CK & Ors, R (On the Application Of) v Secretary of State for the Home Department [2014] EWHC 2635 (Admin)

[2014] EWHC 2635 (Admin)Case No CO/3639/2013
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 30 July 2014
Before
Ms GERALDINE CLARK(Sitting as a Deputy High Court Judge)
Between
THE QUEEN (on the application ofClaimants(1) CK, (2) AK, (3) BK)ClaimantSECRETARY OF STATE FORDefendantTHE HOME DEPARTMENTDefendant
Mr Greg Ó Ceallaigh (instructed by Messrs Samars, Solicitors) for ClaimantsMr Rory Dunlop (instructed by Treasury Solicitor) for DefendantHearing Hearing date: 10 July 2014
JudgmentGeraldine Clark :
[1]Can asylum seekers bring judicial review proceedings to challenge the Secretary of State for the Home Department’s refusal to exercise her discretion under the Dublin II Regulation to permit their asylum claims to be examined in the United Kingdom?[2]The Claimants are a family of Sikh asylum seekers of Afghan nationality. The First and Second Claimants are husband and wife respectively and the Third Claimant is their daughter who was born in 2009. Following a long and difficult journey from Afghanistan, they arrived in France in August 2012 where they were briefly detained and fingerprinted as asylum seekers.[3]However they chose not to remain in France. The First Claimant had an adult brother and sister living in London who had come to the United Kingdom as refugees some 16 years ago and who are now British citizens. The First Claimant entered the United Kingdom using a false passport and, when his presence in London was discovered on 23 September 2012, he claimed asylum here. He was subsequently joined by the Second and Third Claimants who entered the United Kingdom on 29 October 2012 and immediately claimed asylum here. Around November 2012 the Second Claimant became pregnant with her second child, who was born on 19 August 2013. She discovered that she was pregnant in mid-December 2012. On 16 December 2012 the Claimants moved to accommodation in Bolton.[4]The European Union member states have a Common European Asylum System. Council Regulation (EC) No. 343/2003 (“the Dublin II Regulation”) establishes the criteria and mechanism for determining the member state of the European Union responsible for examining an asylum application lodged in one of the member states by a third country national. As may be seen from the preamble to the Regulation, it is intended to establish objective fair criteria and make it possible to determine rapidly the member state responsible for examining an asylum application while preserving family unity so far as this is compatible with other objectives.[5]Under the ranked criteria set out in Chapter III of the Dublin II Regulation it was France, where the Claimants had first irregularly entered a member state, which was responsible for examining the Claimants’ asylum applications pursuant to Article 10.[6]Article 7 of the Regulation, which provides for asylum seekers who have family members who have been allowed to reside in a member state as refugees to have their asylum applications dealt with in the same member state, did not apply to the Claimants because the First Claimant’s brother and sister did not fall within the limited definition of “family members” contained in Article 2.[7]On 1 October 2012 in the case of the First Claimant and 31 December 2012, in the case of the Second and Third Claimants, France accepted responsibility for examining the Claimants applications for asylum.[8]Section 77 of the Nationality, Immigration and Asylum Act 2002 establishes the general rule that a person may not be removed from the United Kingdom, or required to leave the United Kingdom while their claim for asylum is pending. However, there is an exception under section 33 and schedule 3 of the Asylum and Immigration (Treatment of Claimants etc.) Act 2004 which permits persons who are the subject of a decision under the Dublin II Regulation to be removed to a safe country. France is one of the countries listed in schedule 3 as a country known to protect refugees and to respect human rights. Consequently, on 8 November 2012, in the case of the First Claimant, and 7 January 2012 in the case of the Second and Third Claimants, the UK Border Agency informed the Claimants that they would be removed to France. This was followed by the issue of directions for removal to France on 26 February 2013.[9]On 28February 2013, the Claimants’ solicitors made written representations to the Secretary of State asking that she exercise her discretion under Article 3.2 and Article 15 of Dublin II to consider the Claimants’ asylum claims in the United Kingdom. Those articles provide:
“Article 3 1. Member States shall examine the application of any third country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State, which shall be the one that the criteria set out in Chapter III indicate is responsible. 2. By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility. ....” “Article 15 1. Any Member State, even where it is not responsible under the criteria set out in this Regulation, may bring together family members, as well as other dependant relatives, on humanitarian grounds based in particular on family or cultural considerations. In this case, the Member State shall, at the request of another Member State, examine the application for asylum of the person concerned. The persons concerned must consent. 2. In cases in which the person concerned is dependent on the assistance of the other on account of pregnancy or a new-born child, serious illness, severe handicap, or old age, Member States shall normally keep or bring together the asylum seeker with another relative present in the territory of one of the Member States, provided that family ties existed in the country of origin.”
[10]The Claimants also relied in on their right to a private and family life under Article 8 of the European Convention on Human Rights 1950 (“Article 8 ECHR”) and the Secretary of State’s obligations towards the Third Claimant as a child under s.55 of the Borders, Citizenship and Immigration Act 2009 (“Section 55”).[11]The representations referred to the First Claimant’s adult brother and sister in the United Kingdom and stated:
“Our clients have received considerable comfort from their family member in the United Kingdom and are anxious not to be returned to a country in which they know no-one and have no familial support.”
[12]They quoted both limbs of Article 15 and invited the Secretary of State to exercise her discretion to consider the Claimants’ asylum claims in the United Kingdom because the Second Claimant was “plainly dependent on her relatives in the United Kingdom as a result of her pregnancy” and state that there are cultural considerations which militate towards the protection of wider family relationships in this case. An enclosed doctor’s letter dated 20 February 2013 stated that the Second Claimant had attended his surgery on 20 February 2013 with “severe symptoms of stress and anxiety” having been “feeling dizzy, sickly with intermittent headaches last few days with “severely disrupted sleeping” caused by worries about her immediate future. He noted that she was then 14 weeks pregnant but found no physical cause for the symptoms.[13]The representations assert that the Claimants’ private and family life rights were engaged by the decision that they should be moved to France in the light of their reliance on their family members and the “precarious situation of [AK]” presumably her pregnancy and anxiety. They remind the Secretary of State that she is obliged to consider the best interests of the Third Claimant under Section 55 stating “on any view she would be better off with the family associations available to her in the United Kingdom that would not be available to her in France.”[14]On 15 March 2013, the Secretary of State declined to exercise her discretion to examine the Claimants’ asylum applications in the United Kingdom. The UK Border Agency set out full reasons for that decision in two letters of that date in materially identical terms one regarding the First Claimant and the other regarding the Second and Third Claimants.[15]The Claimants issued an application for judicial review of the decision on 26 March 2013. They contend that the Secretary of State’s decision as illegal relying on Article 15.2 and Article 3.2 of the Dublin II Regulation, Article 8 ECHR and Section 55 and ask the court to quash the decision.[16]HHJ Inglis, sitting as a Deputy High Court Judge, refused permission to seek judicial review and stated that the claim was totally without merit on 18 June 2013. However, permission was subsequently granted on 3 October 2013 by Elizabeth Cooke QC, sitting as a Deputy High Court Judge, following an oral hearing.

