“insofar as the family already existed in the country of origin, the following members of the applicant’s family who are present on the territory of the Member States: …. — when the applicant is a minor and unmarried, the father, mother or another adult responsible for the applicant, whether by law or by the practice of the Member State where the adult is present, — when the beneficiary of international protection is a minor and unmarried, the father, mother or another adult responsible for him or her whether by law or by the practice of the Member State where the beneficiary is present.”
“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 …… request that other Member State to take charge of the applicant.” [Emphasis added.]
“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”
“The Court reiterates that the essential object of Article 8 is to protect the individual against arbitrary action by the public authorities. There may in addition be positive obligations inherent in effective ‘respect’ for family life. However, the boundaries between the State’s positive and negative obligations under this provision do not lend themselves to precise definition. The applicable principles are, nonetheless, similar. In both contexts regard must be had to the fair balance that has to be struck between the competing interests of the individual and of the community as a whole; and in both contexts the State enjoys a certain margin of appreciation.”
“(a) The extent of a State’s obligation to admit to its territory relatives of settled immigrants will vary according to the particular circumstances of the persons involved and the general interest. (b) As a matter of well established international law and subject to its treaty obligations, a State has the right to control the entry of non-nationals into its territory. (c) Where immigration is concerned, Article 8 cannot be considered to impose on a State a general obligation to respect the choice by married couples of the country of their matrimonial residence and to authorise family reunion in its territory.” (52) In its reasoning the Court, without purporting to prescribe an exhaustive list of touchstones, placed emphasis on the age of the children concerned, their current situation in their country of origin and the extent to which they are dependent on their parents. In [47], it described the settlement of the child concerned with his family unit in the Netherlands as “the most adequate means for the various members to develop family life together.”
“The Court ….. reiterates that the Belgium State had positive obligations in the instant case, including an obligation to take care of the second applicant and to facilitate the applicants’ reunification. By deporting the second applicant, the Court did not assist their reunification. Nor did they ensure that the second applicant would in fact be looked after in [the DRC]. In these circumstances, the Court considers that the Belgium State failed to comply with its positive obligations and interfered with the applicants’ rights to respect for their family life to a disproportionate degree.”
“The first aspect of the concept is the child’s substantive right to have his best interests assessed as a primary consideration whenever a decision is made concerning him. The second is an interpretative principle that, where a legal provision is open to more than one interpretation, that which more effectively serves his best interests should be adopted. The third is a rule of procedure, described [in General Comment No. 14] as follows: 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 … Furthermore, the justification of a decision must show that the right has been explicitly taken into account …”
“Moreover, the authorities do not suggest that, event in what Mr Eadie described as the ‘initial procedural stages’, there is an absolute rule that the determination of the responsible Member State must be by the operation of the Dublin Process and Procedures in the Member State in which the individual is present.”
“The need for expedition in cases involving particularly vulnerable persons such as unaccompanied children is recognised in the Regulation and authorities …. Chikwamba v Secretary of State for the Home Department[2008] 1 WLR 1420 and Mayeka v Belgium 46… show that the operation of a procedural rule may be disproportionate …. the urgency of particular circumstances may require a shorter period than the periods specified as long stops in the Regulation.”
“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. ……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 UT 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 ( Associated Provincial Picture Houses Ltd v Wednesbury Corpn[1948] 1 KB 223 ) and, because of the engagement ofarticle 8 of the European Convention , the intensity of review which is appropriate in the assessment of the proportionality of any interference with Article 8 rights.“ We accept Ms Walker’s submission that one must be alert to the particular contexts of the decision in K and the reflections in [83] –[84] of ZT. Of course neither of these decisions is on all fours with the present case. But this consideration does not preclude an examination of the principled basis and juridical orientation of the passages under scrutiny. The main factor which links the decision in K with the present case (and the other members of this group) is the absence of a take charge request by the first Member State, coupled with how this was treated by the Court. The Common Law: Procedural Safeguards (73) Last, but far from least, since becoming seized of the family reunificationclaims in this case and the other members of the group the Secretary of State has been subject to a series of well recognised public law obligations. These have entailed, in particular, the duty to ensure a procedurally regular and fair decision making process; the duty to take into account all material facts and considerations; and the duty to prevent the intrusion of the immaterial. It may be said that the Tameside duty of enquiry, considered by this Tribunal in MK, was born out of the latter two duties and, in every context where it is engaged, constitutes an important mechanism for ensuring that the foregoing EU andArticle 8 ECHR duties are discharged. So too does due observance of procedural regularity and fairness. To this I would add that the specific EU law duties to which the Secretary of State was at all material times subject did not operate to excuse, modify or dilute the content of these co-existing public law duties. All of them operate in harmonious co-existence and with mutual respect. (74) There is a notable illustration of the impact of the common law in the specific context of asylum decision making in the decision of the Court of Appeal in Dirshe. There the central question was whether a refusal of asylum decision was vitiated on the ground of a procedural unfair decision making process. The court supplied an uncompromisingly affirmative answer. At [14] Latham LJ, delivering the judgment of the court, stated: “The interview is a critical part of the procedure for determining asylum decisions. It provides the applicant with an opportunity to expand on or explain his written account and for the respondent, through the interviewing officer, to test that account and explore any apparent inconsistencies in that account. The interview could well be critical to any determination by either the respondent or appellate authorities as to the credibility of the applicant. The record of the interview is created by the interviewing officer, who is acting on behalf of the respondent. It follows that fairness requires that the procedure should give to the applicant an adequate opportunity to challenge its reliability or adequacy.”
