“Things have been very difficult for [RSM]. …… He has lost his mother and younger brother and all that he has known. He is now separated from me and is not with family ….. [He] is desperate to be reunited with his aunt and her family and it is all he is focusing on but as time passes with nothing happening, he is losing hope that this will be achieved. He is really suffering. He is very upset and confused and he is very unhappy.”
“I am really worried about how he is coping with these terrible losses. I believe he needs my direct support every day and that it is really bad for him to be in a children’s home in Italy. He is expressing much more anger and I don’t know how his emotions will continue to change. I still worry that if he is not transferred quickly he may try to take matters into his own hands …. While he is happy to see me, when I leave this causes upset and hurt all over again …. I am concerned about the long term impact that the insecurity and separation will have on RSM and that the longer it goes on, the more damage the deaths of his mother and brother will cause and the greater the difficulty he will have in settling into life and being a child again in the UK.” 12. ZAM’s most recent witness statement, composed just days before the substantive hearing, contains the following: “I would describe RSM in some senses of [sic] being like a computer …. When ….. I had first arrived and when I was leaving he was like the black screen of the computer, he was turned off blank and emotionless …. It has been almost unbearable for me to understand how much RSM is suffering when I am not there and being able to do so little about it …. It is very hard to explain to a child who is just 14 and after what he has been through why this process should take so long …. Although RSM has now started to go to school, he tells me he ‘hates it’ …. and he gets ‘sad memories’ of his brother who he went to school with …. I’m concerned that if he becomes resentful about the home that he may decide to run away from it…. Even though he was angry at [his father’s cousin] he knew he was there and that he could see him. I think it will feel very different to him knowing he is completely alone in Italy …. It is very well known within the Eritrean community that there is a smuggling route for children and adults to travel from Italy to France and from there to the UK … I am not personally aware of anyone who has come to the UK via a lawful route from Italy. I know that RSM is aware of this and he has asked directly if travelling to France and then to the UK is an option for him. I have counselled him against this ……”
“….. the Italian reception system has turned out to be inadequate for protecting lone refugee and migrant children and their rights. Even worse, during the first six months of 2016, 5,222 unaccompanied children were reported missing, having run away from reception centres. They become invisible, under the legal radar and are therefore even more vulnerable to violence and exploitation.”
“…. It is imperative to remember that all children need shelter, protection, nurturance, sense of belonging and support. These needs are regarded as basic; essentials that must be met to a secure platform for developmental attainment and positive well-being …. and to protect against a plethora of negative psychological, educational and social outcomes.”
“The continued delay in resolving RSM’s immigration position presents as a significant perpetuating factor to his current psychiatric disorder. It also puts him at increased risk of his mental health deteriorating further. Delays in resolving his immigration status will ensure that he will not receive the care and support that he needs as he navigates his recent bereavements and endures his mental health symptoms …. RSM’s mental health will deteriorate further the longer he remains separated from his family, especially when he moves to the accommodation for minors. He needs to join his family in the UK so that he can begin to process the loss of his mother and brother and establish a new sense of security and normality.”
“…. He will potentially be even more isolated and receive less emotional support …. [and] may be expected to care for himself independently, which when one considers his current mental state is beyond what any 13 year old should be expected to do.” (ii) Recovery from his PTSD: He is “… at increased risk of his mental health deteriorating further …. [and] Recovery from his current psychiatric disorders is not possible until he has joined his family.” (iii) Risk of Suicide: “Further deteriorations in his mental health could impair his already diminished daily functioning or precipitate a suicidal crisis.”
“[RSM] wishes to claim asylum and is entirely willing to register an asylum claim in Italy. He has, however, been unable to do so to date and all indicators are that there is likely to be lengthy further delay …. Under Italian law, children are not legally competent to register an asylum claim and are unable to do so until a guardian is appointed. However, due in particular to the unprecedented refugee crisis, there are extremely lengthy delays in the appointment of guardians in Italy. There are then two stages to registering the claim, which are likely to take several weeks or more, following which a referral might be made to the Dublin III Unit to consider making a take charge request to the responsible Member State. It is unclear in practice how long the Dublin III process will take once an asylum claim is registered because there are no known cases of Dublin III transfers of unaccompanied minors to the UK. However, indications are that at minimum, the maximum time frame of 11 months under Dublin III is likely to be required.”
“Unaccompanied Refugee Children: Relocation and Support (1) The Secretary of State must, as soon as possible after the passing of this Act, make arrangements to relocate to the United Kingdom and support 3,000 unaccompanied refugee children from other countries in Europe. (2) The relocation of children under (1) shall be in addition to the resettlement of children under the Vulnerable Persons Relocation Scheme.”
