Secretary of State for the Home Department v The Queen (on the application of (1) AM, a child by his litigation friend OA, and (2) OA)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lord Justice Hickinbottom,Lady Justice Asplin |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] EWCA Civ 1815 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2017/2992 C2/2017/2996 C2/2017/2993 |
| Date | 31 July 2018 |
[2018] EWCA Civ 1815
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
McCloskey J and UTJ Allen
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Hickinbottom
Lord Justice Singh
and
Lady Justice Asplin
Case No: C2/2017/2992
C2/2017/2994
C2/2017/2996
C2/2017/2993
Sir James Eadie QC, Mr David Manknell and Ms Amelia Walker (instructed by the Government Legal Department) for the Appellant
Ms Charlotte Kilroy and Ms Michelle Knorr (instructed by Bhatt Murphy) for the Respondents AM & OA and SS, and (instructed by The Migrants' Law Project, Islington Law Centre) for the Respondents SASA and MHA
Hearing dates: 12–14 June 2018
Judgment Approved
Introduction
These are four appeals brought by the Secretary of State, 1 with the permission of the Upper Tribunal (Immigration and Asylum Chamber) (“Upper Tribunal” or simply “UT”). The lead case was AM, in which the Upper Tribunal (comprising McCloskey J, the then President of the Immigration and Asylum Chamber, and UTJ Allen) gave a lengthy judgment, which it then followed in the other three cases.
These appeals also raise issues which overlap considerably with the case of R (Citizens UK) v Secretary of State for the Home Department, which is an appeal by the Claimant in that case against the decision of the High Court (Soole J). This Court has today also given judgment in Citizens UK. For reasons that will be apparent, this judgment can accordingly be shorter than it might otherwise have been, since I will cross-refer to my judgment in Citizens UK where appropriate. This judgment should be read with that judgment since, for example, the relevant legislation is set out there.
All four cases concern the operation of what became known as the “expedited process”, which was established by the Secretary of State in conjunction with the French authorities in October 2016 in response to the impending demolition of the makeshift tented encampment in Calais which was commonly known as “the Jungle” and to which I will refer as “the camp”. By the expedited process the Secretary of State sought to assess the eligibility of unaccompanied asylum-seeking children (“UASC”) to be transferred to the United Kingdom (“UK”).
In essence the Upper Tribunal decided that the expedited process was unlawful on any or all of three bases:
(1) breach of European Union (“EU”) law, in particular because it failed to comply with procedural protections guaranteed under Regulation 604/2013 (“Dublin III”);
(2) breach of the common law requirements of fairness; and
(3) breach of the procedural protections afforded by Article 8 of the European Convention on Human Rights (“ECHR”), as set out in Sch. 1 to the Human Rights Act 1998 (“ HRA”).
In reaching those conclusions the Upper Tribunal fundamentally differed from what was later said by Soole J in the Citizens UK case.
Factual Background
AM
AM was born on 1 October 2000 and is an Eritrean national. In 2015, he fled Eritrea and travelled to Europe via Libya and arrived in Calais in April 2016. When the camp was due to be demolished AM presented himself for registration as an unaccompanied child and was identified as potentially having an entitlement to be transferred to the UK under Dublin III because his uncle, OA, resided in the UK. On 2 November 2016 the French authorities took him to a CAOMI 2 in Baugé-en-Anjou. AM was interviewed by Home Office officials on 6 or 7 November 2016. The Secretary of State decided to refuse to transfer AM to the UK on 15 November 2016.
On 16 December 2016 a French official informed AM that his application for transfer to the UK had been refused and three days later, on 19 December 2016, he was informed that this was because his family link was not accepted. The same French official helped AM request a review of that decision, but no further decision was communicated to him. AM was relocated from the CAOMI to a hotel in Angers towards the end of February 2017.
AM's solicitor sent a pre-action protocol letter to the Secretary of State on 31 January 2017. The Secretary of State replied on 9 March 2017 stating that the application had been refused because of inconsistencies between the information provided by AM and OA. AM filed an application for judicial review at the Upper Tribunal on 14 March 2017.
Separately, AM's asylum claim was registered in France, but French officials decided not to make a “take charge request” under Dublin III while the Secretary of State was reviewing the initial decision.
