Upper Tribunal (Immigration and asylum chamber), 2017-06-05, [2017] UKUT 262 (IAC) (R (on the application of AM (a child by his litigation friend OA and OA) v Secretary of State for the Home Department (Dublin – Unaccompanied Children – Procedural Safeguards))
| Jurisdiction | UK Non-devolved |
| Judge | The Honourable Mr Justice McCloskey, President , Upper Tribunal Judge Allen |
| Status | Reported |
| Date | 05 June 2017 |
| Published date | 22 June 2017 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 11 May 2017 |
| Subject Matter | Dublin – Unaccompanied Children – Procedural Safeguards |
| Appeal Number | [2017] UKUT 262 (IAC) |
R (on the application of AM (a child by his litigation friend OA and OA) v Secretary of State for the Home Department (Dublin – Unaccompanied Children – Procedural Safeguards) [2017] UKUT 00262 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review
Notice of Decision
The Queen on the application of
AM (a child by his litigation friend OA) (1) and
OA (2)
Applicants
v
Secretary of State for the Home Department
Respondent
Before The Honourable Mr Justice McCloskey, President
and Upper Tribunal Judge Allen
Having considered all documents lodged by the parties and having heard the parties’ respective representatives, Ms C Kilroy and Ms M Knorr, of counsel, instructed by Bhatt Murphy Solicitors on behalf of the Applicants and Ms A Walker, of counsel, instructed by the Government Legal Department on behalf of the Respondent, at hearings at Field House, London on 05 & 11 May 2017.
-
Regulation 604/13/EU (the Dublin Regulation) occupies the field to which it applies and operates as a measure of supreme EU law therein.
-
It is not open to the Secretary of State to unilaterally and selectively disapply certain provisions of the Dublin Regulation and its sister implementing Commission Regulation as this is contrary to EU law.
-
The dilution and disapplication of the procedural fairness and kindred protections enshrined in the Dublin Regulation, the implementing Regulation, Article 8 ECHR and the common law are not justified on the grounds of expedition and humanitarian challenge.
-
Any remedial order in this type of case should take into account the best interests of the child concerned and the need to accommodate child safeguarding checks and processes.
ANONYMITY
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI2008/269) I make an Anonymity Order. Unless the Upper Tribunal or Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify the original Appellant. This prohibition applies to, amongst others, all parties.
INDEX
-
Introduction
[1] – [5]
Interim Relief
[6] – [7]
AM’s Challenge
[8] – [14]
The Secretary of State’s Response
[15] – [35]
The Expedited Process in AM’s Case
[36] – [45]
Legal Framework
The Dublin Regulation
The Commission’s Implementing Regulation
Article 8 ECHR: Substantive Protection
Article 8 ECHR: Procedural Protections
The CRC and GC14
The Dublin Regulation: Procedural Safeguards
The Common Law: Procedural Safeguards
Public Law Protection Generally
[46] – [49]
[50]
[51] – [57]
[58] – [61]
[62] – [64]
[65] – [72]
[73] – [76]
[77]
Specific Issues
The Contours of AM’s Challenge
The Respondent’s Duties of Candour and Disclosure
Did the Dublin Regulation Apply?
Procedural Fairness: Issues and Conclusions
The Outworkings of the Above Conclusions
[78] [90]
[91] – [92]
[93] – [115]
[116] – [128]
[129]
Remedy
[130] – [134]
Costs
[135] – 136]
Permission to Appeal
Anonymity
[137]
[138]
APPENDIX 1
APPENDIX 2
Decision on Stay
Interim Relief Order and Directions
McCLOSKEY P
Introduction
-
The background to these judicial review proceedings can be ascertained from my preliminary ruling in this case and the related case of AO at the hearing conducted on 29 March 2017 (see Appendix 1). By such ruling I refused the Secretary of State’s application for a stay of proceedings pending determination of the Administrative Court case of Citizens UK v SSHD (CO/5255/2016), which is scheduled to be heard on 23/24 May 2017. There is also another somewhat related pending case in the Administrative Court, R (Help Refugees Limited) v SSHD (CO/5312/2016).
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This is one of seven cases in which judicial review permission applications were lodged in this Tribunal at around the same time, in late March 2017. By virtue of their common features they belong to the same group. They may be loosely described as “post-Calais” cases.
-
In broad outline, all of them involve unaccompanied teenagers from non-EU countries currently residing in France and asserting a range of pressing personal needs and circumstances. All seven children survived for varying periods in the notorious “Jungle” in Calais, in northern France, until its demolition in mid-October 2016. These seven children were members of a substantially larger group of around 2,000 identified by, or on behalf of, Home Office officials as candidates for possible transfer to the United Kingdom. In conjunction with the demolition of the “Jungle” the dispersal of all of these children to 73 ad hoc French state operated reception centres, scattered throughout France, ensued. This was accompanied by the soi – disant “expedited process”, a joint Anglo – French exercise, giving rise to decisions that all seven children would be refused transfer to the United Kingdom. It appears that a small number of positive transfer decisions were made during the brief window immediately preceding the demolition and dispersal exercises.
-
Those initial refusal decisions of the Secretary of State, more recent decisions to like effect and the Secretary of State’s decision making processes all form part of the matrix of the judicial review challenges which have materialised. In the formal pleading the target of the Applicant’s challenges is the Secretary of State’s continuing refusal to transfer them to the United Kingdom. The remedy sought by each of the Applicants is a mandatory order requiring the Secretary of State to admit them to the United Kingdom. In two of the seven cases, which were initiated more or less simultaneously, the Secretary of State has acceded to this petition. As a result there are five remaining judicial review Applicants of whom AM is one.
-
I granted this Applicant permission at the stage of refusing the Secretary of State’s application for a stay. For purely administrative reasons, this case was, ultimately, paired with that of SASA in which I had directed a “rolled up” hearing. The other three remaining cases – MHA, KIA and SS – have been heard in the same mode. As of today’s date judgment has either been handed down or circulated in draft in all five cases. All of the Applicants have succeeded and the remedy granted is the same in each case.
Interim relief
-
In Section 3 of the Judicial Review Claim Form, under the rubric of “Details of the Decision to be Judicially Reviewed”, it is stated:
“Failure to transfer the first Applicant to the UK in accordance with his substantive Dublin III rights and his Article 8 rights ……
Refusal/failure to act since 16/12/16 ongoing.”
This formulation is common to all of the Applicants, each of whom pursued the mandatory order noted above. All of the Applicants also pursued, by interim relief, an order mirroring the substantive relief claimed. This gave rise to an order of the Tribunal. I refer to Appendix 1 hereto. In short, reflecting the advent of significant new evidence in all of the cases and for the other reasons given, an interim relief order was made requiring the Secretary of State to make new decisions in all cases. While, as the title indicates, the order was designed to embrace all five live cases, the parties’ representatives understood the present case to be excluded as permission to apply for judicial review had already been granted. As a result the Secretary of State made no fresh decision in AM’s...
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