Citizens UK v Secretary of State for the Home Department [2017] EWHC 2301 (Admin)

Case No CO/5255/2016[2017] EWHC 2301 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 18/09/2017
Before
Mr Justice Soole
Between
CITIZENS UKClaimantSECRETARY OF STATE FOR THE HOME DEPARTMENTDefendant
Michael Fordham QC, Charlotte Kilroy and Michelle Knorr (instructed by the Migrants’ Law Project at Islington Law Centre) for ClaimantDavid Manknell and Amelia Walker (instructed by the Government Legal Department) for RespondentHearing Hearing dates: 23-26 May 2017
JudgmentMr Justice Soole :
[1]This is the application of the Claimant NGO (‘CUK’) for judicial review of the procedures adopted by the Defendant (‘SSHD’) shortly before and in the aftermath of the French Government’s closure in October 2016 of the camp in Calais known colloquially as ‘the Jungle’ and the subsequent dispersal of its occupants to accommodation centres called CAOMIs (Centres d’accueil et d’orientation pour mineurs isoles). The procedures related to over 2000 young people in the camp and CAOMIs who were seeking to come to the UK as unaccompanied minors in order to join family members and claim asylum. Permission to proceed with the claim was granted by Lang J at a renewed application on 28.2.17.[2]In particular the case concerns the so-called ‘expedited process’ established by the British and French Governments. Its effect was to transfer approximately 750 children formerly resident in the camp/CAOMIs. Of this total about 200 were transferred under the provisions of s.67 of the Immigration Act 2016 (the ‘Dubs amendment’). This case is not concerned with those who were considered under that statutory provision. The balance of the applicants, in excess of 1000, were unsuccessful and remained in France.[3]CUK, through its project ‘Safe Passage UK’ (SPUK), was a central participant in providing help and assistance to the young people in the camp/CAOMIs. It welcomes the transfers which were effected under this process but submits that the procedures adopted were legally flawed and unfair to the disadvantage of those who failed in their applications. In addition to declaratory relief it seeks orders compelling the SSHD to consider afresh the applications of those who failed.[4]CUK’s essential case is twofold. First, that the expedited process Save in respect of those transferred under the Dubs amendment was in substance the operation of the system known as Dublin III Regulation (EU No. 604/2013 :
‘Dublin III’). This and its related instruments contain procedural safeguards to ensure fair process; and those safeguards were not complied with. Secondly and alternatively, that if and to the extent that the expedited process was ‘outside’
Dublin III, it was subject to common law standards of procedural and substantive fairness; which in the circumstances of the case were no less demanding than those provided by Dublin III.[5]The SSHD accepts that the procedures did not match the Dublin III safeguards in every respect. However she contends that the expedited process was an ad hoc measure, agreed with the French Government in the exceptional and short-term circumstances which prevailed, and which stood outside Dublin III. In all the circumstances the procedures satisfied common law standards of fairness. If (contrary to her case) the procedures were unlawful, there is no basis for any further relief. It is still open to any of the applicants to make a claim for asylum within the Dublin III process; and in any event it is not open to the Court to make orders which would depend upon taking action within another sovereign state.[6]CUK responds that the potential availability of a fresh application under Dublin III does not satisfy the need for the expedited process to have been carried out lawfully and fairly. However, recognising the practical issues which arise in respect of action in another sovereign State, it submits that any question of relief should be reviewed at a further hearing.[7]The original application for judicial review (14.10.16) focussed on the provisions of a Joint Declaration dated 20.8.15 between the two governments and contended that this gave rise to public law obligations on the SSHD. This was and is disputed. The application was amended in the light of events concerning the expedited process which began later in October 2016. Although the justiciability of the Joint Declaration remains at issue, the focus of oral argument was on the independent issues arising from the expedited process. The judgment follows that course.[8]The issues raised in this claim were considered by the Upper Tribunal (Immigration and Asylum chamber : McCloskey J (President) and Upper Tribunal Judge Allen) in the course of applications for judicial review by five individual claimants (unaccompanied minors) issued in March 2017 and heard in May 2017. The leading judgment is in the case of AM v. SSHD (JR/2486/2017). The hearing in that case was on 5.5.17 and 11.5.17. On the day before the start of the hearing in this matter (23.5.17) with the Tribunal’s permission I was provided with a copy of its judgment in AM pending formal hand-down.[9]In its judgment the Upper Tribunal accepted the arguments of Counsel for AM (Junior Counsel for CUK in this case) which I have outlined above. It held that Dublin and its associated instruments applied to the expedited process and that in consequence AM and the other individual applicants had been deprived of the requisite procedural safeguards. In the alternative, the Tribunal held that the same conclusion was reached by the route of the common law and Article 8 of the ECHR. Although the cases included consideration of their specific facts, the Tribunal’s reasoning on the generic issue which arises in this present claim was central to its conclusions.[10]By way of remedy the Tribunal made orders quashing the refusal to transfer the applicant in each case from France to the UK in November/December 2016; and ordering her to make all necessary and immediate arrangements for transfer to the UK using best endeavours and by not later than midnight on 22.5.17 and to begin and complete a final decision-making process by the same deadline. Four of the five decisions are subject to applications for permission to appeal to the Court of Appeal.[11]CUK submits that the Upper Tribunal was exercising a jurisdiction of equivalent status; and that in consequence I must follow its reasoning on the generic point unless convinced or ‘satisfied’ that it was wrong: see e.g. R. v. Greater Manchester Coroner, ex parte Tal [1984] 1 QB 67; also Totel Ltd. v. HMRC [2014] UKUT 0485. Thus each case fell within s.15 of the Tribunals Courts and Enforcement Act 2007 which empowers the Upper Tribunal to grant such relief; provides that the relief has the same effect and is enforceable as relief granted by the High Court on an application for judicial review; and requires that in deciding whether to grant such relief it must apply the principles that the High Court would apply.[12]I did not understand Counsel for the SSHD, Mr David Manknell, ultimately to dissent from the proposition, which I accept. In any event a decision of this specialist Tribunal (including its President) deserves special respect and should not be departed from save on the same basis. I will return to consideration of the Upper Tribunal’s judgment at a later stage. Dublin III[13]Before turning to the narrative of events, I should set out the central principles of Dublin III. Their outline can conveniently be taken from the summary given by the Court of Appeal in the ‘Calais’ case of R (ZT(Syria)) v. SSHD [2016] 1 WLR 2894 in particular at paras. 2, 4, 13 and 14.[14]Dublin III is one of the components of the Common European Asylum Policy. It establishes the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third country national or a stateless person: see Article 1.[15]It restricts examination of an asylum application to a single EU Member State and provides for transfer of the asylum seeker to the Member State responsible for processing an asylum application if asylum is sought elsewhere in the European Union. ‘Examination’ denotes determination of the application on its merits. This may be preceded by an initial, more limited, decision by a host Member State to transmit to a second Member State a request to ‘take charge’ of the person applying for international protection.[16]Thus Article 3 provides that ‘Member States shall examine any application for international protection’ by any person who applies on their territory or at the border. Its second sentence provides that the application shall be examined by a single Member State which ‘shall be the one which the criteria set out in Chapter III indicate is responsible’.[17]Chapter III contains the criteria for determining the Member State responsible and a hierarchy of those criteria. These begin with Article 8 which contains mandatory provisions in respect of ‘Minors’.[18]Chapter IV contains discretionary provisions including Article 17, on which CUK also relies.[19]Chapter VI then contains procedures for ‘take charge requests’ (TCRs); also for requests to ‘take back’.[20]Chapter II contains ‘General principles and safeguards’ including ‘Right to Information’ (Article 4), ‘Personal Interview’ (Article 5) and ‘Guarantees for Minors’ (Article 6).[21]The recitals to Dublin III acknowledge that it sits alongside the Directives which also include procedural safeguards for unaccompanied minors. The UK is a party to Procedure Directive (EC) No. 1560/2003, Reception Directive 2003/9/EC and Qualification Directive 2004/83/EC; but has opted out of the subsequent recast Directives. In addition it is a party to the Implementing Regulation 1560/2003 as amended by 118/2014. Dublin III : Articles[22]Article 1 (‘Subject matter’) provides that ‘This Regulation lays down the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or stateless person…’[23]Article 2 of Dublin III contains the following relevant definitions :
‘Application for international protection’ is defined by reference to the Qualification Directive which (in the relevant version) is ‘a request made by a third country national or a stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status…’(Reg.2(g)). ‘Applicant’ means a third-country national or a stateless person who has made an application for international protection in respect of which a final decision has not yet been taken. By reference to this definition, the Court of Appeal in ZT stated that the procedures and mechanisms of Dublin III depend on a person making an application for international protection (para.14). ‘Family members’, when the applicant is a minor and unmarried, mean ‘…the father, mother or another adult responsible for the applicant…’ ‘Relative’ means ‘…the applicant’s adult aunt or uncle or grandparent who is present in the territory of a Member State…’
[24]Article 3 provides :
‘1. Member States shall examine an application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible. 2. Where no Member State responsible can be designated on the basis of the criteria listed in the Regulation, the first Member State in which the application was lodged shall be responsible for examining it…’
[25]Article 4 provides :
‘1. As soon as an application for international protection is lodged within the meaning of article 20(2) in a Member State, its competent authorities shall inform the applicant of the application of this Regulation, and in particular of:…(b) the criteria for determining the Member State responsible… (c) the personal interview pursuant to Article 5 and the possibility of submitting information regarding the presence of family members, relatives or any other family relations in the Member States, including the means by which the applicant can submit such information… 2. The information referred to in paragraph 1 shall be provided in writing in a language that the applicant understands or is reasonably supposed to understand…’
[26]Article 5 provides:
‘1. In order to facilitate the process of determining the Member State responsible, the determining Member State shall conduct a personal interview with the applicant. The interview shall also allow the proper understanding of the information supplied to the applicant in accordance with Article 4 …4. The personal interview shall be conducted in a language that the applicant understands or is reasonably supposed to understand and in which he or she is able to communicate. Where necessary, Member States shall have recourse to an interpreter who is able to ensure appropriate communication between the applicant and the person conducting the personal interview ….5. The personal interview shall take place under conditions which ensure appropriate confidentiality. It shall be conducted by a qualified person under national law. 6. The Member State conducting the personal interview shall make a written summary thereof which shall contain at least the main information supplied by the applicant at the interview. The summary may either take the form of a report or a standard form. The Member State shall ensure that the applicant and/or the legal advisor or other counsellor who is representing the applicant have timely access to the summary.’
