The Secretary of State for the Home Department v R FWF and Another
| Jurisdiction | England & Wales |
| Judge | Lady Justice Elisabeth Laing DBE,Lord Justice Flaux,Lord Justice Davis |
| Judgment Date | 28 January 2021 |
| Neutral Citation | [2021] EWCA Civ 88 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C2/2020/0014 |
[2021] EWCA Civ 88
Lord Justice Davis
Lord Justice Flaux
and
Lady Justice Elisabeth Laing
Case No: C2/2020/0014
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
The Upper Tribunal (Asylum and Immigration Chamber)
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Rory Dunlop QC and Ms Jo Moore (instructed by the Government Legal Department for the Appellant
Ms Charlotte Kilroy QC and Ms Michelle Knorr (instructed by Bhatt Murphy Solicitors) for the Respondents
Hearing dates: 8 and 9 December 2020
Approved Judgment
Introduction
The Respondents (‘Rs’) are brothers from Afghanistan. They made asylum claims in France when both were under the age of 18. They wished to join their elder brother, NF, in the United Kingdom. He left Afghanistan before they were born, and they had never lived with him. Although Rs were transferred to the United Kingdom within the overall time limit provided for by Regulation 604/2013 (‘Dublin III’), the Secretary of State, as she now concedes, acted unlawfully along the way, in various respects, and there were avoidable delays.
This is an appeal against an order made by the Upper Tribunal (Asylum and Immigration Chamber) (Upper Tribunal Judge Kamara – ‘the Judge’) on 15 August 2019 (‘the Order’). The Judge decided that the Secretary of State had breached Rs' article 8 rights. After considering further submissions, she later awarded them £15,000 damages each as just satisfaction for those breaches. I emphasise that this is not an appeal against that award. Indeed, the parties do not agree whether the order making that award has been handed down.
On this appeal, the Appellant (‘the Secretary of State’) was represented by Mr Rory Dunlop QC and Ms Jo Moore. The Respondents were represented by Ms Charlotte Kilroy QC and Ms Michelle Knorr. We thank counsel for their written and oral submissions.
This appeal concerns the obligations imposed by Dublin III, and the relationship between those obligations, and the EU Charter of Fundamental Rights (‘the CFR’) and article 8 of the European Convention on Human Rights (‘the ECHR’). The provisions of Dublin III which are most significant in this appeal are the provisions about take charge requests (‘TCRs’) and their consequences. The question at the heart of this appeal is whether, if a member state acts unlawfully in any way in the course of discharging the obligations imposed on it by Dublin III, that is ipso facto a breach of article 8 of the ECHR (and of article 7 of the CFR). I will refer to such unlawfulness as ‘incidental unlawfulness’. For the purposes of this appeal, I will treat the obligations imposed by article 8 of the ECHR and by article 7 of the CFR as equivalent.
As Ms Kilroy explained in her reply, Dublin III is a system which has been set up to respect article 8 rights. That means, she submits, that unlawfulness in the discharge of Dublin obligations which interferes with rights under article 8 is not ‘in accordance with the law’ for the purposes of article 8.2. Any such unlawful conduct is, therefore, a breach of article 8.
The grant of permission to appeal
The Secretary of State asked for permission to appeal against the Order on five grounds. Davis LJ gave permission to appeal on the papers in an order sealed on 12 June 2020. He did not limit that grant of permission. He made three points in his observations.
i. It was arguable that the remedy for failure to comply with the two-month limit set by Dublin III is provided by Dublin III itself; the request (that is, the TCR) is deemed then to be accepted.
ii. There were potential inconsistencies between three relevant decisions of the Upper Tribunal (‘the UT’). It was desirable that these be considered by the Court of Appeal.
iii. It was arguable that the Judge was not justified in treating the individual failures and non-compliance with Dublin III as being, ipso facto, breaches of article 8 and meriting awards of damages of £15,000, each, as well as declaratory relief.
The underlying facts in outline
At the date of claim, FWF was just 18, and FRF was 15. Their case was that they had fled Afghanistan over three years earlier. They arrived in France in December 2017 and registered an asylum claim there on 8 November 2018. They told the authorities that they wished to join their brother, NF, in the United Kingdom. On about 15 November 2018, the French authorities asked the United Kingdom to assume responsibility for deciding their asylum claims by making a TCR.
According to Rs' grounds of claim in the UT, NF left Afghanistan in 2001, before either of the Rs was born. He is now a British citizen. He met them twice in Afghanistan, in 2008, and in 2014. Their parents are said to have died in 2014. Rs then lived with their older sister, who took them from Afghanistan in 2016, and left them in Hungary in 2017, where they are said to have ‘made contact’ with NF, who agreed to take care of them. On 7 February 2018, NF travelled to France and met Rs. He visited them again in France in July and December 2018. Paragraph 2.9 of the grounds lists the evidence which was said to support the TCRs.