Summary of this Judgment

[17]For the reasons I shall give, I have concluded that the claim must fail because decisions taken under the Dublin II Regulation are not susceptible to challenge by judicial review proceedings save where the enforcement of the decision would lead to inhuman or degrading treatment, which is not alleged in this case. Further, even if judicial review were available, the error of law which I have found led the Secretary of State to conclude that Article 15.2 did not apply, caused the Claimants no prejudice whatsoever so that it is inappropriate to grant the relief sought.

Justiciability

[18]The first issue is whether individual asylum seekers have the right to challenge by way of judicial review the Secretary of State’s application of her discretion under Article 15.2 and Article 3.2 of the Dublin II Regulation.[19]The Claimants contend that the answer is ‘yes’ where the decision is contrary to established public law principles or where the decision was made without proper regard to private or family life in breach of Article 8 ECHR.[20]The Defendant contends that the answer is always ‘no’, save in the rare case where a refusal to exercise discretion in an asylum seeker’s favour would result in him or her being returned to a country where there was an obvious risk that his human rights would be abused.[21]In my judgment the Defendant is correct. Mr Rory Dunlop, who appeared for the Defendant, cited a flurry of cases in the High Court, Court of Appeal and European Court of Justice over the last two years which establish that, save where removal is forbidden because transfer to another member state would lead to a real risk that the asylum seeker would be subjected to inhuman or degrading treatment, decisions taken by the Secretary of State in implementing the Dublin II Regulation cannot be challenged by an asylum seeker by judicial review.[22]In R (Kheirolliahi-Ahmadroghani) v Secretary of State for the Home Department [2013] EWHC 1314 (Admin) decided on 22 May 2013, Stadlen J reviewed the English authorities including at [72] R (RG) v Secretary of State for the Home Department [2005] EWCA Civ 546 in which Maurice Kay LJ said:
“the effect of Article 15 [of the Dublin II Regulation] is not to confer a free standing substantive right on individual applicants. Rather, it is to regulate the relationship between two or more Member States.”
Stadlen J concluded at [166]: “In my judgment as a matter of construction of the Dublin II Regulation and in the light of the travaux preparatoires, the Regulation does not confer on individual a right to require Member States to allocate responsibility for examining their asylum application in accordance with the provisions of the Regulation and alleged breaches of those provisions are not actionable at the suit of an individual”, and found that there was neither Court of Appeal authority nor European authority which compelled a different conclusion.[23]In R (AR Iran) v Secretary of State for the Home Department [2013] EWCA Civ 778, where judgment was given on 28 June 2013, Sir Richard Buxton, with whom Moore-Bick LJ and Underhill LJ agreed, stated at [31]:
“The whole point of the Dublin II jurisprudence is that while member states may complain of defects in procedure the asylum seeker may not do so.”
[24]The European Court of

