Upper Tribunal (Immigration and asylum chamber), 2021-05-12, JR/06069/2019
| Jurisdiction | UK Non-devolved |
| Date | 12 May 2021 |
| Published date | 19 May 2021 |
| Hearing Date | 09 November 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/06069/2019 |
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In the Upper Tribunal (Immigration and Asylum Chamber) Judicial Review |
JR/6069/2019 |
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In the matter of an application for Judicial Review |
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The Queen on the application of AI |
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(a child by his litigation friend IN) |
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Applicant |
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Versus |
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Secretary of State for the Home Department |
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Respondent |
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ORDER |
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BEFORE Upper Tribunal Judge Frances
HAVING considered all documents lodged and having heard Ms C Kilroy Q.C. and Ms V Laughton of counsel, instructed by Simpsons Millar, for the applicant and Mr Pennington- Benton of counsel, instructed by GLD, for the respondent at a remote hearing on 9 November 2020 which has been consented to by the parties. The form of the remote hearing was video by Skype. A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing.
UPON the Respondent having conceded that the delay from 14 July 2019 to 28 July 2020 comprised unlawful delay in breach of Dublin III.
AND UPON judgment being handed down on 10 May 2021.
IT IS ORDERED THAT:
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The application for judicial review is allowed in so far as there has been unlawful delay in transferring the applicant to the UK in breach of Dublin III.
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The applicant’s claim that the respondent breached his Article 8 ECHR rights is dismissed for the reasons given in the attached judgment.
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The applicant’s claim for damages for breach of Regulation (EU) No 604/2013 is dismissed.
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Permission to appeal is refused because there is no arguable error of law in the decision dismissing the applicant’s claims for breach of Article 8 ECHR and damages for the reasons given at [104] and [105] of the judgment.
Costs
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The respondent conceded at the start of the hearing on 9 November 2020 that there had been an unlawful delay of over 12 months in breach of Dublin III. The applicant succeeded in that respect. The applicant’s claim for breach of Article 8 ECHR and his claim for Francovich damages was dismissed.
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The respondent to pay the applicant’s reasonable costs prior to and including the hearing on 9 November 2020, subject to detailed assessment if not agreed. The cost of the hearing had already been incurred at the time of the concession and could have been reduced or avoided if the respondent had notified the applicant of the concession prior to the hearing.
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The applicant to pay the respondent’s reasonable costs from 10 November 2020 to date, subject to the costs protection pursuant to section 26(1) of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and Reg. 12 of the Civil Legal Aid (Costs) Regulations 2013.
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There be a detailed assessment of the applicant’s publicly funded costs.
Signed: J Frances
Upper Tribunal Judge Frances
Dated: 10 May 2021
The date on which this order was sent is given below
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 12 May 2021
Solicitors:
Ref No.
Home Office Ref:
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR/6069/2019
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
10th May 2021
Before:
UPPER TRIBUNAL JUDGE FRANCES
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Between:
THE QUEEN
on the application of AI
(a child by his litigation friend IN)
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Ms C Kilroy Q.C. and Ms V Laughton
(instructed by Simpson Millar) for the applicant
Mr R Pennington-Benton
(instructed by the Government Legal Department) for the respondent
Hearing date: 9th November 2020
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J U D G M E N T
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Judge FRANCES:
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The applicant challenges the respondent’s refusals, dated 16 January 2019 and 22 July 2019, of a take charge request [TCR] made on 14 November 2018 and the delay in transferring the applicant to the UK under Article 8.2 of EU Regulation 604/2013 [Dublin III]. The applicant was transferred to the UK on 28 July 2020.
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It is the applicant’s case that the refusals were unlawful and the respondent was in breach of her investigative duties. The delay in transferring the applicant to the UK was unlawful and in breach of the Dublin III time limits. Further, the unlawful delay breached the applicant’s rights under Article 8 of the European Convention of Human Rights [ECHR] and Article 7 of the EU Charter of Fundamental Rights [CFR] informed by the Convention on the Rights of the Child [CRC]. The applicant seeks declarations and damages.
Facts
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The applicant is a national of Burundi who arrived in Greece in June 2018 and registered a claim for asylum on 6 September 2018 when he was 16 years old. On 14 November 2018, Greece made a TCR, on the basis that the applicant’s uncle [IN] lived in the UK and the applicant wished to join him. Greece sent a ‘best interests assessment’ [BIA] on 3 December 2018 and the respondent sent a letter and a pro-forma family undertaking form [proforma] to IN on 10 December 2018. IN responded on 19 December 2018 and the respondent received the proforma on 24 December 2018. Greece sent additional documents (an untranslated birth certificate and father’s identity document) on 9 January 2019. The time limit for accepting the TCR expired on 14 January 2019.
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The respondent refused the TCR on 16 January 2019 on the basis that there was insufficient evidence to demonstrate a family link. Greece made a re-examination request on 6 February 2019 stating that DNA tests would be taken and the results sent to the respondent. On 7 February 2019, Greece sent a family document (untranslated) confirming the family link and asked the respondent if DNA tests were still required.
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On 3 June 2019, Greece sought an update from the respondent. By letter dated 22 July 2019 (sent on 30 July 2019), the respondent refused the TCR (re-examination request), maintaining there was insufficient evidence to establish the claimed family link and stating that a translation was required. On 14 August 2019, Greece sent a further re-examination request with translated documents. This application for judicial review was filed on 6 December 2019. On 27 December 2019, the respondent advised Greece that the family link had been established and a new TCR, under Article 17.2 of Dublin III, should be made. Greece made a second TCR on 10 January 2020.
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On 22 January 2020, the respondent requested a family assessment from the local authority [LA]. The respondent sent two further letters to the LA chasing the family assessment on 17 February 2020 and 4 March 2020. Permission to apply for judicial review was granted on 11 March 2020. The LA expressed concerns about the welfare of other children in IN’s household and requested further details of the applicant. On 23 March 2020, the respondent sent the BIA to the LA. On 26 March 2020, Greece informed the respondent that all flights were suspended due to the outbreak of Covid 19 and the Dublin unit would resume transfers as soon as restrictions were lifted. The respondent received the LA assessment on 30 March 2020 and accepted the TCR on 1 April 2020. The applicant was transferred to the UK on 28 July 2020.
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On 22 October 2020, the respondent applied to stay the proceedings pending hand down of the judgment of the Court of...
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