Upper Tribunal (Immigration and asylum chamber), 2018-04-19, [2018] UKUT 297 (IAC) (R (on the application of HA & Others) v Secretary of State for the Home Department (Dublin III; Articles 9 and 17.2))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Rintoul, Upper Tribunal Judge Rimington |
| Status | Reported |
| Date | 19 April 2018 |
| Published date | 17 September 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 28 March 2018 |
| Subject Matter | Dublin III; Articles 9 and 17.2 |
| Appeal Number | [2018] UKUT 297 (IAC) |
IN THE UPPER TRIBUNAL
R (on the application of HA & Others) v Secretary of State for the Home Department (Dublin III; Articles 9 and 17.2) [2018] UKUT 00297 (IAC)
Field House
London
28 March 2018
Before
UPPER TRIBUNAL JUDGE rintoul
UPPER TRIBUNAL JUDGE RIMINGTON
Between
HA (1)
AA (2)
NA (3)
(ANONYMITY ORDER MADE)
Applicants
and
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Ms C Kilroy and Ms M Knorr instructed by Migrant’s Law Project Islington Law Centre appeared on behalf of the Applicants.
Ms H Masood, instructed by the Government Legal Department appeared on behalf of the Respondent.
(1) Article 9 provides:
Where the applicant has a family member, regardless of whether the family was previously formed in the country of origin, who has been allowed to reside as a beneficiary of international protection in a Member State, that Member State shall be responsible for examining the application for international protection, provided that the persons concerned expressed their desire in writing.
The phrase “who has been allowed to reside as a beneficiary of international protection” in Article 9 of Dublin III is in effect the same as the phrase formerly used in paragraph 352D of the Immigration Rules and following ZN (Afghanistan) [2010] UKSC 21 at [35]. Acquisition of British citizenship by a family member does not alter the fact that he was in receipt of international protection and so article 9 would still apply.
(2) Article 17.2 of Dublin III does not set any specific criteria, but the Dublin Regulations themselves and the CFR provided the general parameters within which decisions must be taken, albeit that the general provisions set out in articles 21 and 22 do not apply. There is, we accept, a wide discretion available to the respondent under the article, but it is not untrammelled, it is for the respondent to consider an application made under article 17.2 through the lens of article 7 CFR and/or article 8 ECHR, taking account also of the best interests of a child. That approach is consistent with the normative provisions in article 16 that where there are issues of dependency within a family life context, the family should be brought together.
(3) The decision impugned in this case was one arising from the exercise of a discretion conferred on the respondent. On that basis, and following Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997, a court should not compel any authority to do more than consider the exercise of a power which is merely permissive and does not impose an obligation to act.
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JUDGMENT
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INTRODUCTION
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The applicants who have been anonymised challenge 3 decisions of the respondent to refuse to accept a take charge request (“TCR”) made by the Republic of Greece pursuant to Article 17.2 of EU Regulation 604/2013 (“Dublin III”). Permission for judicial review was granted by the President of the Upper Tribunal, Mr Justice Peter Lane, and Upper Tribunal Judge Dawson on 19 February 2018. The applicants have been granted anonymity, given the age of the youngest, and the sensitive nature of their circumstances. This is a decision of the Upper Tribunal to which both members of the panel have contributed.
Background:
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The factual matrix which gave rise to the application is highly unusual, if not unique, and is unlikely to occur again. There are three applicants, HA, AA and NA whom we refer to as A1, A2 and A3 respectively. A1 and A2 married in January 2005; A3 is their child. A1 is a British Citizen; A2 is a stateless Bidoon from Kuwait seeking asylum in Greece with A3 who, it is the applicants’ case, is a British Citizen.
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A1 was originally a stateless Bidoon from Kuwait. Prior to his flight from Kuwait in 2005, he married A2 who is also a stateless Bidoon. On arrival in the United Kingdom A1 applied for asylum. Although that claim was rejected he was granted Humanitarian Protection in October 2005 for a period of three years. Subsequent to that, and a successful application for ILR granted in 2011, he was on 25 January 2013 naturalised as a British Citizen. He then returned to Kuwait where he was reunited with A2. The couple’s first child, A3 was born on 15 December 2013. By operation of section 2 of the British Nationality Act 1981, A3 appears to be a British Citizen although that issue is as yet unresolved.