On 23 March 2017 the Secretary of State applied for an order staying this case (and others like it) behind Citizens UK, which was at that time pending in the High Court. That application was refused at an oral hearing on 28 March 2017. AM applied for interim relief on 4 April 2017 and a hearing took place on 7 April 2017, at which the Upper Tribunal adjourned the issue of interim relief and ordered the Secretary of State to make a new decision by 19 April 2017.
No new decision was made prior to the substantive hearing of the claim for judicial review on 5 April 2017 and 11 April 2017. On 16 April 2017 the Upper Tribunal ordered the Secretary of State to admit AM to the UK and made a further order that he take a fresh decision. The Secretary of State made a new decision, which maintained her original position that the family link with OA was not accepted, on 2 June 2017.
On 12 June 2017, AM applied, under the liberty to apply provision in the order dated 16 April 2017, for a further order declaring that the decision of 2 June 2017 was not in compliance with the original order. The application was dealt with at an oral hearing on 21 June 2017 and on 5 September 2017 the Upper Tribunal held that the Secretary of State had failed to comply with the terms of its earlier order and required her to make a further new decision. The Secretary of State made a fresh decision accepting responsibility for AM's asylum claim on 4 October 2017.
The Upper Tribunal granted the Secretary of State permission to appeal to the Court of Appeal on 8 October 2017. It did so on the grounds as formulated at para. 4 of the Grounds of Appeal, as amended on 25 September 2017.
SASA
SASA was born on 27 October 2000 and is a national of Sudan. He fled Sudan and arrived at the Calais camp in June 2016. SASA was interviewed by Home Office officials in late October 2016, before the Calais camp was demolished. He was taken to a CAOMI in Le Pouldu by French officials on 2 November 2016. An interview with the Home Office was conducted on 12 November 2016 at the CAOMI and SASA provided contact details for his cousins. Following this the Secretary of State contacted one cousin, AHO, but did not contact another cousin, MMA.
On 15 December 2016 SASA was informed by French officials that his application for transfer to the UK had been refused, but no reasons were provided to him. Staff at the CAOMI requested a review on SASA's behalf on 21 January 2017, but no response was received. SASA left the CAOMI and became street homeless in France on 28 January 2017.
SASA's solicitor sent a pre-action protocol letter to the Secretary of State on 21 February 2017 and the Secretary of State replied on 7 March 2017, stating that the application was refused because the family relationship (cousin) does not fall within the scope of Article 8 of Dublin III.
SASA filed an application for judicial review at the Upper Tribunal on 14 March 2017. The Secretary of State applied for a stay on 23 March 2017. This was joined to the stay application made in AM and refused on 28 March 2017. SASA's interim relief application was also listed with AM on 7 April 2017. Following that hearing the Upper Tribunal ordered the Secretary of State to make a fresh decision by 19 April 2017. A fresh decision was made on 19 April 2017, which again refused to transfer SASA to the UK.
The substantive judicial review claim was heard on 12 May 2017. On 16 May 2017 the Upper Tribunal ordered the Secretary of State to admit SASA to the UK and make a fresh decision. A further decision refusing to accept responsibility for SASA's asylum claim was made on 2 June 2017. On 12 June 2017 SASA made an application under the liberty to apply provision for a ruling that the new decision did not comply with the terms of the original order. This application was dealt with at an oral hearing on 21 June 2017 and on 5 September 2017 the Upper Tribunal ruled that the Secretary of State had not complied with the original order and required her to make a fresh decision. The Secretary of State accepted responsibility for determining SASA's asylum claim on 4 October 2017, by which time he was physically in the UK.
The Upper Tribunal granted permission to appeal to the Court of Appeal on 8 October 2017, on the same grounds as in AM's case.
SS
SS was born on 13 December 1999 and is a national of Eritrea. In 2016 he fled Eritrea and travelled to Europe via Egypt. SS arrived in the Calais camp in September 2016. During the demolition of the Calais camp SS was identified as eligible for consideration under the scheme and moved to a CAOMI in Baugé-en-Anjou on 2 November 2016. SS sought transfer to the UK to be reunited with his uncle, AHA. It should be noted that AHA is also a cousin of SS, because AHA's paternal grandfather was the brother of SS's paternal great-grandfather. On 6 or 7 November 2011 Home Office officials interviewed SS at the CAOMI...
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