UK Upper Tribunal ruling regarding Article 17 DRIII, family unity and the bests interests of the child

Date: 
Thursday, April 19, 2018

On 19 April 2018, the UK Upper Tribunal ruled in case HA, AA and NA v Secretary of State for the Home Department, which concerned HA (a British citizen, originally a stales from Kuwait), his wife AA (a stateless woman from Kuwait) and their child NA. In April 2014, AA and NA made an entry clearance application to the UK for family reunion with HA, which was rejected as HA was no longer a refugee. They later travelled to Greece where they applied for asylum. The Greek authorities subsequently lodged a take charge request to the UK authorities on the basis of Article 17(2) of the Dublin III Regulation (DRIII), which was refused by the UK authorities on the basis that HA was no longer a beneficiary of international protection and had been naturalised as a British citizen. According to the Secretary of State, the DRIII did not apply to the applicants.

The Upper Tribunal found that the Dublin III Regulation and the Charter of Fundamental Rights of the European Union (CFR EU) applied to the case of the applicants and that, while the State has a wide discretion to apply 17(2) DRIII, its discretion is not unrestricted. Moreover, the State had an obligation to assess the best interests of the child concerned, regardless of the fact that his citizenship was still pending.

The Upper Tribunal noted that Article 17(2) DRIII, as a discretionary clause, must be read through the lens of Article 7 of the CFR EU and Article 8 ECHR, and with due regard to the principle of the best interests of the child. The SSHD had also failed to take into account another relevant matter, notably a psychiatric report submitted by the applicants describing AA’s and NA’s vulnerability and that they suffer from post-traumatic stress disorder.

Differentiating this case from ZT (Syria) and RSM, where the Tribunal found that DRIII had not been engaged, the Tribunal noted that the starting point for a potential breach in this case must be the best interests of the child. In light of the vulnerability of her mother (suffering from PTSD and pregnant at the time), NA’s best interest is to be with both parents, especially since the family unit relies on HA as the primary carer. The Tribunal notes that HA cannot live in Greece, that he does not fulfil the financial requirements of Appendix FM of the Immigration Rules, that AA is stateless and that there is no third country where they could be together as a family. In conclusion, the Upper Tribunal found that the unstable, precarious environment and the poor accommodation available for AA and NA as well as their mental health all amount to compelling and compassionate circumstances which merits the application of Article 17(2) DRIII. Concomitantly, the Tribunal also finds Article 9 DRIII to be relevant in this case since HA’s change of status to a UK citizen does not alter the fact that he had received international protection.

We would like to thank Sonal Ghelani, Solicitor, The Migrants’ Law Project, for bringing this case to our attention. You can also find a summary of this decision at the European Database of Asylum Law (EDAL) here.


This item was reproduced with the permission of ECRE from the weekly ELENA legal update. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE.

                                                     

 

Keywords: 
Dublin Transfer
Family unity (right to)
Request that charge be taken
Vulnerable person