The Secretary of State for the Home Department v R MS (a child by his Litigation Friend MAS)
| Jurisdiction | England & Wales |
| Judge | Lord Justice Hickinbottom,Simon LJ,Sir Terence Etherton MR |
| Judgment Date | 30 July 2019 |
| Neutral Citation | [2019] EWCA Civ 1340 |
| Court | Court of Appeal (Civil Division) |
| Date | 30 July 2019 |
| Docket Number | Case No: C2/2018/1950 |
[2019] EWCA Civ 1340
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGES GRUBB AND BLUM
Claim No JR/9682/2017
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Sir Terence Etherton
Lord Justice Simon
and
Lord Justice Hickinbottom
Case No: C2/2018/1950
Lisa Giovannetti QC and Gwion Lewis (instructed by Government Legal Department) for the Appellant
Charlotte Kilroy QC and Michelle Knorr (instructed by Bhatt Murphy Solicitors) for the Respondent
Hearing dates: 2 and 3 July 2019
Approved Judgment
Introduction
The Respondent, MS, is an Afghan national with an assumed date of birth of 1 January 2001.
In 2016, he left Afghanistan, and made his way to France where he arrived as an unaccompanied and undocumented minor. He applied for asylum in France, but claimed that he had a brother, MAS, living lawfully in the United Kingdom. If that were true, then, under Regulation No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing 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 or stateless person (“Dublin III”), the United Kingdom would be the state responsible for considering and determining his asylum application; and, subject to other criteria not relevant to this appeal, France would in practice be bound to transfer MS to the United Kingdom, and the United Kingdom would be bound to accept him, pending determination of that application.
On 27 July 2017, on 21 August 2017 and again on 12 March 2018, the Secretary of State refused to accept repeated take charge requests from France under Dublin III in respect of MS, on the basis that MAS was not his brother. Despite evidence of a sibling relationship, the Secretary of State gave substantial weight to the fact that, in his asylum claim made in the United Kingdom in 2003, MAS had denied having any siblings.
The refusal decisions were not appealable; but MS challenged them by way of judicial review. In a determination dated 19 July 2018, a panel of the Upper Tribunal (Immigration and Asylum Chamber) (Upper Tribunal Judges Grubb and Blum) found the refusal decisions unlawful and quashed them; and went on to find that MS and MAS were brothers. The tribunal then remitted the matter to the Secretary of State to make lawful decisions on the requests on the basis of that finding.
The tribunal gave the Secretary of State permission to appeal to this court on two grounds, as follows.
i) The tribunal erred in holding that, for the purposes of article 27 of Dublin III, “transfer decision” includes the rejection of a take charge request, which involves no transfer. Therefore, it is submitted that the requirement of article 27, that an asylum applicant should have “the right to an effective remedy, in the form of an appeal or a review, in fact and law, against a transfer decision, before a court or tribunal”, does not apply in this case where there has been no decision to transfer MS.
ii) Even if “transfer decision” does include a rejection of a take charge request, the tribunal erred in proceeding on the basis that the tribunal itself must determine, as a matter of preliminary fact, whether the relevant Dublin III criteria (including any required relationship) are met.
I will call these “Ground 1” and “Ground 2” respectively.
The tribunal left over to this court the question of any costs indemnity which should be given to MS on the appeal; and it refused permission to appeal on five further grounds, which focused on the investigatory obligations which fall on the Secretary of State upon receipt of a take charge request.
In the meantime, the Secretary of State took the pragmatic step of soliciting a further take charge request from France, which he accepted on 27 July 2018. MS and MAS were then re-united in the United Kingdom, whilst MS's asylum claim was determined. MS thus in practice obtained everything that he sought from his judicial review. In fact, to complete the history, a DNA test undertaken here proved that MS and MAS were indeed brothers; and, in due course, MS was granted asylum.
So far as MS was concerned, the judicial review and the Secretary of State's appeal from the tribunal determination have therefore become academic. However, permission to appeal had been granted on Grounds 1 and 2; and the Secretary of State renewed his application for permission to appeal on the other five grounds on the basis that, although not relevant to MS himself, they raised important points of principle which satisfied the criteria in Hutcheson v Popdog Ltd [2011] EWCA Civ 1580; [2012] 1 WLR 782 (“ Hutcheson”).
