The Secretary of State for the Home Department v FTH, R. (On the Application of)

Factual and Procedural Background

This claim arises from the United Kingdom's humanitarian response following the French Government's decision in October 2016 to close and demolish the "Jungle de Calais" camp, where several thousand migrants, including hundreds of unaccompanied asylum-seeking children ("UASCs"), had congregated. Many UASCs reportedly had close relatives in the UK. Under Regulation No 604/2013 ("Dublin III"), the Member State responsible for examining an asylum claim is generally the first state of irregular entry, but specific provisions exist for unaccompanied children with close relatives in another Member State.

Most children in the camp, including the Appellant, refused to apply for asylum in France, thus not triggering the Dublin III mechanism. Consequently, the UK Government, without legal obligation on French soil, pursued an expedited bilateral process with France based on Dublin III article 8 criteria but without formal asylum claims by the children. This process ("Operation Purnia") consisted of two phases: interviews at the camp and later at dispersed centres for unaccompanied minors (CAOMIs) across France. Transfer decisions were based on the consistency of the child's and asserted family member's accounts, resulting in about 550 children being transferred to the UK.

Refusals were communicated indirectly via French authorities with limited reasons provided to avoid legal challenges. Subsequent reviews ("filter" process) led to a small number of additional transfers. Citizens UK, an NGO assisting the children, challenged the lawfulness of the expedited process, which was found to be procedurally unfair and unlawful at common law, notably for inadequate reasons for refusal and failure of candour by the Secretary of State.

Subsequent cases, including ZT (Syria) and AM, clarified the interaction between Dublin III and article 8 of the ECHR, emphasizing that bypassing Dublin III requires "very exceptional circumstances" and that the Dublin process generally provides effective protection of family life rights.

The Respondent, an Eritrean national and minor at the relevant time, sought transfer to the UK to join his brother, who had refugee status in the UK. His claim was refused under the expedited process due to inconsistencies in their accounts. He did not apply for asylum in France, fearing that doing so would prevent joining his brother in the UK. After turning 18 and obtaining legal assistance, he made an asylum claim in France, which triggered a take charge request accepted by the UK. He was transferred to the UK and granted refugee status.

The Upper Tribunal found the expedited process unlawful in the Respondent's case for breaches of Dublin III procedural guarantees, common law fairness, and article 8 ECHR, awarding damages for the article 8 breach. The Secretary of State appealed, challenging the article 8 breach finding as inconsistent with the Court of Appeal's decision in AM.

Legal Issues Presented

1. Whether the expedited process breached the procedural guarantees under Dublin III and the common law duty of fairness.
2. Whether there was a breach of article 8 of the European Convention on Human Rights (ECHR) in the handling of the Respondent's transfer request.
3. Whether the Upper Tribunal's finding of an article 8 breach was consistent with the Court of Appeal's binding decision in AM.
4. The applicability and scope of the "very exceptional circumstances" test from ZT (Syria) in cases involving bypassing or engaging with Dublin III procedures.
5. The consequences of procedural defects in the expedited process on subsequent Dublin III applications and article 8 rights.

Arguments of the Parties

Appellant's Arguments (Secretary of State)

• The Upper Tribunal erred in conflating the common law duty of fairness with article 8 procedural requirements, which focus on substantive rights.
• The availability of the Dublin III process in France, supported by the judicial system, adequately protected the Respondent's article 8 rights, barring very exceptional circumstances.
• The expedited process, though outside Dublin III, did not remove the Respondent's ability to invoke Dublin III procedures, which remained effective and provided proper remedies.
• The Respondent was under the care of French authorities who had article 8 obligations, including making asylum applications on his behalf if appropriate.
• The procedural defects in the expedited process did not fatally prejudice subsequent Dublin III applications or undermine the effectiveness of the system.
• The facts of this case are materially indistinguishable from those in AM, where article 8 breach was rejected.

Respondent's Arguments

• The Respondent engaged with the Secretary of State's expedited process and did not seek to bypass Dublin III; the Secretary of State sought to bypass it.
• The delay and refusal to transfer were caused by decisions of the Secretary of State, not French authorities.
• The "very exceptional circumstances" test from ZT (Syria) does not apply because the Respondent did not bypass Dublin III but participated in the expedited process.
• The case is distinguishable from AM because the Respondent did not receive legal advice during the filter process and only obtained it after turning 18, affecting his ability to rely on article 8 of Dublin III.
• The procedural defects in the expedited process prejudiced the Respondent's later Dublin III application, likely causing refusal of transfer and infringing his article 8 rights.
• The Respondent suffered particular vulnerability due to his traumatic journey, which should be factored into the analysis.

Table of Precedents Cited

Court's Reasoning and Analysis

The court analysed the procedural fairness of the expedited process and its interaction with Dublin III and article 8 ECHR. It acknowledged the Upper Tribunal's finding of common law procedural unfairness due to inadequate reasons and lack of candour by the Secretary of State, which was consistent with prior rulings in Citizens UK.

Regarding article 8, the court emphasized the binding authority of the Court of Appeal's decision in AM, which held that article 8 has limited applicability in this context, being engaged only in very exceptional circumstances where the Dublin III process in the first Member State is ineffective. The court noted that the Respondent was under French care, with article 8 obligations owed by French authorities, and that the Dublin III procedures, supported by judicial review, provided an effective remedy for family reunification claims.

The court rejected the Respondent's submissions that this case was distinguishable from AM, finding no material factual or legal distinction sufficient to override the binding precedent. It held that the procedural defects in the expedited process, while breaching common law fairness, did not amount to a breach of article 8. The court also addressed the argument concerning prejudice caused by the expedited process to subsequent Dublin III applications, concluding that such risk was considered in AM and did not establish an article 8 breach here.

Consequently, the court allowed the appeal, amending the Upper Tribunal's order to restrict the declaration of unlawfulness to a breach of common law procedural fairness and quashing the award of damages based on an article 8 breach.

Holding and Implications

The court's final decision was to ALLOW THE APPEAL on the narrow ground that the Upper Tribunal erred in finding a breach of article 8 ECHR. The declaration of unlawfulness was amended to reflect only a breach of the Secretary of State's duty of procedural fairness at common law, and the damages award based on article 8 breach was quashed.

The direct effect of this decision is to limit the Secretary of State's liability to common law procedural fairness breaches in expedited asylum transfer processes, excluding article 8 breaches absent very exceptional circumstances. No new precedent altering the established framework of Dublin III or article 8 jurisprudence was set; rather, the decision reaffirms the binding authority of AM and related cases on the scope of article 8 in this context.