Contains public sector information licensed under the Open Justice Licence v1.0.
Secretary of State for the Home Department v. ZAT & Ors (Syria)
Factual and Procedural Background
This expedited appeal arises from an order of the Upper Tribunal dated 20 January 2016, granting seven respondents permission to apply for judicial review and ordering the Secretary of State for the Home Department to admit four individuals—three unaccompanied minors and one disabled adult—from a makeshift camp near Calais, known as "the jungle," into the United Kingdom. These four respondents had not applied for asylum in France, where they were present, but contended that the UK was responsible for examining their asylum claims under the Dublin III Regulation. The other three respondents are adult refugees in the UK claiming to be siblings of the first four.
The Upper Tribunal ordered admission of the first four respondents to the UK to enable determination of their asylum applications under the Dublin III Regulation, conditional on sending letters to French authorities claiming asylum. The respondents had not made formal asylum applications in either France or the UK prior to their admission. The Secretary of State challenged the order, arguing that the Dublin III procedures, which allocate responsibility for asylum claims among EU Member States, should not be bypassed without compelling justification, particularly given the importance of maintaining immigration control and the integrity of the Dublin system.
The appeal also involved interventions from the United Nations High Commissioner for Refugees (UNHCR) and the AIRE Centre, who submitted written and oral observations. The court considered evidence including psychiatric reports on the respondents, testimony regarding conditions in the Calais camp, and detailed information on the operation of the French asylum system and the Dublin III processes.
Legal Issues Presented
- Whether the procedures and processes of the Dublin III Regulation for determining the responsible Member State for an asylum application can be bypassed on the basis of the right to respect for private and family life under Article 8 of the European Convention on Human Rights (ECHR), particularly at the initial procedural stage.
- Whether the United Kingdom is under a positive substantive obligation to admit individuals who have not applied for asylum in the first Member State they entered but who claim family ties in the UK.
- The appropriate threshold and test for allowing Article 8 ECHR to override the Dublin III Regulation procedures.
- The extent to which conditions in the Calais camp and delays in the French asylum system impact the proportionality assessment under Article 8.
Arguments of the Parties
Appellant's Arguments
- Article 8 ECHR co-exists with the Dublin III Regulation, which already prioritises family reunification appropriately within its hierarchy of criteria.
- The Dublin III procedures should not be bypassed at the initial stage except in exceptionally compelling cases, to preserve orderly processing, including biometric data collection, age assessments, and identity verification.
- There is a principle of mutual confidence among Member States that all will respect fundamental rights, including family life, and this should not be lightly displaced.
- The Secretary of State does not accept any positive obligation to admit individuals absent formal asylum applications or "take charge" requests from the first Member State.
- The Upper Tribunal erred by allowing relief without requiring the respondents to engage with the French asylum system or the Dublin III procedures.
- The Secretary of State submitted that any challenges to the Dublin process should be made through French courts, not by bypassing the system.
Respondents' Arguments
- The operation of the Dublin III Regulation in France failed to vindicate and protect their rights under Article 8 ECHR, especially given the conditions in the Calais camp and delays in processing.
- Unaccompanied minors and vulnerable adults require expedited consideration, and the procedural delays and inadequate care in France amount to disproportionate interference with their family life rights.
- They assert a freestanding right under Article 8 ECHR to family reunification in the UK, independent of the Dublin III procedures.
- The Upper Tribunal properly balanced the competing interests and did not err in law.
