“arguably…the respondent’s investigative duties under the Dublin Convention required her to pursue with the French authorities the possibility of DNA testing being carried out by this applicant solicitor’s, if necessary facilitating obtaining any necessary order by a French judge.”
“No evidence has been provided to demonstrate the link between the above and his brother. Therefore, it is not accepted as a familial link has been shown. In an effort to initiate the family link the UK has consulted the above’s claimed relation’s previous Home Office submissions. Regrettably, there is no mention of siblings and the names of the parents of the above’s claimed brother are different. Consequently, I regret to inform you that your take charge request is respectfully denied.”
“I do not have any siblings”
“Please note that in order for these documents to be considered, English translations must be provided along with the original copies. The documents provided do not establish a family link. Whilst it is recognised that official Afghan documents have been provided which may demonstrate a family link, these have not been translated into English or French. No English copies have been provided. Therefore, it is not considered that the evidence provided sufficiently demonstrates the link between the above and his claimed brother. Also as previously stated, the claimed brother claimed he did not have any siblings in his previous submissions the Home Office. Consequently I once again regret to inform you that your Take Charge request is respectfully denied under article 8.1.”
“I informed the officer that I had 1 brother aged 5 at the time (he is 16 now), and 2 sisters aged approximately 8 and 25 at that time (who are 19 and 36 now). However it was not requested from me to provide additional information including their names.”
“3. …The SSHD has considered the evidence contained within the Tribunal bundle, as well as the additional evidence you provided on16/02/2018 . This evidence has been considered in its totality in conjunction with the previous information submitted by the French authorities in their formal requests. Credibility 4. The SSHD remains of the view that MAS is not your client’s brother. The further material you have recently filed on your client’s behalf is not sufficient to persuade the SSHD as to the claimed family link. 5. When MAS was interviewed by the SSHD, he made no mention of having any siblings in Afghanistan or elsewhere. Rather, he confirmed in his asylum interview that he had no siblings. He further submitted a witness statement in support of his claim positively stating that he had no siblings. 6. You have submitted three witness statements from MAS which seek to address the fact that he did not mention having siblings in his previous contact with the immigration authorities in the UK. However, the explanation given for this omission in these witness statements is inconsistent: (i). In the first witness statement, MAS sought to rely on the fact that his interviews with the immigration authorities took place over 11 years ago. He claims that, to the best of his recollection, he did refer to his siblings in his interview, but not by name. (ii). In his second witness statement (submitted at the pre-action protocol stage), MAS did not offer an explanation as to why he had not previously mentioned his siblings, but said that he did not know why it was not recorded that he had siblings, the implication being that he must have referred to them. (iii). In his third and final statement, MAS has offered an explanation as to why he might not have mentioned having any siblings. He now claims that it was possible an agent advised him not to mention any siblings to the UK immigration authorities. This latest explanation contradicts MAS’ claimed initial recollection that he mentioned his siblings but did not refer to them by name. Moreover, if, as MAS suggests, he was advised not to refer to any siblings he had in Afghanistan, he surely would have mentioned this in his first witness statement. It is important to note that, when MAS provided this first witness statement in support of his asylum application, MAS was represented. If it was genuinely the case that an agent had advised MAS not to mention his siblings in Afghanistan, this would surely have been identified and scrutinised by the solicitor at the time as part of the overall assessment of family circumstances. For these reasons, the various explanations offered by MAS for not previously referring to his claimed siblings are not accepted. 7. Other information submitted in support of MAS’ asylum application gives rise to further credibility issues. In a statement MAS submitted in response to his reasons for refusal letter at page 74 of Tab B of the bundle, he sought to address one particular argument in the refusal letter whereby the decision maker referred to the death of his mother. MAS stated that he was not sure if his mother had died but that he had been informed by his neighbours that his house had been attacked. It is notable that in his attempt to clarify his answer, MAS made no mention of any concern for any other family members. Given that the attack on the family home was alleged to have taken place in 2004, your client’s claimed brother, MS, would have been 3 years old at the time, MAS has not offered any explanation for not referring to any family member other than his mother in these submissions. 