The Secretary of State for the Home Department v R FTH
| Jurisdiction | England & Wales |
| Judge | Sir Terence Etherton MR,Lord Justice Flaux,Lord Justice Hickinbottom |
| Judgment Date | 06 April 2020 |
| Neutral Citation | [2020] EWCA Civ 494 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2018/3103 |
| Date | 06 April 2020 |
[2020] EWCA Civ 494
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
UPPER TRIBUNAL JUDGES ALLEN AND FINCH
Claim No JR/1256/2018
Royal Courts of Justice
Strand, London, WC2A 2LL
THE MASTER OF THE ROLLS
Sir Terence Etherton
Lord Justice Flaux
and
Lord Justice Hickinbottom
Case No: C2/2018/3103
Robert Kellar QC (instructed by Government Legal Department) for the Appellant
Charlotte Kilroy QC and Michelle Knorr (instructed by Bhatt Murphy) for the Respondent
Hearing date: 10 March 2020
Approved Judgment (as amended)
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Sir Terence Etherton MR, Lord Justice Flaux and
Background
This claim arises out of the United Kingdom's humanitarian response to the decision of the French Government in October 2016 to close and demolish a camp close to Calais, the so-called “Jungle de Calais”, in which several thousand migrants from the Middle East and North East Africa who had no leave to enter or remain in the European Union had congregated. The majority in the camp were young men, but there were also hundreds of unaccompanied asylum-seeking children (“UASCs”) including, it was thought, at least 200 who had close relatives in the UK.
Had those children made an asylum application in France, the processes set out in 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”) would have been triggered, including the criteria set out in Chapter III for determining which state is responsible for any asylum claim.
Under those criteria, the responsible state is generally the first Member State into which the applicant irregularly arrived (article 13 of Dublin III). For an adult, however, under article 17, it is always open for a Member State in its discretion to examine and determine an asylum claim even if it is not responsible under the hierarchy of criteria for state responsibility set out in Chapter III of Dublin III. Further, there is a specific provision for unaccompanied children. Under article 8 of Dublin III, if the child seeking asylum is unaccompanied and has a sibling or other close relative in another Member State then, if it is in the child's best interests, that other state is responsible for considering and determining his application for asylum; and the provisions in article 8 and Chapter VI relating to the uniting of the child and his relative in that other state to facilitate that consideration and determination apply. In short, the Member State in which the applicant makes an asylum claim, after carrying out due enquiries, makes a take charge request to the other state and that other state, after carrying out any further enquiries it wishes, either agrees to take charge or refuses to do so. A refusal to take charge by the other state may be challenged by way of court proceedings in the other state.
Dublin III has internal provisions designed to achieve appropriate procedural fairness and speed. For example, the Member State in which the asylum claim is made has to provide legal and linguistic assistance to an applicant, where necessary (article 5); and a take charge request has to be made “as soon as possible and in any event within three months” and a response provided “as soon as possible and in any event within two months” (article 21(1) and 22(1)).
For one reason or another, however, most of the children in the Calais camp (including the Appellant) refused to make an application for asylum in France which would have triggered that Dublin III mechanism. As a result, when the French Government announced on 7 October 2016, on only a month's notice, that it proposed to demolish the camp, the UK Government, which had no legal obligation towards these children on French soil, decided to pursue a bilateral process agreed with the French Government based on the criteria for transfer set out in article 8 of Dublin III, but without the children making any asylum claim and with the considerable expedition made necessary by the circumstances (hence the term, “expedited process”). If the criteria were satisfied then, under the expedited process, the child would be transferred to the UK which would then determine an application for asylum which the child would make here.
The expedited process adopted was described in detail in Soole J's judgment in R (Citizens UK) v Secretary of State for the Home Department [2017] EWHC 2301 (Admin), [2018] 2 All ER 573 at [38]–[108], and more succinctly in Singh LJ's judgment in the same case on appeal ( [2018] EWCA Civ 1812; [2018] 4 WLR 123 at [9]–[18]), for which we are grateful. In this judgment, references to “Citizens UK” are to the judgment in the Court of Appeal, unless otherwise indicated.
Briefly, the UK and French Governments developed “Operation Purnia”. It ultimately consisted of two phases. The first phase took place at the camp itself during the last two weeks of October. It consisted of an interview with the child, and interviews by telephone with those in the UK who were asserted to be close relatives or witnesses to such a relationship.
There were, however, far more children in the camp than the UK had been led to believe. On 28 October 2016, the French authorities asked the Secretary of State to stop interviewing at the camp, to allow the remaining children to be dispersed to one of the 73 Centres a'accueil et d'orientation pour mineurs isoles (Centres for Unaccompanied Minors) (“CAOMIs”) throughout France, so that the camp could be demolished. That dispersal gave rise to the second phase of the operation, in which 90 officers from the UK interviewed 1,872 children who had not been interviewed and accepted for transfer in the first phase, at the CAOMIs, in twenty minute sessions over three weeks in November 2016. Again, interviews with asserted family members in the UK were then conducted over the telephone by UK-based officials.
Decisions as to transfer in each phase were essentially made by comparing the child's account in interview with that of the asserted family member(s). Where there were significant discrepancies, the alleged relationship was generally not accepted, and the child was not transferred but rather remained in France. As a result of both phases of the expedited process, a total of about 550 children were identified and transferred to the UK.
Hundreds of other children claiming to have close family members in the UK were not transferred through this process. Refusal decisions were not communicated directly to the children, but to the French authorities by means of a spreadsheet with a word or short phrase in respect of reasons which was then transmitted to the children by those authorities over the next few days. The Secretary of State notified French officials that, based on legal advice, the UK would not be able to share detailed reasons for refusal due to concerns about vulnerability to legal challenge; and the French authorities raised some concerns about this. The evidence was that reasons were very limited because of a concern that fuller reasons would lead to legal challenges.
A request was made by the French authorities for the Secretary of State to review, initially, 50–60 specific cases where further information had been obtained from the children; which in turn led to a general “filter” or “filtration” process in which over 550 cases were reviewed by the Secretary of State during January and February 2017. This led to a small number of additional children being transferred.
Citizens UK, a non-governmental organisation heavily involved in providing help and assistance to the young people in the camp and later the CAOMIs, challenged the lawfulness of the expedited process on what might be called generic grounds. In Citizens UK, this court held that the procedure adopted in the process was unfair and unlawful as a matter of common law, notably in failing to give adequate reasons for refusal of transfer which meant that the children affected (and those assisting them) had no meaningful way of knowing how to achieve a different outcome in the review process or realistically challenging a refusal (see [90]–[91]). It also concluded that the Secretary of State had seriously breached her duty of candour and cooperation with the court by failing to inform the High Court that at least one of the reasons why the explanations for a refusal decision were very thin was because of the perceived risk of legal challenges to such decisions.
In response to the submission made by Sir James Eadie, on behalf of the Secretary of State, that the common law did not require fairness in the expedited process because of the availability to the children of the Dublin III procedure, Singh LJ (delivering the leading judgment, with which Hickinbottom and Asplin LJ agreed), said:
“93. The fundamental submission which Sir James made was that the present decision-making context can be distinguished from others precisely because it was always open at all material times for a person to proceed under Dublin III. That would then have attracted the full panoply of procedural safeguards which are set out in [Dublin III]…. [T]he Secretary of State was not [here] reaching any final decision. In my view, there are two flaws with that submission.
94. The first flaw is that it assumes that fairness is not required at an earlier decision-making...
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