[27]Article 6 provides:
‘1. The best interests of the child shall be a primary consideration for Member States with respect to all procedures provided for in this Regulation. 2. Member States shall ensure that a representative represents and/or assists and unaccompanied minor with respect to all procedures provided for in this Regulation. The representative shall have the qualifications and expertise to ensure that the best interests of the minor are taken into consideration during the procedures carried out under this Regulation. Such representative shall have access to the content of the relevant documents in the applicant’s file including the specific leaflet for unaccompanied minors... 3. In assessing the best interests of the child, Member States shall closely cooperate with each other and shall, in particular, take due account of the following factors: (a) family reunification possibilities; (b) the minor’s well-being and social development; (c) safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking; (d) the views of the minor, in accordance with his or her age and maturity… 4. For the purpose of applying Article 8, the Member State where the unaccompanied minor lodged an application for international protection shall, as soon as possible, take appropriate action to identify the family members, siblings or relatives of the unaccompanied minor on the territory of Member States, whilst protecting the best interests of the child…’
[28]Under Chapter III (‘Criteria for determining the Member State responsible)’, Article 8 provides :
‘1. Where the applicant is an unaccompanied minor, the Member State responsible shall be that where a family member or a sibling of the unaccompanied minor is legally present, provided that it is in the best interests of the minor…’ 2. Where the applicant is an unaccompanied minor who has a relative who is legally present in another Member State and where it is established, based on an individual examination, that the relative can take care of him or her, that Member State shall unite the minor with his or her relative and shall be the Member State responsible, provided that it is in the best interests of the minor…’
[29]Under Chapter IV (‘Dependent persons and discretionary clauses’), Article 16 (‘Dependent persons’) makes provisions for Member States to ‘keep or bring together’ applicant children/sibling/parents who are in specified circumstances of dependence for assistance.[30]Article 17 (‘Discretionary clauses’) provides :
‘1. By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation… 2. The Member State in which an application for international protection is made and which is carrying out the process of determining the Member State responsible, or the Member State responsible, may, at any time before a first decision regarding the substance is taken, request another Member State to take charge of an applicant in order to bring together any family relations, on humanitarian grounds based in particular on family or cultural considerations, even where that other Member State is not responsible under the criteria laid down in Articles 8 to 11 and 16. The persons concerned must express their consent in writing.’
[31]The ‘take charge’ procedure is set out in Chapter VI. Article 20 provides :
‘1. The process of determining the Member State responsible shall start as soon as an application for international protection is first lodged with a Member State. 2. An application for international protection shall be deemed to have been lodged once a form submitted by the applicant or a report prepared by the authorities has reached the competent authorities of the Member State concerned. Where an application is not made in writing, the time elapsing between the statement of intention and the preparation of a report should be as short as possible. …4. Where an application for international protection is lodged with the competent authorities of a Member State by an applicant who is on the territory of another Member State, the determination of the Member State responsible shall be made by the Member State in whose territory the applicant is present. The latter Member State shall be informed without delay by the Member State which received the application and shall then, for the purposes of this Regulation, be regarded as the Member State with which the application for international protection was lodged.’
Article 21 provides :
‘1. Where a Member State with which an application for international protection has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any event with three months of the date on which the application was lodged within the meaning of Article 20(2), request that other Member State to take charge of the applicant…’
Article 22 provides for replying to a take charge request. Article 26 provides for notification of a transfer decision to the ‘person concerned’. Article 27 provides for the applicant to have the right to an effective remedy, in the form of an appeal or a review, before a court or tribunal, against a transfer decision.[32]Article 29 makes provision for ‘Transfers’, including :
‘1…If necessary, the applicant shall be supplied by the requesting Member State with a laissez passer…’
[33]Article 33 provides ‘A mechanism for early warning, preparedness and crisis management’.[34]Article 34 provides for ‘Information sharing’ between Member States for the purposes of determining the Member State responsible, examining the application for international protection and implementing any obligation arising under Dublin III.[35]Article 36 provides for ‘Administrative arrangements’ between Member States in order to facilitate and increase the effectiveness of Dublin III. Directives[36]The Directives by which the UK is bound include obligations: Under the Reception Directive : Article 19 :
‘1. Member States shall as soon as possible take measures to ensure the necessary representation of unaccompanied minors by legal guardianship or, where necessary, representation by an organisation which is responsible for the care and well-being of minors, or by any other appropriate representation. Regular assessments shall be made by the appropriate authorities…’
Under the Procedures Directive : Article 6 :
‘1. Member States may require that applications for asylum be made in person and/or at a designated place…4.

(a) …’

Article 17 :
‘1. With respect to the procedures provided for in this Directive… Member States shall…(a) as soon as possible take measures to ensure that a representative represents and/or assists the unaccompanied minor with respect to the examination of the application…’
Implementing Regulation[37]Under the Implementing Regulation (1560/2003, amended by 118/2014), Article 5 provides ‘1. Where, after checks are carried out, the requested Member State considers that the evidence submitted does not establish its responsibility, the negative reply it sends to the requesting Member State shall state full and detailed reasons for its refusal.’ Article 12 provides :
‘3. With a view to facilitating the appropriate action to identify the family members, siblings or relatives of an unaccompanied minor, the Member State with which an application for international protection was lodged by an unaccompanied minor shall, after holding the personal interview pursuant to Article 5 [of Dublin III]…in the presence of the representative referred to in Article 6(2) of that Regulation, search for and/or take into account any information provided by the minor or coming from any other credible source familiar with the personal situation of the route followed by the minor or a member of his or her family, sibling or relative…’
Narrative[38]On 20 August 2015 the SSHD and her French counterpart signed the Joint Declaration, headed ‘Managing migratory flows in Calais: a Joint Ministerial Declaration on UK – French co-operation’.[39]This recorded Europe’s experience of ‘unprecedented pressure from migration, with more than 340,000 arrivals in the first six months of this year’. It noted that ‘At the frontiers this phenomenon presents a serious concern. The UK-France border in Calais and the wider regions of the Nord Pas de Calais and Kent, in particular, are greatly affected’. It continued ‘Recent months have seen a resurgence of people coming to Calais to seek entry to Britain’.[40]The document set out a ‘comprehensive programme of work, jointly between our two states and under direct Ministerial oversight…’ and with a focus on the Calais region and Southern England.[41]Under ‘Managing Migrants in Calais’ it provided:
‘23. For those migrants who want to seek international protection, the two governments agree that capacity to manage claims, lodged in Calais with the French government, should be reinforced. The objective should be that claims are processed speedily and that pressure in Calais is reduced by enabling those whose claims are being processed to move away… 24. The French and UK governments wish to improve operational effectiveness in relation to the Dublin III Regulation, particularly between the two states, which determines which EU Member State is responsible for managing individual asylum applications. The two states will establish a permanent contact group, focused jointly on ensuring that the provisions of the Dublin III Regulation are used efficiently and effectively. The two governments will take stock of these arrangements at the end of this year.’
Paragraph 27 stated the considerable importance attached by the governments to the ‘full, effective and brisk implementation of each element in this document.’ SSHD evidence[42]The first witness statement of Mr Gary Cook (Asylum and Family Policy Unit) (5.4.17) records that the French asylum process in Calais required applicants to pre-register their claim. The FTDA (France Terre d’Asile), a NGO sponsored by the French Government assisted with this and operated centres in the Cap (the secure area of the Calais camp) where such pre-registration took place. Between January and October 2016, when the camp was closed, 3892 asylum applications were lodged in Calais and 921 requests made (‘take-charge’; ‘take-back’; adults and minors) to Member States. In the period 1 January to 1 October 2016 the UK received over 121 take-charge requests (TCRs) from France for unaccompanied minors. Of these, 85 were accepted and transferred to the UK in this period; as compared to fewer than 20 in 2015.[43]The exhibited witness statement (29 February 2016) of Robert Jones (Head of the Asylum and Family Policy Unit) stated his belief, based on speaking to NGOs, migrants and French officials, that migrants do not always trust the French authorities and are reluctant to claim asylum in France as they fear doing so will prevent them being able to claim asylum or secure residence in the UK. He continued that ‘Where the individual has a close family member in the UK such that the provisions of the Dublin regulation are engaged, the UK and France share the objective of facilitating family reunion in the UK by means of a take charge request under the Dublin regulation’.[44]Mr Jones’ second witness statement (27 May 2016) recorded an increase in applicants for asylum and consequential take charge requests and reiterated his view that the greatest barrier to identifying and transferring those with a valid family unity case had been the reluctance of refugees to claim asylum in France.[45]Mr Jones’ evidence was noted by the Court of Appeal in ZT (Syria).[46]The first witness statement of Julia Farman (5 April 2017), Acting Head of European Intake Unit UK Visas and Immigration, states that in June 2016 she set up the Dublin Unaccompanied Asylum Seeking Children (UASC) team (later called the European Intake Unit) ‘to build operational engagement with the French Dublin unit on Dublin transfers into the UK started in March 2016’. From June to October 2016 the UK and French Dublin Unit teams had ‘regular weekly calls to discuss Dublin cases’.[47]At a meeting on 5 August 2016 in Calais with French officials and UK/French NGOs, they were able to state with confidence that the decision-making process in the UK was taking around 10 days from the TCR. Transfer would usually happen 2-3 weeks later.[48]The Process Map for this procedure is headed ‘Pre Calais clearance French Dublin Registration Process’. The process includes the child making an initial registration of an asylum claim with FTDA.[49]Ms Farman states that this was how Dublin III envisaged the system working and that this worked well for those children who were willing to engage in the process and provide sufficient information.[50]Under the heading ‘The accelerated and expedited Dublin processes’, she then states that in early October 2016 ‘an accelerated process under the Dublin III Regulation was drawn up between the UK and French ‘Dublin units’. The rationale for the process was that ‘…we wanted to work with NGOs and the French to make the Dublin process as streamlined as possible (albeit this was going beyond what we needed to do under the Dublin III Regulation’).[51]On 29 September 2016 nine children had been identified by the Claimant for a trial operation of processing a Dublin III application within 16 days, i.e. from application for asylum to transfer to the UK.[52]Then on 7 October 2016 the French authorities announced the intention to clear the Calais camp by 17 October, later postponed to 24 October. In consequence on 12 October she met with the Sous Prefecture staff in Calais ‘to discuss how we were going to consider and process children who may be eligible to transfer to the UK under Dublin in an expedited manner. It was agreed that the accelerated process we had developed would be applied to unaccompanied minors present in the camp but would need to be modified’.