Upper Tribunal (Immigration and asylum chamber), 2020-06-23, [2020] UKUT 227 (IAC) (R (on the application of BAA and Another) v Secretary of State for the Home Department (Dublin III: judicial review; SoS’s duties))
| Jurisdiction | UK Non-devolved |
| Judge | The Hon. Mr Justice Lane, President |
| Status | Reported |
| Date | 23 June 2020 |
| Published date | 17 July 2020 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Subject Matter | Dublin III: judicial review; SoS’s duties |
| Hearing Date | 22 May 2020 |
| Appeal Number | [2020] UKUT 227 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
R (on the application of BAA and Another) v Secretary of State for the Home Department (Dublin III: judicial review; SoS’s duties) [2020] UKUT 00227 (IAC)
THE IMMIGRATION ACTS
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Heard at Field House by Skype for Business |
Judgment promulgated |
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On 21 and 22 May 2020 |
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………………………………… |
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
(1) Article 17(2) of Regulation 604/2013 of the European Parliament and of the Council (“Dublin III”) confers a discretion on a Member State to examine an application for international protection “in order to bring together any family relations, on humanitarian grounds, based on family or cultural considerations”. Although the discretion is wide, it is not untrammelled: R (HA & others) (Dublin III; Articles 9 and 17.2) [2018] UKUT 297 (IAC). As in the case of any other discretionary power of the Secretary of State in the immigration field, Article 17(2) must be exercised in an individual’s favour, where to do otherwise would breach the individual’s human rights (or those of some other person), contrary to section 6 of the Human Rights Act 1998.
(2) The Secretary of State’s Article 17(2) decisions are susceptible to “ordinary” or “conventional” judicial review principles, of the kind described by Beatson LJ in ZT (Syria) v SSHD [2016] 1 WLR 4894 as “propriety of purpose, relevancy of considerations and the longstop Wednesbury unreasonableness category” (para 85).
(3) Where a judicial review challenge involves an allegation of violation of an ECHR right, such as Article 8, it is now an established principle of domestic United Kingdom law that the court or tribunal must make its own assessment of the lawfulness of the decision, in human rights terms. If, in order to make that assessment, the court or tribunal needs to make findings of fact, it must do so.
(4) Nothing in paragraphs (1) to (3) above is dependent upon Article 27 (remedies) of Dublin III applying to the facts of the case. Nevertheless, what the Upper Tribunal held in R (MS) (Dublin III; duty to investigate) [2019] UKUT 9 (IAC) regarding the scope of Article 27 is correct and nothing in the Court of Appeal judgments in MS [2019] EWCA Civ 1340 suggests otherwise. The reference to a “transfer decision” in Article 27 encompasses a refusal to take charge of a Dublin III applicant. That includes a refusal to take charge under Article 17(2).
(5) It would be remarkable if the Secretary of State’s investigatory responsibilities were materially narrower in an Article 17(2) case which concerns an unaccompanied minor and his or her best interests, than they would be in respect of any other take-charge request under Dublin III. Where the request under Article 17(2) raises issues that involve an asserted family life within Article 8 ECHR/Article 7 of the Charter of Fundamental Rights, then, in the normal course of events, the Secretary of State’s degree of engagement with the relevant United Kingdom local authority should be no less than in the case of any other unaccompanied minor, where the take-charge request is made under Article 8 of Dublin III on the basis that the relation in the United Kingdom is a sibling or a “family member” or “relative” as defined.
(6) Even in Article 17(2) cases, the principles of procedural fairness may mean that the Secretary of State may be required to provide an indication or gist to an applicant or his alleged United Kingdom relation, of matters of concern that may lead to a refusal to take charge of the applicant: R v SSHD ex parte Fayed [1998] 1 WLR 763; R (Balajigari) v SSHD [2019] 1 WLR 4647. This is, however, an area where one cannot lay down hard and fast rules. Even where Article 8 ECHR is in play, there may be exceptions. Furthermore, the process must not become so elaborate as to defeat the aim of expeditious decision-making, particularly where the best interests of minors are concerned.
(7) The references to “exceptional circumstances” in the Secretary of State’s Dublin III Guidance (18 April 2019) do not render the Guidance unlawful. Those working in the immigration field know that the use of “exceptional” in the context of Article 8 ECHR is not to be used as setting a particular (high) threshold but, rather, as predictive of the outcome of the application of the principles of proportionality to the facts of a particular case. Nothing in the Guidance suggests its author is telling caseworkers to do anything other than follow the settled law on this topic.
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
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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.
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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.
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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.
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In the event I decided to admit both statements. Whilst cognisant of the need to maintain the...
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