Upper Tribunal (Immigration and asylum chamber), 2018-07-19, [2019] UKUT 9 (IAC) (R (on the application of MS) (a child by his litigation friend MAS) v Secretary of State for the Home Department (Dublin III; duty to investigate))
| Jurisdiction | UK Non-devolved |
| Judge | Upper Tribunal Judge Grubb, Upper Tribunal Judge Blum |
| Status | Reported |
| Date | 19 July 2018 |
| Published date | 11 January 2019 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 18 May 2018 |
| Subject Matter | Dublin III; duty to investigate |
| Appeal Number | [2019] UKUT 9 (IAC) |
R (on the application of MS) (a child by his litigation friend MAS) v Secretary of State for the Home Department (Dublin III; duty to investigate) [2019] UKUT 00009 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
Heard at Field House
On 17 and 18 May 2018
Before
Upper Tribunal Judge Grubb
Upper Tribunal Judge Blum
Between
The Queen (on the application of MS)
(a child by his litigation friend MAS)
(Anonymity Direction Made)
Applicant
v
Secretary of State for the Home Department
Respondent
Appearances:
For the Applicant: Ms C Kilroy and Ms M Knorr instructed by Bhatt Murphy Solicitors
For the Respondent: Mr G Lewis instructed by Government Legal Department
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A Member State considering a Take Charge Request (“TCR”) made by another Member State under the Dublin III Regulation has a duty to investigate the basis upon which that TCR request is made and whether the requirements of the Dublin III Regulation are met. (R (on the application of MK, IK (a child by his litigation friend MK) and HK (a child by her litigation friend MK) v Secretary of State for the Home Department (Calais; Dublin III Regulation – investigative duty) IJR [2016] UKUT 00231 (IAC) followed).
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The Member State’s duty is to “act reasonably” and take “reasonable steps” in carrying out the investigative duty, including determining (where appropriate) the options of DNA testing in the requesting State and, if not, in the UK (MK, IK explained).
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The duty of investigation is not a ‘rolling one’. The duty does not continue beyond the second rejection, subject to the requirements of fairness (MK, IK not followed).
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Fairness requires that the applicant, even after a second rejection, must know the ‘gist’ of what is being said against him in respect of the application of the criteria relevant to the TCR and must have an opportunity to make representations on the issues and material being relied on if that has not previously been the case. In those circumstances, fairness requires that the respondent consider any representations and material raised (perhaps for the first time) to deal with a matter of which the individual was ‘taken by surprise’ in the second rejection decision. To that extent only, the duty continues and may require the requested State to reconsider the rejection of the TCR.
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In judicial review proceedings challenging a Member State’s refusal to accept a TCR, it is for the court or tribunal to decide for itself whether the criteria for determining responsibility under the Dublin III Regulation have been correctly applied. This may require the court or tribunal to reach factual findings on the evidence and it is not restricted to public law principles of challenge.
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The tribunal or court’s role should not be taken as an open invitation to parties to urge the court or tribunal to review and determine the facts in a Dublin case and, as a concomitant, to admit oral evidence subject to cross-examination. Often there will be no factual dispute: the issue will be a legal one on the proper application of the Dublin III Regulation. Even if there is a factual issue, the need to assess the evidence may not always mean also admitting “oral” evidence subject to cross-examination. It will only be so if it is “necessary in order to resolve the matter fairly and accurately”.
Judgment
UT Judge Grubb:
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This is the judgment of the Tribunal to which both members of the Panel have substantially contributed.
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The Tribunal has made an anonymity direction and the applicant will be referred to throughout as “MS”. The applicant’s claimed brother will be referred to as “MAS” and other relevant witnesses are similarly anonymised.
INTRODUCTION
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The underlying issue in this challenge is whether MAS, who is lawfully present in the UK, is the brother of MS, an unaccompanied minor who has made an asylum application in France. If MS is the sibling of MAS then, under Council Regulation (EU) No 604/2013 (the "Dublin III Regulation"), the UK has responsibility for determining MS’s asylum claim, as long as this is in his best interests.