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In April 2014 A2 and A3 travelled to Lebanon where they made an entry clearance application to the United Kingdom for family reunion with A1 on the basis that A1 was a refugee. The respondent refused that application on the basis that A1, having been naturalised, was no longer a refugee.
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In 2015, an application was made for a British passport for A3. That application was refused on the basis that the documents provided were insufficient to show her entitlement to British citizenship.
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In June 2017, A2 and A3 travelled to Greece, initially overland through Turkey. They then crossed from Turkey to Greece by sea, arriving in Chios. That journey was traumatic, given that water surged into the boat, and they feared they would drown. It is the applicants’ case, relying on the report of Dr Manolesou, that the current diagnoses that both A2 and A3 suffer from PTSD result from that event.
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On 6 July 2017, A2 and A3 claimed asylum in Greece. Subsequent to that, the Greek authorities made a TCR to the British Government on 21 August 2017. That application was refused on 26 September 2017 in the following terms:
Directorate of Immigration – GREECE
Date: 26th September 2017
Dear Colleagues,
COUNCIL REGULATION (EU) No. 604/2013 of 26th June 2013
Re: Ms A[..] A[…] Stateless Person (Article 1 of 1954 Convention) 24 December 1978 & dependant
A[…] N[…] – 15/12/2013
You have requested that the United Kingdom take charge of the above named and her dependant under the terms of Council Regulation (EU) NO.604/2013 of 26th June 2013.
We have examined your request dated 21/08/2017, under Article 17(2) and have noted the following:
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The claimed husband, A[…] H[…], of the above name applicant became Naturalised British Citizen on 5th November 2012, and therefore not a beneficiary of International protection.
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Persons wishing to enter the United Kingdom to be re united with a relative who has residence in the UK can obtain the relevant Entry Clearance.
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You have not shown conclusive evidence that this avenue was not available to the UK relative as part of your request.
I regret to inform you that your request to take charge of the above named is respectfully denied.
Yours faithfully
R[…] B[…]
European Intake Unit
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That refusal was followed on 16 October 2017 by a reconsideration request by the Greek government pursuant to article 5 of the Dublin III Implementing Regulation 1560/2003. That request was refused on 24 October 2017 in the following terms:
Secretary of State’s Decision dated 24th October 2017
Directorate of Immigration – GREECE
Date: 24th October 2017
Dear Colleagues,
COUNCIL REGULATION (EU) No. 604/2013 of 26th June 2013
Re: Ms A[…] A[…] Stateless Person (Article 1 of 1954 Convention) 24 December 1978 & dependant
A[…] N[…] – 15/12/2013
You have requested that the United Kingdom take charge of the above named and her dependant under the terms of Council Regulation (EU) NO.604/2013 of 26th June 2013.
We have re examined your request dated 16th October 2017, and noted the relevant documents sent with your request under Article 17(2).
You have sent evidence of refusal paperwork of the family reunification visa Rule 352A of the Immigration Rules. As the applicant is a British Citizen he is entitled to make a spouse visa Rule 281 of Immigration Rules.
We do not consider that the applicant’s case warrants an exceptional circumstance in line with Article 17(2).
I regret to inform you that your request to take charge of the above named is respectfully denied.
Yours faithfully
S[…] K[…]
European Intake Unit
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The first step taken by the applicants to challenge the decisions was the service on 31 October 2017 of a pre-action protocol letter, annexing a number of documents including copies of the refusal decisions referred to above, and drawing the respondent’s attention to the fact that A1 had been granted Humanitarian Protection in 2005. It was also pointed out that A1 had been granted Indefinite Leave to Remain in 2011. The pre-action protocol letter was copied to the Greek Government’s Dublin Unit.
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There was no substantive response to the pre-action protocol letter and on 6 December 2017, this application was lodged, containing a request for...
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