“It is important to use the tools available to help children reunite with family wherever possible. The Government are committed to meeting our obligations under the Dublin regulation. We have seconded additional resource to the European Asylum Support Office totally over 1,000 days of expert support to Italy and Greece to implement and streamline the Dublin process, including to quickly identify children who qualify for family reunion. And we continue to work with the French authorities to address the situation in Calais, including through a permanent bilateral standing committee to improve cooperation on Dublin transfers, particularly family reunion. …. The recent secondment of a senior asylum expert to the French Interior Ministry to improve the process for family cases has already resulted in a significant increase in the number of children being reunited with family in the UK. In the last six weeks 24 cases have been accepted for transfer to the UK from France under family unity provisions, more than half of whom have already arrived in the UK. Once an asylum claim has been lodged in another member state we have demonstrated that transfers can take place within weeks.”
“Clearly, there is a renewed focus given our acceptance of the Dubs amendment to the Immigration Bill. I absolutely want to use that as a means of speeding up and making more effective the processing of those with links to family in the UK. Vulnerable children can then be reunited with their extended family in the UK, which is in their best interests, and will no longer be isolated in France, Italy or Greece.”
“As I have said, we want to make rapid progress. We are already taking children with family connections to the United Kingdom from France and we want to find ways of improving the process further so that, when cases are identified, we can take charge and ensure that those children come to the UK quickly. There are vulnerable children in Italy and Greece, which is precisely why we are opening a dialogue with those countries. We want to understand their systems properly and join up with them effectively so that we can identify such children and act to enable them to come to this country.”
“The delay with the case has been with the initial confusion that the minor was accompanied and then the adult stated that the child was unaccompanied.”
“… We are not satisfied that the Respondent’s duty of candour has been discharged at this stage.”
“(a) We direct the Secretary of State to file a witness statement. This will be made by a suitably informed and senior official of the Home Office. It will address all of the issues bearing on the Dublin Regulation process for [RSM] and, insofar as material, more widely. It will also address the emails and the rather bare recent letter …. (b) The witness statement will further be directed to the question of the second Applicant: broadly, the Secretary of State’s position vis-à-vis the second Applicant and in particular any steps or enquiries which should properly be made on that front at this stage or any justification proffered for inertia in this respect …. (c) The witness statement will attach all documentary materials which are required in the discharge of the Secretary of State’s duty of candour.”
“Finally, the absence of any reference to Article 17 of the Dublin Regulation in the Respondent’s case is noted.”
“I should point out that other Member States will make take charge requests to the UK under Article 17 as well as Article 8. In general the SSHD would only exercise her discretion under Article 17 in a case where an individual had some family links to the UK but where he or she fell outside of Article 8. If Home Office officials received evidence that there was a close relationship between the unaccompanied minor and the family member in the UK which, although not falling within Article 8 of the Dublin [Regulation] was akin to such a relationship, the SSHD would likely consider using Article 17 to bring the minor to the United Kingdom …. I should also explain that with regard to transfers under Article 17 although they are within the SSHD’s discretion, this does not mean that she simply will notify the Member State where the minor is that the UK will process the minor’s asylum claim and that the Home Office will arrange transportation. Home Office officials would instead enter into a dialogue with the authorities of that Member State given they have custody of the child. It would also be for the transferring Member State to make the travel arrangements for a transfer under Article 17 whether or not a take charge request had been made under the Article … It is difficult without a lengthy exercise to establish exactly when the SSHD has exercised her discretion to accept a take charge request under Article 17 as the data is not easy to interrogate. For example, a request under Article 8(1) might become an acceptance under Article 17(1). In the time available, the SSHD has not been able to carry out this process … My understanding is that as RSM was being processed under Article 8 of the Dublin III Regulation, the SSHD has focused her attention on encouraging the Italians to work through this process rather than seeking to try to bring RSM to the United Kingdom through Article 17. To have two parallel routes of proceeding would have confused matters and as per the above, would not have resulted in RSM coming to the United Kingdom any more quickly …. I would also say more generally that all Member States across Europe understand how the Dublin III Regulation works and what they are required to do when transferring children. If the SSHD were on a more frequent basis to seek to try and unilaterally rely on Article 17 to transfer children to the UK, especially if they were already within the auspices of Article 8, in my view this would cause confusion and take away the true integrity and purpose of Article 8 family reunification.”
“… The Dublin III process works across Europe so that the transferring Member State makes the arrangements. While we can encourage the transferring Member State to expedite matters, we cannot compel them to do so in respect of particular cases as this is purely a matter for them …. It would be inappropriate for the SSHD to seek to interfere in that process as (i) she would be interfering in the sovereign affairs of another Member State and (ii) she is not aware of all the relevant factors which will have led a particular Member State to organise matters in the way that it has.”
“The SSHD has sought to expedite RSM’s case as appropriate taking into account the factors above.”
“A declaration that the Respondent’s refusal to consider and to exercise her discretion under Article 17 of Dublin III or otherwise admit [RSM] to the United Kingdom is unlawful.”