8. In support of your client’s case you have also submitted a Taskira with certified translations which you claim corroborates the claimed family link between your client and MAS. These documents have been considered. However, after conducting investigations with the FCO in Kabul, it has been found that these documents do not assist your client. The Afghanistan Central Civil Registration Authority was asked to verify the Taskira. The Authority produced a report concluding that the document was ‘non genuine’ (see attached). The rationale for this rejection was that the serial number listed on the document could not be matched with any internal records in either the Kabul or Laghman province archives. 9. In addition to the written statements, you have also provided evidence in the form of bank transfers, allegedly showing transactions made between MAS and an individual who was resident in Calais at the same time as your client. You state that this individual then withdrew this money to give to your client. Whilst it is accepted that you have evidence that these transfers are genuine, it is not accepted that you have sufficient evidence that your client was the intended recipient of these transfers. Aside from a screenshot of the Facebook profile of the individual in question, you have not provided any evidence to show that this individual was resident in France at the same time as your client, or indeed that he is known to your client. There is nothing to substantiate any link between this individual and MS at all. 10. Along with the above transaction details you have also provided alleged evidence of contact between your client and MAS. This is presented in the form of translated text conversations between MAS and your client. It is not possible to verify if these messages were in fact between the two individuals in question. In any event, it is not accepted that these corroborate a sibling relationship; at best, they show that the two individuals are known to each other in some capacity. 11. You have also provided a written statement by the claimed cousin of your client and MAS, who for the purposes of anonymity shall be referred to as SS. SS asserted that both your client and MAS grew up in the same household in Afghanistan before they all subsequently fled. In support of the written statement you have provided a copy of the asylum interview SS underwent in 2004. In this interview, SS referred to his father and his uncle. The name given for the uncle is not the same as the name given for the claimed father of your client and MAS. SS was also questioned on the children of his uncle, to which he responded that he had one son and two daughters. In his witness statement, SS seeks to address the fact that he did not mention both individuals in his interview, claiming that as your client was very young at the time he did not think it would be relevant to list him. It is not accepted that this adequately explains this omission particularly when taking into consideration that SS claims that all three grew up in the same family household. Rather than support the claimed sibling relationship between your client and MAS the submissions provided on behalf of SS have considered to undermine these claims. 12. You have also provided two witness statements from the partner of MAS. You claim that these statements also help to corroborate the relationship between your client and MAS. However, neither of these statements seeks to address the inconsistencies in MAS’ account. It is considered that these statements are self-serving and do not come close to substantiating the claimed family link between your client and MAS, when the evidence is assessed in the round. 13. It is noted that neither MAS nor his partner have visited MS in France despite referring to their concern for his wellbeing. In her first statement, MAS’ partner stated at paragraph 5 that she and MAS tried to visit MS but they were stopped at Dover because MAS did not have a visa (having not realised that he needed one). In her second witness statement MAS’ partner states that they have not applied for a visa for MAS to go to France as it “takes time and is costly”
“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 well-being 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 addition, specific procedural guarantees for unaccompanied minors should be laid down on account of their particular vulnerability.”
“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.”
“In order to guarantee effective protection of the rights of the persons concerned, legal safeguards and the right to an effective remedy in respect of decisions regarding transfers to the Member State responsible should be established, in accordance, in particular, with Article 47 of the Charter of Fundamental Rights of the European Union. In order to ensure that international law is respected, an effective remedy against such decisions should cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred.”
“In particular, this Regulation seeks to ensure full observance of the right to asylum guaranteed by Article 18 of the Charter as well as the rights recognised under Articles 1, 4, 7, 24 and 47 thereof. This Regulation should therefore be applied accordingly.”
“1. Member States shall examine an application for international protection by a third-country national […] who applies on the territory of any one of them. […] 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.”