[53]On 13 October a meeting with the French Dublin Unit, the Sous Prefecture Calais and the FTDA further developed how the accelerated process would work. This meant ‘condensing the process of registering the asylum claim into one registration form, and at the same time ascertaining any family details that could lead to an acceptance for transfer to the UK under the family reunion criteria of the Dublin Regulation’. French and UK officials would work alongside each other to interview the child and record the relevant details including family membership in the UK.[54]Each interview was conducted with an interpreter present and a photograph taken; and took place in the Cap. It was decided that the decisions would be communicated to the children by French officials. This reflected a ‘French led operation with the UK providing support and only in agreement with the French authorities’. This stage was known as ‘Operation Purnia’.[55]In this case the ‘Calais camp process October 2016’ makes no express reference to an asylum application but to ‘application forms’ being completed.[56]Interviews began on 14 October in the Cap (for males) and on 18 October at the Jules Ferry centre (females) and stopped on 23 October before the pending clearance. The clearance continued from 24-26 October. Interviews recommenced on the 27th (Cap) and 28th (Jules Ferry).[57]On the afternoon of the 28th a direction was received from French ministers to stop interviews in the camp because of concerns of the ‘pull factor’. Transfers to the UK were put on hold.[58]On 2/3 November the Cap and Jules Ferry centre were cleared and the occupants transferred to CAOMIs across France.[59]From 7-25 November interviews took place across France at the CAOMIs involving French and UK officials and social workers. Transfers to the UK resumed on 12 November and the ‘majority’ of transfers were completed by 9 December.[60]Across the two phases of the operation approximately 200 Home Office officials were deployed to France ‘to support the assessment of children against the family reunification criteria of the Dublin Regulation and the published criteria for [Dubs]’.[61]Ms Farman sets out the detail of the interview process, including the assessment of age and of the information provided as to a claimed family relationship. ‘We would consider information given such as a name, DOB and information on the nature of the relationship to make a holistic determination of whether the relationship was genuine’.[62]During this expedited process, they only accepted cases where there was a qualifying family relationship within Article 8 of Dublin III ‘as this Article contains the mandatory criteria for determining that the UK, rather than France would be the responsible Member State underDublin’. Thus they did not accept cases where the family relationship (e.g. a cousin) did not meet the definition of family member or relative in Article 8 as defined in Article 2.[63]If there were doubts about whether a child would in fact be cared for by the family, an assessment would be made as to whether the transfer would be in the best interests of the child. The transfers were organised jointly by the Home Office and French officials and were by coach. For that purpose a Laissez Passer was issued by the Sous Prefecture on the day before travel.[64]Ms Farman accepts that there were occasions when some children missed the coach that they had been due to travel on. This was primarily due to the French authorities and/or NGOs being unable to locate the child in time for the scheduled departure.[65]Owing to the number of children at the Cap and Jules Ferry centres it was not possible to complete the process of interviewing before the dispersal to CAOMIs. By that point 800 individuals had been interviewed over a period of 7 days.[66]Between 2-6 November arrangements were made for interview teams (90 including Home Office staff, interpreters and UK social workers) to travel across France interviewing children at each CAOMI. Nine teams went out from the UK. Together with one team made up of staff in France they interviewed 1872 children at 73 CAOMIs over the three week period 7-25 November 2016. The process followed that in Phase 1 and was ‘largely completed’ by 9 December when Home Office officials left France.[67]At the end of each day completed forms and photographs were e-mailed to Home Office officials in London. They would consider the application and decide whether the child was eligible for transfer under ‘the Dublin criteria’ or Dubs. The decisions were communicated to the French authorities. If the decision was positive, they would liaise with the French authorities over transfer arrangements and the child ‘might be informed within 3 days’. Where the decision was negative the French did not want to communicate it because of the risk of unrest in the CAOMIs. In the end a list was given to the French authorities on 14 December, for their records, of the children accepted and rejected.[68]In the nature of the process it was not possible to give a decision to the child at the conclusion of the interview; nor was it practicable to report back and serve a decision notice on each child interviewed. The reasons for refusal given to the French authorities on the spreadsheet were admittedly very brief, often limited to one word or phrase (e.g. ‘cousin’). This reflected the pressures of trying to process as many children as possible. In any event, the answer would provide sufficient explanation, e.g. ‘cousin’ clearly fell outside the Article 8/Article 2 definition.[69]At the conclusion of the CAOMI interview process, 42 cases were unresolved for various reasons. Of those, 30 had since been transferred to UK, 9 assessed as not eligible, 2 absconded and 1 elected to remain in France.[70]On about 16 December the French authorities asked the SSHD to reconsider about 40-50 cases. She agreed to do so. In the end about 530 cases were presented in various CAOMIs. They were considered under an informal ‘filtration process’ whereby the evidence was reviewed and the SSHD then advised the French authorities whether she would be likely to accept a TCR or whether more information was needed.[71]In the vast majority of cases there was no new information. From those who provided new information there were around 5 cases where the French authorities were informed that there could be a potential for a TCR to be accepted.[72]Anticipating contrary evidence from CUK, Ms Farman had never heard it said, from French officials otherwise, that UASCs had been told that they could not claim asylum in France whilst the expedited process was underway.[73]In his account of his work on the Phase 2 interviews from 7-19 November, Mr Mike Gallagher (Grade 7 Policy Adviser in the Asylum and Policy team) describes the interview process, involving an interview officer, interpreter and social worker, together on occasions with French officials. Each interview lasted about 20 minutes, ‘possibly longer’. It was felt important to give each young person a similar amount of time, but this was extended if e.g. the child became upset when discussing the journey to France. There were allowed to return after the interview with further information e.g. having obtained it from mobile phones.[74]Interview records were sent to a casework team in London for final decision. This was to achieve consistency in decision-making and to meet the concern of the French authorities that the situation in the CAOMIs would become unmanageable if positive and negative decisions were given at the conclusion of the interview.[75]The statement of M. Raphael Sodini (Director of the Asylum Division of the French Ministry of the Interior) said that the British authorities were requested to complete the interviews in CAOMIs within one month of the dismantling of the Calais camp. Home Office characterisation of the process Before modification of the process on 12 October 2016[76]By a letter to CUK dated 21 September 2016 the Minister of State for Immigration referred to the continuing work with French authorities and all parties active in the camps ‘to support efforts to enable children to access the family reunion process under the Dublin Regulation’.[77]By letter dated 2 October 2016 to her French counterpart M. Cazeneuve, the SSHD in particular reiterated the UK’s support for camp clearance in Calais; noted the ‘good progress in transferring children in Calais to the UK under the family reunification provisions of the Dublin Regulation’; and recognised the difficulties in persuading minors to make claims for asylum that can lead to family reunification, referring to ‘practical offers’ already made ‘…in order to help improve the identification, processing and transfer of children from Calais which I hope will be progressed in advance of any clearance’. After modification of the process[78]In her statement to the House of Commons on 10 October 2016 the SSHD referred to a meeting that day with M. Cazeneuve; to the ‘moral duty’ to safeguard the welfare of unaccompanied refugee children; and the UK Government’s ‘commitment to resettle vulnerable children under the Immigration Act 2016 and ensure that those with links to the UK are brought here using the Dublin regulation’. She continued that ‘The primary responsibility for unaccompanied children in…the Calais camp, lies with the French authorities. The UK Government have no jurisdiction to operate on French territory and the UK can contribute only in ways agreed with the French authorities and in compliance with French and EU law. The UK has made significant progress in speeding up the Dublin process’.[79]Her letter to M. Cazeneuve dated 14 October 2016 referred to her Parliamentary statement and tohis commitment to provide a comprehensive list of all minors in the camp, including details of those with a family connection in the UK by 13 October 2016. The letter recorded the incomplete and poor quality list received and the steps which French and UK officials had taken to work round the problem. The letter continued that the two countries were working ‘to progress the children in the Dublin process’ and ‘to reunite the estimated 200 children with close family members in the UK through the Dublin process before the clearance starts’.[80]By letter dated 18 October 2016 in response to CUK’s pre-action letter, the Government Legal Department (GLD) stated that ‘Both governments are clear that migrants in northern France in need of protection should claim asylum in France and those not in need should be returned to their home country’ and emphasised the Government’s commitment to ensuring that ‘…those with links to the UK are brought here using the Dublin Regulation’; and that ‘In light of the pending camp clearance and the daily transfers of children to the UK under the Dublin III Regulation, we hope that you will confirm the claim is not being pursued’.[81]The claim was pursued, based at that stage on the essential contention that the Joint Declaration gave rise to enforceable legal obligations to unaccompanied children in the Calais.[82]By Summary Grounds of Defence (SGD) served 26 October 2016 and signed by Counsel, the SSHD disputed the claim and characterised the undergoing process in terms which reflected the GLD’s letter of 18 October 2016 and the statement to Parliament on 10 October 2016, namely by reference to Dublin III. Thus the object was to transfer ‘…as far as possible any [UASC] who would qualify for transfer to the UK under the Dublin III Regulation on the basis of close family links (primarily under Article 8 of the Regulation, once they have claimed asylum in France and a request has been made by the French authorities)…’(para.5). The pre-clearance process was described as one ‘…to further accelerate the identification of eligible cases and fast track them through the Dublin process as an exceptional measure’ (para.7). ‘In practice the Dublin process is now being completed in as little as 48 hours and children are arriving daily in the UK.’(para.9).[83]By covering letter of the same date the SSHD disclosed training materials on Dublin III from officials in the UK’s Dublin unit who had been seconded to Calais/northern France. The documents describe a ‘full’ Dublin III process including consideration of the discretionary provisions of Article 17.[84]Mr Justice Nicol on 28 October 2016 refused the application for permission. He held in particular that it was not reasonably arguable that the Joint Declaration was more than an outline of a joint programme whose details were to be resolved in further meetings between officials from the two countries.[85]A statement of Mr Gary Cook (24 November 2016) in a separate claim (R (Help Refugees Ltd) v SSHD) provided a table of the number of children ‘transferred from Europe under the Dublin III regulation and [Dubs] from 1 January 2016 to 18 November 2016’. This included the transfers from France.[86]By letter to Islington Law Centre (representing CUK) dated 13 January 2017 concerning requests for disclosure, the GLD continued to characterise the expedited process as under the Dublin III regulation. Thus: ‘We can confirm that in the week leading up to the dismantling of the Calais camp, and immediately following, there were adjustments to the way in which the take charge process under the Dublin III Regulation would normally be operated. These adjustments concerned the process only, and did not affect the substance or nature of the consideration of any claimed family relationship in the UK which would otherwise be accepted under the Dublin III Regulation. By adjusting the process in this manner, whilst fully respecting and adhering to her obligations under the Dublin III Regulation, the SSHD was able to support the Calais camp operation in an expedited timeframe’.