“A further reason for rejecting Mr Eadie’s submission in its absolutist form is Article 17 of the Dublin III Regulation. Since the relevant officials in the second Member State have power to assume responsibility in a case in which the Regulation assigns it to another Member State, it cannot be said that it is never open to an individual to request that state to do that. Mr Eadie suggested, or came close to suggesting, during the course of the hearing that a refusal to exercise the power under Article 17 was not justiciable. That, in my judgment, is unsound in principle and also finds no support in the authorities. Abdullahi v Bundesasylamt recognised only that the second Member State has a wide margin of discretion in deciding whether to assume responsibility pursuant to the provision in the Dublin II Regulation that is the equivalent of Article 17. In a context in which the exercise of power relates to relations between two Member States as to the operation of a treaty arranging for the allocation of responsibility for examining applications for asylum between Member States, this is clearly correct.”
“There will be a wide range of relevant considerations for the decision-maker to take into account: see all the factors that the Upper Tribunal stated were relevant to the assessment of proportionality. But subject to the effective scope of judicial review being narrower for this reason, the exercise by the Secretary of State of her discretion is subject to the ordinary public law principles of propriety of purpose, relevancy of considerations, and the longstop Wednesbury unreasonableness category and, because of the engagement ofECHR Article 8 , the intensity of review which is appropriate in the assessment of the proportionality of any interference with Article 8 rights.”
“The factors which were said to tip the balance in favour of all or some of the first four Applicants were summarised at [55] as:- age; mental disability; accrued psychological damage; a clear likelihood of further psychological turmoil and disturbance, a best case scenario involving a delay of almost one year; the previous family life in their country of origin enjoyed by all seven Applicants; the pressing and urgent need for family reunification on the very special facts of these cases; the wholly inadequate substitute for family reunification which pursuit of the Dublin Regulation avenue would entail in the short to medium term; the absence of any parent or parental figure in the lives of the first four Applicants; the potential that family life would be re-established very quickly if the first four Applicants were permitted to enter the United Kingdom; the availability, willingness and capacity of the last three Applicants to provide meaningful care and support to the first four; and the avoidance of the mentally painful and debilitating fear, anxiety and uncertainty which the first four Applicants will, predictably, suffer if swift entry to the United Kingdom cannot be achieved.”
“I consider that applications such as the ones made by these respondents 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 judgment, 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 there is not working in their case. This is subject to the point that, as I have stated, 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 referred to in Mr Scott’s fourth statement is an example. But save in such cases, I consider that those representing persons in the position of the respondents 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 to turn to the authorities and the courts in the United Kingdom.”
“The Court has further held that there is a broad consensus, including in international law, in support of the idea that in all decisions concerning children, their best interests must be paramount (see Neulinger and Shuruk v. Switzerland [GC], no. 41615/07, § 135, ECHR 2010; M.P.E.V. and Others v. Switzerland, no. 3910/13, § 52,8 July 2014 ; see also Tarakhel v. Switzerland [GC], no. 29217/12, § 99, ECHR 2014 (extracts)). For that purpose, in cases regarding family reunification the Court pays particular attention to the circumstances of the minor children concerned, especially their age, their situation in their country of origin and the extent to which they are dependent on their parents (see Tuquabo-Tekle and Others, cited above, § 44). While the best interests of the child cannot be a “trump card” which requires the admission of all children who would be better off living in a Contracting State (I.A.A. and Others v. the United Kingdom, cited above, § 46; see also Berisha, cited above, §§ 60-61), the domestic courts must place the best interests of the child at the heart of their considerations and attach crucial weight to it (see, mutatis mutandis, Mandet v. France, no. 30955/12, §§ 56-57,14 January 2016 ).”
“The need for expedition in cases involving particularly vulnerable persons such as unaccompanied children is recognised in the Regulation and authorities such asCase C-648/11 R (MA (Eritrea)) v Secretary of State for the Home Department[2013] 1 WLR 2961 and Manchester City Council v Pinnock[2010] UKSC 45 ,[2011] 2 AC 104 at [64]. .... I accept Ms Demetriou’s submission that the urgency of particular circumstances may require a shorter period than the periods specified as long stops in the Regulation.”
“There will be a need for expedition in many cases involving unaccompanied minors.”
“Cases such as these are intensely fact sensitive.” 59. We do not overlook the imperatives which the court identified and balanced in [87]: “The circumstances of the first four Respondents’ cases, especially the psychiatric evidence, suggested in their cases there was a particular need for urgency. But an orderly process is also important in cases of unaccompanied minors. The need to examine their identity, age and claimed relationships remains and there is a particular need to guard against people trafficking.”
“We are of the opinion that the Applicants’ challenges are well-founded. The ZAT threshold of very compelling circumstances is overcome. Stated succinctly, RSM’s personal circumstances, on any showing, belong towards the upper end of the notional highly compelling spectrum and, based on the evidence amassed (which we emphasise), the Italian Dublin Regulation system has not served him with the anxious attention, efficacy or expedition for which his unique, highly fact sensitive situation has been pleading since April 2016 or June 2016 at latest. Eight months later we consider judicial intervention appropriate.”