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Arising from this underlying issue are other issues concerning the proper interpretation of the Dublin III Regulation, and in particular, whether the UK has a duty of investigation once it receives a request from the French authorities to take charge of MS’s asylum application, and the scope of any such duty. This in turn raises issues concerning the scope and power of the Tribunal to order the respondent to use his best endeavours to obtain DNA evidence, and the scope of the Tribunal’s reviewing power.
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Some of these issues were considered by the Upper Tribunal (the “UT”) in R (on the application of MK, IK (a child by his litigation friend MK) and HK (a child by her litigation friend MK) v Secretary of State for the Home Department (Calais; Dublin III Regulation – investigative duty) IJR [2016] UKUT 00231 (IAC) (McCloskey J and UTJ Peter Lane, as he then was) (hereinafter “MK”). The respondent contends that this decision was wrongly decided and should not be followed.
BACKGROUND AND PROCEDURAL HISTORY
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We can set out the background and procedural history to this claim relatively briefly.
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The applicant is a national of Afghanistan. His given date of birth is 1 January 2001. He is, therefore, now 17 years old. The applicant left Afghanistan in 2016 and arrived in France in late 2016. He initially lived in a makeshift camp in Dunkirk. The camp burnt down in April 2017. Thereafter, the applicant was transferred to a children’s centre in Roubaix, and is now residing in an accommodation centre in Armentières.
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MAS, who it is accepted is an Afghan national, entered the United Kingdom on 24 May 2006. He was granted indefinite leave to remain on 21 August 2013. His partner (“MOS”) is a Polish national. They have two children, twins aged two years old, who are British citizens. In addition, MOS has two other children, aged 12 years and 8 years, who live with them. MAS and MOS married on 12 March 2018.
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The applicant contends that MAS is his older brother. Since January 2017 he has been seeking to join MAS in the UK in accordance with the Dublin III Regulation.
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MS made an asylum claim in France on 13 June 2017. Accepting that MS had an older brother in the UK, on 19 June 2017 France made a ‘take charge request’ (“TCR”) to the UK under Art 8(1) of the Dublin III Regulation.
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On 27 July 2017 the respondent refused the TCR. The respondent was not satisfied that MAS was the applicant’s brother as he claimed.
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On 9 August 2017 France made a second TCR. On 21 August 2017, the respondent again refused the TCR on the basis that the applicant had not established he was MAS’ brother.
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The applicant’s solicitors send a pre-action protocol (“PAP”) letter on 3 November 2017 challenging the respondent’s decisions of 27 July 2017 and 21 August 2017. Additional supporting evidence and material was included.
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On 10 November 2017, the respondent responded to the PAP letter maintaining her decisions to refuse the TCRs. At that time no consideration was given to the further evidence and material that had been submitted on the applicant’s behalf.
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On 13 November 2017, the applicant’s solicitors wrote requesting that the respondent consider the material and reconsider his decision not to accept the TCR.
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On 20 November 2017, the applicant lodged these judicial review proceedings challenging the respondent’s decisions not to accept the TCR requests. The applicant sought various orders including orders quashing the decisions of 27 July 2017 and 21 August 2017, a declaration that the respondent’s refusal to admit MS was unlawful and a mandatory order requiring the respondent to admit MS to the UK, to facilitate DNA testing and to remake the decision whether to accept the TCR.
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On 20 November 2017, UT Judge King ordered that the permission application be considered at an oral hearing.
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On 7 December 2017, UT Judge Canavan refused an application made by the applicant to list the application as a rolled-up hearing.
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On 14 December 2017, the respondent filed an Acknowledgment of Service and Summary Grounds of Defence.
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F ollowing an oral hearing on 21 December 2017, UT Judge Freeman granted the application permission to bring these proceedings. He did so in the following terms relying upon MK:
“arguably…the respondent’s investigative duties under the Dublin Convention required her to pursue with the French authorities the possibility of DNA testing being carried out by this applicant solicitor’s, if necessary facilitating obtaining any necessary order by a French judge.”
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UT Judge Freeman also made a number of specific case management directions relating to disclosure (which the applicant’s representatives had expressed concerns over) and, again following MK, specifically that
“The Secretary of State shall (a) take all reasonable steps and use her best endeavours to facilitate and secure the DNA testing of this applicant and shall liaise and communicate as appropriate with the relevant...
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