Secretary of State for the Home Department v ZAT

"Para 65: Although, as the tribunal stated, the Dublin and ECHR regimes ?may sometimes tug in different directions?, it is clear that the Dublin regime does not operate to the exclusion of the human rights regime but exists side by side with it. The issue is the relative weight of the two regimes and the strength of the human rights case needed to override the processes and procedures of the Dublin system. In a case where an individual is in one Member State (?the first Member State?), in what circumstances, if any, will Article 8 of the ECHR (Article 7 of the EU Charter) impose a positive duty on another Member State (?the second Member State?) to admit the individual, here an unaccompanied minor or a vulnerable adult, where the individual has not used the Dublin processes and procedures in the first Member State?

Para 80: Laws LJ [in R (CK (Afghanistan)) v Secretary of State for the Home Department [2016] EWCA Civ 166] concluded (see [30]) that even under the Dublin II Regulation, which had no provisions such as that in Article 27(1) of the Dublin III Regulation giving an ?applicant? an appeal to a court or tribunal against a transfer decision, an individual had a right under the ECHR to challenge a removal direction. This was because it was not the intention of those enacting the Dublin legislation to prohibit the autonomous application of ECHR Article 8 to decisions to remove. He, however, considered (see [31]) that the existence of the Dublin II regime had a profound impact on the application of Article 8 to a case where the applicant is to be removed to another Member State following a decision that the other state is responsible for the determination of his asylum claim. He expressed himself in stronger terms than the tribunal did at [52] of its determination in this case. He stated that, if the Dublin system ?was seen as establishing little more than a presumption as to which state should deal with which claim, its purpose would be critically undermined? and that ?an especially compelling case under Article 8 would have to be demonstrated? to deny removal of the affected person following a Dublin II decision.

Para 82: In this case, moreover, the emergency largely arose because of the appalling conditions in which the first four respondents found themselves as a result of their decision not to seek assistance from the French authorities. Notwithstanding their difficult histories and trauma, I do not consider that their subjective fear about the French process can, in itself, justify bypassing the Dublin process and the French courts. I consider that Mr Fordham puts the matter too high when he states (skeleton argument, paragraph 4.29) that ?human rights law meets children where they are; it does not condemn them for the so-called wisdom of how they have got there?. In my judgment, what has to be demonstrated by those who seek to bypass the Dublin processes and the legal procedures of the first Member State are objective reasons which justify that decision.

Para 83: In my judgment, Mr Eadie also puts the matter too high when he argues that the Dublin Regulation itself strikes the proportionate ECHR Article 8 balance because it places family reunification at the top of the hierarchy in ascertaining the responsible state and allows for orderly and proper consideration of family life. There was tension between what can be described as this absolutist strand of his submissions and his acceptance that in an exceptionally compelling case ECHR Article 8 can prevail over the Dublin process and procedures. Moreover, the authorities do not suggest that, even in what Mr Eadie described as the ?initial procedural stages?, there is an absolute rule that the determination of the responsible Member State must be by the operation of the Dublin process and procedures in the Member State in which the individual is present.

Para 87: There will be a need for expedition in many cases involving unaccompanied minors. The circumstances of the first four respondents? cases, especially the psychiatric evidence, suggested in their cases there was a particular need for urgency. But an orderly process is also important in cases of unaccompanied minors. The need to examine their identity, age, and claimed relationships remains, and there is a particular need to guard against people trafficking. I do not accept that the ?especially compelling case? hurdle articulated by Laws LJ in CK?s case is too high for the ?initial procedural stages?. In R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin) at [42(i)] Sales J described the principle of mutual confidence as creating ?a significant evidential presumption?. In EM (Eritrea) (at [64]) Lord Kerr approved of this description. He had stated earlier in his judgment (at [40] ? [41]) that the presumption reflected not only principle but pragmatic considerations. This is because a system which required a Member State to conduct a intense examination of avowed failings of another Member State would lead to disarray.

Para 88: The material deployed in the present case is a vivid example of the problems a court faces in conducting such an examination about the legal system of another EU state. The pressure of cases, particularly given the scale of the flow of migrants at the present time, resource considerations, and the need to have a fair system of prioritising work can lead to difficulties in all legal systems, including ours. It is difficult for a court in one jurisdiction to assess whether perceived difficulties in another jurisdiction reflect the reality without a careful examination and the ability to test the evidence deployed by those who wish not to use the procedures and courts of that jurisdiction. In the present case the tribunal?s examination of the alleged failings of the French system was conducted without evidence from the Secretary of State. If one takes account of the additional evidence adduced for the hearing before this court, it is clear that the court is being asked to resolve disputed factual and legal issues about the operation of the French system in judicial review proceedings rather than in the traditional way foreign law and practice is ascertained. As the Upper Tribunal recognised (see [9] referred to at [33] above), judicial review proceedings are not really suited to this.