“My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se … The discretion to hear disputes, even in the area of public law must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.” 73. Signed: THE HON. MR JUSTICE MCCLOSKEY PRESIDENT OF THE UPPER TRIBUNAL IMMIGRATION AND ASYLUM CHAMBER 74. Date: [initial]17 February 2017 75. Enlarged and finalised:31 March 2017 Applicant’s solicitors: Respondent’s solicitors: Home Office Ref: Decision(s) sent to above parties on: ------------------------------------------------------------------------------------------------------------------------------------------- Notification of appeal rights A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings. A party may appeal against such a decision to the Court of Appeal on a question of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of theTribunal Procedure (Upper Tribunal) Rules 2008 ). If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was given (Civil Procedure RulesPractice Direction 52D 3.3(2)). APPENDIX 1 Upper Tribunal Immigration and Asylum Chamber Judicial Review Decision Notice The Queen on the application of RSM and ZAM 76. Applicants v Secretary of State for the Home Department 77. Respondent Before The Honourable Mr Justice McCloskey, President and Upper Tribunal Judge Finch 78. DECISION ANDORDER 79. (Approved and edited version: given ex tempore on 05/12/16) McCloskey J Preface I emphasise at the outset that both Applicants continue to have the protection of anonymity and reproduce below the extant Tribunal Direction. Direction – Rule 14 of theTribunal Procedure (Upper Tribunal) Rules 2008 Unless and until a tribunal or court directs otherwise, the Applicants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the Applicants and to the Respondent. Failure to comply with this direction could lead to contempt of court proceedings. (1). This is a case of some urgency in which the Upper Tribunal has acceded to the Applicants’ request for expedition. The proceedings have been processed and managed accordingly. We outline in (2) – (5) below their skeletal framework. (2). In very brief compass the first Applicant, RSM, is a national of Eritrea aged 14 years and is currently residing in Rome, having fled his country of origin and subsequently the countries of Yemen and Egypt, accompanied by his mother and younger brother at all times. RSM was unexpectedly separated from his mother and younger brother at the point of departure in Egypt. From there he travelled with a family relative to Rome where both lived together in a refugee camp for a period of some few months. During that period RSM learned that his mother and younger brother had tragically lost their lives, with many others, when later attempting the perilous crossing between Egypt and Italy. That, very succinctly, sketches the first chapter of RSM’s story. (3). The second main element of RSM’s judicial review challenge relates to his living family members. He has an adult aunt who, having previously been recognised as a refugee in the United Kingdom, resides in this country and is willing and able to receive and care for him. This is a fact uncontested and of no little significance. (4). The third main element in RSM’s case is the evidence provided by Dr Claire O’Driscoll, a clinical psychologist whose expertise extends to teenagers. Dr O’Driscoll has provided a comprehensive report and supplement. (5). Fourth, there is tranche of evidence relating to the systems and procedures in Italy for the processing and determination of asylum claims under the Dublin Regulation generally, coupled with evidence of how these are functioning in RSM’s case. (6). At the outset of today’s hearing we canvassed tentatively with the representatives certain possibilities and options for the continued conduct of these proceedings. As the exchanges which materialised will have made clear, the main impetus for the Tribunal’s inconclusive observations at this initial stage was the state of the Secretary of State’s case. In summary, we had difficulty in identifying the evidence (if any) provided by the Secretary of State and we expressed surprise at the absence of a witness statement in due discharge of the Secretary of State’s duty of candour. (7). The candid response made by Mr Henderson to the questions and reservations raised by the Tribunal, supported by instructions provided by the GLD solicitor in attendance, confirmed the Tribunal’s reservations in this respect. Mr Henderson did not seriously contest this discrete issue. His submissions, in this context, were well judged. (8). One of the possibilities which the Tribunal canvassed tentatively was that of adjourning today’s hearing. Having heard the presentation of the Applicants’ case by Mr Fordham who, as he put it, presented his arguments in full de bene esse, with the Tribunal’s approval and in the course of further exchanges between Mr Henderson and the panel a surprising development eventuated, namely an application by Mr Henderson for an adjournment. We rule without hesitation that this application is ill timed and has no merit in any event. This is a case involving an unaccompanied 14 year old child whose plight is, on any showing, acute. It which has been granted expedition by the Tribunal. That this adjournment application was not foreshadowed in the summary grounds of defence or in a formal application or by letter or email or at the commencement of today’s hearing in many ways speaks for itself. (9). That brings us to the next question. Mr Fordham’s stance is that the Tribunal should deal with this case as a rolled up hearing and proceed to grant the Applicants final relief without more. The first element of this submission has some merit not least because the Tribunal’s initial directions in this case did indeed list the hearing as a rolled up one. The reasons why the Tribunal began to reflect on the advisability and propriety of that course of action are the following. First, the speedy ‘rolled up’ course seems to us to have met with disapproval in the judgment of the Court of Appeal in ZAT. Second, we are not satisfied that the Respondent’s duty of candour has been discharged at this stage. Third, all of the evidence points to an indeterminate and interim state of affairs in the first Applicant’s case. Fourth, it seems likely that the Applicants’ evidence could be updated and augmented in certain material respects. (10). In particular, we are alive to the possibility that further material evidence on behalf of the Applicants could be assembled and produced within a very short timeframe. For example, evidence of that kind could make considerably clearer the stage which the asylum claim has actually reached in Italy and what its short term prognosis is. Such evidence might also provide us with a clearer picture of RSM’s circumstances in what appears to be a state children’s home and, inter alia, whether he is in fact being educated there. Further evidence might also augment the evidential picture on the risk of absconding not just in general terms but more specifically in his case. Those are the reasons why we identified certain options at the outset of today’s proceedings. The Applicants’ preferred course of action is crystal clear and we have given careful consideration to it. (11). The further ingredient in our approach at this stage of the proceedings arises from the decision of the Court of Appeal in ZAT and in particular paragraph 95. That should have been apparent, I trust, from my reference to the evidence bearing upon the current stage of the Applicants’ asylum claim and the short term prognosis. (12). Following careful probing, we understand Mr Henderson’s position on behalf of the Secretary of State to be, first of all, that an adjournment is sought and, second or alternatively, that permission should be refused. The basis of the latter submission is that based on the summary grounds of defence the Applicants’ case does not overcome the threshold of arguability. Mr Henderson has confirmed that any more extensive submissions he may wish to make would be addressed not to the question of arguability but rather to the question of whether the Applicants qualify for the grant of final substantive relief. (13). With some reluctance, we have come to the conclusion that we should not proceed with a rolled up hearing in these circumstances but temper that with an injection of the maximum expedition which we consider appropriate in these circumstances. ORDER AND DIRECTIONS (14). We grant the Applicants permission to apply for judicial review. Their case overcomes the modest threshold of arguability. To this we add the following directions: a. We direct the Secretary of State to file a witness statement. This will be made by a suitably informed and senior official of the Home Office. It will address all of the issues bearing on the Dublin Regulation process for this Applicant and, insofar as material, more widely. It will address also the emails and the rather bare recent letter. b. The witness statement will further be directed to the question of the second Applicant: broadly, the Secretary of State’s position viz-a-viz the second Applicant and in particular any steps or enquiries which should properly be made on that front at this stage or any justification proffered for inertia in this respect. We recognise that a witness statement of this kind may legitimately contain hearsay evidence. However, if it is made by a Home Office official of suitable seniority and direct involvement that should be confined to a minimum. c. The witness statement will attach all documentary materials which are required in the discharge of the Secretary of State’s duty of candour. d. The witness statement will be served and filed by 4 pm on Friday this week, that is09 December 2016 . e. The Applicants are at liberty to adduce further evidence. The time limit for this step is 4 o’ clock on13 December 2016 . f. We list the substantive hearing provisionally on19 December 2016 . g. The Applicants’ solicitors will provide a full update in writing by 16.00 on15 December 2016 h. Liberty to apply. i. We reserve costs. (15). I elaborate on the liberty to apply provision as follow. This is an expedited case which is on a fast track. We do not consider it appropriate to devise today a more prescriptive timetable than that contained in the directions made. However, the Applicants will be able, under the aegis of liberty to apply, to request that the substantive hearing be listed at very short notice indeed taking into account the availability of the Tribunal and the entitlement of the Respondent to be fully heard. (16). Finally, the absence of any reference to Article 17 of the Dublin Regulation in the Respondent’s case is noted. 96. Signed: The Honourable Mr Justice McCloskey President of the Upper Tribunal Immigration and Asylum Chamber 97. Dated: 05December 2016 Applicant’s solicitors: Respondent’s solicitors: Home Office Ref: Decision(s) sent to above parties on: ------------------------------------------------------------------------------------------------------------------------------------------------ Notification of appeal rights A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings. A party may appeal against such a decision to the Court of Appeal on a question of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of theTribunal Procedure (Upper Tribunal) Rules 2008 ). If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure RulesPractice Direction 52D 3.3). APPENDIX 2 Upper Tribunal Immigration and Asylum Chamber Judicial Review Decision Notice The Queen on the application of RSM and ZAM 98. Applicants v Secretary of State for the Home Department 99. Respondent Before The Honourable Mr Justice McCloskey, President and Upper Tribunal Judge Finch 100. APPROVED EX TEMPORE DECISION AND ORDER BOTH APPLICANTS CONTINUE TO HAVE THE PROTECTION OF ANONYMITY. Direction Regarding Anonymity – Rule 14 of theTribunal Procedure (Upper Tribunal) Rules 2008 101.19 December 2016 102. McCloskey J (1). We shall announce our decision in very summary terms in the circumstances. Time is against all of us in this case and we do not have the luxury of delivering an extensive ex tempore judgment or reserving. What the parties need to know in every case, following a hearing, is the result. That is particularly true of the present case. What this means is that if a conventional full written judgment is required it will be provided in due course. (2). In very brief compass, there are two Applicants for judicial review. I take this opportunity to emphasise that each has the protection of anonymity with the result that nothing should