Upper Tribunal (Immigration and asylum chamber), 2020-06-23, JR/00467/2020

 
FREE EXCERPT

Case Number: JR/467/2020


Upper Tribunal

(Immigration and Asylum Chamber) Case Number: JR/467/2020 (P)



THE IMMIGRATION ACTS



Heard at Field House by Skype for Business

Judgment promulgated

On 21 and 22 May 2020



…………………………………


Before


THE HON. MR JUSTICE LANE PRESIDENT



Between


The Queen on the application of

BAA (a child by his litigation friend, taa)

TAA

(ANONYMITY DIRECTION MADE)

Applicants

and


THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent



Representation:

For the Applicants: Ms M Knorr Counsel, instructed by Bhatt Murphy Solicitors

For the Respondent: Ms H Masood Counsel, instructed by the Government Legal Department



JUDGMENT


Covid-19: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10.30 a.m. on Tuesday 23 June 2020


A. INTRODUCTION


  1. The first applicant, BAA (“A1”) is an unaccompanied asylum-seeking child (now aged 17). He left Syria, the country of his nationality, making his way to Greece, where he currently resides in a hostel.

  2. A1 claimed asylum in Greece. He told the authorities there that he had been forcibly recruited at the age of 13 to fight with the Kurdish Army against ISIS. A1 said he was ill-treated by the Kurdish Forces.

  3. On 7 October 2019, Greece requested the United Kingdom to take charge of A1’s asylum claim, pursuant to Article 17(2) of regulation 604/2013 of the European Parliament and of the Council (the Dublin III regulation). The request stated that A1’s cousin, TAA (“A2”) resides in the United Kingdom and that A1 wished to be reunited with him.

  4. The respondent refused Greece’s request on 5 November 2019. Greece asked the respondent to reconsider. Having done so, the respondent again refused on 16 January 2020 to exercise her discretion under Article 17(2). Greece made a further request for reconsideration. The respondent considered that this request was not formally within the scope of the Dublin III Regime. The respondent told Greece “your request for re-examination is an invalid request. Nonetheless, the UK has taken this opportunity to consider the evidence provided to her and reassess her previous decisions to date in the form of a supplementary response”. The outcome was, however, that the respondent refused again to take responsibility pursuant to Article 17(2) for the consideration of A1’s asylum claim and, thus, for A1 to be transferred to the United Kingdom for that purpose.

  5. On 3 February 2020, the applicants filed an application for judicial review of the respondent’s decisions of November 2019 and January 2020. Permission to bring judicial review proceedings was granted by the Upper Tribunal on 18 March 2020. By consent, the grounds of application were subsequently amended in order to encompass a challenge to the respondent’s decision of April 2020.

  6. Certain other elements of the amended grounds were not agreed by the respondent but, by order dated 4 May 2020, I gave the applicants permission to rely upon the amended grounds, as submitted.



B. THE HEARING

  1. The hearing took place on 21 and 22 May 2020, by means of Skype for Business. I conducted the hearing from court 4 at Field House. Counsel, A2 and members of the public attended remotely via video. Although there were some intermittent issues regarding sound on 21 May, no substantial technical problems were encountered during the hearing and I am satisfied counsel were able to make their respective cases by the chosen means. I am grateful to Ms Knorr and Ms Masood for their detailed and clear oral and written submissions.

  2. At the hearing, Ms Knorr, on behalf of the applicants, applied for permission to adduce a witness statement of A2 (who had already produced two such statements). This latest statement seeks to address two matters: the contention in Ms Masood’s skeleton argument that A2 had met A1 for the first time in Greece in June 2019; and that A1 was recorded by the Greek authorities as saying that A1 was 2 years old when A2 left Syria.

  3. For the respondent, Ms Masood objected to the introduction of A2’s third statement. I decided de bene esse to admit this statement and to rule later on its admissibility.

  4. Ms Masood applied for permission to adduce a supplementary witness statement of Ms Julia Farman of the European Intake Unit, UK Visas and Immigration, in which Ms Farman seeks to explain the policy of the EIU, with regard to requests under Article 17(2) on whether and, if so, when the EIU would request a family assessment from a relevant local authority in the United Kingdom. Although Ms Knorr did not formally object to the admission of Ms Farman’s supplementary statement, I decided to treat it in the same way as the third witness statement of A2.

  5. In the event I decided to admit both statements. Whilst cognisant of the need to maintain the requisite degree of procedural rigour in judicial review proceedings, I decided to admit the statements, in the light of my conclusion that Article 27 of Dublin III applies, so as to ensure that the requirements of EU Law for the proceedings to provide an “effective remedy” for proper compliance with Dublin III; but that, in any event, the proceedings involve the determination of human rights within the ambit of ECHR Article 8/Charter of Fundamental Rights Article 7. I concluded that neither the applicants nor the respondent were, thereby, placed at any procedural disadvantage.



C. LEGISLATION AND GUIDANCE

  1. The Annex to this judgment sets out the relevant provisions of the Dublin III Regulation, the two Implementing Regulations and the Home Office Guidance on Dublin III.



D. LEGAL ISSUES

  1. Before embarking upon an examination of the detailed grounds of challenge to each of the three decisions of the respondent, it is necessary to address a number of general issues.



(1) The nature of Article 17(2) and its place within the Dublin III system

  1. Article 7 of Dublin III establishes a hierarchy of criteria. At the top of that hierarchy sit unaccompanied minors. Article 8 provides that where a family member or a sibling of the unaccompanied minor is legally present in a Member State, it is that Member State which shall be responsible for examining the minor’s application for international protection. “Family members” are defined by Article 2. Article 8 provides that it must be in the best interests of the minor to have his or her claim examined by the Member State in which such a family member or sibling is legally present.

  2. Article 8(2) places responsibility (again, subject to the best interests of the minor) on the State in which a relative is legally present, where that relative can take care of the minor. Article 2 defines “relative” as the applicant’s adult aunt or uncle or grandparent (subject to certain procedural requirements).

  3. The effect of Article 8(4) is that, in the absence of a family member, sibling or relative, the Member State responsible for the examination of the minor’s application for international protection shall be the one where the unaccompanied minor has lodged their application; again, provided that is in the best interests of the minor.

  4. Importantly, as Ms Knorr points out, Article 8(4) departs significantly from the mechanism of Dublin III, as it applies to adults, in that an unaccompanied minor who has been present in Member State A but who travels to Member State B and makes an application there, is not subject to any general requirement to return to Member State A in order to have the application considered.

  5. Article 17(2) concerns a request by one Member State to another for that other Member State to exercise its discretion to examine an application for international protection, whether made by a minor or adult, “in order to bring together any family relations, on humanitarian grounds based in particular on family or cultural considerations”. This judicial review is concerned with the respondent’s decision-making under Article 17(2).

  6. The expression “family relations” is undefined in Dublin III. It is clearly wider than “family members” and “relative”. It does, however, require there to be some relationship that is of a “family”, as opposed to merely a social, nature. This is so, even though Article 17(2) goes on to speak about the humanitarian grounds for bringing together the family relations being based on “family or cultural considerations”.

  7. The words “even where that other Member State is not responsible under … Articles 8 to 11 and 16” make it plain that, although “family relations” can include “family members” and “relatives”, Article 17(2) is not to be invoked in their cases, since they are covered in the hierarchy set out in those other Articles.

  8. ...

To continue reading

REQUEST YOUR TRIAL