Justice stated on 10 December 2013 in Abdullahi v Bundesasylamt Case C-394/12 at [60] that:

“… the only way in which the applicant for asylum can call into question that choice of criterion [Article 10(1) of the Regulation] is by pleading systematic deficiencies in the asylum procedure and in the conditions for reception for applicant for asylum … which provide substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman and degrading treatment within the meaning of Article 4 of the Charter [of Fundamental Rights of the European Union.”
The Supreme Court subsequently widened the scope of the exception in EM(Eritrea) vSecretary of State for the Home Department [2014] UKSC 12 holding that it was not only in cases of systematic deficiencies that transfer could be resisted on the basis of a real risk that an asylum seeker would be subjected to inhuman or degrading treatment.[25]In Habte v Secretary of State for the Home Department [2013] EWHC 3295 (admin), Lewis J records at [62] of this judgment dated 30 October 2013 that the claimant’s counsel conceded that it would require a ruling from the European Court of Justice to establish that that the provisions of the Dublin II Regulation were directly effective.[26]This line of authorities was followed by Mr Philip Mott QC, sitting as a Deputy High Court Judge, in R (Jeyarupan) vSecretary of State for the Home Department[2014] EWHC 386 (Admin). In a judgment dated 20 February 2014 at [36-39] he held that, because the Dublin II Regulation did not confer directly effective rights on individual asylum seekers, an action could not arise on her decision not to exercise her discretion under Article 3.2.[27]The Claimants contended that this line of authorities cannot survive the decision in K v Bundesasylamt, Case - 234/11 [2013] 1 WLR 883, a judgment of the European Court dated 6 November 2012 which is not referred to in the judgments in Habte and Jeyarupan. In that case the European Court of Justice was asked by the Austrian court to rule on the nature of the decision maker’s discretion in a particular case where it was accepted that all the factual prerequisites for the application of Article 15.2 had been established.[28]The Claimants submit that the court’s willingness to entertain a reference from the German court in K v Bundesasylamt is inconsistent with the Defendant’s contention that the exercise of discretion under Article 15.2 cannot be challenged by an asylum seeker. I disagree. The issue of whether an individual asylum seeker could challenge an exercise of discretion under Article 15.2 was not before the court in K v Bundesasylamt. Further, in my judgment, the court’s willingness to rule on the correct interpretation and application of Article 15.2 is equally consistent with the need to clarify, as among member states, their respective rights and duties under Article 15.2 as it is with the Claimants’ proposition that asylum seekers have a right to challenge a refusal to exercise discretion under Article 15.2.[29]The Claimants do not contend that their removal to France would lead to a real risk of their being subjected to inhuman or degrading treatment. I therefore find that they are unable to challenge the Secretary of State’s decision to transfer them to France to have their asylum application examined there.[30]The timeline of the Claimants case demonstrates the importance to the efficient working of the Dublin II Regulation of restricting rights of challenge. It is now almost two years since the Claimants claimed asylum in France and about 18 months since they claimed asylum in the United Kingdom. Yet as a result of these judicial review proceedings, their asylum claims remain to be examined.

