Upper Tribunal (Immigration and asylum chamber), 2021-09-15, JR/00482/2021
| Jurisdiction | UK Non-devolved |
| Date | 15 September 2021 |
| Published date | 28 September 2021 |
| Hearing Date | 03 August 2021 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/00482/2021 |
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R (on the application of AA) v SSHD |
|
JR/482/2021(V) |
Case No: JR/482/2021(V)
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
15th September 2021
Before:
UPPER TRIBUNAL JUDGE JACKSON
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Between:
THE QUEEN
on the application of
AA (by his litigation friend RA)
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Ms R Chapman and Eva Doerr
(instructed by Bindmans LLP), for the Applicant
Mr S P G Murray
(instructed by the Government Legal Department) for the Respondent
Hearing date: 3rd August 2021
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J U D G M E N T
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Anonymity Direction
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/269) we make an anonymity order. Unless the Upper Tribunal or a Court directs otherwise, no report of these proceedings or any form of publication thereof shall directly or indirectly identify the Applicant or any family members. This direction applies to, amongst others, all parties. Any failure to comply with this direction could give rise to contempt of court proceedings.
Judge Jackson:
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This has been a remote hearing which has not been objected to by the parties. The form of remote hearing was by video, using Teams. There were no audio or visual difficulties during the course of the hearing. A face to face hearing was not held to take precautions against the spread of Covid-19 and as all issues could be determined by remote means. The file contained the papers in hard copy, with two supplementary documents being available electronically during the course of the hearing.
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The Applicant challenges the decision of the Respondent dated 26 February 2021 to refuse to accept a take charge request (“TCR”) made by the Republic of Greece pursuant to Article 17.2 of EU Regulation 604/2013 of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (the “Dublin III Regulation”).
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The Applicant claims to be a stateless Bidoon from Kuwait with a date of birth of 15 April 2003, who sought to join his elder brother (the “Sponsor”) in the United Kingdom and to have his asylum claim determined here. The Sponsor lives here with status as a refugee together with his wife and another brother. The Applicant claims to have fled Kuwait in December 2019, arriving on the island of Samos in Greece on or around 12 December 2019 and his asylum claim was registered there on 15 June 2020 (although he was seen earlier by the authorities there) as an Iraqi national with a date of birth of 1 October 2000. Following his asylum interview on 30 November 2020, the Applicant’s nationality has been amended to show his claim to be stateless, but the Greek authorities have not accepted the Applicant’s claimed date of birth in 2003, a matter which remains in dispute.
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The TCR request was made under Article 17 of the Dublin III Regulation, which provides as follows:
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By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation. …
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The Member State in which an application for international protection is made and which is carrying out the process of determining the Member State responsible, or the Member State responsible, may, at any time before a first decision regarding the substance is taken, request another Member State to take charge of an applicant in order to bring together any family relations, on humanitarian grounds based in particular on family or cultural considerations, even where that other Member State is not responsible under the criteria laid down in Articles 8 to 11 and 16. The persons concerned must express their consent in writing.
The request to take charge shall contain all the material in the possession of the requesting Member State to allow the requested Member State to assess the situation.
The requested Member State shall carry out any necessary checks to examine the humanitarian grounds cited, and shall reply to the requesting Member State within two months of receipt of the request … A reply refusing the request shall state the reasons on which the refusal is based.
Where the requested Member State accepts the request, responsibility for examining the application shall be transferred to it.
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The Dublin III Regulation ceased to have effect in the United Kingdom on 1 January 2021 by virtue of regulation 54 and paragraph 3(h) of schedule 1 of the Immigration, Nationality and Asylum (EU Exit) Regulations 2019; albeit paragraph 9 of the same provided for transitional provisions to allow considerations of TCR requests made prior to 1 January 2021 which were still awaiting determination at that date. It is important to note that the transitional provisions do not make any provision for a new TCR request, request for reconsideration of or actual reconsideration of a refusal of a TCR request made on or after 1 January 2021.
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To determine this application for Judicial Review, it is necessary to consider in some detail the evidence that was before the Respondent at the time of the decision, as well as evidence which is available to the Upper Tribunal in the course of this application for Judicial Review, which includes evidence which existed at the date of decision but was not before the Respondent and evidence which post-dates the decision. I set this out below, including the detail of the decision under challenge and the Respondent’s pre-action response.
Evidence before the Respondent at the date of decision
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In the decision letter dated 26 February 2021, the Respondent states that the following evidence submitted alongside the TCR was considered and/or is expressly referred to in the decision:
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UK Sponsor’s bank statement, his tenancy agreement, his residence permit, his GBR passport.
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Family photo.
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The Applicant’s Memorandum and Social Report dated 17 December 2020.
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Sponsor’s written consent dated 23 December 2020.
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Extract from response from the Greek authorities dated 28 January 2021 as to the Applicant’s age.
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Completed form from the Sponsor dated 22 January 2021.
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Money transfer receipts dated 19 October 2020, 11 December 2020, 28 January 2021 and 26 August 2020.
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The decision letter includes multiple references to a family photo, but only one has been included with the papers in this application for Judicial Review, which shows three individuals, in submissions said to be the Sponsor, the Applicant and their sister (whose face has been blacked out). There is no further identification of those in the photograph and no details as to when or where it was taken.
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In the written statement of Mr A Tomlinson dated 26 May 2021 and made on behalf of the Respondent, paragraph 6 provides additional confirmation of the documents and evidence available to the decision maker at the time of the decision dated 26 February 2021 as follows:
“6. To assess the relationship between [the Applicant] and [the Sponsor], the original decision maker would have had access to all the documentation that was received with the TCR which had been e-mailed by the Greek Authorities on 30 December 2020 (email and TCR now produced as AT1). That being: [the Applicant’s] written consent (dated 23 December 2020 – now produced as AT20, [the Sponsor’s] written consent (dated 23/12/2020, which is at page 19 of R/B), the memorandum from the [Applicant’s] Greek lawyer (page 72 of the Applicant’s bundle), [the Applicant’s] “Praksis” social report dated 17/12/2020 which is at page 16 of R/B), a eurodac form for [the Applicant], [the Sponsor’s] bank statements, [the Sponsor’s] tenancy agreement, a picture of [the Applicant], contact details for [the Sponsor], [the Sponsor’s] residence permit, [the Sponsor’s] ID card, a family photo, [the Sponsor’s] statement of evidence form relating to his asylum application, a birth certificate for HRA, a birth certificate for AA (dated 25/04/2019), [the Sponsor’s] curriculum vitae, HA’s residence permit, and HA’s EDF energy account information.”
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The ‘Memorandum’ is a document dated 21 December 2020, written by Romanos Stivaktakis, an authorized lawyer in Greece who is the Applicant’s legal representative there. This document describes the Applicant as a stateless Bidoon from Kuwait, of Arab ethnicity, Muslim and an unaccompanied minor “registered to be born on 01/10/2000, but his real date of birth is the 15/04/2003” and due to his statelessness he does not possess any document. The Applicant’s family in Kuwait was set out, together...
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