UK: Secretary of State for the Home Department v ZAT & Ors [2016] EWCA Civ 810

Tuesday, August 2, 2016

The Court of Appeal has given its ruling in the case Secretary of State for the Home Department v ZAT & Ors concerning the relationship between the Dublin III Regulation and the right to private and family life pursuant Article 8 ECHR. 

The case concerned seven applicants from Syria. Four were living in the unofficial camp near Calais known as ‘the Jungle’. Three of them were unaccompanied minors and the other was the adult dependent brother of one of them who suffered from mental health problems. The other three applicants were their siblings, who had refugee status in the UK. The applicants claimed that the refusal of the Secretary of State for the Home Department (SSHD) to admit them to the UK to be reunited pending the determination of the asylum applications of the first four applicants amounted to a disproportionate interference with their Article 8 ECHR right to family life.
In ZAT and others v SSHD, the Upper Tribunal ordered the SSHD to admit the four vulnerable asylum seekers from the Calais camp in France to the United Kingdom in order to be reunited with refugee family members during the examination of their asylum applications. Although the applicants had not applied for asylum in France and therefore were not subjected to the Dublin procedures, the particular circumstances of the case meant that failing to do so would lead to a disproportionate interference with their right to respect for family life. The SSHD appealed.
The Court of Appeal concluded that the Upper Tribunal had erred in its approach to the Dublin III Regulation in relation to Article 8 ECHR.  According to the Court, an application for entry by an unaccompanied child, without first invoking the relevant Dublin III Regulation in France, can “only be justified in an especially compelling case”. This is only the case where the applicants “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”. In the particular circumstances of this case, the evidence is unlikely to meet the required threshold of “an especially compelling case” in order to completely bypass the initial procedural stage of the Dublin procedure on the grounds of Article 8 ECHR. 
The Court of Appeal allowed the appeal. As the SSHD did not seek the return of the four vulnerable asylum seekers to France, the Court made no further return order. At the present time, the SSHD has granted refugee status to two of the applicants.

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