[87]The letter stated that over 750 children had been transferred as a result of the Calais clearance operation ‘of which over 550 were transfers under the Dublin Regulation’. The SSHD would continue to comply with her obligations under the Dublin III regulation and in particular would consider take charge requests made to her by the French authorities.[88]On 8 February 2017 the Minister of State for Immigration made a written statement to the House of Commons in terms which use different language to describe the process. The (non-Dubs) children ‘…were transferred under an accelerated process based on the family reunion criteria of the Dublin Regulation. This was a one-off process, based on the principles of the Dublin framework but operated outside of it, and was implemented in response to the unique circumstances of the Calais camp clearance.’[89]The SSHD’s Detailed Grounds of Defence (DGD : 4 April 2017) duly reflected this recharacterisation of the expedited process. It stated that the accelerated Dublin process (discussed at the meeting on 29 September) had at the meeting on 12 October been modified to become a ‘new expedited process to be applied to all minors in the camp’ (para.21). This process involved ‘a single registration form that noted the child’s desire to claim asylum’ (para.22). During the expedited process, only cases where there was a qualifying family relationship under Article 8 of the Dublin Regulation were accepted, as this provision contains the mandatory criteria…’ (para.26).[90]The DGD summarised this as ‘an exceptional and temporary measure, and the expedited process identified and transferred to the UK children who may have ultimately qualified for transfer to the UK under the Dublin Regulation, but the transfers were nonetheless made without the requirements of the Regulation, such as an asylum claim having been lodged in France, being satisfied’ (para.48); and as a ‘one-off operation… which would go beyond those obligations agreed between the states participating in the Dublin III Regulation” (para.76).[91]The DGD acknowledged that no specific statement had been made ‘to clarify that certain procedural elements of the Dublin III Regulation had been waived as part of this process undertaken outside it’ (para.121) until the Minister’s written statement of 8 February 2017; and that no guidance had been published in respect of it. This was because the principles and the eligibility criteria were set out in Article 8 and because the expedited process was only intended to be a temporary measure to deal with a specific set of circumstances.[92]In a letter dated 26 April 2017 the GLD stated that the guidance disclosed on 26 October 2016 ‘was general guidance and was not in use during the expedited process’.[93]This analysis was followed in the subsequent witness statements of Mr Cook and Ms Farman (5 April 2017). Mr Cook describes the expedited process as one ‘based on the family reunion criteria of the Dublin III regulation, but without undertaking the procedural aspects of the Dublin procedure, namely the requirement for an asylum claim to be registered in France and a take charge requests made of the UK via DubliNet’; and ‘… operated on an expedited basis outside of the Dublin framework’ (para.51, see also 59). CUK evidence[94]In her second witness statement (24 January 2017) Sonal Ghelani, solicitor at the Migrants’ Law Project, Islington Law Centre, gives evidence of CUK’s experience of the expedited process at the camp and the CAOMIs. She describes a ‘chaotic’ process with the children bearing the consequences. On 14October announcements were made in the camp on loudspeakers that all children with ‘siblings and parents’ in the UK should go to the Cap. The information was unclear in general and in particular as to the position of those with uncles.[95]CUK was initially told that the children who had registered with FTDA and at the Calais prefecture ‘in order to trigger the formal Dublin III process’ did not need to attend interviews. Later CUK/SPUKwas told that all of their clients must attend for interview.[96]The procedures were confused and distressing to the children. There was a shortage of interpreters. On one occasion the French police used pepper sprays to disperse children waiting to be interviewed. Confusion arose from e.g. misspelling of children’s names, photographs been taken before the interviews and then not matched, and from children not knowing they had to bring to the interview contact details for family in the UK. The exercise of getting children who had been accepted for transfer to coaches was chaotic.[97]There was similar chaos in the procedures carried out in the CAOMIs, including the request for reconsideration of previously rejected applications.[98]Where a child’s application was rejected, only the barest reasons were given. Thus at the CAOMIs a list of children was provided by the Home Office to the CAOMI staff/director on an ‘Excel’ spreadsheet with columns indicating the Home Office Dublin unit reference for the child, his/her name, whether it was ‘Dublin’ or ‘Dubs’, and whether the child had been ‘transferred’ or ‘not accepted’. Where the latter, the reasons recorded were limited to e.g. ‘aged 18+’, ‘family link not accepted’ or ‘cousin’ or ‘does not meet criteria’.[99]The expedited process was one where the Dublin formalities had not been insisted on. Thus the children did not have their claims registered either in Calais or in the CAOMIs. ‘The strong impression we got was of a Home Office process that is opaque, arbitrary, procedurally unfair and that is not operated in accordance with the best interest of the child as required under EU law, domestic law and international law’ (para.80).[100]She acknowledges that once set up the expedited process achieved impressive and speedy results. However it was not acceptable to those who were not accepted to be left to the ‘usual’ Dublin process.[101]As to that process, current available information was that the Prefecture in Lille was registering claims for asylum by UASCs seeking family reunion and making take charge requests. However there were cases of failure to appoint ad hoc administrators for UASCs (so preventing registration) and of failures to provide accommodation or to investigate family links.[102]The second witness statement of George Gabriel, Lead Organiser of SPUK, responds to the evidence of SSHD witnesses as to the expedited process. He gives evidence of CAOMI staff members reporting lack of information e.g. that minors did not understand why they were being interviewed as they believed they had already been accepted for transfer; children not believing negative decisions because of lack of communication from Home Office officials; not understanding the reason for rejection; and insufficient information as to what was needed for a reconsideration request.[103]He states that they were not informed that ‘cousin’ cases would not be considered. From leaflets issued to CAOMIs and subsequently seen by CUK there is reference to Article 17 and the ability to reunite cousins; and yet a frequent basis for rejection was ‘cousin’.[104]Since the December 2016 announcements of refusals in the CAOMIs minors have been running away and the population of unaccompanied minors in the area of Calais and in camps in northern France has increased. Figures in April 2017 suggested there are 200 unaccompanied children in the Calais area.[105]As to lodging asylum claims under Dublin III this was no longer possible in the Prefecture of Calais. The report from Human Rights Watch states that ‘Children in the provisional centers have not had access to asylum procedures or the regular child protection system in France, pending transfer decisions by UK authorities’; see also the statement of The Rights Defender French Republic (December 2016) that ‘It is only once the youths receive a response from the British authorities that alternative options are provided for those whose applications to the British authorities are not approved’. Children were dependent on ad hoc private actors identifying them and supporting them to travel to other prefectures. He gives examples of cases with tragic endings for children.[106]The fourth witness statement of Sonal Ghelani (27 April 2017) gives evidence to dispute Ms Farman’s account of the TCR process, both as to its speed and effectiveness. In this context she also cites the reply of the Minister for Immigration to a Parliamentary question on 9.2.17 :
‘…Until we had an accelerated process and really leant in to identify children who qualified under the Dublin arrangements into Calais, it was not really working. The numbers of children being transferred under Dublin previously were small.’
[107]CUK pointed to documents which were said to support its case in various respects. These included(i) the Home Office interview form with its question 1.12 ‘Do you wish to claim asylum in the UK;(ii) the ‘laissez passer’ issued to two applicants (including the claimant YS (claim no. JR/2495/017)) in France ‘pursuant to article 29(1) of [Dublin III]’ and stating ‘You have registered a claim for protection (asylum or humanitarian protection)…’;(iii) Home Office slides for the expedited process, which included references to Article 17.[108]As to alleged time constraints in the review process, the statement of the French Minister of Interior to the National Assembly on 7.2.17 included:
‘After the process, there were 485 transfers, to which one must add the 400 disputed cases, which, as I reiterate to the British authorities on a weekly basis, must be judged on the two criteria which have founded the examination of these claims : the current existence of family links in the United Kingdom, and…the Dubs amendment.’
CUK submissions[109]Mr Michael Fordham QC identified the central issue as: were the procedures adopted by the SSHD under the expedited process compatible with her legal obligations?[110]There were three sources of legal obligations :(1) the procedural safeguards of Dublin III(2) procedural safeguards of common law, in particular those of procedural fairness and the duty of enquiry; and(3) human rights (Article 8 ECHR) in the context of family reunification.[111]The SSHD was in breach of two essential duties. First, a legal duty to secure an effective bilateral system so that UASCs were effectively identified and assessed as to their eligibility for transfer; provided with proper information; provided safe accommodation; and provided with an effective support network. Secondly, a legal duty to secure that the expedited process was consistent with the Dublin safeguarding procedure : with proper transparency including a clear documented process; due investigation and enquiry; the putting of adverse impressions and giving clear and adequate reasons; extended to all Dublin eligibility criteria; a right of legal challenge to decisions.[112]Mr Fordham then distinguished what he called the ‘formal’ components of Dublin III and the procedural safeguards of Dublin III. There could be waiver/derogation from the formalities, but not from those fundamental safeguards.[113]The relevant ‘formal’ components comprised :(1) a registered (‘lodged’) application for international protection; and(2) the submission of a TCR (Article 21) and reply (Article 22). These requirements had been dispensed with by the expedited process agreed between France and the UK.[114]The procedural safeguards were derived from Dublin III and the Implementing Regulations. There was no power to derogate from these essential safeguards. In other words an ad hoc arrangement could not go outside those protections.[115]The relevant safeguards comprised :(1) A personal interview at which the child can provide information regarding the presence in EU states of family members, relatives and other family relations: see Dublin Articles 4.1(c) and Article 5(2) a written description, in language which the child can understand, of the process being undertaken, the criteria being applied, and the right to challenge a transfer decision: see Dublin Articles4.1 and4.2 (3) The right to the interview being conducted by a qualified person under national law, under conditions of appropriate confidentiality: see Dublin Article 5.5(4) The right to an interpreter at the personal interview: see Dublin Article 5.4(5) The right to have the child’s best interest taken into account as a primary consideration in all procedures: see Dublin Article6.1 (6) The right to have a qualified personal representative to assist the child with respect to all procedures (a) with access to the documents in the file (b) able to ensure that the child’s best interests are taken into consideration: see Dublin Article6.2 and (c) involved to the greatest extent possible in the process of establishing which Member State is responsible for the child’s asylum claim: see Implementing Regulation Article 12(3)(7) The right to have that qualified representative present at the personal interview: Implementing Regulation Article 12(3)(8) The right to have a written summary of the personal interview, added to the file (to which the personal representative has access): see Dublin Article 5.6(9) The right to have full and detailed reasons for denying transfer, added to the file (to which the personal representative has access): see Dublin Implementing Regulation Article 5.1 and Dublin Article 6.2(10) The right to challenge any transfer decision, as to fact or law, before a court or tribunal: see Dublin Article 27.1.[116]As to the child’s best interests, the expedited process could not escape the guarantee provided by Article 6. He emphasised the obligation of Member States to closely co-operate with each other in assessing the best interests of the child: Article 6.3; and, for the purpose of applying Article 8, to act ‘as soon as possible’: Article 6.4. These obligations were further underpinned by the Article 34 obligations between Member States for information sharing in respect of personal data concerning the applicant.