United Kingdom – Upper Tribunal refuses Secretary of State for the Home Department permission to appeal on a case concerning a child’s transfer from Calais to the UK

Date: 
Tuesday, November 20, 2018

On 20 November 2018, the Immigration and Asylum Chamber of the UK Upper Tribunal (UT) refused the Secretary of State for the Home Department (SSHD) permission to appeal to the Court of Appeal in a case concerning a procedurally unfair refusal of Dublin III reunification.

The case concerned an unaccompanied minor from Eritrea, who was living in France and sought permission to join his brother in the UK. After the demolition of the Calais camp, he applied for reunification through an expedited process for considering applications for family reunification from unaccompanied minors who qualified for admission under article 8 Dublin III, which was established jointly by the UK and French authorities. His application was refused in 2016, but the applicant could only apply for judicial review in 2018. In its June 2018 judgment, the Upper Tribunal had found that the expedited reunification and filtration process was in breach of common law fairness, by not ensuring safeguards relating to the interview procedure and the decision’s reasoning. In the same line, the UT held that there had been a breach of the minor’s procedural rights under Article 8 ECHR, making a relevant declaration regarding the authorities’ refusal to admit the applicant.

The SSHD sought permission to appeal against this judgment arguing that the Tribunal erred in finding that there was a violation of Article 8 ECHR as that article only applies to exceptional circumstances, according to the Court of Appeal’s (EWCA) findings in ZT (Syria) and ors. The Tribunal, however, dismissed this argument stating that the applicant’s circumstances were different, as they related to a challenge against the expedited procedure’s flaws and not any application on Article 8 grounds, which was the case in the cited jurisprudence.

Moreover, the contested judgment only included a declaration in this respect without any mandatory order being issued. The Tribunal had not instructed that a leave to enter should be granted but had simply declared that the manner in which the applicant had been treated during the entire procedure amounted to a breach of Article 8. In this connection, the Tribunal recalled the relevant jurisprudence of the European Court of Human Rights with regard to the individual’s Article 8 protection against arbitrary action from public authorities. The permission to appeal was refused.

In the same order, the Tribunal also awarded the minor damages, as it found that he had been wrongly deprived of the opportunity to join his brother in the UK from the date he was refused admission until the date of his actual transfer to the UK. Moreover, the British authorities’ actions, which caused the delay in the siblings’ reunification, were found to have resulted in the applicant’s destitution in France, as well as the onset of PTSD disorder. The amount of £12,000 was awarded to the applicant for the breaches of his Article 8 rights.

Many thanks to Jed Pennington, Solicitor at Bhatt Murphy Solicitors, for bringing this case to our attention.


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
Effective remedy (right to)
Family unity (right to)
Request that charge be taken
Unaccompanied minor