“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. …. 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. 5. With a view to facilitating the appropriate action to identify the family members, siblings or relatives of the unaccompanied minor living in the territory of another Member State pursuant to paragraph 4 of this Article, the Commission shall adopt implementing acts including a standard form for the exchange of relevant information between Member States. Those implementing acts shall be adopted in accordance with the examination procedure referred to in Article 44(2).”
“In view of the application of the criteria referred to in Articles 8, 10 and 16, Member States shall take into consideration any available evidence regarding the presence, on the territory of a Member State, of family members, relatives or any other family relations of the applicant, on condition that such evidence is produced before another Member State accepts the request to take charge or take back the person concerned, pursuant to Articles 22 and 25 respectively, and that the previous applications for international protection of the applicant have not yet been the subject of a first decision regarding the substance.”
“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.”
“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. … 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. … 3. In the cases referred to in paragraph[s] 1 …, 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.”
“1. The requested Member State shall make the necessary checks, and shall give a decision on the request to take charge of an applicant within two months of receipt of the request. 2. In the procedure for determining the Member State responsible elements of proof and circumstantial evidence shall be used.”
“(a) Proof (i). This refers to formal proof which determines responsibility pursuant to this Regulation, as long as it is not refuted by proof to the contrary; (ii). ….. (b) Circumstantial evidence: (i) this refers to indicative elements which while being refutable may be sufficient, in certain cases, according to the evidentiary value attributed to them; (ii) their evidentiary value, in relation to the responsibility for examining the application for international protection shall be assessed on a case-by-case basis.”
“5. If there is no formal proof, the requested Member State shall acknowledge its responsibility if the circumstantial evidence is coherent, verifiable and sufficiently detailed to establish responsibility. 6. Where the requesting Member State has pleaded urgency in accordance with the provisions of Article 21(2), the requested Member State shall make every effort to comply with the time limit requested. In exceptional cases, where it can be demonstrated that the examination of a request for taking charge of an applicant is particularly complex, the requested Member State may give its reply after the time limit requested, but in any event within one month. In such situations the requested Member State must communicate its decision to postpone a reply to the requesting Member State within the time limit originally requested. 7. Failure to act within the two-month period mentioned in paragraph 1 and the one-month period mentioned in paragraph 6 shall be tantamount to accepting the request, and entail the obligation to take charge of the person, including the obligation to provide for proper arrangements for arrival.”
“1. The applicant or another person as referred to in Article 18(1)(c) or (d) shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal.”
“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. 2. 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.”
“I. Process of determining the State responsible for examining an application for international protection 1. Presence of a family member, relative or relation (father, mother, child, sibling, aunt, uncle, grandparent, adult responsible for a child, guardian) of an applicant who is an unaccompanied minor (Article 8) Probative evidence — written confirmation of the information by the other Member State; — extracts from registers; — residence permits issued to the family member; — evidence that the persons are related, if available; failing this, and if necessary, a DNA or blood test.”
“I. Process of determining the State responsible for examining an application or international protection 1. Presence of a family member (father, mother, guardian) of an applicant who is an unaccompanied minor (Article 8) Indicative evidence –. verifiable information from the applicant; –. statements by the family members concerned; –. reports/confirmation of the information by an international organisation, such as the UNHCR.”
“In situations where the person/persons mentioned above is/are present on the territory of the requested Member State: Relationship of the person with the child: –. Please specify, following inquiry, the presumed nature of the relationship of the person identified with the child: –. Please provide information on the type of data used to establish the relation (e.g. administrative certificates or other types of official documents found in the possession of the person)”
“1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
“… Mr Keith accepted that the Secretary of State, upon receipt of the "take charge" request, had a duty under the Dublin Regulation to investigate. His associated submission was that since the initial refusal decision was made there has been no continuing duty of this nature.”