[117]Mr Fordham submitted that the whole group of children was identified as wishing to apply for asylum. This was apparent from the question in the Home Office form : ‘1.12 : ‘Do you wish to claim asylum in the UK?’.[118]Having answered ‘yes’ to that question, they should (as a matter of formality) have been registered as applicants under Article 20.1/20.2. However France and the UK had agreed that this precondition was not required. Having then proceeded to the personal interview (Article 5), the absence of those prior formalities could not be relied on by the SSHD.[119]The obligation to carry out the process of establishing the Member State responsible for examining the application fell in principle on France, but the UK could step into the shoes of France for that purpose. Thus the effect of the arrangements between the two countries was that the UK was the ‘determining state’ or, alternatively, it was acting as France’s agent for that purpose.[120]If France had carried out the interviews, as the determining authority, all the safeguards (including the giving of reasons) would have been applicable. They could not rely on non-registration of the application as a basis to disregard the safeguards. It could be no different if the UK carried out the interviews in their place.[121]This was in substance a Dublin process, in that a Member State was conducting a Dublin interview to determine whether a transfer should take place. If so, the Dublin safeguards must be complied with.[122]As to the eligibility criteria, the UK was obliged to consider (in addition to the Article 8 criteria) whether to exercise its Article 17.1 discretionary powers. This provision empowered the UK to step in and decide that it will examine an application for international protection, whether or not it would be its responsibility; and notwithstanding that no application had been lodged with the UK. Article 17.1 did not presuppose a lodged application. Its words ‘lodged with it’ mean ‘which will be lodged’.[123]Authority was provided by the Court of Appeal in ZT(Syria). In that case there had been no TCR. The Court of Appeal had rejected the SSHD’s ‘absolutist’ argument that the Dublin III interstate regime could not be bypassed, noting that Article 17 permitted an individual to apply to a Member State to examine an application which fell outside its responsibility under the Chapter III criteria.[124]Thus the ‘Syrian baby case’ (referred to in ZT(Syria) at para.95) was an example of the SSHD exercising her Article 17 discretion in a case where there had been neither an application for international protection nor a TCR: see GLD letter 24.3.16 to that effect.[125]In this respect he cited the decision of the Upper Tribunal (McCloskey P. and Judge Finch) in R. (RSM) v. SSHD [2017] UKUT 00124 which emphasised the breadth of the discretion under Article 17 and stated ‘We consider in particular that Article 17 has a role in circumstances where one of the overarching values of the Dublin regulation, namely expedition, is not being fulfilled in the procedures and systems of the host Member State in any given case’ (para. 43). This demonstrated that no prior application for international protection was needed for Article 17 to be potentially engaged.[126]In any event an affirmative answer to the interview form Q1.12 also constituted the lodging of an application within the meaning of Article 17.1.[127]A further example of the fact that an application had been lodged was demonstrated by the Laissez Passer issued on 29 November 2016 to claimant YS’s child relatives referred to in his claim (JR/2495/017). It was issued in France ‘pursuant to article 29 (1) of [Dublin III]’ and stated under ‘One Stop Notice’ ‘You have registered a claim for protection (asylum or humanitarian protection) or you are a dependant of someone, who has registered a protection claim’. Thus it was a ‘Dublin’ document issued in France and recording the registration of a claim for protection.[128]Mr Fordham pointed in this context to the evidence that children did not have access to asylum procedures while the expedited process was underway. As the Upper Tribunal had accepted in AM, the expedited process was ‘the only show in town’ (para.118).[129]In such circumstances UK could not rely on the absence of the precondition of registration/TCR as an excuse for the absence or diminution of Dublin procedural safeguards.[130]Furthermore Dublin III itself provided the mechanism for derogation from its requirements in circumstances of emergency : Article 33. This imposed obligations of notification by the Member State concerned to the European Commission; empowered the Commission to request the Member State to draw up a ‘crisis management action plan’; and for that plan to ensure compliance with the fundamental rights of the applicants for international protection throughout the entire process.[131]Likewise Article 36 provided for Member States to establish administrative arrangements on a bilateral basis in order to facilitate its application and increase its effectiveness; and consultation with the Commission as to the compatibility of the arrangement with the Regulation.[132]The European Court of Justice decision in K v. Bundesasylamt [2013] 1 WLR 883 supported the argument on dispensation with formalities. In that case the question arose from Article 15 of Dublin II. Article15.1 provided for a Member Stateto request another to examine an asylum application so as to bring together family members/dependent relatives on humanitarian grounds. Article15.2 provided for cases of dependency between the asylum seeker and a relative in specified circumstances (pregnancy, a new-born child, serious illness, severe handicap or old age) and its terms made no reference to a request from another Member State.[133]The question in K was whether Article 15.2 applied in the absence of a request from another Member State. The Court concluded that, if such circumstances had been duly proved, the Member State where they were present together ‘…may not ignore the existence of that particular situation, and the making of a request such as that provided for in…Article 15(1)…becomes redundant. In those circumstances, such a requirement would be purely formal in nature’ (para.51); and ‘…the requirement for a request…would run counter to the obligation to act speedily, because it would unnecessarily prolong the procedure for determining the member state responsible’ (para.52).[134]The TCR was likewise a formality that could be dispensed with in the interests of the unaccompanied minor. This in turn reflected objects of the Joint Declaration.[135]Mr Fordham then turned to the Upper Tribunal’s consideration of the Dublin III arguments in AM, submitting that its conclusions were correct and should be followed in every respect.[136]Thus the Tribunal correctly identified the main question of law as ‘what is the correct analysis and characterisation of the “expedited process” within which the case of this applicant and the other four related cases were considered and rejected’ (para.93).[137]This was fundamentally a question of law but ‘it is not devoid of a factual element for the simple reason that, in common with any legal measure, the Dublin regulation applies only in certain factual contexts or situations. Thus the underlying facts must be established. In this sense and to this extent the characterisation issue is a mixed question of fact and law. However, the factual dimension of the question does not in our judgment include the subjective claims, assertions, descriptions and labels of government officials’. (para. 94).[138]If conversely it were necessary to answer the question by reference to evidence, the evidence admitted of no other conclusion than that the SSHD was acting under the Dublin regulation : ‘Furthermore, the Secretary of State’s attempted retreat from this position is both belated and unconvincing’ (para.109).[139]The Tribunal correctly held that a Member State which chooses to accelerate any of the time limits or waive or relax any of the formal requirements of Dublin III would not generally be in breach of EU law.[140]Conversely a Member State could not give effect to substantive provisions (e.g. Article 8) whilst ignoring others (e.g. Article 17) and a series of procedural safeguards.[141]Turning to the legal characterisation of the expedited process, the starting point was that the Dublin regulation is a measure of supreme EU law : ‘Where this occurs intrusion, legislative or otherwise, by Member States is impermissible’ (para. 100).[142]The expedited process was ‘a national measure to which two Member States subscribed and which attempted to devise and operate a Dublin Regulation surrogate, giving selective and partial effect to the dominant EU law measure overshadowing and enveloping the whole of this exercise’ (paragraph 101).[143]The ‘substance and reality’ was that the SSHD’s agents were involved in identifying third country children present in France qualified for transfer to the UK under Article 8 for the purpose of having their asylum applications determined (para. 105). It was open to the SSHD to devise and operate a decision-making framework exceeding the respective rights and obligations conferred by the Dublin Regulation. EU law did not preclude such a course. This was illustrated by two features of the expedited process, namely dispensing with the formal requirements of registering an asylum claim in France and dispensing with the requirement of France to direct TCRs to the UK (para. 106).[144]However minimum rules must be observed. These included the enhanced protection of minors and the promotion of family reunification (para.107).[145]The Tribunal was unable to identify any rule or principle of EU law legitimising the SSHD’s exclusion of key provisions of Dublin III and its sister instruments from the expedited process. Thus the expedited process was in EU law terms constitutionally impermissible : ‘It was an act of unlawful Member State disobedience on the part of the United Kingdom’ (para. 108).[146]There was likewise no basis to derogate from such obligations (paras. 110 and 111) : ‘Ultimately, the solitary argument advanced was that by reason of the absence of formally registered asylum claims and formal take charge requests, both waived by France, Dublin III did not apply to the expedited process. This argument fails for want of a legitimising legal rule or principle’ (para.111). This conclusion applied equally to the review mechanism (para.113).[147]Thus Dublin III applied to the whole expedited process and in consequence AM was deprived of a series of procedural safeguards and protections.[148]Mr Fordham accepted that there can be a freestanding scheme outside the Dublin Regulation, but only if it provides more, rather than less, to applicants.[149]He then referred to the Home Office slides prepared for the UK teams going out to France. These demonstrated that the SSHD was operating a full Dublin III (together with Dubs) process, including Article 17.[150]The same conclusions should be reached by virtue of common law principles, i.e. if the expedited process fell outside Dublin III. As the Tribunal had stated in AM : ‘The unseen companion of the Secretary of State’s officials in their journey across the Channel to 73 outposts in France and thereafter was the omnipresent common law’ (para.77). The public law obligations included duties to ensure a procedurally regular and fair decision-making process; to take into account material facts and considerations and to prevent the intrusion of the immaterial; and the ‘Tameside’ duty of enquiry (para.73).[151]The importance of these duties was emphasised by what the Tribunal had described as the ‘life changing and destiny shaping decisions for the children involved’ in the expedited process (para. 121).[152]The content of these duties required written guidance which clearly explained the process and criteria to be applied: see e.g. R (Lumba) v. SSHD [2012] 1 AC 245 at paras.35-38; a fair interview accurately recorded (AM paras. 74-76 and cases cited therein; assistance from a responsible adult; the duty of the SSHD to ‘…ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly’ (Tameside [1977] AC 1014 per Lord Diplock at para.1065B, cited by the Tribunal in MK at para. 26); the opportunity to deal with adverse impressions and concerns of the decision maker (R(Q) v. SSHD [2004] QB 36 at para.99); proper accessible reasons, not least in the context of children; and proper opportunity for review, for this purpose the remedy of judicial review not being sufficient.[153]As held in AM, the three legal regimes in play (Dublin III, Article 8 ECHR and the common law) led to the same essential procedural requirements of fairness, or at least it was unnecessary to conduct the exercise: ‘While the common law, through its adoption and development of the principles of natural justice and their modern incarnation, is the champion of procedural fairness, it is unlikely that an exercise of this kind would throw up any significant distinctions’ (para.124).[154]The context of an emergency did not warrant a departure from these procedural standards of fairness: AM at paras.122-123. The individual cases exemplified the shortcomings in the interview process (AM at paras.37,43,44; SS at para.16; MHA at paras.23-28. In MHA the original acceptance decision had been reversed.[155]Mr Fordham pointed to the GLD letter (26 April 2017) which stated that, in the event that a TCR were made in respect of any of those who had been refused under the expedited process, the decision maker would consider all the evidence, including material previously submitted in the expedited process. This would include taking account of any ‘discrepancies’ recorded in the interview process. This was one example of why the safeguards mattered.