Upper Tribunal (Immigration and asylum chamber), 2016-05-24, [2016] UKUT 231 (IAC) (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 Regulation – investigative duty) (IJR))
| Jurisdiction | UK Non-devolved |
| Judge | The Honourable Mr Justice McCloskey, President, Upper Tribunal Judge Peter Lane |
| Status | Reported |
| Date | 24 May 2016 |
| Published date | 26 May 2016 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 21 April 2016 |
| Subject Matter | Calais; Dublin Regulation – investigative duty) (IJR |
| Appeal Number | [2016] UKUT 231 (IAC) |
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 Regulation – investigative duty) IJR [2016] UKUT 00231 (IAC)
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of MK, IK (a child by his litigation friend MK) and HK (a child by her litigation friend MK)
Applicants
v
Secretary of State for the Home Department
Respondent
Before The Honourable Mr Justice McCloskey, President
Upper Tribunal Judge Peter Lane
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In making a decision whether to accept a “take charge” request under the Dublin Regulation, the Secretary of State is obliged to take all material considerations into account and to comply with the “Tameside” duty of enquiry.
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The Dublin Regulation and its sister instrument, Commission Regulation (EC) 1550/2003, subject the Secretary of State to duties of enquiry, investigation and evidence gathering. The discharge of these duties will be factually and contextually sensitive and is governed by the principle that the Secretary of State is obliged to take reasonable steps.
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In a context where there are successive “take charge” requests and successive decisions in response thereto, the aforementioned duties apply throughout.
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The aforementioned duties may also arise via the procedural dimension of Article 8 ECHR, under Section 6 of the Human Rights Act 1998.
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The principles rehearsed above may give rise to a remedy comprising a mandatory order requiring the Secretary of State to take all reasonable steps and use her best endeavours in certain specified respects.
Application for judicial review: substantive decision
Having considered all documents lodged and having heard the parties’ respective representatives, Ms C Kilroy and Ms M Knorr, both of counsel, instructed by Bhatt Murphy Solicitors, on behalf of the Applicants and Mr B Keith, of counsel, instructed by the Government Legal Department, on behalf of the Respondent at a hearing at Field House, London on 21 April 2016.
Decision: the Applicants are granted permission to apply for judicial review, the application for judicial review succeeds and the Applicants are granted relief in the terms set forth in [54] of this judgment
McCLOSKEY J
Anonymity
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All of the Applicants have been granted anonymity on account of the ages and vulnerabilities of the second and third Applicants. Thus any communication or publication which either identifies any of the Applicants or could have this effect is prohibited and, if occurring, may have adverse consequences, including contempt action.
Introduction
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There is one contentious issue, of not less than fundamental importance, as between the Applicants and the Respondent, the Secretary of State for the Home Department (the “Secretary of State”). It is asserted that the first Applicant (MK) is the mother of the second and third Applicants (IK and HK), both teenagers. The Secretary of State is not persuaded by this assertion. This disbelief has formed the cornerstone of the decision making lying at the heart of these proceedings. By this challenge the Applicants invite the Upper Tribunal to intervene and grant appropriate relief.
The Applicants’ Case
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The Applicants claim to be nationals of Iraq. It is asserted that the second and third Applicants, IK and HK, resided in “the jungle” in Calais, France for a period of some 2 ½ months, dating from September 2015, subsequent whereto they have been living with a local French family pursuant to a species of fostering arrangements.
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The first Applicant, MK, who is said to be their mother, has been residing lawfully in the United Kingdom pursuant to a grant of indefinite leave to remain, having been recognised as a refugee in March 2010. Throughout her sojourn in the United Kingdom she has lived with three of her seven living children (one daughter having died in Iraq) whose ages range from 6 to 16 years. She has since given birth to a further son, aged one year. IK, a male and HK, a female, aged 17 and 15 years respectively are said to be the second and fourth oldest of her children.
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In her witness statements MK describes a troubled marriage to her first husband, who died around 2006. In February 2007 MK and her children travelled from Iraq to Syria. It appears that her deceased husband’s mother, who was consistently hostile to her, continued to form part of their lives. In circumstances of threat and coercion, her mother in law (it is claimed) took IK and HK from MK, warning that they would not be seen by MK again. In one of her witness statements MK recounts:
“I thought I had lost [IK and HK]. I thought that I would never see them again. I cannot describe how painful, as a mother, it was to lose them like this. …..
I would not talk about them and if one of the other children started to talk about them I would change the subject.”
MK claims that she and her remaining children left Syria in November 2009 and, aided by so-called people smugglers, reached the United Kingdom on 23 December 2009. On 09 March 2010 she and her three accompanying children were granted asylum.
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In the events which have occurred, a single aspect of MK’s asylum interview, conducted on 16 February 2010, has evolved into a matter of critical importance. In the course of questioning about the family’s life in Syria, the following exchange occurred:
“Did your children live with you?
Yes, I had five kids, only three are here. I don’t know where my eldest son is, my daughter died before she was two.”
The decisions on behalf of the Secretary of State precipitating these proceedings are contained in successive letters, both dated 12 February 2016, addressed to the relevant French authorities. These letters were responding to a formal request that the United Kingdom “take charge” of IK and HK under the regime of Council Regulation (EU) No 604/2013 (hereinafter the “Dublin Regulation”). The letters are in all material respects identical and include the following key passages:
“You have stated that the mother of [IK and HK] lives in the United Kingdom and has status here ….
I have to inform you that I have studied the original documents and interview statements made by [MK] in her asylum application in 2010 and compared them with the statements attached to your formal request. I regret that I am unable to reconcile the family statements given in 2010 to [sic] those given in 2016 ….
Therefore, unless further evidence of the family relationship, such as a DNA match, is received, I regret to inform you that your request to take charge of the above named is respectfully denied.”
[Emphasis added.]
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Resuming the narrative, it is asserted by IK and HK that, following the separation from their mother (MK) and siblings in Syria, they remained with their paternal grandmother, living in Iraq. Some two years later, in 2012, due to the deteriorating situation in Iraq, the three of them went to live in Turkey. In early 2015 their paternal grandmother died. IK and HK then travelled to Izmir where they made contact with an aunt who, in turn, communicated with their mother. Subsequently, arrangements were made for IK and HK to travel to Europe, following which their sojourn in Calais began.
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Communications among the three Applicants had been restored by the time they met with their United Kingdom solicitors in November 2015. Events during this phase included a meeting attended by MK and the solicitor concerned. In the solicitor’s witness statement, the following is recounted:
“[MK] had given up hope of seeing [IK and HK] again. [MK] expressed her very strong wish to be reunited with [them]. She said she would do anything to be able to hold her children again. She asked me to do all I can to make this happen as soon as possible.”
In the aforementioned context family photographs said to depict (inter alios) IK and HK were provided by IK to his legal representatives.
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The evidence includes quite detailed accounts provided by IK and HK reproduced in two reports of a consultant child and adolescent psychiatrist. The accounts contained in the reports are, in many respects, in substance consistent with the case made by MK in her asylum interview and her more recent witness statements, generated in the context of these proceedings. In this context it is also appropriate to highlight the evidence suggesting daily telephone contact among the three Applicants since communications were reinstated some months ago. At this juncture we mention also the expert psychiatric assessment that IK and HK are suffering from significant psychological disorders. As regards IK, the expert states:
“[’His] overwhelming need is for reunification with his family, to be relieved of the...
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