“(36) The available evidence points readily to the threefold conclusion that the Secretary of State has at no time (a) investigated, in conjunction with the French authorities or otherwise, the viability or availability of DNA testing for IK and HK in France, (b) investigated what the relevant French domestic laws are in this respect or (c) considered the possibility of admitting IK and HK to the United Kingdom for the purpose of carrying out DNA testing. We consider that these are all material considerations, none of which has been taken into account. This analysis is reinforced when one superimposes the "Tameside" duty of enquiry. It follows that, viewed through a pure public law prism, the Secretary of State's initial and subsequent decisions are unlawful. (37) This is not, however, the only dimension from which the legality of the Secretary of State's rejection of the "take charge" request is to be evaluated. As the outline in [14] - [27] shows, the governing legal framework has multiple constituent elements, many of them interlocking. The analysis that the dominant instrument in this legal matrix is the Dublin Regulation seems to us uncontroversial. In contrast with the situation prevailing in ZAT, the processes and procedures of the Dublin Regulation had been fully observed in the present case. In summary, IK and HK made their respective claims for asylum in France, these claims were examined by the French authorities, a "take charge" request ensued and the Secretary of State made her refusal decision accordingly and reaffirmed it subsequently. The contrast with ZAT, where no Dublin Regulation steps had been taken, is striking.” (38) We consider that duties of enquiry, investigation and evidence gathering course through the veins of the Dublin Regulation and its sister instrument, the 2003 Regulation as amended. In some of the provisions of the Dublin Regulation, these duties are explicit: see for example Article 6(4) and Article 8(2). These duties are also explicit in Article 22(1), which requires a requested Member State to "make the necessary checks" upon receipt of a "take charge" request prior to reaching its decision. In other provisions of the Dublin Regulation, these duties are clearly implicit. The scheme of the Dublin Regulation is that the more detailed outworkings of these duties are not specified in the measure itself but are, rather, to be found in the ancillary, implementing legislation adopted by the Commission, namely the 2003 Regulation as amended. These two measures must be considered together and as a whole. (39) It follows that we reject the Secretary of State's contention (as pleaded) that she had no duty of investigation upon receipt of the "take charge" requests and the associated contention that the onus to provide all necessary evidence rested on the Applicants. These contentions are, in our judgment, confounded by the provisions of the Dublin Regulation and its sister instrument considered as a whole. We further reject the Secretary of State's selective reliance on one of the various components of Article 22, namely Article 22(5), of the Dublin Regulation, for the same reason.”
“We must now consider the Secretary of State's modified position at this stage of the hearing. This entailed an acknowledgement that there was a duty of investigation under the Dublin Regulation when the initial "take charge" request was received. What did this duty require of the Secretary of State? We consider that the investigative and evidence gathering duties imposed on Member States by the Dublin Regulation are unavoidably factually and contextually sensitive. The content and scope of such duties will vary from one context to another. While we did not receive detailed argument on this discrete issue, we are inclined to the view that these duties are not absolute, in the sense that they apply irrespective of considerations such as excessive or disproportionate burden. It seems to us that implicit in the Dublin Regulation is the principle that these duties require the Member State concerned to take reasonable steps. The court or tribunal concerned will, having regard to its duty under Article 6 TEU, be the arbiter of whether this duty has been acquitted in any given case.”
“We find nothing in either the Dublin Regulation or its sister instrument to support the argument that the Secretary of State's acknowledged duty of investigation was extinguished once the initial refusal decision had been made. There is nothing in this regime to suggest that a decision on a "take charge" request is in all cases final and conclusive, subject only to legal challenge under (inter alia) Article 27. Furthermore, this would be entirely inconsistent with the concept of practical and effective protection and the broader context of the real world of asylum claims. The phenomenon of renewed "take charge" requests and successive "take charge" decisions by the requested State is, in our view, implicitly recognised in the Dublin Regulation. Furthermore, it was not argued that the Secretary of State's reconsidered decision, made pursuant to a renewed "take charge" request, was in some way a voluntary act of grace, as opposed to the discharge of a decision making duty. Nor was it argued that the Secretary of State's later decisions, made in the course of these proceedings, were in some way divorced from the Dublin Regulation context.”
“… the investigative and evidence gathering duties, both explicit and implicit, in Articles 6 and 8 of the Dublin III Regulation, considered in tandem with the 2003 Regulation as amended, were not discharged.”
