Upper Tribunal (Immigration and asylum chamber), 2022-08-11, JR/01617/2020
| Appeal Number | JR/01617/2020 |
| Hearing Date | 23 June 2022 |
| Published date | 16 August 2022 |
| Date | 11 August 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
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IN THE UPPER TRIBUNAL (IAC) |
Case: JR/1617/2020; JR-2020-LON-001098 |
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IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW BEFORE THE HON. MRS JUSTICE THORNTON DBE |
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The Queen on the Application of AWG (A child by his litigation friend KWG) |
Applicant |
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SECRETARY OF STATE FOR THE HOME DEPARTMENT |
Respondent |
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FINAL ORDER
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Having considered all documents lodged and having heard, Michelle Knorr of counsel and Hafsah Masood of counsel, at a hearing on 22-23 June 2022;
It is ORDERED that:-
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The application for judicial review is granted, for the reasons set out in the judgment.
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There be declarations that the Respondent’s decisions dated 20 August 2019, 24 October 2019, 19 March 2020 and 13 May 2020 are unlawful and in breach of the common law duty of enquiry, Dublin III, Article 8 ECHR, and Article 7 of the Charter of Fundamental Rights.
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The parties have 12 weeks from the date of this order to try to reach an agreement on damages. If damages are agreed the Applicant is to notify the Tribunal within 7 days of agreement. If damages are not agreed, the issue of damages is to be decided on paper unless on receipt of the parties’ submissions the Court considers an oral hearing is necessary, and:
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The Applicant is to file and serve written submissions on damages, if so advised, within 15 weeks from the date of this order;
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The Respondent is to file and serve written submissions on damages, if so advised, within 21 days of receipt of the Applicant’s submissions on damages;
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The Applicant is to file and serve any Reply to the Respondent’s submissions on damages, if so advised, within 7 days of receipt of the Respondent’s submissions.
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The Respondent do pay the Applicant’s reasonable costs to date to be assessed if not agreed; any future costs reserved.
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The Applicant’s legally aided costs be subject to a detailed assessment.
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Neither party sought permission to appeal to the Court of Appeal and, having considered this issue myself as I am required to do by rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008, I refuse to grant permission as there are no properly arguable points of law raised on the facts of the case.
Case No: JR/1617/2020
JR-2020-LON-001098
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
Before:
THE HON. MRS JUSTICE THORNTON DBE
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Between:
The Queen on the Application of
AWG
(A child by his litigation friend
KWG)
Applicant
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SECRETARY OF STATE FOR
THE HOME DEPARTMENT
Respondent
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Michelle Knorr
(instructed by The Migrants’ Law Project at Islington Law Centre) for the applicant
Hafsah Masood
(instructed by the Government Legal Department) for the respondent
Hearing dates: 22nd and 23rd June 2022
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J U D G M E N T
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The Hon. Mrs Justice Thornton:
Introduction
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The Claimant was, at all material times, an unaccompanied minor. He sought asylum in Italy, in June 2019, on arrival from Eritrea. His adult sister lives lawfully in the UK with her husband, a British citizen. Italy requested the UK take charge of examining his asylum claim pursuant to EU Regulation 604/2013 (the Dublin III Regulation). The Secretary of State refused to do so on four occasions between August 2019 and July 2020, before accepting responsibility approximately 45 weeks later, on 1 July 2020, after which the Claimant was transferred to the UK in August 2020.
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By the end of the hearing, it was common ground that the two grounds of claim requiring resolution by the Court are:
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whether the refusals of the Secretary of State to accept the TCR during the period August 2019 – July 2020 were unlawful in containing public law errors; and
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whether the refusals breached the Claimant’s right to a family life under Article 8 of the European Convention on Human Rights and Article 7 of the EU Charter of Fundamental Rights.
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The Claimant seeks declarations and damages in relation to the refusals and consequent delay in his arrival in the UK. This judgment concerns liability and does not address issues relating to relief and/or damages.
Factual Background
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The Claimant was born on 1 September 2004 in Eritrea. He left Eritrea at the age of 12 years. He arrived in Italy after a long journey from Eritrea, during which time he was detained, beaten and starved in Libya by traffickers. He was taken by UNHCR officials to a government centre in Libya where he waited for around a year until he was transported to Italy as part of an emergency humanitarian evacuation, jointly managed by the UNHCR, the Libyan Ministry of Interior and the Italian Government.
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He arrived in Italy in May 2019 aged 14 years, alone, and was placed in the care of the Italian authorities. He lodged an asylum claim in June 2019. On 1 July 2019, he learnt that his father had died.
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On 19th July 2019 Italy made a ‘Take Charge Request’ (TCR) of the UK pursuant to the Dublin III Regulation. The TCR included information about the Claimant’s adult sister, Kisanet Gebreyesuse Weldeab, who was said to be living in the UK with her husband, a British Citizen. The documents accompanying the TCR included a copy of Ms Weldeab’s UK residence permit; a copy of her husband’s British passport, a council tax statement and rent statements issued by Leeds City Council in relation to a property where Ms Weldeab and her husband were said to reside; a copy of a family tree document, a record of an interview conducted by the Italian authorities with the Claimant about his family. and two reports, from a person described as the Claimant’s ‘legal counsel’ and a second report by a person described as ‘the community manager’.
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The record of the interview with the Claimant included information about his parents and six siblings, the whereabouts of relatives in Europe, including his sister in Leeds and details of their relationship. The Claimant had last seen his sister in 2015, before she left Eritrea to join her husband in the UK. They lived together and she took care of him, as he was the younger brother. They spent a lot of time together. The report from Legal Counsel concluded that “considering the child’s tender age and his particular vulnerability, and due to the excellent willingness shown by his sister and husband to welcome him, it can be considered that family reunion is in the primary interest of the child.” The report from the community manager stated that
The path of integration and autonomy of the minor in question has slowed down due to a tragic event:
Abel's father passed away.
From the words he uses in telling his personal story can be perceived a strong bond with the family of origin, despite the difficulties of a life of hardship.
Gradually the strength of his character allowed him to re-emerge and, step by step, to take back the management of his everyday life.
The educational team is aware of the fact that the child has frequent telephone conversations with his sister with whom family reunification is hoped. As is evident, also as a consequence of the recent mourning, it seems very important in the minor's interest to be able to approach other members of his family nucleus. The support that he could receive from being close to his sister, we think it would be very useful for the child's good development and positive growth.”
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On or around 8 August 2019, a check was conducted by the Secretary of State’s European Intake Unit (“EIU”) on Ms Weldeab who had entered the UK as the spouse of a settled person following a successful entry clearance application. The Central Reference System (CRS) is a web-based application that contains entry clearance data from diplomatic missions overseas. The search returned no results. Home Office paper file was requested from storage but did not reveal any family information on file on Ms Weldeab.
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On around 13 August 2019, the EIU received a completed form from Ms Weldeab in response to a pro forma letter informing her that Italy had made a TCR in respect of the Claimant, asking for confirmation that she was related to the Claimant and requesting that she complete a form, providing as much detail as possible and to provide any additional evidence proving that she and the Claimant were related. The form was completed in full.
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The relevant GCID records for 20th August note that
“TCR received from Italy. Applicant wishes to reunite with his sister who resides in the UK. Kisanet Gebreyesus Weldeab came into the UK as a spouse of a settled...
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