Table of Precedents Cited
Precedent | Rule or Principle Cited For | Application by the Court |
---|---|---|
Sen v The Netherlands (2003) 36 EHRR 7 | Positive duty under Article 8 ECHR to admit persons for family reunification, with best interests of the child as a primary consideration. | Supported the proposition that states may owe positive obligations to admit individuals for family reunification, especially children. |
Tuquabo-Tekle v The Netherlands [2006] 1 FLR 798 | Positive obligation under Article 8 ECHR to admit children to re-establish family life. | Reinforced the principle of positive family reunification duties under Article 8. |
Mayeka v Belgium (2008) 46 EHRR 23 | Positive duty to facilitate family reunification even where parent is in a third state; best interests of the child are paramount. | Confirmed the primacy of children's best interests in family reunification cases under Article 8. |
R (NS (Afghanistan)) v Secretary of State for the Home Department [2013] QB 102 | Principle of mutual confidence among Member States regarding fundamental rights observance in asylum procedures. | Used to support the presumption that Dublin Regulation procedures should be followed absent systemic deficiencies. |
Abdullahi v Bundesasylamt [2014] 1 WLR 1895 | Systemic deficiencies in asylum procedures or reception conditions in first Member State may justify overriding Dublin Regulation. | Applied to clarify the high threshold for bypassing Dublin procedures. |
R (EM (Eritrea)) v Secretary of State for the Home Department [2014] UKSC 12 | Presumption that Member States comply with obligations can be rebutted by evidence of real risk of ill-treatment. | Clarified that systemic deficiency is not a strict prerequisite for Article 3 ECHR protection in Dublin cases. |
Tarakhel v Switzerland (2015) 60 EHRR 28 | Special protection for children in asylum procedures; risk of ill-treatment in reception conditions can override Dublin transfers. | Emphasized vulnerability of children and need for individual guarantees before transfer. |
R (CK) v Secretary of State for the Home Department [2016] EWCA Civ 166 | Article 8 ECHR challenges to Dublin transfers require an especially compelling case to override the Dublin system. | Adopted as the standard for overriding Dublin procedures on family life grounds. |
R (MA (Eritrea)) v Secretary of State for the Home Department [2013] 1 WLR 2961 | Recognition of need for expedition in cases involving unaccompanied minors. | Supported the view that delay may engage Article 8 rights. |
R (Chikwamba) v Secretary of State for the Home Department [2008] UKHL 40 | Procedural rules may be disproportionate in their operation affecting Article 8 rights. | Used to demonstrate that procedural delays can amount to rights interference. |
Bosphorus v Ireland (2006) 42 EHRR 1 | Principle of equivalent protection and mutual confidence between states in fundamental rights compliance. | Supported the assumption that Member States uphold ECHR rights within Dublin processes. |
Avotins v Latvia (Application No.17502/07) 23 May 2016 | Reaffirmed principle of equivalent protection and mutual confidence in human rights compliance. | Reinforced the high threshold for overriding Dublin procedures on human rights grounds. |
R (Elayathamby) v Secretary of State for the Home Department [2011] EWHC 2182 (Admin) | Principle of mutual confidence creates significant evidential presumption in Dublin cases. | Supported the proposition that courts should assume Member States comply with fundamental rights absent strong contrary evidence. |
Ghezelbash v Staatssecretaris van Veiligheid en Justitie [2016] All ER (D) 58 | Scope of appeals under Article 27 of Dublin III and right to effective remedy. | Limited application to cases where asylum application has been made and responsibility allocated; less relevant where no application made. |
Karim v Migrationsverket [2016] All ER (D) 55 | Similar to Ghezelbash on scope of appeal rights under Dublin III. | Clarified limited applicability of Article 27 appeals in absence of asylum application and allocation of responsibility. |
Court's Reasoning and Analysis
The court analysed the coexistence and potential tension between the Dublin III Regulation and Article 8 of the ECHR. It recognised that while the Dublin system is a potent legal framework allocating responsibility among Member States for asylum claims, it does not operate to exclude or override fundamental rights protections. However, the court emphasised that overriding the Dublin procedures at the initial stage requires an "especially compelling case," particularly to preserve orderly processing, including identity verification and age assessment, and to prevent abuse such as trafficking.
The court found that the Upper Tribunal erred by applying too low a threshold to permit bypassing the Dublin procedures based on Article 8. It held that the tribunal gave equal weight to immigration control and family life rights, whereas the Dublin system should be afforded greater deference absent compelling reasons. The court stressed the importance of the principle of mutual confidence between Member States that fundamental rights will be respected.
While acknowledging the severe conditions in the Calais camp and the psychiatric vulnerability of the first four respondents, the court found that these factors, though relevant, were not central to the Article 8 claim, which focuses on family life rather than general living conditions. The court also noted that the respondents had not engaged with the French asylum system or made formal applications, which undermined their position.
Further, the court considered recent evidence indicating improvements in the French system and enhanced cooperation between the UK and France under the Dublin III framework. This suggested that future claims should be pursued through the established procedures unless exceptional urgency or compelling circumstances exist.
The court emphasised that legal representatives should ensure that all necessary information, including biometric data, is provided when seeking to invoke Article 8 to bypass Dublin procedures. The court rejected the respondents' argument that the Secretary of State should consider their claims without formal applications or the usual procedural steps.
In conclusion, the court held that the Upper Tribunal had set too low a bar for displacing the Dublin procedures on Article 8 grounds and that only in very exceptional cases can the Dublin process be bypassed at the initial stage.
Holding and Implications
The court ALLOWED THE APPEAL and set aside the order of the Upper Tribunal that required the Secretary of State to admit the first four respondents to the UK outside of the Dublin III procedures.
The Secretary of State accepted that the UK is the appropriate Member State to determine the asylum claims substantively and has granted refugee status to two of the respondents. The court declined to remit the matter back to the Upper Tribunal for reconsideration given these developments and made no further order.
The decision clarifies that the Dublin III Regulation procedures must generally be followed at the initial stage of determining responsibility for asylum claims, and that Article 8 ECHR rights do not justify bypassing these procedures except in especially compelling cases. The ruling underscores the importance of orderly immigration control and mutual confidence among Member States in respecting fundamental rights within the Common European Asylum System.
Please subscribe to download the judgment.
Comments