UK Court of Appeal: Article 17(1) has no application where a person is not present in the UK

Date: 
Thursday, January 18, 2018

On 18 January 2018, the Court of Appeal handed down its judgment in RSM v. the Secretary of State for the Home Department (SSHD), which concerned an appeal brought by the SSHD against the Upper Tribunal’s judgment of April 2017. The judgment focused upon the definition of "lodging" in relation to Article 17(1) of the Dublin III Regulation and whether the Secretary of State, as per the Upper Tribunal's judgment, was required to proactively bring an unaccompanied child to the UK before a take charge request had been lodged by the "host state" and without the child having entered into the UK's jurisdiction.

Conversely to the Upper Tribunal's decision, the Court of Appeal found that lodging for the purposes of Article 17(1) requires the applicant to be in the jurisdiction of the UK and to have lodged the application there. Therefore, the Upper Tribunal's conclusions and ultimate order were incorrect. In addition, the Court of Appeal held that the Upper Tribunal had also incorrectly applied the “Article 8 threshold”, as laid out in ZT (Syria), and that on the facts of the case neither the Italian processes nor the vulnerability of RSM were sufficient to meet the threshold of an "especially compelling case".



This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. 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, the IRC or its partners.

                                                     

 

Keywords: 
Best interest of the child
Dublin Transfer
Effective access to procedures
Family unity (right to)
Procedural guarantees
Request that charge be taken
Unaccompanied minor