Secretary of State for the Home Department v FWF & Anor, R (On the Application Of)

Factual and Procedural Background

The Respondents, two brothers from Afghanistan who made asylum claims in France as minors, sought to join their elder brother in the United Kingdom. Although transferred within the time limits of Regulation 604/2013 ("Dublin III"), the Secretary of State unlawfully delayed and mishandled the process. The Upper Tribunal (Asylum and Immigration Chamber) found breaches of the Respondents' article 8 rights and awarded damages. The Secretary of State appealed against liability findings but not against the damages award. The appeal concerns the interaction between Dublin III obligations and article 8 of the European Convention on Human Rights (ECHR) and the EU Charter of Fundamental Rights (CFR), specifically whether incidental unlawfulness in discharging Dublin III obligations automatically breaches article 8.

Legal Issues Presented

1. Did the Secretary of State breach Dublin III in this case?
2. Is any breach of Dublin III or incidental unlawfulness ipso facto a breach of article 8 ECHR?
3. Can the Respondents nevertheless rely on article 8 in the context of the United Kingdom's discharge of its Dublin III obligations?
4. If article 8 applies, did the delay in this case breach article 8?

Arguments of the Parties

Appellant's Arguments (Secretary of State)

• Conceded failings in responding to the take charge requests (TCRs), but argued the remedy for delay is provided within Dublin III itself (deemed acceptance after two months).
• Asserted no article 8 claim arises from the United Kingdom's discharge of Dublin III obligations; any delay claims should be against France.
• Submitted Dublin III goes further than article 8 requires and is not an international consensus like the Hague Convention.
• Characterised the obligation to admit family members as a positive obligation, which does not require compliance with the "in accordance with law" criterion of article 8(2).
• Argued that breaches of Dublin III or incidental unlawfulness do not ipso facto constitute breaches of article 8.
• Relied on case law establishing that article 8 only displaces Dublin III procedures in very exceptional circumstances involving systemic deficiencies in member state 1.
• Maintained that the overall transfer occurred within Dublin III time limits, thus no breach of article 8 arose.

Respondents' Arguments

• Contended the case concerns unlawful refusal of TCRs, not mere delay, and that such unlawful acts engage article 8 rights.
• Argued the Secretary of State breached Dublin III by not accepting the TCRs within the prescribed time and by failing investigative and procedural duties, including failure to involve the local authority.
• Submitted that the Secretary of State's breaches of Dublin III also breach article 8 ECHR and that the exceptional circumstances test from other cases does not apply when a member state breaches Dublin III obligations.
• Asserted that article 8 requires acting in accordance with law, including EU law and common law, and that incidental unlawfulness in discharging positive obligations under Dublin III interferes with family life rights.
• Highlighted that the Respondents suffered significant psychiatric harm due to delays and procedural failings.

Table of Precedents Cited

Court's Reasoning and Analysis

The court undertook a detailed analysis of the obligations under Dublin III and their relationship with article 8 ECHR and article 7 CFR. It acknowledged the Secretary of State's unlawful procedural failings, including failure to respond to TCRs within two months, failure to investigate family links properly, and failure to involve local authorities as required by policy. The court recognized the resulting delay caused significant harm to the Respondents.

However, the court distinguished between breaches of Dublin III and breaches of article 8. It concluded that Dublin III provisions do not mirror article 8 obligations; rather, Dublin III represents a procedural framework that generally satisfies article 8 requirements. Incidental unlawfulness in administering Dublin III does not automatically constitute a breach of article 8.

The court emphasized the distinction between positive and negative obligations under article 8, holding that the obligations in this case were positive (to admit family members) and thus the "in accordance with law" requirement of article 8(2) does not apply. It further held that article 8 will only displace Dublin III procedures in very exceptional circumstances, such as systemic deficiencies in member state 1's legal system, which were not present here.

Given that the Respondents were transferred within the overall Dublin III time limits and that the delay did not exceed the statutory long-stop, the court found no interference with article 8 rights. It rejected the argument that unlawful delays and procedural failings ipso facto breached article 8. The court also found no merit in the contention that the delay caused an article 8 breach given the overall transfer timeline.

In sum, while the Secretary of State acted unlawfully in procedural respects, these breaches did not amount to breaches of article 8 or EU law for the purposes of this appeal.

Holding and Implications

ALLOWING the Secretary of State's appeal.

The court held that the Secretary of State did not breach article 8 ECHR or EU law despite procedural failings in administering Dublin III. It clarified that incidental unlawful conduct within the Dublin III framework does not automatically constitute a breach of article 8, particularly where transfers occur within statutory time limits. The ruling confirms that article 8 only displaces Dublin III in exceptional circumstances involving systemic deficiencies in another member state's system.

The direct effect is that the liability findings against the Secretary of State for breaches of article 8 are overturned. No new precedent was established beyond reaffirming existing principles on the relationship between Dublin III and article 8 obligations and the application of positive and negative obligations under article 8.