be disseminated or published which identifies either Applicant directly or could have the consequence of identifying them. (3). We have set out in outline in our earlier decision the background to these proceedings. RSM, the first Applicant, is a national of Eritrea aged 14 years. He resides in Italy, isolated from family and friends. He fled his country of origin, travelling through the countries of Yemen and Egypt which he fled also. Up to the point of his departure from Egypt he was accompanied by his mother and younger brother. They survived their traumatic experiences. The events which separated RSM from his mother and younger brother were unscheduled, dramatic and extremely traumatic for him. Worse, regrettably, was to come. Following a short sojourn in Italy he learnt of the appallingly tragic circumstances of the deaths by drowning of his mother and sibling in the course of their attempts to reunite the three family members in Italy. (4). The second judicial review Applicant is RSM’s aunt, ZAM. She is his adult aunt. She resides in the United Kingdom where she was initially a recognised refugee and is now a British citizen. There is another family relative of no little importance, namely RSM’s cousin who is of course the daughter of the second Applicant ZAM. SA has, with others, made a not insignificant evidential contribution to these proceedings during their most recent phase. SA is the oldest daughter of ZAM and she has one younger sister. (5). These proceedings have been conducted in two phases. The first phase came to a conclusion with our order of05 December 2016 at which stage we granted the Applicants permission to apply for judicial review. It was quite clear to the Tribunal at that stage that having processed the proceedings on a fast track the evidential picture was incomplete bilaterally. We addressed this firstly by requiring the Secretary of State to file a witness statement. Secondly, we acknowledged the potential further evidence to be provided on behalf of the Applicants. (6). The Tribunal did not of course know what the outcome of those steps might be but, in the briefest of terms, dividing the proceedings into these two phases has had the consequence that the Tribunal at this, the conclusion of the second phase, is considerably more fully informed than at the earlier stage. The evidence provided on behalf of the Secretary of State in the form of both witness statements and certain documentary evidence is as important for what it says and contains as for what it does not say and does not contain. On the Applicants’ side the additional evidence has provided the Tribunal with a more rounded insight into RSM’s personal circumstances and, secondly, into what emerges as a key question in these proceedings, namely how the Dublin Regulation system in Italy has worked for him to date, is working for him at the moment and is likely to continue working for him. (7). Time does not permit us to express in extenso our reasons for coming to the following conclusion, which we express at this stage. (8). We are of the opinion that the Applicants’ challenges are well-founded. The ZAT threshold of very compelling circumstances is overcome. Stated succinctly, RSM’s personal circumstances, on any showing, belong towards the upper end of the notional highly compelling spectrum and, based on the evidence amassed (which we emphasise), the Italian Dublin Regulation system has not served him with the anxious attention, efficacy or expedition for which his unique, highly fact sensitive situation has been pleading since April 2016 or June 2016 at latest. Eight months later we consider judicial intervention appropriate. (9). In the circumstances prevailing we shall confine ourselves to one aspect of the relief claimed today. We consider that a mandatory order should be made addressed to the Secretary of State in terms which mirror what is contained in paragraphs 36 (ii) and 37 of the order dated11 October 2016 made in the combined challenges of SA and AA, very recently decided (see SA & AA(R) v SSHD [2016] UKUT (JR) 507). This is the real, practical and effective remedy which it is essential for the Applicants to have as of today. (10). We shall reflect a little further on the propriety of acceding to the Applicants’ quest to obtain relief in the second, that is declaratory, form set forth in their claim form, namely a declaration that the Secretary of State has unlawfully refused to consider and exercise her discretion under Article 17 of the Dublin Regulation. All the evidence bearing on that has been of very late advent, as has the argument and we would like to consider both at a little further length. (11). The upshot is that we make a mandatory order in the terms indicated namely the Secretary of State shall admit the first Applicant RSM to the United Kingdom. The full import and rationale of that order is as set forth in [37] of SA and AA. We add and emphasise that there shall be liberty to apply. That is a measure which provides protection to both the Applicants and the Secretary of State and achieves even-handed balance. (12). As the present case has (and certain other recent cases have) shown even more dramatically the lines of communication for litigation instructions are surprisingly lengthy where the Secretary of State is concerned. Thus we do not require Mr Ruck-Keene to commit himself irredeemably today. To do so would be unfair and unreasonable. However, a stringent timescale is imperative. To this end, any application for permission to appeal will have to be made on notice to the other parties by close of business on Wednesday21 December 2016 viz within 48 hours. If anything further is required from the Tribunal, whether under the aegis of liberty to apply or otherwise, that should be notified by the relevant party to the Tribunal within the same time limit.22 December 2016 Remedy (13). The Secretary of State is hereby ordered to admit the first Applicant, RSM, to the United Kingdom. [Final order to follow] Permission to appeal to the Court of Appeal (14). See final order to follow. Costs (15). (i) We order the Secretary of State to pay the Applicants’ costs to be assessed in default of agreement. (ii) The Applicants’ costs shall be assessed as their publicly funded status requires. 118. Signed: The Honourable Mr Justice McCloskey President of the Upper Tribunal Immigration and Asylum Chamber 119. Dated: 22December 2016 Applicant’s solicitors: Respondent’s solicitors: Home Office Ref: Decision(s) sent to above parties on: Notification of appeal rights A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings. A party may appeal against such a decision to the Court of Appeal on a question of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of theTribunal Procedure (Upper Tribunal) Rules 2008 ). 120. APPENDIX 3: THE DUBLIN REGULATION 121. [1] We begin by considering certain of its recitals. Per recital (4), Dublin III is designed to operate as “a clear and workable method for determining the Member State responsible for the examination of an asylum application”