[156]The cumulative consequence of the absence of these standards of fairness was the chaos, confusion and lack of understanding on the part of the children which the evidence demonstrated. Of seven individual cases, 2 had been conceded by SSHD and 5 had succeeded on judicial review.[157]Turning to remedy, if the thrust of the argument was right, the claim for a declaration was not opposed. However what was needed was a mandatory order to retake the decisions in a fair manner. CUK was not asking for an impracticable order. The fall-back position was for an order requiring the SSHD to write a decision letter to the child and to a UK-based relative. SSHD submissions[158]Mr Manknell made three outline submissions. First, it would have been lawful for the SSHD to have left people in Calais to the normal Dublin III process. There was no general proactive duty in the absence of an application for international protection and a TCR. The obligations outside Dublin III were confined to those exceptional circumstances identified by the Court of Appeal in ZT(Syria) where Article 8 ECHR applied. Thus Beatson LJ : ‘I consider that applications such as the ones made by these claimants should only be made in very exceptional circumstances where they can show that the system of the member state that they do not wish to use, in this case the French system, is not capable of responding adequately to their needs. It will, in my judgement, generally be necessary for minors to institute the process in the country in which they are in order to find out and be able to show that the system is not working in their case. This is subject to the point that… these cases are intensely fact-specific. There will be cases of such urgency or of such a compelling nature because of the situation of the unaccompanied minor that it can clearly be shown that the Dublin system in the other country does not work fast enough. The case of the Syrian baby left behind in France when the door of a lorry bound for England closed after his mother got onto the lorry… is an example. But save in such cases, I consider that those representing persons in the position of the claimants should first seek recourse from the authorities and the courts of the member state in which the minor is. Only after it is demonstrated that there is no effective way of proceeding in that jurisdiction should they turn to the authorities and the courts in the United Kingdom.’ (para.95).[159]Secondly, when the French decided to dismantle the camp, the SSHD was entitled, subject to French consent, to send a team over to try and identify those who would, if they were put through the Dublin process, satisfy the Article 8 criteria.[160]Thirdly, if it did so the process did not need to comply with all the Dublin process. The standards had to reflect all the circumstances which included the constraints of an emergency humanitarian operation in a foreign jurisdiction.[161]Mr Manknell then submitted that the expedited process was ‘outside’ Dublin III.[162]Dublin III was not a European instrument for family reunification. He contrasted domestic family immigration law where e.g. an unaccompanied minor living in a safe country outside the EU wishes to join a relative with refugee status living in the UK.[163]The purpose of Dublin III was to allocate responsibility between Member States for examining an application; and thereby to avoid ‘forum shopping’. The mechanism depended on an application being made : see Article 2(c) and ZT(Syria) at para.14.[164]In order to determine whether Article 8.1/8.2 applied the determining Member State conducts the Article 5 personal interview. Having made the determination that another Member State is responsible, the determining Member State may request the other to take charge: Article 21. This is an interstate mechanism, so not strictly the right of an individual.[165]Thus the Article 5 interview is a condition for being in a position to make a TCR. In consequence the interview in this expedited process could not be an Article 5 interview. The UK could not determine the allocation of responsibility and make a TCR to itself.[166]Under the hierarchy of criteria, the expedited process criteria were limited to eligibility under Article 8.1/8.2 for family in the UK. If Dublin III were being applied, it would be necessary to consider family members generally in all Member States, under Articles 8 and 17.[167]As to Article 36, that was all subject to approval by the Commission: see 36.3 and 36.4. Formalities[168]The requirement for an application for international protection could not be dispensed with. An asylum claim was more than a mere procedural requirement, since Dublin III is about the allocation of asylum claims. Thus without an asylum claim there was no Dublin III.[169]As ZT(Syria) confirmed, there can be something ‘more than Dublin III’, e.g. by Article 8 ECHR. The expedited process was more than Dublin for the very reason that there had been no application for international protection.[170]No application for international protection was made to France or the UK. As to the UK, the Procedures Directive (Article 6.1) empowers Member States to determine the place of application. The domestic law of the UK in turn makes clear that an individual must be within the territory of the UK in order to make a valid claim for asylum: see Asylum and Immigration Appeals Act 1993, s. 1 and Immigration Rules 327, 334.[171]The question 1.12 in the interview form must be read in that context. It was consistent with the evidenced reluctance of children to make claims in France. It meant ‘If we let you go to the UK, do you intend to claim asylum there’.[172]The form was for the interviewer to use and complete. Its words included :
‘We’d like to explain to you a bit about what you can expect if you were to come to the UK and claim asylum.’
This contradicted the suggestion that a claim for asylum had already been made. Article 17[173]The expedited process did not take account of Article 17 because, unlike the mandatory criteria, acceptance thereunder was based on the exercise of discretion.[174]In any event Article 17.1 had no application since no application had been ‘lodged with it’, i.e. with the UK. Those words could not be read otherwise.[175]The decision in K did not assist CUK. It is a case under Dublin II and its Article 15 has no equivalent in Dublin III. It provides a purposive construction in the circumstances of an Article 15.2 dependency case. At most it shows that a request can be dispensed with in certain particular circumstances. It does not follow that there can be dispensation a claim for asylum in Dublin III – for that is what Dublin III is about.[176]The ECJ authorities showed that the one requirement - the one restraining factor - was for the application to be lodged: see Halaf v. Darzhavna (C-528/11); R(MA) v. SSHD [2013] 1 WLR 2961; Germany v. Puid[2014] QBat paras.33-35.[177]The ‘Syrian baby case’ was of no assistance. The GLD’s letter had mistakenly referred to transfer under Article 17. As it involved a mother and baby, it would have proceeded under Article 8 of Dublin III. Furthermore in that case a TCR had been made. It was simply a case where the wrong provision had been referred to. The Court of Appeal in ZT(Syria) in fact treated it as an example of the use of ECHR Article 8 in an exceptional case.[178]The Upper Tribunal’s decision in RSM was wrongly decided. Permission to appeal has been granted.[179]He also submitted that the refusal to exercise the discretion under Article 17 was not justiciable at the suit of the individual; that the contrary statement in ZT was not part of the ratio in that case; and that there was now binding authority to that effect from the CJEU : CK v. Republika Slovenija [2017] EUECJ C-578/16. Upper Tribunal Judge Reeds did not accept such a submission as to the effect of CK in R(MA) v SSHD JR/2203/16. Dublin III provisions[180]As to Article 4, its language makes clear that this requirement only applies where an application has been lodged.[181]As to Article 5, it is the determining state which must conduct the personal interview. Even if carried out by an agent, it is still the obligation of the determining state, i.e. in this case France.[182]Article 6 has no application to the UK unless and until France contacts the UK either by a formal TCR or in accordance with the Dublin implementing rules: see Article 12 of the Implementing Regulation.[183]Article 6.4 is the responsibility of France. The best interests of the child are taken into account as part of Dublin Article 8; and hence, in the expedited process, as part of the assessment of the Article 8.1/8.2 criteria.[184]The Procedures Directive did not assist. By virtue of Article 3 it applies only to those children who have sought asylum in the host state. Article 17 is expressly limited to the ‘procedures provided for in this Directive’; and no relevant procedures had been identified by the CUK.[185]The Reception Directive likewise had no application in the absence of an application for asylum in the host state : Articles 3 and 19.[186]The underlying point was that the UK did not become the determining and requesting state i.e. so as to make a TCR to itself. It followed that none of the specific procedural or safeguarding requirements in Dublin III or its related instruments could apply to the expedited process. Bypassing Dublin[187]ZT(Syria) demonstrated the very exceptional circumstances which were needed to bypass the Dublin process. In that decision, handed down in August 2016, the Court of Appeal acknowledged the ‘appalling conditions in the camp’ (para. 93) and the small number of transfers at that stage (para. 42) but held that the presumption was that the foreign system was legally sufficient. That position had not changed by October 2016.[188]The presumption is that the applicant can receive redress from the legal system of the receiving state : see also R (NS)(Afghanistan) v. SSHD [2013] QB 102. That presumption may be rebutted if redress is ‘illusory’: see e.g. the ‘returner’ case of R (Medhante) v SSHD [2011] EWHC 3012 (Admin) where the remedies in Italy were held to be ‘far from illusory’ (para. 39).[189]Thus it was not open for the claimants to decry the French process and say that it was inadequate. If inadequate the remedy was in France and the applicant must first apply in that country: see ZT(Syria) at para. 95. If France failed to make a TCR, that again was a matter for the French courts. Expedited process[190]As in ZT(Syria), people were reluctant to claim asylum in France as they feared doing so would prevent them being able to claim asylum or secure residence in the UK. The setting up of the expedited process was no admission that the normal process was not sufficient.[191]The evidence showed that the expedited process took approximately 10 weeks from its start on 14 or 17 October. The first phase was 14-28 October. The second phase in CAOMIs had ended by 9 December.[192]There were two key features of the expedited process. First, that it operated without prejudice to the normal process. Secondly, the constraints that were placed on the SSHD.[193]As to the limitations on the SSHD, this was relevant to the context of common law fairness. As Mr Cook noted, the operation was dependent on the agreement of France. For example, on 28 October the French authorities notified the UK that interviews in the Camp could not continue because of the ‘pull factor’. The UK could not in those circumstances proceed on its own. Likewise when the children were moved to CAOMIs.[194]The reality was that UK officials were working alongside French officials with the express permission of France. They were asked to stop when the camp was cleared; and then to interview at the CAOMIs in one month.[195]As to the reasons, the level of detail was not high, but that was the decision in the circumstances.[196]M. Sodini’s evidence showed the imposition of a period of one month to complete the interviews after the dismantling of the camp, i.e. in the CAOMIs. This matched the period 2 November 2016 to 9 December 2016. The Tribunal in AM had wrongly treated the one month period as applicable to the entire expedited process (para.87-88).[197]Mr Cook accepted that there were children in the Calais camp who may have had a qualifying (Dublin Article 8) relationship in the UK but who were not accepted for transfer. Thus the expedited process did not necessarily get it right. The approach was justified by the need to respond to an urgent humanitarian situation and to ensure that as many children as possible with qualifying family links to the UK could be transferred out of the camp prior to clearance. Furthermore the route to join UK family members would not be closed by the conclusion of the process but would be available by the normal Dublin III process. Ms Farman had not heard it said that the asylum process was put on hold pending the expedited process.[198]The subsequent ‘filter process’ was required by the French authorities to look at any new evidence for those who had been rejected. This was not part of the expedited process whereunder children were transferred to the UK. The filter process was with a view to a potential application for international protection and TCR.[199]The guidance notes and slides were to tell staff about the Dublin Regulation, not to indicate whether the process was based on Dublin or was in fact Dublin. Likewise the references to Article 17.[200]The laissez passer document was no indication. France had to provide an emergency travel document. Common law[201]Mr Manknell accepted that common law applies to the expedited process and that the process had to be fair and rational in accordance with the requirements of public law. The content of that requirement depended on the circumstances: citing Wiseman v. Borneman [1971] AC 297 per Lord Morris at 308H-309C and Lord Donovan at p.314.