The Merits

[31]My decision on justiciability is sufficient to dispose of this claim for judicial review. However, in case I am wrong about that, I will also consider the merits of the application for judicial review.[32]The Claimants contend that in refusing to consider the Claimants’ asylum claims in the United Kingdom the Defendant acted unlawfully because: i) The refusal was based on an error of law, namely a mistaken belief that the Secretary of State need only consider the exercise of her discretion under Article 15.2 if requested to do so by another member state. ii) The refusal was a breach of Article 15.2 because the Second Claimant was dependent on the assistance of relations on account of pregnancy at that time and Article 15.2 therefore required the Secretary of State to take responsibility for the Claimants’ claims. iii) (In the alternative to (ii)) if there was insufficient information before the Secretary of State, she was under a public law duty to make enquiries, which she failed to perform. iv) The refusal was an irrational exercise of the Secretary of State’s discretion under Article 3.2 because the United Kingdom is better suited to determining the Claimants’ asylum claim than France. v) If the decision under Article 15.2 was unlawful, it was a breach of the Claimants’ right to respect for their private life under Article 8 ECHR. vi) The refusal was a breach of the Secretary of State’s duty to the Third Claimant under Section 55.[33]In response, the Defendant contends: i) Article 15.2 was not relied on in the Claimants’ submissions to the UK Border Agency so the Defendant was not under any obligation to consider it. ii) The question of whether one meets the requirements of Article 15.2 needs to be considered on the basis of the situation when the asylum claim was lodged, at which time the Second Claimant was not pregnant. iii) The evidence submitted by the Claimants to the UK Border Agency did not establish a relationship of dependency. iv) The challenge to the Secretary of State’s exercise of her discretion under Article 3.2 is ill-founded because the test is not which country is more suited to determining the claim. v) Article 8 does not assist because the Claimants’ renewed relationship with the First Claimant’s adult brother and sister had been established at a time the Claimants’ immigration status was precarious. vi) There was no breach of Section 55.