“The key to breaking the logjam was DNA evidence: but none was available. The Applicants were unable to provide such evidence for a variety of reasons, including in particular lack of resources and uncertainties relating to French law. The Secretary of State was at all material times in a position to proactively take steps to at least attempt to overcome this impasse. However, the evidence establishes beyond peradventure that nothing was done. … Relying upon a mistaken assessment that she was entitled, in law, to be purely passive and a further erroneous view of onus of proof the Secretary of State proceeded to make a decision adverse to the Applicants of fundamental significance to their lives. We consider these failures to be incompatible with the progressively strengthening mechanisms and provisions contained in the current incarnation of the Dublin Regulation, reflected particularly in the investigative and evidence gathering duties identified above and the new (and welcome) emphasis on protecting children and families.”
“If a judge of the High Court sits exercising the supervisory jurisdiction of the High Court then it is, in our judgment, plain that the relevant principle of stare decisis is the principle applicable in the case of a judge of first instance exercising the jurisdiction of the High Court, viz., that he will follow a decision of another judge of first instance, unless he is convinced that that judgement is wrong, as a matter of judicial comity; but he is not bound to follow the decision of a judge of equal jurisdiction (see Huddersfield Police Authority v. Watson [1947] K.B. 842, 848, per Lord Goddard C.J.), for either the judge exercising such supervisory jurisdiction is (as we think) sitting as a judge of first instance, or his position is so closely analogous that the principle of stare decisis applicable in the case of a judge of first instance is applicable to him.”
“A judgment of a judge of the High Court is not binding on another judge of the High Court but that judge will follow the earlier decision unless he or she is convinced that it is wrong: see R v Manchester Coroner ex p. Tal [1985] 1 Q.B. 67 at 81A-C and Police Authority for Huddersfield v Watson [1947] 1 K.B. 842 at 848. The Privy Council has observed that High Court judges are not technically bound by decisions of other High Court judges "but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so" (see paragraph 9 of the judgment of the Privy Council (sic) in Willers v Joyce (No. 2)[2016] 3 WLR 534 ). Such principles contribute to coherence and certainty within the legal system. They are likely to contribute to efficient and more cost-effective use of resources as the same point will not normally be re-argued at length and cost before different High Court judges.”
“So far as the High Court is concerned, puisne judges are not technically bound by decisions of their peers, but they should generally follow a decision of a court of co-ordinate jurisdiction unless there is a powerful reason for not doing so. And, where a first instance judge is faced with a point on which there are two previous inconsistent decisions from judges of co-ordinate jurisdiction, then the second of those decisions should be followed in the absence of cogent reasons to the contrary: see Patel v Secretary of State for the Home Department[2013] 1 WLR 63 , para 59. I would have thought that Circuit Judges should adopt much the same approach to decisions of other Circuit Judges.”
“information contained in Home Office records and evidence submitted by the person in the UK…”
“The second defect is not unconnected with the first and was identified by the Judge in[2003] EWHC 195 (Admin) at [20]. He stressed that it was important that the applicant should be given a reasonable opportunity to deal with and to explain any matter which was to be relied on against him. We agree. Before the decision maker concludes that the applicant is not telling the truth he must be given the opportunity of meeting any concerns or, as Lord Mustill put it in R v Secretary of State for the Home Department, Ex p Doody,[1994] 1 AC 531 ,560, he should be informed of the gist of the case against him. We should add that we also agree with the Judge that at the very least the applicant must be given the chance to rebut a suggestion of incredibility and to explain himself if he can. As the Judge put it[2003] EWHC 195 (Admin) at [20]: "All that may be needed is a warning that the account is too vague or is incredible having regard to known practices at ports or it was not reasonable to rely on advice or to obey instructions." The fact that the burden rests on the applicant makes such a warning more, not less, necessary.”