Para 92: I consider that the tribunal set too low a hurdle for permitting that process to be displaced by Article 8 considerations. For example, while stating (at [54]) that in this context ?the maintenance of immigration control ? involves primarily insistence upon the uncompromising application of the Dublin Regulation process (on the one hand) and the family life rights of all seven applicants (on the other)?. If anything, this gives the two equal weight. Again, at [52] it stated that what is required is ?a strong and persuasive case on its merits?. These are lower thresholds than the demonstration of an ?especially compelling case under Article 8? required by Laws LJ in CK?s case. Laws LJ (at [31]) expressly stated that the ?force of the Regulation? should be expressed in stronger terms than was done by the tribunal in this case. This was because he considered that the existence of the Dublin II regime had a profound impact on the application of Article 8 and, ?if it were seen as establishing little more than a presumption as to which State should deal with which claim, its purpose would be critically undermined?. The operation of the tribunal?s approach would in many cases also involve the intense examination of the claimed failings of another Member State which Lord Kerr stated (see [87] above) would lead to disarray.

Para 95: I consider that applications such as the ones made by these respondents should only be made in very exceptional circumstances where they can show that the system of the Member State that they do not wish to use, in this case the French system, is not capable of responding adequately to their needs. It will, in my judgment, generally be necessary for minors to institute the process in the country in which they are in order to find out and be able to show that the system there is not working in their case. This is subject to the point that, as I have stated, these cases are intensely fact-specific. There will be cases of such urgency or of such a compelling nature because of the situation of the unaccompanied minor that it can clearly be shown that the Dublin system in the other country does not work fast enough. The case of the Syrian baby left behind in France when the door of a lorry bound for England closed after his mother got onto the lorry referred to in Mr Scott?s fourth statement is an example. But save in such cases, I consider that those representing persons in the position of the respondents should first seek recourse from the authorities and the courts of the Member State in which the minor is. Only after it is demonstrated that there is no effective way of proceeding in that jurisdiction should they to turn to the authorities and the courts in the United Kingdom.

Para 96: In the present case, as well as deciding to bypass the French administrative and court system, the lawyers advising the respondents did not pursue the formal procedures for making an application on their behalf to the United Kingdom. It was argued on their behalf that no arrangement known or communicated to their lawyers identified a mechanism which they were able to pursue to allow the Secretary of State to consider the ECHR Article 8 compatibility of refusing prompt entry to the United Kingdom. It is stated that the point did not feature in the pre-action correspondence or the Secretary of State?s acknowledgment of service and summary grounds and that the Secretary of State?s position was that she would only consider a Dublin ?take charge? request by the French authorities. There is force in these submissions. It was only in March 2016 that Mr Gallagher?s evidence on behalf of the Secretary of State identified alternative possibilities. Moreover, his evidence suggests that the first four respondents? applications could not have met the requirements of the provisions of the Immigration Rules to which he referred.

Para 97: That is not to say that in a case where legal representatives contend that the Secretary of State ought to consider a person outside the jurisdiction on the ground that she is under a positive duty to admit that person to the United Kingdom for family reunification they are entitled entirely to rely on her. In the present case, the respondents? representatives had been in communication with the Secretary of State. They furnished some of the material which they would have had to have furnished if they had applied for entry clearance in France or for asylum in the United Kingdom. They did not furnish all of what would have been required and did not make the first four respondents available for interview. I consider that it is incumbent on those representing the individual or individuals to furnish the authorities with all the information that would be needed in a formal application, including biometric data, as if they were seeking Entry Clearance. It cannot be right to shift the initial assessment from the country in which a minor physically is to another country or to justify seeking to do so by asserting that the first country is unable to act but to leave the Secretary of State without the information she will need to assess the application in the way she would have done had the person had reached the United Kingdom and made an application.

Para 98: Before leaving this case, I observe that the position has changed significantly since the decision of the Upper Tribunal. The events which gave rise to these proceedings occurred shortly after the United Kingdom and French governments put in place arrangements to facilitate the operation of the Dublin processes. The evidence recently filed explaining the French system and about the improvements to it (summarised at [40] ? [54] above) shows that if in the future an application such as the ones made by the respondents is made, the factual, regulatory and legal background will be very different.

Para 100: Any future application will be considered against that different evidential background and in the light of the particular circumstances of the individuals involved. But the general import of the recent evidence suggests that, save in a case such as that of the Syrian baby, a claim completely bypassing the ?initial procedural stage? of the Dublin process on Article 8 grounds in the way that occurred in these proceedings is unlikely to meet the required threshold of ?an especially compelling case?."