UK: Upper Tribunal rules on obligations under Article 17 Dublin Regulation and Article 8 ECHR concerning family reunification of unaccompanied minor

Date: 
Wednesday, April 12, 2017

The UK Upper Tribunal released its judgment in case RSM and ZAM v SSHD [2017] UKUT 00124 (IAC), related to the exercise of the discretionary power set forth by Article 17 of the Dublin Regulation for the purposes of reuniting the applicant, an Eritrean unaccompanied minor residing in Italy, with his family in the UK. The applicant’s legal representatives had reasoned before the Home Office that the UK had an obligation under Article 8 ECHR to admit RSM and should make use of Article 17 of the Dublin Regulation for that purpose. Yet, the Home Office made no consideration on the exercise of this possibility.

The Upper Tribunal found that the Home Office had impliedly reached a negative decision under Article 17 and ruled that the Secretary of State’s interpretation of that article to be incorrect. It highlighted that Article 17 is a justiciable right and should be particularly relied upon in circumstances where one of the overarching values of the Dublin Regulation, name expedition, is not being fulfilled in the procedures of the host Member State, such as that of the present case.

Relying on the Court of Appeal’s understanding in ZAT (para. 95), the Upper Tribunal reaffirmed that a distinction should be made between those immigrants who are engaged and those who did not engage with the national Dublin system when assessing the success of an Article 8 ECHR claim. As stated in ZAT, when an applicant has not engaged with a Dublin system, “very exceptional circumstances” must be demonstrated for an Article 8 claim to succeed. Yet, as in the present case, applicants who engaged with Dublin authorities should be subjected to less onerous standards, and the question should be of whether there are effective ways of proceeding in the country in question. The judicial assessment of efficacy should (1) be fact sensitive, (2) be measured against the overarching objectives of the Dublin Regulation (including the principles of solidarity and mutual trust between Member States), (3) give due consideration to the aim of expedition, especially in the case of unaccompanied children.

The deficiencies of the Italian asylum system in the present case, namely the lack of sufficient expedition to register the asylum application and initiate Dublin proceedings, as well as the expected lengthy procedures for a “take charge” request and subsequent Dublin transfer, added to the vulnerability of the applicant as an unaccompanied minor suffering from post-traumatic disorder. The UK Upper Tribunal held that there had been a failure of the Secretary of State to lawfully exercise the discretion conferred by Article 17 of the Dublin Regulation and ordered the Secretary of State to admit the applicant to the UK.


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
Child Specific Considerations
Dublin Transfer
Procedural guarantees
Request that charge be taken
Unaccompanied minor
Vulnerable person