“(1) Problems of interpretation can and do occur; (2) Questions, translated into the applicant's language and replies given in that language, are not recorded as such but in the English translation; (3) Records cannot always, despite exhortation, be literally verbatim; (4) The reversal of the requirement for read back removed a measure of protection against unremarked mistakes in recording by the interviewer; (5) An applicant does not necessarily have the benefit of representation or his own interpreter. Such an applicant will be at a disadvantage in identifying errors of translation; (6) Immigration officials and Tribunals of Appeal frequently judge credibility against a criterion of consistency; (7) Tape recording of an interview by the applicant or by the Secretary of State would do much to alleviate these problems if and when they occur.” (75) The judgment in Dirshe continues, at [16]: “So long as the Secretary of State continues with the practice of relying upon a written record of the interview in its present form, the applicant must have an adequate means of ensuring that the record is, as we have said, both adequate and reliable”
“My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.”
“…There will be a wide range of relevant considerations for the decision maker to take into account: see all the factors that the UT stated where relevant to the assessment of proportionality. That 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 long stop Wednesbury unreasonableness category …. and, because of the engagement ofArticle 8 of the European Convention , the intensity of review which is appropriate in the assessment of the proportionality of any interference with Article 8 rights.”
“All of these cases have one feature in common namely that fresh evidence has been generated. Broadly the fresh evidence takes the form of a series of witness statements and expert reports. None of this fresh evidence has been considered by the Secretary of State other than in the somewhat cursory fashion disclosed in the witness statements of Ms Farman. It is common case that these do not purport to contain or amount to a new decision, a reviewed decision or a reconsidered decision. This is based on the Secretary of State’s unremitting position which is that fresh decisions will not be made voluntarily in any of these cases. This position is justified on the basis of the contention that the expedited process was of the “one off” variety and that all of the new evidence belongs exclusively to the framework of the Dublin Regulation process and, accordingly, can only be deployed within that process. Thus, it is argued, all new evidence belongs solely to a Dublin Regulation application for asylum to the French authorities.”
“[9] The following analysis arises irresistibly from the nature of the challenge that is brought in each of these cases. These are individual rights challenges. They are founded fundamentally on Article 8 of the Human Rights Convention. They base themselves on the principles which were espoused by this Tribunal in ZAT And Others and approved and developed by the Court of Appeal. The decision in ZAT makes clear that in certain circumstances Article 8 provides the appropriate legal vehicle for securing admission to the United Kingdom and it does so outwith and apart from the regime of the Dublin Regulation. Whether any of these Applicants ultimately succeeds in making good their claim in this fashion does not arise at this stage. [10] Once one applies that analysis the unsustainability of the Secretary of State’s position becomes clear. The decision which the Secretary of State is obliged to make must be viewed through that lens. It is based on duty. First of all it is the ordinary public law duty of a public authority invested with relevant decision making powers and discretions to make a decision when reasonably required to do so. Second, it is based on section 6 of the Human Rights Act, which applies directly to the Secretary of State in this Article 8 context. It would be manifestly incompatible with the Convention rights of the Applicants if the Secretary of State were simply to refuse to assess the merits of a human rights claim at all.”
“The basis for drawing adverse inferences of fact against the Secretary of State in judicial review proceedings will be particularly strong, because in such proceedings the Secretary of State is subject to the stringent and well known obligation owed to the Court by a public authority facing a challenge to its decision ….”
“…. to co-operate and to make candid disclosure by way of affidavit of the relevant facts and (so far as they are not apparent from contemporaneous documents which have been disclosed) the reasoning behind the decision challenged in the judicial review proceedings …”
“Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this treaty or resulting from acts taken by the institutions of the Community. They shall facilitate the achievement of the Community’s tasks.” (101) The above rules and principles of EU law belong to the realm of core juristic dogma, traceable to the landmark decisions in Van Gend en Loos [1963] ECR 1 and Costa v Enel [1964] ECR 585. The enduring impact of these decisions in the field of EU law requires no elaboration. As the authors of European Union Law (Dashwood et al, 6th ed) state, at page 237: “… Law created by or under the Treaty of Rome had [by Van Gend En Loos]in principle been emancipated into the legal order of every single Member State, becoming an independent source of rights and obligations … “. And at page 238: “It would be incompatible with attaining the Community’s objective of creating a common market with common rules applying in all Member States to tolerate a situation in which countries decide which rules they want to respect and which rules they do not; the existence of the common market, and therefore the existence of the Community itself, depends upon Treaty rules being applied effectively and uniformly across the Member States and this implies the automatic and unconditional supremacy of directly effective Community law over conflicting provisions of national law.”
“’Application’ or ‘application for asylum’ means an application made by a third country national or stateless person which can be understood as a request for international protection from a Member State under the Geneva convention.”
