The Queen (on the application of Citizens UK) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh,Lady Justice Asplin,Lord Justice Hickinbottom |
| Judgment Date | 31 July 2018 |
| Neutral Citation | [2018] EWCA Civ 1812 |
| Docket Number | Case No: C4/2017/2802 |
| Court | Court of Appeal (Civil Division) |
| Date | 31 July 2018 |
[2018] EWCA Civ 1812
Lord Justice Hickinbottom
Lord Justice Singh
and
Lady Justice Asplin
Case No: C4/2017/2802
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT
Mr Justice Soole
Royal Courts of Justice
Strand, London, WC2A 2LL
Ms Charlotte Kilroy and Ms Michelle Knorr (instructed by the Migrants' Law Project, Islington Law Centre) for the Appellant
Sir James Eadie QC, Mr David Manknell and Ms Amelia Walker (instructed by the Government Legal Department) for the Respondent
Hearing dates: 12–14 June 2018
Judgment Approved
Introduction
This is an appeal against the order of Soole J dated 18 September 2017 dismissing the Appellant's claim for judicial review. Soole J also granted permission to appeal to this Court.
The claim related to the lawfulness of what has become known as the “expedited process”, which was established by the Respondent 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 Respondent sought to assess the eligibility of unaccompanied asylum-seeking children (“UASC”) to be transferred to the United Kingdom (“UK”).
Soole J rejected the Appellant's arguments that the expedited process was unlawful on essentially three grounds:
(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”).
The Judge did not separately address the argument based on Article 8 of the ECHR.
In reaching his conclusions the Judge expressly declined to follow the approach which had been taken by the Upper Tribunal (Immigration and Asylum Chamber) (“UT” or “UTIAC”) in five cases which were considered together, in which the lead case was R (AM) v Secretary of State for the Home Department [2017] UKUT 00262, a judgment given by McCloskey J (the then President of the UTIAC) and UT Judge Allen.
In the AM set of cases (with the exception of KIA) the Secretary of State has appealed to this Court with the permission of the UT. We heard both appeals together. The generic issues in the two appeals are the same. The fundamental question which these appeals raise is whether the expedited process was unfair and therefore unlawful on any or all of the three grounds advanced by Citizens UK: under EU law; under the common law; and under the HRA. The Court has today also given judgment in the AM set of cases.
This Court has had the advantage of seeing further evidence, which was not before the High Court or the UT. On behalf of Citizens UK it is submitted that, even if the position were otherwise at first instance, the further evidence now demonstrates that there was fundamental unfairness in the expedited process. Complaint is also made that there has been a breach by the Secretary of State of her 1 duty of candour and co-operation with the courts in judicial review proceedings.
We have had lengthy and helpful written submissions from all parties. We heard oral submissions from Ms Charlotte Kilroy for Citizens UK in this appeal and for the individual Respondents in the AM set of cases; and from Sir James Eadie QC for the Secretary of State. We are grateful to them, to junior counsel and to those instructing them for their hard work and the assistance they have given to the Court.
Factual background
I am grateful to Soole J for setting out the factual background in detail in the “Narrative” section of his judgment, at paras. 38–108. In the course of his narrative Soole J recorded the Secretary of State's evidence at paras. 42–75 and the evidence for Citizens UK at paras. 94–108. I can therefore be relatively brief here.
The demolition of the camp was announced on 7 October 2016 (judgment, para. 52). This led to discussions between the Secretary of State and the French authorities on 12 October 2016 with a view to expanding and modifying a pilot process for an “accelerated” Dublin III procedure, which had been under consideration over the summer of 2016. The expedited process was therefore developed at very short notice.
As the judgment records at para. 79, the expedited process was established in the light of the impending demolition of the camp and the Secretary of State's acceptance that there were likely to be at least 200 unaccompanied asylum seeking children who had close family links in the UK living there and who therefore would be eligible for transfer to the UK under Dublin III. As Mr Cook explains in his first witness statement, at para. 59:
“The SSHD adopted a pragmatic, flexible and sensible approach which was both rationale [sic] and reasonable”.
The expedited process, which became known as ‘Operation Purnia’, ultimately consisted of two phases. The first phase was an interview, decision-making and transfer phase, which took place at the camp itself in the last two weeks of October 2016. Approximately 200 children were transferred to the UK in the first phase.
On 28 October 2016 the French authorities asked the Secretary of State to cease interviewing at the camp. In early November children began to be dispersed to CAOMIs 2 across France. That dispersal gave rise to Phase 2 of the expedited process. The interview process under Phase 2 lasted from 7 November 2016 to 25 November 2016. As a result transfers to the UK took place until 9 December 2016.
The second phase of the process related to 1,872 unaccompanied children who had not been fully processed in Phase 1. In the second phase 90 officials from the UK interviewed the children in 20 minute slots over a period of three weeks. Interviews with family members in the UK were conducted by telephone by UK based officials. Decisions were made by comparing the paper records of those two interviews.
Following both phases a total of approximately 550 children were identified as being eligible for transfer under Dublin III and transferred to the UK between October and December 2016. However, over 500 children claiming to have family members in the UK were not transferred at that time.
Refusal decisions were communicated not directly to the children but to the French authorities by means of a spreadsheet with a short word or phrase reasons for refusal on 14 December 2016. Most of the children were then told of the decision by the French authorities over the next few days.
As Soole J noted, initially the Secretary of State and her officials regarded the expedited process as falling within the ambit of Dublin III. However, on 8 February 2017, the Secretary of State made a statement in Parliament expressing the view that the expedited process was a “one-off process, based on the principles of the Dublin Framework but operated outside of it”: see the judgment of Soole J, at para. 88. The Judge accepted, at para. 279, that the confusion about the characterisation of the process, together with other shortcomings, contributed to confusion and distress for the children concerned.
If positive decisions were taken following the expedited process, family members in the UK would be informed: there was a ‘family member proforma’ document for this purpose. Otherwise, submits Ms Kilroy on behalf of the Appellant, neither family members nor the children were contacted by the Secretary of State. They were never told of the reasons for refusal nor given any opportunity to correct errors (whether actual or perceived) in the decisions.
Although there was in due course (as we shall see later) an opportunity to ask for a reconsideration, as the Judge recorded at para. 71, “in the vast majority of cases there was no new information” and so, on reconsideration, the initial decision was merely confirmed.
Issues
The issues which arise on this appeal are the following.
First, under EU law:
(1) Was Soole J correct to conclude that applications for international protection within the meaning of Article 2(b) of Dublin III had not been made by UASC in the expedited process?
(2) Was Soole J correct to conclude that the process fell outside Dublin III and was not governed by its criteria and procedural protections?
(3) Was it lawful for the Secretary of State to devise such a scheme under EU law?
Secondly, was the decision-making process fair as a matter of common law?
Thirdly, was it fair in accordance with the procedural requirements of Article 8 of the ECHR?
Dublin III
Dublin III is the legislative measure introduced to fulfil the obligation in Article 78(2)(e) of the Treaty on the Functioning of the European Union (“TFEU”), allocating responsibility amongst Member States for examining asylum applications.
As Article 1 of Dublin III makes clear, the Regulation:
“… lays down the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national … (‘the Member State responsible’).”
Article 2 is the definition provision. Article 2(b) defines the phrase “application for international protection” as an application for international protection as defined in Article 2(h) of Directive 2011/95/EU.
Article 2(c) defines “applicant” to mean:
“A third-country national … who has made an application for international protection in respect of which a final decision has not...
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