“(41) We find nothing in either the Dublin Regulation or its sister instrument to support the argument that the Secretary of State's acknowledged duty of investigation was extinguished once the initial refusal decision had been made. There is nothing in this regime to suggest that a decision on a "take charge" request is in all cases final and conclusive, subject only to legal challenge under (inter alia) Article 27. Furthermore, this would be entirely inconsistent with the concept of practical and effective protection and the broader context of the real world of asylum claims. The phenomenon of renewed "take charge" requests and successive "take charge" decisions by the requested State is, in our view, implicitly recognised in the Dublin Regulation. Furthermore, it was not argued that the Secretary of State's reconsidered decision, made pursuant to a renewed "take charge" request, was in some way a voluntary act of grace, as opposed to the discharge of a decision making duty. Nor was it argued that the Secretary of State's later decisions, made in the course of these proceedings, were in some way divorced from the Dublin Regulation context. (42) The present cases are a paradigm illustration of the truism that, in certain contexts, there may be a series of formal requests by one Member State and a series of formal decisions by the requested Member State. We are in no doubt that all such decisions and associated decision making processes are governed by the Dublin Regulation and its sister instrument, the 2003 Regulation as amended.”
“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.”
“The use of genetic tests to establish the parentage of a foreigner who, by virtue of this family link, is entitled to entry, stay or asylum in France or in a foreign country is therefore not authorised by French law. On a summary application for a request that the conduct of a genetic test to be ordered for the purposes of establishing the affiliation of a visa applicant who has links with a person residing in France, the Conseil d’Etat has judged that it is not for the administrative judge to decide, in case of serious doubt, the state of the persons, consequently, order measures of expertise or instruction to establish, where applicable, a relationship of affiliation such as those provided for [in the relevant Civil Code].”
“It is the understanding of Home Office officials from having spoken to the French authorities that they would be unhappy with any attempt by the UK authorities to do this and that they would see this as an abuse of the diplomatic immunity principle.”
“The decision letter criticised the letter from the applicant's father as being "self-serving". The expression "self-serving" is, to a large extent, a protean one. The expression itself tells us little or nothing. What is needed is a reason, however brief, for that designation. For example, a letter from a third party may be "self-serving" because it bears the hallmarks of being written to order, in circumstances where the applicant's case is that the letter was a spontaneous warning. In the present case, the reasons given in the decision letter for the father's letter being regarded as self-serving are because "it is from your father and does not demonstrate how you as an individual will face fear or persecution upon your return to Sri Lanka". The first reason falls foul of the point made at paragraph 28 of AK, where the Court of Appeal criticised the respondent for stating that "an affidavit from a family member cannot add probative or corroborative weight to your client's claim". A statement from a family member is, of course, capable of bearing weight. The issue is whether, looked at in the round, it does so in the particular case in question. For instance, a statement from a family member may be incapable of saving a claim which, in all other respects, lacks credibility. Whilst the pressure on the respondent's caseworkers can be great and their decision letters are not in any sense to be construed as if they were carefully-crafted pieces of legislation, I consider that this reason for the rejection of the father's letter displays a lack of anxious scrutiny.”
“1. The applicant … shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal. 2. Member States shall provide for a reasonable period of time within which the person concerned may exercise his or her right to an effective remedy pursuant to paragraph 1.”
“In order to guarantee effective protection of the rights of the persons concerned, legal safeguards and the right to an effective remedy in respect of decisions regarding transfers to the Member State responsible should be established, in accordance, in particular, with Article 47 of the Charter of Fundamental Rights of the European Union. In order to ensure that international law is respected, an effective remedy against such decisions should cover both the examination of the application of this Regulation and of the legal and factual situation in the Member State to which the applicant is transferred.”
