safe Passage. Thirdly it is submitted that the guidance concerning re-examination requests is correct and is consistent with the CJEU jurisprudence which is still relevant under the 2019 Regulations.

Some procedural matters

13

Two procedural issues arose in the course of the hearing. First the Secretary of State asked for permission to rely on a late witness statement from Julia Farman, head of the European Intake Unit (“EIU”) at the Home Office. When the application was made at the start of the hearing on 25 May, the statement was not available. This was not a promising basis on which to make the application, and the court adjourned the application until the statement was available and Safe Passage had had a fair opportunity to consider it. A written application dated 25 May 2021 was then made on behalf of the Secretary of State to adduce the witness statement, which was provided. It was common ground that the court should look at the statement for the purposes of deciding whether to admit the statement.

14

Secondly, it became clear in the course of oral submissions that Safe Passage intended to deal with issues of remedies only once judgment had been handed down. There was no order providing for a separate hearing on remedies, and the court required issues of remedies to be addressed at the hearing. This was because issues of legality and remedy should be dealt with together unless the court has ordered otherwise; and because the Secretary of State's submissions raised the issue of whether the court should entertain the challenges, for which permission to apply had been granted, to Policy v.3 and Policy v.4 on the basis that they were no longer in force. It would not be sensible to resolve this issue without considering overlapping issues of remedy. Further Ms Kilroy QC made it clear that if the claim succeeded and if asked to address remedies, Safe Passage would submit that the court should require the Secretary of State to write and notify member states of the EU of the terms of the judgment. There had been no written claim for that relief in the statement of facts or grounds, other than the broadest pleaded claim to “further or other relief”, and the issue was not addressed in the written Skeleton Arguments. It was apparent that such a proposed order would be strongly contested. It would not, in my judgment, be appropriate to deal with issues of that nature only in written submissions after the judgment had been delivered. This is because both parties should have a fair opportunity to address and respond to points made about such relief. In the event Safe Passage and the Secretary of State produced short written notes on the issue of remedies and the matter was addressed in oral submissions.

The issues

15

We are very grateful to both Ms Kilroy QC and Mr Payne QC, and their respective legal teams, for the helpful written and oral submissions. By the conclusion of the hearing it was apparent that the matters for decision in this judgment are: (1) whether the witness statement of Ms Farman should be admitted; (2) whether the court should consider the challenges to Policy v.3 and Policy v.4, in addition to the challenge to Policy v.5; (3) whether any of the Policy versions being considered by the court provides guidance which is erroneous in law; and if so (4) what, if any, relief ought to be granted.

The evidence

16

It was common ground that, given the particular challenge in these proceedings to the guidance, the evidence would not determine the issues before the court. On the other hand it was also clear that the evidence would assist in illustrating the issues which had arisen with the processing of TCR's relating to UAM's.

17

There was evidence of the difficulties UAM's had in obtaining legal advice and legal...

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