“Member States may require that applications for asylum be made in person and/or at a designated place.”
“The expedited process was an exceptional short-term measure … a reasonable and rational measure for the SSHD to adopt … The expedited process, involving an assessment of the claimed family link, was designed to enable the expedited processing and transfer of children who would otherwise be eligible to have their asylum claims transferred to the UK under Dublin III, Article 8 in the exceptional circumstances pertaining to the Camp closure and the dispersal of the children to 73 [reception centres] across France.”
“An order that this claim be stayed along with all other related proceedings behind the Administrative Court case of Citizens UK v SSHD (CO/5255/2016) as the issues in dispute are the same ….”
“… as an alternative that the Tribunal transfer this claim and all other claims raising the same issue to the Administrative Court so that all related claims can be case managed appropriately with reference to the overriding objective.”
“25. The Claimant’s position is that any act of disregard and default of the Obligations would not only be unlawful but a matter of grave concern. Judicial review is a last resort. But it serves to secure accountability for relevant acts and omissions of the Defendant having had the Obligations squarely brought to her attention … These obligations, which arise in the context of a long standing failure by the Defendant and the French authorities to identify and protect children in the Jungle in Calais, provide them with information about their rights and set up a functioning system to allow them to access rights to family reunification in the United Kingdom … The dispersed children now face a further disruption and dispersal from CAOMIEs due to close their doors, in some cases before the expedited process has concluded and in all cases before the dispersed children have completed Dublin III family reunification procedures. Having established the expedited process on French soil with the support and co-operation of the French authorities, the Defendant has an additional obligation arising out of common law principles concerning access to justice ….. and rights to procedure fairness underArticle 8 ECHR ….. to take all steps open to her to ensure that further dispersal from the CAOMIEs does not interrupt access to that process and in particular to any remedies available to dispersed children in respect of the operation of that process. Access to legal remedies includes access to NGOs and other representatives who may be able to facilitate the provision of UK based legal advice to dispersed children and their families ….”
“The failure and refusal to recognise and comply with the legal obligations identified in the letter before claim …. (which required a response by11 October 2016 )”
“Failure to transfer [him] to the UK in accordance with his substantive Dublin III rights and his Article 8 rights …. refusal/failure to act since16 December 2016 and ongoing and including decision of09 March 2017 .”
“…. further delay due to legal processes is therefore not at all in [the Applicant’s] best interests and may lead to further re-traumatisation and irreversible damage to his mental health.”
“The courts must provide for the best interests of the child to be considered in all such situations and decisions, whether of a procedural or substantive nature, and must demonstrate that they have effectively done so.”
“The exercise of discretion by courts is characterised by a consistent recognition of, and respect for, upholding the United Kingdom’s treaty obligations, including those that are incorporated as a matter of domestic law. This is seen particularly clearly where judicial discretion is exercised regarding the grant or maintenance of injunctions and interim injunctions.”
“Nothing in this Act shall affect the power of the Court of Appeal or the High Court to stay any proceedings before it, where it thinks fit to do so, either of its own motion or on the application of any person, whether or not a party to the proceedings.” [My emphasis.] Bysection 25(1)(a) of the Tribunals, Courts and Enforcement Act 2007 : “In relation to the matters mentioned in (2), the Upper Tribunal …. has …. the same powers, rights, privileges and authority as the High Court . The matters are: (a) The attendance and examination of witnesses, (b) The production and inspection of documents and (c) All other matters incidental to the Upper Tribunal’s functions.”
“Subsection (1) shall not be taken – (a) To limit any power to make Tribunal procedure rules, (b) To be limited by anything in Tribunal procedure rules other than an express limitation.”
“Subject to the provisions of the 2007 Act and any other enactment, the Upper Tribunal may regular its own procedure.”
“The Upper Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction.”
“In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may ….. (j) Stay ….. proceedings …..” [My emphasis] By the route charted above, the power of the Upper Tribunal to order a stay of proceedings is not in doubt. (20)Section 49(3) of the Supreme Court Act 1981 is an express acknowledgement of the judge made nature of both the power to stay proceedings and the principles to be applied. It has been long recognised that the power of the High Court to stay proceedings is inherent in nature: Re Wickham[1887] 35 CH D 272 at 280, per Cotton LJ. In an earlier era, a stay had the Draconian effect of bringing proceedings to a conclusion, unless it was of the conditional variety. This has, however, been superseded by contemporary practice: Rofa Sport Management v DHL International UK[1989] 2 All ER 743 . Accordingly, in modern litigation a stay does not have the drastic consequences of its 19th and early 20th century ancestors. The conditional stay sought in these proceedings is not to be confused withone of its ancestors namely the permanent stay. (21) The issue of staying proceedings was the subject of detailed consideration by the Court of Appeal in AB (Sudan) v Secretary of State for the Home Department[2013] EWCA Civ 921 . The Court, firstly, contrasted a stay of proceedings with a stay of enforcement of a judicial decision or order. It emphasised that stay issue involve case management decisions. It added, at [25]: “Such decisions will rarely be challenged and even more rarely be reversed on appeal.”