Article 15.2

[34]The decision letters dated 15 March 2013 state:
“In respect of your comments in relation to Article 15 of the Dublin Regulation the UK Border Agency would point out that Article 15 can/will only be considered if it is raised with us be the receiving Member State if they believe that there are strong humanitarian reasons why the applicant should be considered in the other Member State. In your client’s case this has not happened.”
[35]The Claimants rely on K v Bundesasylamt, Case - 234/11 [2013] 1 WLR 883, a judgment of the European Court dated 6 November 2012, i.e. four months before the decision in the Claimants’ case. K v Bundesasylamt establishes at [50-53] that a request by another member state is not required before a member state should consider exercising its discretion under Article 15.2, for three reasons: first, because unlike Article 15.1, Article 15.2 does not refer to a request from another member state; second, where the dependency required for Article 15.2 exists in a member state, that member state may not ignore that situation and a request would be purely a formality; and third, the requirement of a request would unnecessarily prolong the procedure for determining the member state responsible.[36]The Defendant did not challenge the authority of K v Bundesaylamt before me. Instead, she contended that it was not open to the Claimants to criticise the Secretary of State for refusing to consider Article 15.2 because Article 15.2 was not raised in the Claimants’ representations. I reject that submission. While the Defendant correctly points out that the representations do not state that family ties existed in the country of origin – a prerequisite for the application of Article 15 – I find that there is sufficient indication that the Secretary of State was being asked to consider exercising her discretion under both Article15.1 and Article 15.2. The fact that the representations quote the text of both limbs of Article 15 and state immediately after the text of Article15.2 that the Second Claimant “is plainly dependent of her relatives in the United Kingdom as a result of her pregnancy”. This echoes, though it does not directly quote, the phrase in Article 15.2 “dependent on the assistance of the other on account of pregnancy…”.[37]I am satisfied on the basis of the European Court of Justice’s in K v Bundesaylamt, that the Secretary of State’s approach to the exercise of her discretion under Article 15.2 was based on an error of law, namely that the belief that she was only required to consider exercising her discretion if a request had been received from another member state. Having made that error, the Secretary of State failed to consider exercising her discretion under Article 15.2 in the Claimants’ case, as she would otherwise have done.[38]However, it is in my judgment inevitable that, if she had done so, she would nevertheless have refused to consider the Claimants’ asylum applications in the United Kingdom, for reasons I shall explain.[39]To recap, Article 15.2 provides:
“In cases in which the person concerned is dependent on the assistance of the other on account of pregnancy or a new-born child, serious illness, severe handicap, or old age, Member States shall normally keep, or bring together the asylum seeker with another relative present in the territory of one of the Member States, provided that family ties existed in the country of origin.”
[40]Therefore, before the Secretary of State is required to consider exercising her discretion under Article 15.2 to keep together an asylum seeker with a relative present in the United Kingdom all the following factual prerequisites must be met: i) The asylum seeker must be dependent on the assistance of a relative. ii) That dependency must be “on account of pregnancy or a new born child, serious illness, severe handicap or old age”. iii) Family ties must have existed in the country of origin.[41]I reject the Claimants’ submission that the Secretary of State was under a public law duty to make inquiries if Article 15 was raised and there was insufficient information before the decision maker to satisfy him or her that the factual prerequisites for Article 15.2 were made out. This would defeat the purpose of the Regulation. There is ample authority that even if the Regulation imposes public law procedural duties on the Secretary of State, those duties would not extend to a duty to make enquiries: R (AR Iran) vSecretary of State for the Home Departmentat [26], Habte v Secretary of State for the Home Department [53-55] and R(Jeyarupan) v Secretary of State for the Home Departmentat [52]. The Claimants did not seek to challenge or distinguish those authorities.[42]It follows that the decision maker was entitled to consider whether the three preconditions were made out on the basis of the information before him or her.[43]Crucially, the decision maker did consider the first of the factual preconditions – namely whether the Second Claimant was dependent on the assistance of her brother in law or sister in law – in the context of her reliance of Article 8 ECHR. The conclusion was unequivocal:
“Your client have not been financially, physically, or emotionally dependant on her brother in law and sister in law as they had clearly been apart for a considerable time. There is not any evidence of anything beyond what is usually expected of adult relatives. Your client can maintain contact with her brother in law and sister in law by way of telephone calls and emails. Your client’s brother in law and sister in law can also visit your client in France as they are British Citizens.”
[44]In the light of this conclusion on the information before her, I find it inconceivable that the decision maker would have been satisfied that the Second Claimant was dependent on her husband’s brother and sister if he or she had considered dependency for the purposes of Article 15.2 of the Regulation. On this basis, I find that the Secretary of State’s error of law has not resulted in any prejudice to the Claimants. In these circumstances, I do not consider it appropriate to quash the Secretary of State’s decision to transfer the Claimants to France to have their asylum applications examined there.[45]However, if the issue of dependency had not been specifically addressed by the Secretary of State, I would not have acceded to the Defendant’s submission that the evidence submitted by the Claimants to the UK Border Agency did not establish a relationship of dependency. Evaluation of the evidence is a matter for the Secretary of State, not the court.[46]As the “dependency” prerequisite is not met the Claimants’ submission that Article 15.2 of the Regulation did not merely permit but rather required the Secretary of State to take responsibility for the Claimants’ claims does not arise. If it had arisen, I would have held following K v Bundesasylamt at [44-46] that where Article 15.2 applies, the words “shall normally keep or bring together an asylum seeker with another relative …” does impose an obligation on the decision maker to keep the relatives together and “may only derogate from that obligation because an exceptional situation has arisen”.[47]If it had been necessary to do so I would have rejected the Defendant’s submission based on Article 5.2 that the question of whether one meets the requirements of Article 15.2 needs to be considered on the basis of the situation when the asylum claim was lodged, i.e. when the Second Claimant was not pregnant. Article 5.2 is in terms limited to the application of the hierarchy of criteria set out in Chapter II of the Regulation. It has no application to Article 15.2 which is forms part of Chapter IV. There is no equivalent in Chapter IV. Further, the very purpose of Article 15 is to provide for exceptions to Article III on humanitarian grounds. This purpose could not be achieved if the reason for dependency had to exist at the time asylum was sought rather than when the humanitarian grounds were being considered.

