“Requests, replies and all written correspondence between Member States concerning the application of Regulation (EU) Number 604/2013 shall be sent through the “DubliNet” electronic communications network, set up under Title II of this Regulation.”
“1. The arguments in law and in fact set out in the request shall be examined in the light of the provisions of Regulation (EC) No 343/2003 and the lists of proof and circumstantial evidence which are set out in Annex II to the present Regulation. Whatever the criteria and provisions of Regulation (EC) No 343/2003 that are relied on, the requested Member State shall, within the time allowed by Article 18(1) and (6) of that Regulation, check exhaustively and objectively, on the basis of all information directly or indirectly available to it, whether its responsibility for examining the application for asylum is established. If the checks by the requested Member State reveal that it is responsible under at least one of the criteria of that Regulation, it shall acknowledge its responsibility.”
“Everyone has the right to respect for his or her private and family life, home and communications.”
“In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.”
“Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”
“Everyone whose rights and freedoms guaranteed by the law of the Union are violated as the right to an effective remedy before a Tribunal in compliance with the conditions laid down in this Article.”
“The States Parties to the present Convention …. Convinced that the family, as the fundamental group of society and the natural environment for the growth and well being of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community, ….. Recognising that the child, for the full and harmonious development of his or her personality, should grow up in a family environment, in an atmosphere of happiness, love and understanding …. Bearing in mind that, as indicated in the Declaration of the Rights of the Child, ‘the child, by reason of his physical and mental immaturity, needs special safeguards and care, including appropriate legal protection …..’ ….”
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
“Whenever a decision is to be made that will affect a specific child, an identified group of children or children in general, the decision making process must include an evaluation of the possible impact (positive or negative) of the decision on the child or children concerned. Assessing and determining the best interests of the child require procedural guarantees.”
“Assessing the child’s best interests is a unique activity that should be undertaken in each individual case, in the light of the specific circumstances of each child or group of children or children in general. These circumstances relate to the individual characteristics of the child or children concerned, such as, inter alia, age, sex, level of maturity, experience, belonging to a minority group, having a physical, sensory or intellectual disability, as well as the social and cultural context in which the child or children find themselves, such as the presence or absence of parents, whether the child lives with them, quality of the relationships between the child and his or her family or caregivers, the environment in relation to safety, the existence of quality alternative means available to the family, extended family or caregivers, etc.”
“Facts and information relevant to a particular case must be obtained by well trained professionals in order to draw up all the elements necessary for the best interests assessment. This could involve interviewing persons close to the child, other people who are in contact with the child on a daily basis, witnesses to certain incidents among others. Information and data gathered must be verified and analysed prior to being used in the child’s or children’s’ best interests assessment.”
“The passages highlighted above seem to me to support the proposition that in order to discharge the twofold, inter-related duties imposed by section 55 (i) to have regard to the need to safeguard and promote the welfare of any children involved in the factual matrix in question and (ii) to have regard to the Secretary of State’s guidance, the decision maker must be properly informed. I consider this construction of section 55 to be dictated by its content, its evident underlying purpose, the aforementioned decisions of the Supreme Court and the well established public law duty to have regard to all material considerations.The outworkings of this discrete duty were expounded by Lord Diplock in Secretary of State for Education and Science v Metropolitan Borough Council of Tameside[1977] AC 1014 , at 1065b, in a passage which has particular resonance in the context of section 55: “…… It is for a court of law to determine whether it has been established that in reaching his decision ………… [the Secretary of State] had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the Act he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider ….. Or, put more compendiously, the question for the court is did the Secretary of State ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?”
“It is a matter for the Applicants should they wish to have DNA tests conducted. In any event, the Respondent does not require DNA evidence to be submitted in order to prove a familial relationship under the [Dublin Regulation] or in support of visa applications …. In this case the take charge request has been refused on the basis of credibility.”
“Therefore, it is not incumbent on the requested Member State to seek out evidence but rather to consider that which is in front of it.”
“The Respondent is not required to actively investigate the claim under the Dublin Regulation, it being the Applicants’ application to make and, therefore, their role to provide evidence that they are in fact mother and children from the same family.”
“We consider that the Dublin Regulation, with its rationale and overarching aims and principles, has the status of a material consideration of undeniable potency in the proportionality balancing exercise. It follows that vindication of an Article 8 human rights challenge will require a strong and persuasive case on its merits. Judges will not lightly find that, in a given context, Article 8 operates in a manner which permits circumvention of the Dublin Regulation procedures and mechanisms, whether in whole or in part. We consider that such cases are likely to be rare.”
“It is a legal instrument of major importance for the distribution of responsibility among the Member States for the administration of asylum claims. If it were seen as establishing little more than a presumption as to which State should deal with which claim, its purpose would be critically undermined. In my judgment an especially compelling case under Article 8 would have to be demonstrated to deny removal of the affected person following a Dublin II decision.”