The Secretary of State wrote two letters to NF in December 2018, enclosing forms for him to fill in about his relationship with Rs. The Secretary of State refused FWF's TCR on the grounds that the Secretary of State did not consider that the link between him and NF had been sufficiently established.
On 12 February 2019, NF provided the Secretary of State with further documents. These are listed in paragraph 2.17 of Rs' grounds of claim in the UT.
Rs' pre-action protocol letter dated 1 March 2019 asked the Secretary of State urgently to accept responsibility for Rs' claims and to arrange their transfer to the United Kingdom. It was submitted that having failed to investigate and respond to the TCR within two months, the United Kingdom was the responsible member state. The refusal of the TCRs was too late to have any effect, and, further, unlawful, because the Secretary of State had not complied with the investigative duty and had not given Rs or NF an opportunity to make representations. The letter claimed compensation.
The relevant provisions of Dublin III
It is convenient to summarise the relevant provisions of Dublin III at this point, as this summary will make it easier for the reader to understand the arguments in the UT, and the Judge's judgment.
The broad purpose of Dublin III is to continue the EU's system for regulating the allocation of responsibility between member states for deciding claims for international protection made in different member states, particularly where one person makes such a claim in more than one member state.
Both parties relied on the recitals. Recitals (2) – (12) refer to the Common European Asylum System, to its components, and to its relationship with Regulation (EC) 343/2003 (‘Dublin II’) and to the need to improve Dublin II. Recitals (3) and (4) refer to the Tampere Conclusions, and (4) and (5) to the need to establish a clear and workable way of deciding which member state is responsible for examining an asylum application which is fair, and gives an applicant quick access to procedures for granting international protection.
Recital (13) says that in accordance with the CRC, and the CFR, the best interests of the child should be a primary consideration. Specific procedural guarantees for unaccompanied minors (‘UMs’) should be laid down ‘on account of their particular vulnerability’. Recital (14) declares that, in accordance with the ECHR and the CFR, ‘respect for family life should be a primary consideration for Member States when applying this Regulation’. The processing together of applications for international protection of the members of one family by a single member state makes for better decisions and ensures that families are not separated (recital (15)).
To ensure ‘full respect for the principle of family unity and for the best interests of the child, the existence of a relationship of dependency between an applicant and his or her child, sibling or parent on account of the applicant's pregnancy or maternity, state of health or old age should become a binding responsibility criterion’. When an applicant is a UM ‘the presence of a family member or relative on the territory of another Member State who can take care of him or her should become a binding responsibility criterion’ (recital (16)).
Recital (17) says that any member state should be able to derogate from the responsibility criteria, ‘in particular on humanitarian and compassionate grounds, in order to bring together family members, relatives, or any other family relations …’ Recital (24) says that transfers may be voluntary, by supervised departure, or under escort. Member States should promote voluntary transfers, complying fully with fundamental rights and respect for human dignity as well as the best interests of the child. Recital (32) provides that ‘With respect to the treatment of persons falling within the scope of [Dublin III], Member States are bound by their obligations under instruments of international law, including the relevant case-law of the European Court of Human Rights’. Recital (35) describes the scope of the Commission's power to provide supplementary rules. Finally, recital (39) declares that ‘This Regulation respects fundamental rights and observes the principles which are acknowledged, in particular, in the [CFR]. In particular, this Regulation seeks to ensure full observance of …the rights recognised under Article…7' of the CFR. ‘This Regulation should be applied accordingly’.
Article 1 is headed ‘Subject matter’. It declares that Dublin III ‘lays down...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2022-08-11, JR/01617/2020
...have accepted responsibility. The Secretary of State was seeking to significantly expand the approach in R (FwF) v Home Secretary ([2021] 1 WLR 3781) by relying on the proposition that Dublin III includes an opportunity to remedy a breach of Dublin III to submit there was no breach of Artic......
-
Upper Tribunal (Immigration and asylum chamber), 2021-05-12, JR/06069/2019
...actions were not ‘in accordance with the law’ and the interference could not be justified. This point was considered in SSHD v R(FwF) [2021] EWCA Civ 88 which was handed down on 28 January 2021. I invited written submissions from the parties and have considered those submissions in coming t......
-
R Baa and Another v Secretary of State for the Home Department
...range of authorities, in particular R(ZT (Syria)) v SSHD [2016] EWCA Civ 810; [2016] 1 WLR 4894, and most importantly R(FwF) v SSHD [2021] EWCA Civ 88. Mr Dunlop also relies on a series of cases following on from R(ZT(Syria)), which were reviewed by Elisabeth Laing LJ in the course of he......
-
Safe Passage International v Secretary of State for the Home Department
...point was not the subject of the appeal). 63 More detail about the scope of the investigatory duty was considered in R(FWF) v Secretary of State for the Home Department (JR/1626/2019) (unreported 12 June 2019) where the Upper Tribunal found that the Secretary of State had, in that case, fai......