Upper Tribunal (Immigration and asylum chamber), 2019-08-16, JR/01626/2019
| Jurisdiction | UK Non-devolved |
| Date | 16 August 2019 |
| Published date | 30 October 2019 |
| Hearing Date | 12 June 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/01626/2019 |
JR/1626/2019
Upper Tribunal
Immigration and Asylum Chamber
Heard at Field House
On 12 June 2019
Before
Upper Tribunal Judge Kamara
Between
The Queen (on the application of FwF & FrF
(by his litigation friend NF))
(Anonymity Direction made)
Applicant
v
Secretary of State for the Home Department
Respondent
Application for judicial review: substantive decision
Having considered all documents lodged and having heard the parties’ respective representatives, Ms C Kilroy QC & Ms M Knorr, of Counsel, instructed by Bhatt Murphy Solicitors, on behalf of the Applicants and Mr R Dunlop QC & Ms J Moore, of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 12 June 2019.
Decision: the application for judicial review is granted
The Tribunal has made an anonymity direction and the applicants will be referred to throughout as “FwF and FrF”. The applicants’ brother will be referred to as “NF” and other relatives are similarly anonymised.
Introduction
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The issues in this challenge are threefold. Firstly, whether there was a failure by the Secretary of State to disclose reasons for the Take Charge Request (TCR) refusal and/or to correct the misimpression of the French authorities. Secondly whether the respondent’s delay and failure to accept responsibility for the applicants’ asylum claims was unlawful and in breach of EU law, common law and Article 8 ECHR and thirdly, whether the applicants’ fundamental rights were breached as the United Kingdom was the Responsible Member State by default from 15 January 2019.
Background and Procedural History
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The applicants are nationals of Afghanistan. They are now aged 16 and 18. The applicants were orphaned by early 2014 and left Afghanistan around three years ago with their elder sister who abandoned them during their journey. The applicants arrived in France in December 2017. Thereafter they approached the Red Cross stating that they wished to reunite with their brother NF in the United Kingdom. The applicants came under the care of French social services in January 2018.
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It is accepted that NF is the applicants’ older brother. NF left Afghanistan in the year 2001 and was recognised as a refugee in the United Kingdom in the year 2002. He became a British Citizen in 2008. He is married to SF and they have three children of their own.
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The applicants’ asylum claim was registered by the French authorities on 8 November 2018. France made a ‘Take Charge Request’ (“TCR”) in respect of each applicant to the UK under Art 8(1) of the Dublin III Regulation on 15 November 2018. At this point the applicants were aged 17 and 15.
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On 28 January 2019 the respondent rejected the TCR in relation to FwF. The respondent was not satisfied that NF was FwF’s brother as he claimed. A decision was made to reject the TCR in respect of FrF’s claim, but this decision was not communicated.
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On 1 March 2019, a pre-action protocol letter was sent by Bhatt Murphy Solicitors in which it was argued that the respondent had acted unlawfully in several respects. There appears to have been no response to the said letter.
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On 8 March 2019 sent the Afghan documents relied upon by the applicants to the FCO in Kabul for verification. On or around 23 March 2019, the respondent asked the French authorities to send new TCRs.
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These proceedings were issued on 21 March 2019 on the grounds summarised in [2]. An application for urgent consideration was granted the same day. The applicants sought various orders and declarations.
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The respondent received further TCRs relating to FwF and FrF on 25 March 2019.
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On 29 March 2019, the respondent filed an Acknowledgment of Service and Summary Grounds of Defence.
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Permission was granted on the papers on 4 April 2019 by Upper Tribunal Judge Allen on the following basis.
“The grounds of challenge identify arguable challenges to the failure on the part of the Respondent to accept the Take Charge Requests/give reasons for the refusal. All three grounds may be argued. For the reasons set out in the Reply, I accept that the claim cannot properly be regarded as being academic.”
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On 8 May 2019, the respondent filed Detailed Grounds of Defence. On 22 May 2019, the respondent confirmed that it accepted the relationship between the applicants and NF.
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On 3 June 2019, the respondents informed the French authorities that the TCRs were accepted. The Secretary of State subsequently wrote to Bhatt Murphy Solicitors to state that he considered the applicants’ Dublin III claim to be academic and inviting them to withdraw the claim. An attached skeleton argument explained that the respondent’s view was that part of the second ground was the subject of argument in R (FA (a child by her Litigation Friend HA) and HA) v SSHD, JR/5523/2018; R (TT (a child by her Litigation Friend ST) and ST) v SSHD, JR/5405/2018 and R (AT (a child by her Litigation Friend OT)) v SSHD, JR/5406/2018 (hereinafter referred to as FA & Others) and the remaining grounds had been overtaken by events.
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In a decision sent on 7 June 2019, I gave permission to the applicants to rely on further evidence which was filed on 30 May 2019 and sent in reply to evidence relied upon by the respondent.
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On 10 June 2019, counsel for the applicants forwarded a note on the scope of the substantive hearing, which robustly challenged the respondent’s attempt to dismiss the claim as academic or to restrict the scope of the claim owing to the issues before the Upper Tribunal in FA & Others. Reference was made to four similar cases before this Tribunal in which permission had been granted in circumstances where a TCR had been accepted and where the respondent’s attempts to seek stays had been unsuccessful.
Relevant Legal Framework
The Dublin III Regulation
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Article 8(1) which provides:
“Where the applicant is an unaccompanied minor, the Member State responsible shall be that where a family member or a sibling of the unaccompanied minor is legally present, provided that it is in the best interests of the minor...”
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Article 21 provides, materially, as follows:
“Submitting a take-charge request
Where a Member State with which an application for international protection has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any event within three months of the date on which the application was lodged within the meaning of Article 20(2), request that other Member State to take charge of the Applicant.”
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Article 22 of Dublin III provides, materially, that:
“Replying to a take charge request
1.The requested Member State shall make the necessary checks, and shall give a decision on the request to take charge of an applicant within two months of receipt of the request.
6. Where the requesting Member State has pleaded urgency in accordance with the provisions of Article 21(2), the requested Member State shall make every effort to comply with the time limit requested. In exceptional cases, where it can be demonstrated that the examination of a request for taking charge of an applicant is particularly complex, the requested Member State may give its reply after the time limit requested, but in any event within one month. In such situations the requested Member State must communicate its decision to postpone a reply to the requesting Member State within the time limit originally requested.
7. Failure to act within the two-month period mentioned in paragraph 1 and the one month period mentioned in paragraph 6 shall be tantamount to accepting the request, and entail the obligation to take charge of the person, including the obligation to provide for proper arrangements for arrival.”
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Article 29(1) provides.
“Modalities and time limits
The transfer of the applicant or of another person as referred to in Article 18(1)(c) or (d) from the requesting Member State to the Member State responsible shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the...
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