In Hutcheson, the court emphasised that, even where there is a point of general public interest or importance, an academic appeal will only be entertained very sparingly; and, save in exceptional circumstances, permission to appeal should only be granted in respect of an academic ground of appeal where “(i) the court is satisfied that the appeal would raise a point of some general importance; (ii) the respondent to the appeal agrees to it proceeding, or at least is completely indemnified on costs and is not otherwise inappropriately prejudiced; and (iii) the court is satisfied that both sides of the argument will be fully and properly ventilated” (at [15] per Lord Neuberger of Abbotsbury MR, with whom Etherton LJ (as he then was) and Gross LJ agreed).
I stress that the satisfaction of these criteria is merely a gateway to the exercise of discretion which the court has to undertake when considering whether to examine and/or determine academic issues. In addition to the time that will be expended by an overburdened court in deciding issues which are not germane to an actual dispute, determining an issue (even an issue of construction) outside a real dispute can be frustrating and even unhelpful. The key question is whether, in all the circumstances, it is in the public interest for the court to consider and determine an issue which is academic as between the parties. The cases suggest that cases in which it is in the public interest will be rare.
Returning to the chronology, on 9 November 2018, in a judgment following an oral hearing ( [2018] EWCA Civ 2596):
i) I refused permission to appeal on the remaining five grounds, on the basis that this case was not an appropriate vehicle for the (now academic) issues raised in those grounds to be determined.
ii) I directed that, in respect of Grounds 1 and 2, the Secretary of State should indemnify the costs of the Respondent on the appeal up to a maximum of £35,000.
Thus, Grounds 1 and 2 alone are now before the court.
Ground 1 is narrow, turning upon the proper construction of article 27. Ground 2 was effectively conceded by the Secretary of State in the course of the hearing before us, as he formally accepted that, if article 27 applies, the domestic court which is conducting the article 27 review of the transfer decision should (i.e. is able to and required to) determine whether there is a “sufficiently solid factual basis” for it, the quotation coming from the opinion of Advocate General Sharpston in Ghezelbash v Staatssecretaris van Veiligheid en Justitie (Court of Justice of the European Union (“CJEU”) Case No C-63/15) [2016] 1 WLR 3969 (“ Ghezelbash”) at [89]). If the Secretary of State were to fail on Ground 1, he therefore conceded Ground 2 by accepting that the tribunal did not err in its approach to the factual question of whether the relevant Dublin III criteria (including any required relationship) had been met. Thus, the only issue before the court is whether the refusal of a take charge request is a “transfer decision” giving rise to the right to an effective remedy within the meaning of article 27 of Dublin III.
Before us, Lisa Giovannetti QC and Gwion Lewis appeared for the Secretary of State, and Charlotte Kilroy QC and Michelle Knorr for the Respondent; and at the outset I thank them for their assistance.
Article 27 of the Dublin III Regulation
Dublin III came into effect on 1 January 2014. It is the third iteration of a European instrument which, as its full title indicates, is designed to establish criteria and mechanisms for determining which EU Member State should be responsible for considering and determining the asylum application of a non-EU national wherever, within the EU, it is lodged. This is regarded as important to avoid delay in the determination of such applications, and to prevent multiple asylum applications by a non-EU national as he travels through Europe. “Dublin 1” (The Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Community) came into force on 1 September 1997. “Dublin II” ( Regulation (EC) No 343/2003) came into force on 6 September 2003.
Article 19(1) of Dublin II imposed a requirement on a requesting Member State to notify an asylum applicant that the requested Member State had agreed to accept a transfer. Article 19(2) provided:
“The decision referred to in paragraph 1 shall set out the grounds on which it is based. It shall contain details of the time limit for carrying out the transfer and shall, if necessary, contain information on the place and date at which the applicant should appear, if he is travelling to the Member State responsible by his own means. This decision may be subject to an appeal or a review…”.
However, in Abdullahi v Bundesasylamt (CJEU Case No C-394/12) [2014] 1 WLR 1895,...
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