[202]In this case the two key features which informed the standards of fairness were:(1) the restraints and limitations on the Home Office in carrying out a rapid emergency operation in a foreign sovereign state; including the circumstances of the short notice dismantling of the camp and the time restrictions;(2) the fact that no substantive rights or entitlements were affected by the operation. The process was confined to a fast tracking of a specific group of individuals who could be readily identified; and to try so far as possible to expedite the process they would otherwise have gone through under Dublin III. However they retained all their rights to claim asylum in France and for the French to make a TCR to the UK. Rejection was not a final determination of whether the child could come to the UK.[203]In answer to my question about the GLD’s indication that account would be taken of answers given in interview in any future application under the full Dublin III, Mr Manknell said that if that was a concern the remedy was not to say that the process was unlawful; but that to say that no account should be taken of that material. However he was making no concessions on that point.[204]A third relevant factor to take into account was the overall benefit of the procedure, albeit it had winners and losers.[205]As to the detailed objections of unfairness:(1) written guidance documents were not an essential requirement of fairness, nor was it a requirement under Dublin III itself. The information provided was sufficient;(2) the constraints did not make it possible to take account of the discretionary provisions of Article 17;(3) the provision of or access to representation was a matter for the French authorities; and fairness did not require a representative at the interview; nor was that a requirement under Dublin III;(4) the right to make further representations after refusal was unmerited in a short-term expedited process where the access to the full Dublin process remained open. In any event further evidence was considered in the subsequent review process requested by the French authorities;(5) there was no requirement either as fairness or under Dublin III for a lawyer to be present. Furthermore social workers were present for many of the expedited process interviews.[206]As to reasons, there was no general requirement on the common law for reasons to be given for administrative decisions. It depends on the circumstances of the particular case, see e.g. R. v. SSHD, ex p. Doody [1994] 1 AC 531.[207]It was not possible to give a decision to the child on the day of the interview and the French authorities had asked this not to be done. The responsibility for communicating decisions remained with French officials. Under the pressures of the operation it was not practicable to produce detailed reasons. To the extent that they were short, e.g. ‘cousin’, they were comprehensible.[208]There was in fact the further process of review, to which responses were provided in each case; and the full Dublin process remains open. The Upper Tribunal decision in AM[209]As to Dublin III, the Upper Tribunal’s conclusions in particular were wrong in their treatment of the making of an application for asylum as a mere detail or formality. On the contrary it was the difference between being in Dublin III or not. If the process was outside Dublin it was not governed by Dublin procedures.[210]As to common law fairness, the Upper Tribunal failed to look at the context of the expedited process and asked itself the wrong question namely ‘did it meet Dublin III procedural standards of fairness’ not ‘was it fair in all the circumstances’.[211]The Upper Tribunal in AM had failed to engage with what the SSHD did, acting as quickly as possible, albeit in an imperfect manner. If the process was unlawful, then so was the admission of children who did get in. Home Office staff were proud of what had been achieved. It would be regrettable if the SSHD could not undertake help of this sort in such exceptional humanitarian circumstances.[212]In any event the Tribunal was not looking at the same issue, viz. was the process lawful. It was considering the individual applications and for that purpose was entitled to consider whether it was procedurally fair. That was not the same as the role of the High Court to consider whether there was systematic unfairness.[213]The Tribunal’s acceptance of the description of the process as the ‘only show in town’ (para.118) took no account of the alternative available under Dublin III, i.e. by application for asylum. CUK reply[214]Ms Kilroy emphasised the expertise and experience of the Upper Tribunal, and the President in particular, in the Calais cases. The issue was whether this was a Dublin process; and that was at issue in AM.[215]As to TCRs, she pointed to Article 16 (concerning ‘dependent persons’) of Dublin III. Its operation did not depend on a TCR : as K had held in respect of Article 15.2 of Dublin II. Thus a formal TCR request was not essential to the application of Dublin III.[216]Accordingly the key issue was whether the fact that the asylum claim was not registered or ‘lodged’ took it outside Dublin III.[217]The Dublin III procedures drew a distinction between(1) an application for international protection and(2) the lodging of the application: see Procedure Directive Articles 3 and 6.[218]As to making a claim, Dublin III looked at the substance. Thus Article 2(g) of the Qualification Directive applicable to the UK referred to a person ‘who can be understood to seek refugee status or subsidiary protection status’ : as cited in AM at para.104.[219]Article 20.2 provides that the application is deemed to be lodged once the form submitted by the applicant or (if not in writing) the report prepared by the authorities, has reached the authorities.[220]In the expedited process the children were asked if they wish to claim asylum. The answer ‘yes’ to that question made them an applicant.[221]The relevant Procedures Directive established a discretionary basis for registration: see Articles 6.1, 6.4(b), the latter providing :
‘Member States may determine in national legislation…(b) the cases in which the application of an unaccompanied minor has to be lodged by a representative as provided for in Article 17(1)(a).’
The practice in France was as per 6.4(b).[222]By setting up the process, France and the UK established a process for determining the eligibility of children seeking asylum to come to the UK. The process did not require the registration of asylum claims. That process did not take it outside EU law or Dublin III : see the ECJ in NS(Afghanistan) at paras. 64-68.[223]Thus, as the Upper Tribunal held, as a matter of ‘substance and reality’ (para. 105) the SSHD thereby became involved in identifying third country children present in France who qualified for transfer to the UK under Article 8 for the purpose of having their asylum application determined.[224]As to the review process, Ms Kilroy pointed to the leaflet distributed by the French authorities to CAOMIs staff and headed (as translated) ‘CAOMI – Processing of reconsideration requests for minors wishing to travel to the United Kingdom’. Amongst other things, this noted that ‘They [i.e. the UK authorities] refuse to formalise their decisions within the framework of the ad hoc procedure set up on the occasion of dismantling’; identified Dublin III Articles 8 and 17.2 as bases for the requests for family reconciliation for unaccompanied minors under the Dublin Regulation’; referred to a procedure for ‘requests for reconsideration’; and to the role of ‘ad hoc administrators’. This all contradicted the SSHD’s depiction of the review/filter process; and showed that those assisting the minors would understand Article 17 to be in play.[225]On the SSHD’s own evidence, the review process was not completed within one month. Thus the process was described as ‘largely completed’ by 9 December. Furthermore there was no timing constraint. On the contrary, France had on a weekly basis continued to ask the SSHD to continue the assessments: see the statement of the French Minister of Interior to the National Assembly on 7.2.17.[226]As to the structure of Dublin: once an application was made it was a bilateral process from the beginning: see Article 6 and the Implementing Regulations. Thus the suggestion that the SSHD did not have a role was not right.[227]Under Article 5 the interview was the first part of the process. It was open to UK/France not to follow those stages in order, but to do so in one process without a formal TCR. This did not take it outside Dublin III. It was as if a request for information had been made under Article 34.[228]As to ZT(Syria), the case was concerned with an application made by children in France. It demonstrated that Article 17 was not confined to situations where an application had been made in a territory in which an individual is present. There had been no mistake in the Syrian baby case.[229]As to common law fairness, the Court should be wary of concluding that there were good reasons for providing no reasons. By way of examples, in the AM case the interview record and its reasons for decision were sparse; and the document was disclosed only in the judicial review claim. The communication of the original decision was limited to the spreadsheet supplied to the French authorities. In two decisions the one-word reason was not accurate. In another, the reason given was ‘other’. Without reasons the applicant was not in a position to supply further relevant evidence.[230]As to Article 17.1, since it was necessary to gather information for the ‘Dubs’ assessment (and see the Home Office guidance on s.67 published 8.11.16), it would have been practicable to do so for the purposes of Article 17.1.[231]Mr Manknell responded that ‘Dubs guidance’ was necessary because s.67 contained no criteria. Analysis and conclusions Dublin III[232]The evidence demonstrates that, until sometime between the GLD’s letter of 13.1.17 and the Minister’s statement to the House of Commons on 8.2.17, the SSHD and her officials regarded and so described the expedited process as falling within the ambit of Dublin III (and the Dubs amendment). Thus there was no suggestion until that statement that the process fell outside Dublin III.[233]However, as the parties rightly agree and the Upper Tribunal held, the question of whether the expedited process was within or without Dublin III is an objective question of mixed fact and law. Formality or fundamental?[234]I deal in turn with(i) the making of an application for international protection(ii) the lodging of such an application(iii) the making of a TCR. Making an application[235]The first question is whether the making of an application is a formality within the Dublin III Regulation or whether it is a step which is of its essence, i.e. a necessary condition for Dublin III to apply.[236]If the former, there can (as I accept) be a waiver of/derogation from that formality. If the latter, its absence must be fatal to the characterisation of the process as falling ‘within’ Dublin III.[237]In that case, there is a further question as to whether such applications were ‘made’ (whether to France or to the UK) in the course of the expedited process.[238]In my judgment, the making of an application for international protection is an essential requirement of Dublin III, in respect of which there can be no waiver or derogation.[239]As is clear from its very title and central provisions (e.g. Articles 1 and 3), and as the Court of Appeal has confirmed in ZT(Syria), Dublin III establishes the mechanisms and criteria for determining the Member State responsible for examining application for international protection; and thus its procedures and mechanisms depend upon a person making such an application.[240]In the absence of an application there is nothing to ‘examine’; nor therefore any basis to proceed to the determination of the Member State responsible for doing so. Thus the application is no mere formality, but the very substance for which the criteria and mechanisms of Dublin III make provision.[241]If further authority is needed for this conclusion, it is supplied by the ECJ decisions cited by Mr Manknell (Halaf; MA; Puid) and which, without directly addressing the point, proceed on that fundamental basis.[242]It also follows that any process which adopts some features of Dublin III (in this case the criteria of Article 8) but which does not involve an application for international protection is of necessity providing ‘something more’ than Dublin III. For, absent the ad hoc process, Dublin III is simply not in play.[243]This conclusion applies equally to Article 17. As to Article 17.2 (which featured less prominently in argument) the precondition of an application for international protection is explicit. As to Article 17.1, I think it plain from its language (‘may decide to examine an application lodged with it’) that an application must, at least, have been made to the Member State in question (here, the UK). The ECJ’s cited observations in NS (Afghanistan) on the discretionary provisions of Dublin II Article 3(2) of Dublin II proceed on the basis that there is an asylum application to examine : paras.64-68.[244]The Upper Tribunal’s decision in RSM does not deal with the point expressly. If it implicitly proceeds on the basis that there is no such precondition to the operation of Article 17.1, I would respectfully disagree.