Article 3.2

[48]The Claimants also relied on the general discretion provided by Article 3.2 which enables a Member State voluntarily to assume responsibility for examining an asylum application where the criteria provided by Chapter III of the Regulation does not require it to do so.[49]The decision letters dated 15 March 2013 state: “You have asked that your clients’ asylum claim be considered in the UK. It is not considered appropriate to exercise discretion under Article 3.2 of the Dublin II Regulation in your clients’ case as there are no exceptional circumstances to support such an exercise of discretion. It is considered that to allow persons such as your client who have entered the UK illegally and whose asylum claim is properly for the French authorities to consider, to have their asylum claim considered in the UK would be to undermine the proper operation of the Dublin Regulation and to the disadvantage of those whose asylum claims are properly the responsibility of the United Kingdom to consider”.[50]I reject the Claimants’ submission that this was an irrational exercise of the Secretary of State’s discretion under Article 3.2 of the Regulation. She was under no duty to exercise her discretion in the Claimants’ favour, NS (Afhanistan) v Secretary of State for the Home Department C-411/10 [2013] QB 102 at [107]; Germany v Puid [2014] QB 346 at [28-30]; [2014] 2 WLR 98 at [25-29] and R (Jeyarupan) [2014] EWHC 386 at [32]. The Claimants’ submission that the Secretary of State’s refusal to exercise the Article 3.2 discretion was irrational because “the United Kingdom was plainly in a better position to consider their applications than France” is misconceived. It cuts across the entire scheme of the Dublin II Regulation and the purpose for which it was enacted, which was to institute a clear and workable determination of the state responsible for the examination of an asylum application and prevent forum shopping.

Article 8 ECHR

[51]Article 8 of the ECHR provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.[52]Counsel for the Claimant, Mr Greg Ó Ceallaigh sensibly accepts that, in circumstances where the First Claimant had been separated from his brother and sister for some 16 years and where the five months of renewed contact they had enjoyed in the United Kingdom had been the result of the Claimants’ illegal entry and in the knowledge of their precarious immigration status, the Secretary of State’s decision that their asylum claim should be dealt with in France was not a disproportionate interference with their right to respect for their family life under Article 8 EHCR.[53]Article 8 ECHR appears to been raised more in an attempt to circumvent the authorities which establish that asylum seekers do not have right to bring proceedings alleging breaches of Article 15.2, rather than as a stand alone argument. Mr Ó Ceallaigh accepts that the Claimants’ case under Article 8 ECHR ground stands or falls with their case in respect of Article 15.2. He confines himself to arguing that the Secretary of State’s decision under Article 15.2 is unlawful – because she mistakenly believed that a request from another member state was required – and that there is therefore a breach of Article 8, regardless of whether the decision was a disproportionate interference with the Claimants’ qualified right to respect for their family life .[54]I reject that contention. The Secretary of State’s failure to consider exercising her discretion under Article 15.2 as a result an error of law could only give rise to a breach of Article 8 if it interfered with the Claimants’ family life. It did not do so because, as I have already found, the Secretary of State would still have refused to exercise her discretion to examine the Claimants’ asylum claims in the United Kingdom even if there had been no error. The interference with the Claimants’ family life arises from the lawful application of Article 10 of the Dublin II Regulation which designates France as the member state responsible for examining the Claimants’ asylum claims. The Claimants admit that this lawful interference is proportionate. The Claimants come nowhere near establishing the flagrant breach required to challenge a decision under the Dublin II regulation on Article 8 grounds: see Mozaffar Baradaran v Secretary of State for the Home Department [2014] EWCA Civ 854 at [9]. It follows that in my judgment there has been no breach of Article 8 ECHR.

Section 55

[55]Section 55 requires the Secretary of States to make arrangements for ensuring that that her functions in relation to immigration, asylum and nationality are discharged having regard to need to safeguard and promote the welfare of children who are in the United Kingdom. The applicable principles are set out in Zoumbas vSecretary of State for the Home Department [2013] UKSC 74 at [10]. The Claimants relied on the same factual representations in relation to Section 55 as they did in relation to Articles 15.2 and Article 3.2.[56]The UK Border Agency’s decision letter to the Second and Third Claimants dated 15 March 2013 specifically considered Section 55 in circumstances where the whole family was to be removed to France together. It states that the Third Claimant will have the same opportunities for development and the same level of support in France as in the United Kingdom and that the case does not demonstrate any exceptional circumstances, or raise any issues which lead the Secretary of State that this is not the case and that therefore there should not be a return to France.[57]The Claimants’ submit that in making her decision the Secretary of State “has acted in breach of [Section 55] in that it is plain that the best interests of the Third Claimant have not been treated as a paramount consideration”. The only reason advanced was the suggestion that the Third Claimant, who would have been around 4 years old at the time would be temporarily deprived of contact with her paternal aunt and uncle whom she had met about five months before, if the Claimants were transferred to France to have their asylum claim considered. The weight given to that relatively trivial consideration was a matter for the Secretary of State not the court. In my judgment the Claimants’ reliance on Section 55 adds nothing to the Claimants’ case. It is simply an attempt to challenge the merits of the Secretary of State’s decision. As such I shall say no more about it.

Conclusion

[58]The claim for judicial review fails.