Upper Tribunal (Immigration and asylum chamber), 2017-03-08, [2017] UKUT 124 (IAC) (R (on the application of RSM and Another) v Secretary of State for the Home Department (Unaccompanied Minors – Art 17 Dublin Regulation – remedies))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice McCloskey, President, Upper Tribunal Judge Finch |
| Status | Reported |
| Date | 08 March 2017 |
| Published date | 07 August 2017 |
| Hearing Date | 19 December 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Unaccompanied Minors – Art 17 Dublin Regulation – remedies |
| Appeal Number | [2017] UKUT 124 (IAC) |
R (on the application of RSM and Another) v Secretary of State for the Home Department (unaccompanied minors – Art 17 Dublin Regulation – remedies) [2017] UKUT 00124 (IAC)
The Queen on the application of RSM, a child by his litigation friend ZAM
and ZAM
Applicants
v
Secretary of State for the Home Department
Respondent
Before The Hon Mr Justice McCloskey, President
Upper Tribunal Judge Finch
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The question of whether the Secretary of State has made a decision on the exercise of the discretionary power in Article 17 of the Dublin Regulation is one of fact which will be determined on the basis of evidence, direct or inferential.
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Article 17 is an integral part of the Dublin regime. The suggestion that the Article 17 discretion falls to be exercised only where the family reunification criteria in Article 8 are not satisfied is misconceived.
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Article 17 has a role in circumstances where one of the overarching values of the Dublin Regulation, namely expedition, is not being fulfilled in the procedures and systems of the host Member State.
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Relevant government policy statements constitute, as a minimum, material considerations to be taken into account in deciding whether to exercise the discretionary power in Article 17. The Lumba principle is also engaged.
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The judicial assessment of the efficacy of the Dublin systems and procedures in the host Member State will invariably be fact sensitive and will take into account the overarching aims and objectives of the Dublin Regulation, including the maintenance of inter-Member State solidarity and mutual trust and respect, together with expedition.
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Expedition has special force in the case of unaccompanied children.
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The discretion to judicially determine essentially academic issues in judicial review proceedings will normally be informed by the overriding objective.
JUDGMENT
McCloskey J
Introduction
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We emphasise at the outset that both Applicants continue to have the protection of anonymity and reproduce below the extant Tribunal Direction. Accordingly, no report of these proceedings or any communication whatsoever shall directly or indirectly identify either of the Applicants or any member of their family.
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These judicial review proceedings were conducted in two orthodox phases. First, there was an inter-partes hearing on 05 December 2016 when the issue of permission was determined. By our ex tempore decision and order of the same date (subsequently formalised: see Appendix 1), we granted the Applicants permission to apply for judicial review and made certain directions.
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An inter-partes substantive hearing followed, on 19 December 2016. By our ex tempore decision and order of the same date (subsequently formalised – see Appendix 2), the Applicants were held to have succeeded. The order made by the Tribunal against the Respondent, the Secretary of State for the Home Department (the “Secretary of State”) was formulated thus:
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The Secretary of State is hereby ordered to admit the first Applicant, RSM, to the United Kingdom.
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It is hereby declared that there has been a failure by the Secretary of State to lawfully exercise the discretion conferred by Article 17 of the Dublin Regulation.
Most recently, further orders have materialised, under the rubric of liberty to apply: see Postscript.
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None of the aforementioned decisions/orders sets forth fully the Tribunal’s reasoning and analysis. The second decision in particular could not be delayed having regard to the facts and factors which underlay the Tribunal’s conclusion that the Applicants must succeed. The Tribunal made clear to the parties that it would provide a comprehensive judgment if necessary, particularly in the event of the Secretary of State seeking permission to appeal to the Court of Appeal. An application of this kind having materialised, the Tribunal hereby honours its commitment. While this may regrettably entail some degree of repetition, this seems to us unavoidable.
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Judicial review proceedings are frequently, but not invariably, conducted within a framework of agreed and/or uncontroversial or neutral facts. This does not always apply to cases of the present species, mainly on account of the factor of expedition and the resulting limited opportunity of the Respondent, the Secretary of State for the Home Department (the “Secretary of State”), to carry out appropriate investigations. Thus, as in previous cases of this kind, we shall address infra the question of whether the key factual ingredients of the Applicants’ case have been established to the requisite degree
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While there was a clear and obvious need for expedition in these proceedings, the Tribunal was able to devise case management mechanisms, both prior to the permission hearing and by creating a post-permission phase in advance of the substantive hearing, which furthered two imperatives. First, the Applicants and their legal representatives were enabled to augment the evidence presented initially to the Tribunal. Second, the Secretary of State was afforded a reasonable opportunity to make an evidential contribution and, in the event, a not insubstantial contribution materialised. Notably, at the final stage of the proceedings, namely the substantive hearing, there was no suggestion on behalf of the Secretary of State of unfairness on account of excessive haste.
RSM’s Background
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It is asserted that the first Applicant, RSM, is a national of Eritrea, aged 14 years and has been residing in Rome since April 2016, having fled his country of origin and, subsequently, Yemen with his mother and younger brother who, tragically, lost their lives (with many others) whilst attempting the journey by sea from Egypt to Italy. The second main assertion in the Applicants’ case is that the second Applicant is his adult aunt who, having previously been recognised as a refugee and having acquired British citizenship, lives in the United Kingdom and is willing and able to receive the first Applicant and care for him.
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RSM’s case possesses the following additional factual ingredients. He had an uneventful childhood in his country of origin, Eritrea, where the family unit included his mother and younger brother, during his first 10 years approximately. The family fled Eritrea, travelling to Yemen where they lived for approximately 3 years. War having broken out in Yemen, they then fled to Sudan and onward to Egypt, accompanied by an older relative, his father’s first cousin.
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Following a sojourn of some three months in Egypt, all four arranged to travel by sea to Italy. A sudden and unplanned separation from his mother and brother having intervened, RSM and father’s cousin made the hazardous crossing successfully. Soon thereafter, contact by telephone having been maintained in the intervening period, RSM’s mother and younger brother died in June 2016 by drowning in undertaking the same journey. They and many others lost their lives in one of the refugee maritime tragedies which have, sadly, become so commonplace during the last couple of years. This happened some weeks following RSM’s arrival in Italy and, inevitably, had a devastating effect on this then 13 year old boy.
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RSM was initially accommodated in a Rome refugee camp following his arrival around April 2016. There he shared a room with an Eritrean woman and another child, as a short term measure. His status being that of unaccompanied minor, though not thus recognised initially, a change in his accommodation arrangements was effected in September 2016. Since then, he has been accommodated in two State registered children’s homes. This has been his plight during the last four months approximately. The evidence concerning his conditions and circumstances there is both balanced and well researched. Furthermore, it is uncontentious and we accept it. The adult relative who had accompanied RSM on his journey by sea from Egypt to Italy remained with him for a period. Being unplanned, this was a temporary measure. They were separated when RSM was transferred to the children’s home. In his witness statement the relative says the following:
“Things have been very difficult for [RSM]. …… He has lost his mother and younger brother and all that he has known. He is now separated from me and is not with family ….. [He] is desperate to be reunited with his aunt and her family and it is all...
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