[245]I do not accept that this essential requirement of an application for international protection can be obviated by appeal to :(1) the provisions of Dublin III; and/or(2) alleged inadequacies in the French asylum procedure; and/or(3) a proactive duty to secure an effective bilateral system.[246]As to (1), I do not accept that Article 6 gave rise to a freestanding obligation on the UK in the absence of an application or a subsequent TCR. Articles 33 and 36 give rise to obligations on Member States in liaison with the Commission for the identified purposes. However they do not trigger the process which first depends on the making of an application for international protection. The Directives and Implementing Regulation equally depend on the making of an application.[247]As to (2), the evidence generally provides no basis to conclude that the asylum procedure in France was less effective than when examined by the Court of Appeal in ZT or that such redress was otherwise illusory. The evidence on the availability of the asylum procedure during the expedited process is not in fact clear-cut (cf. Ms Ghelani’s evidence from the Lille Prefecture; also Ms Farman). However, even proceeding on the basis that it was not available, the point has no materiality when set against the background of the reluctance of UASCs to invoke the procedure.[248]As to (3), in my judgment the contention that the SSHD owed an independent proactive duty is quite at odds with the conclusions of the Court of Appeal in ZT(Syria). Her obligations outside the Dublin III process were strictly limited in the ways indicated in that decision : see in particular para.95.[249]As to whether applications were in fact made, I accept that the requirements for the making of an application for international protection are relatively and understandably informal. Article 2(g) of the Qualifications Directive indeed defines an application for international protection as a ‘request made by a third country national or stateless person for protection from a Member State, who can be understood to seek refugee status or subsidiary protection status…’ (emphasis added).[250]With full allowance for that informality, I do not accept that this expedited process included the making of an application for international protection, either to France or to the UK. As to France, the critical and continuing background is again the unwillingness of people in the camp to make applications. There is nothing to show that this reluctance, recorded by the Court of Appeal in ZT(Syria), had changed by October 2016. There is no evidence of an application being made to France, whether in writing or otherwise.[251]As to the UK, for the reasons given by Mr Manknell the manner of application was governed by domestic law; and this required any application to be made when in the UK. The interview form identifies the questions which were asked and answered in France. In my judgment an affirmative answer to Q1.12 indicated no more than a wish, in the event of transfer to the UK, to make an application in the UK for asylum.[252]I conclude that the expedited process did not involve the making of an application for international protection; and that accordingly the expedited process stood outside Dublin III. The use of ‘Dublin III materials’ in the process, e.g. the laissez passer forms, was no more than a matter of practicality.[253]I also consider that this conclusion is no technicality, but represents the substance and reality of what happened. The underlying reality was that people in the camp did not wish to engage with the asylum process in France; and hence, without any obligation to do so, the ad hoc expedited process was established.[254]In these circumstances the questions in respect of ‘lodging’ an application and making a TCR become academic. However, the points having been fully argued, I should set out my conclusions. Lodging an application[255]I acknowledge that Dublin III draws a distinction between the making and the lodging of an application : cf. e.g. Articles 2(c), 5 and 17.2 and Articles 4, 6.4, 7.2, 17.1, 20 and 21.[256]In circumstances where the application is not in writing (cf. Qualification Directive para.2(g)) the competent authorities must prepare a report; whereupon the application is ‘deemed’ to be lodged : Article 20.2. Evidently the authorities could not defeat that deemed consequence by refusing or failing to prepare a report.[257]Likewise, where the Member State determines that the application of an unaccompanied minor has to be lodged by a representative (Qualification Directive Article 6.4(b)), the authorities could not defeat the lodging requirement by refusing or failing to appoint a representative.[258]However, subject to such qualifications which arise where the requirement to do so is taken out of the applicant’s hands, I conclude that the lodging of an application is fundamental to the operation of Dublin III and is not a mere formality open to waiver or derogation: see again the language of Articles 4, 5, 6.4, 17.1 and the cited ECJ decisions.[259]In these cases no applications for international protection were made (see above); and accordingly there was nothing to be lodged. TCRs[260]I reach the same general conclusion in respect of TCRs. These are a central part of the mechanism of Dublin III for the allocation of responsibility to examine an application for international protection. Again I do not consider that they are a mere formality, open to waiver or derogation.[261]I do not accept that the ECJ decision in K provides authority to the contrary. The essential feature of Dublin II Article 15.2 was that, unlike Article 15.1, its terms did not depend on a request being made. As the Court observed : ‘…it is important to note that [it] does not contain, unlike the second sentence of Article 15(1)… any reference to a ‘request’ originating from another member state’ (para.50).[262]Likewise Article 17.1 (and also 16) of Dublin III do not depend on the making of a request. It does not follow that, where the Dublin III mechanism does require a request, this requirement can be dispensed with.[263]The ‘Syrian baby’ case does not assist since a TCR was in fact made in that case. In any event the circumstances of how an individual case was treated cannot be relevant to the question of law.[264]It follows from my conclusions that I also reject CUK’s contention that the effect of the expedited process was to make the UK the determining state and to be conducting an Article 5 interview. A true Article 5 interview would not be limited to consideration of the evidence relating to just one other Member State (UK). Furthermore it makes no sense for the UK to be conducting such an interview for the purpose of determining whether to make a TCR to itself.[265]In reaching these conclusions I have of course borne in mind the evidence (e.g. the Home Office slides; the leaflet distributed by the French authorities to CAOMIs) which refers to Article 17. However the witness evidence from those responsible for the expedited process is that neither its design nor its conduct involved consideration of that Article. The process was limited to an assessment against the criteria in Article 8. Thus, in a process which fell outside Dublin III, Article 17 was simply not in play.[266]The issue of the justiciability of Article 17 is thus academic; nor was there detailed argument on the effect of the ECJ decision in CK. If it had been necessary to deal with the point, I would simply have followed Beatson LJ’s observations in ZT(Syria) : para.85. Common law[267]In these circumstances, the common law duties have to be considered. It is common ground that their content has to be assessed in the context of all the circumstances.[268]The first part of the context is the desperate plight of these most vulnerable young people in the most wretched conditions and in desperate need. It is no part of this judgment to understate the horror of their position which the evidence vividly depicts.[269]However there is another side of the context which has to be considered. The background to this process was the underlying and continuing reality that those in the camp/CAOMIs were reluctant to apply for international protection in France. The consequence was that, save in the exceptional circumstances identified in ZT(Syria), the SSHD was under no legal obligation to respond to the situation.[270]Against that background, and in co-operation with France, the SSHD nonetheless set up this ad hoc expedited process. It fell outside Dublin III and operated under the real constraints of a complex and fast-moving humanitarian crisis in another sovereign state.[271]In such circumstances, I can see no good basis to conclude that the procedural safeguards of a Dublin III process should simply be transplanted into the common law duty.[272]In any event, I do not accept in full measure CUK’s description of the Dublin III procedural safeguards. In particular, I am not satisfied that the effect of Implementing Regulation Article 5.1 is to require the individual applicant (rather than the requesting state) to be provided with detailed reasons for the negative reply from the requested state. However desirable that might be, I consider that this confuses the interstate mechanism with individual rights.[273]In my judgment the evidence shows a process which involved a conscientious assessment of the individual applications against the clear criteria contained in Dublin III Article 8 and which included the best interests of the child.[274]In the generality of the system which was instituted, there was a proper inquiry in which Home Office officials asked the right questions (i.e. as against the Article 8 criteria) and took reasonable steps to acquaint themselves with the relevant information to enable them to answer them correctly. The interviews in the camp/CAOMIs were conducted with interpreters and, in some instances, social workers. In the CAOMIs the applicants had the opportunity to return with further information, e.g. as held by them on mobile phones.[275]The information was then sent back to London (Lunar House) for the decision to be made. I consider it more a strength than a weakness that there was a considered decision in London rather than an immediate decision by the officials working in the turmoil of the camp/CAOMIs. This had the object and advantage of achieving greater consistency in decisions made. In any event the French authorities had, for reasons of order, not wanted decisions to be given at the end of the interview.[276]In all the circumstances, which included the availability of the full Dublin process to those who were unsuccessful in the expedited process, I do not consider that the provision of representation or further review or remedy were necessary for the operation of a lawful system.[277]There were evident shortcomings in the provision of information to the applicants and those seeking to assist them. In particular the evidence shows confusion as to(i) the full ambit of the process; and in particular whether it extended to the discretionary criteria of Article 17.1 and(ii) the true nature of the review/filter process which (as I accept from the SSHD’s evidence) was in fact providing no more than an indication of acceptance in the event that an application for international protection and subsequent TCR were to be made. The reasons for rejection were communicated only to the French authorities; and then in the very brief terms contained in the spreadsheet.[278]The scope for misunderstanding was also compounded by the erroneous characterisation of the process in Home Office statements before its correct revision on 8.2.17.[279]All these matters contributed to confusion and distress for those in the camp/CAOMIs. Together with the scale and speed of the operation, they gave rise to the risk of error in individual cases. The evidence also shows examples where such error extended into the physical process of transfer.[280]Whilst acknowledging all these shortcomings, I consider that the expedited process must be considered as a whole; and in the context of the background of the reluctance to make asylum applications in France and of the severe and exceptional constraints of the operation. Having undertaken that assessment, my conclusion is that it was fair and reasonable and that there was no systemic failure.[281]In reaching this conclusion the non-communication of adverse decisions and the sparse reasons provided to the French authorities have given me particular pause for thought. However I am satisfied that this did not vitiate the process or otherwise constitute unfairness in the particular circumstances. The non-communication was a requirement of the French authorities; and the terse spreadsheet information was a consequence of that requirement and of the pressures of the operation.[282]My conclusion is subject to one important qualification. Since the expedited process was without prejudice to Dublin III applications, I consider it must follow that no account should be taken in any such future applications of material obtained in the course of this expedited process, e.g. of inconsistencies in information received. The scope for error in the expedited process is acknowledged. In the absence of a clear commitment to that effect I would make an appropriate order.[283]In reaching these conclusions, I regret that I do not feel able to agree with the Upper Tribunal in AM and the other individual cases. I do so with very great respect and diffidence, but ultimately with conviction. In any event, those cases may ultimately have depended on the application of ECHR Article 8 to their individual and fact-sensitive circumstances.[284]For all these reasons, my conclusion is that the application for judicial review does not succeed.[285]I should record my particular gratitude to all Counsel for the very high quality of their written and oral submissions.

Cited in 3 later judgments