“In accordance with the 1989 United Nations Convention on the Rights of the Child and with the Charter of Fundamental Rights of the European Union, the best interests of the child should be a primary consideration of Member States when applying this Regulation. In assessing the best interests of the child, Member States should, in particular, take due account of the minor’s wellbeing and social development, safety and security considerations and the views of the minor in accordance with his or her age and maturity, including his or her background.”
“In accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with the Charter of Fundamental Rights of the European Union, respect for family life should be a primary consideration of Member States when applying this Regulation.” 122. [2] Recital (16) states, in part: “When the applicant is an unaccompanied minor, the presence of a family member or relative on the territory of another Member State who can take care of him or her should also become a binding responsibility criterion.” 123. Recital (17) is directly linked to Article 17: “Any Member State should be able to derogate from the responsibility criteria, in particular on humanitarian and compassionate grounds, in order to bring together family members, relatives or any other family relations and examine an application for international protection lodged with it or with another Member State, even if such examination is not its responsibility under the binding criteria laid down in this Regulation.”
“A personal interview with the applicant should be organised in order to facilitate the determination of the Member State responsible for examining an application for international protection.” 124. [3] Turning to the Regulation proper, it is important to absorb the definition of “unaccompanied minor”: “A minor who arrives on the territory of the Member State unaccompanied by an adult responsible for him or her, whether by law or by the practice of the Member State concerned, and for as long as he or she is not effectively taken into the care of such an adult ….” 125. Article 3(1) “Member States shall examine any 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.“ 126. Article 5 “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. 2. The personal interview may be omitted if: (a) the applicant has absconded; or (b) after having received the information referred to in Article 4, the applicant has already provided the information relevant to determine the Member State responsible by other means. The Member State omitting the interview shall give the applicant the opportunity to present all further information which is relevant to correctly determine the Member State responsible before a decision is taken to transfer the applicant to the Member State responsible pursuant to Article 26(1). 3. The personal interview shall take place in a timely manner and, in any event, before any decision is taken to transfer the applicant to the Member State responsible pursuant to Article 26(1). 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. This 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.” (a) the applicant has absconded; or (b) after having received the information referred to in Article 4, the applicant has already provided the information relevant to determine the Member State responsible by other means. The Member State omitting the interview shall give the applicant the opportunity to present all further information which is relevant to correctly determine the Member State responsible before a decision is taken to transfer the applicant to the Member State responsible pursuant to Article 26(1). 127. Article 6 128. This prescribes a series of guarantees for children, in the following terms: “(ii) The best interests of the child shall be a primary consideration for Member States with respect to all procedures provided for in this Regulation. (iv) 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. To that end, that Member State may call for the assistance of international or other relevant organisations, and may facilitate the minor’s access to the tracing services of such organisations.” 129. Article 8 “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. Where the applicant is a married minor whose spouse is not legally present on the territory of the Member States, the Member State responsible shall be the Member State where the father, mother or other adult responsible for the minor, whether by law or by the practice of that Member State, or sibling is legally present. 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. 3. Where family members, siblings or relatives as referred to in paragraphs 1 and 2, stay in more than one Member State, the Member State responsible shall be decided on the basis of what is in the best interests of the unaccompanied minor. 4. In the absence of a family member, a sibling or a relative as referred to in paragraphs 1 and 2, the Member State responsible shall be that where the unaccompanied minor has lodged his or her application for international protection, provided that it is in the best interests of the minor. 5. The Commission shall be empowered to adopt delegated acts in accordance with Article 45 concerning the identification of family members, siblings or relatives of the unaccompanied minor; the criteria for establishing the existence of proven family links; the criteria for assessing the capacity of a relative to take care of the unaccompanied minor, including where family members, siblings or relatives of the unaccompanied minor stay in more than one Member State. In exercising its powers to adopt delegated acts, the Commission shall not exceed the scope of the best interests of the child as provided for under Article 6(3). 6. The Commission shall, by means of implementing acts, establish uniform conditions for the consultation and the exchange of information between Member States. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44(2).” 130. Article 17 “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. The Member State which decides to examine an application for international protection pursuant to this paragraph shall become the Member State responsible and shall assume the obligations associated with that responsibility. Where applicable, it shall inform, using the ‘DubliNet’ electronic communication network set up under Article 18 of Regulation (EC) No 1560/2003, the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of, or to take back, the applicant. The Member State which becomes responsible pursuant to this paragraph shall forthwith indicate it in Eurodac in accordance with Regulation (EU) No 603/2013 by adding the date when the decision to examine the application was taken. 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 The request to take charge shall contain all the material in the possession of the requesting Member State to allow the requested Member State to assess the situation. The requested Member State shall carry out any necessary checks to examine the humanitarian grounds cited, and shall reply to the requesting Member State within two months of receipt of the request using the ‘DubliNet’ electronic communication network set up under Article 18 of Regulation (EC) No 1560/2003. A reply refusing the request shall state the reasons on which the refusal is based. Where the requested Member State accepts the request, responsibility for examining the application shall be transferred to it. “ The Member State which decides to examine an application for international protection pursuant to this paragraph shall become the Member State responsible and shall assume the obligations associated with that responsibility. Where applicable, it shall inform, using the ‘DubliNet’ electronic communication network set up under Article 18 of Regulation (EC) No 1560/2003, the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of, or to take back, the applicant. The Member State which becomes responsible pursuant to this paragraph shall forthwith indicate it in Eurodac in accordance with Regulation (EU) No 603/2013 by adding the date when the decision to examine the application was taken. The request to take charge shall contain all the material in the possession of the requesting Member State to allow the requested Member State to assess the situation. The requested Member State shall carry out any necessary checks to examine the humanitarian grounds cited, and shall reply to the requesting Member State within two months of receipt of the request using the ‘DubliNet’ electronic communication network set up under Article 18 of Regulation (EC) No 1560/2003. A reply refusing the request shall state the reasons on which the refusal is based. Where the requested Member State accepts the request, responsibility for examining the application shall be transferred to it. “ 131. Article 18(1)(a) “The Member State responsible under this Regulation shall be obliged to: (a) take charge, under the conditions laid down in Articles 21, 22 and 29, of an applicant who has lodged an application in a different Member State . . .“ 132. Article 21 “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 within 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. Notwithstanding the first subparagraph, in the case of a Eurodac hit with data recorded pursuant to Article 14 of Regulation (EU) No 603/2013, the request shall be sent within two months of receiving that hit pursuant to Article 15(2) of that Regulation. Where the request to take charge of an applicant is not made within the periods laid down in the first and second subparagraphs, responsibility for examining the application for international protection shall lie with the Member State in which the application was lodged. 2. The requesting Member State may ask for an urgent reply in cases where the application for international protection was lodged after leave to enter or remain was refused, after an arrest for an unlawful stay or after the service or execution of a removal order. The request shall state the reasons warranting an urgent reply and the period within which 3. In the cases referred to in paragraphs 1 and 2, the request that charge be taken by another Member State shall be made using a standard form and including proof or circumstantial evidence as described in the two lists mentioned in Article 22(3) and/or relevant elements from the applicant’s statement, enabling the authorities of the requested Member State to check whether it is responsible on the basis of the criteria laid down in this Regulation. The Commission shall, by means of implementing acts, adopt uniform conditions on the preparation and submission of take charge requests. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44(2).”
“1. Where the decision to entrust the care of an unaccompanied minor to a relative other than the mother, father or legal guardian is likely to cause particular difficulties, particularly where the adult concerned resides outside the jurisdiction of the Member State in which the minor has applied for asylum, cooperation between the competent authorities in the Member States, in particular the authorities or courts responsible for the protection of minors, shall be facilitated and the necessary steps taken to ensure that those authorities can decide, with full knowledge of the facts, on the ability of the adult or adults concerned to take charge of the minor in a way which serves his best interests Options now available in the field of cooperation on judicial and civil matters shall be taken account of in this connection. 2. The fact that the duration of procedures for placing a minor may lead to a failure to observe the time limits set in Article 18(1) and (6) and Article 19(4) of Regulation (EC) No 343/2003 shall not necessarily be an obstacle to continuing the procedure for determining the Member State responsible or carrying out a transfer.”