“35 The scope of the appeal provided for in Article 27(1) of Regulation No 604/2013 must therefore be determined in the light of the wording of the provisions of that regulation, its general scheme, its objectives and its context, in particular its evolution in connection with the system of which it forms part (see, to that effect, judgment of10 December 2013 in Abdullahi, (C-394/12, EU:C:2013:813, paragraph 51). 36 It is apparent from the wording of Article 27(1) of Regulation No 604/2013 that the legal remedy provided for in that article must be effective and cover questions of both fact and law. Moreover, the drafting of that provision makes no reference to any limitation of the arguments that may be raised by the asylum seeker when availing himself of that remedy. The same applies to the drafting of Article 4(1)(d) of that regulation, concerning the information that must be provided to the applicant by the competent authorities as to the possibility of challenging a transfer decision. 37 In particular, it is clear that the EU legislature did not provide for any specific link or, a fortiori, any exclusive link between the legal remedies established in Article 27 of Regulation No 604/2013 and the rule, now set out in Article 3(2) of that regulation, which limits the possibilities for transferring an applicant to the Member State initially designated as responsible where there are systemic flaws in the asylum procedure and in the reception conditions for asylum seekers in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights. 38 Furthermore, the scope of the remedy available to an asylum seeker against a decision to transfer him is made clear in recital 19 of Regulation No 604/2013, the content of which did not appear in Regulation No 343/2003. 39 That recital states that, in order to ensure compliance with international law, the effective remedy introduced by Regulation No 604/2013 in respect of transfer decisions should cover (i) the examination of the application of that regulation and (ii) the examination of the legal and factual situation in the Member State to which the asylum seeker is to be transferred. 40 While the second examination mentioned in that recital refers only to the review of the situation prevailing in the Member State to which the applicant is to be transferred and is designed to check that it is not impossible to proceed with the transfer of the applicant for the reasons set out in Article 3(2) of the regulation, the first examination mentioned in that recital is designed to ensure, more generally, review of the proper application of the regulation. 41 It is apparent from the general scheme of Regulation No 604/2013 that its application is based essentially on the conduct of a process for determining the Member State responsible as designated by the criteria listed in Chapter III of the regulation.”
“44 Accordingly, the reference in recital 19 of Regulation No 604/2013 to the examination of the application of the regulation in an appeal against a transfer decision for which provision is made in Article 27(1) of the regulation must be understood as being intended to ensure, in particular, that the criteria for determining the Member State responsible laid down in Chapter III of the regulation are correctly applied, including the criterion for determining responsibility set out in Article 12 of the regulation. 45 That conclusion is supported by the general thrust of the developments that have taken place in the system for determining the Member State responsible for examining an asylum application made in one of the Member States (‘the Dublin system’) as a result of the adoption of Regulation No 604/2013 and by the objectives of the regulation. 46 Thus, with regard, first, to those developments, it should be noted that, as the EU legislature has introduced or enhanced various rights and mechanisms guaranteeing the involvement of asylum seekers in the process for determining the Member State responsible, Regulation No 604/2013 differs, to a significant degree, from Regulation No 343/2003, which was applicable in the case which gave rise to the judgment of10 December 2013 in Abdullahi (C-394/12, EU:C:2013:813). 47 In the first place, Article 4 of Regulation No 604/2013 confers a right on the applicant to be informed of, inter alia, the criteria for determining the Member State responsible and the relative importance of those criteria, including the fact that an application for international protection lodged in one Member State may result in that Member State becoming the Member State responsible, even if that designation of responsibility is not based on those criteria. 48 In the second place, Article 5(1), (3) and (6) of Regulation No 604/2013 provides that the Member State carrying out the determination of the Member State responsible must, in a timely manner and, in any event, before a transfer decision has been taken, conduct a personal interview with the asylum seeker and ensure that the applicant or the counsellor representing him has access to a written summary of the interview. Pursuant to Article 5(2) of the regulation, the interview does not have to take place if the applicant has already provided the information relevant to the determination of the Member State responsible and, in that case, the Member State in question must give the applicant the opportunity to present any further information which may be relevant for the correct determination of the Member State responsible before a decision is taken to transfer the applicant. 49 In the third place, Section IV of Chapter VI of Regulation No 604/2013, entitled ‘Procedural safeguards’, sets out at considerable length the arrangements for the notification of transfer decisions and the rules governing the remedies available in respect of such decisions, matters which were not covered with the same degree of detail in Regulation No 343/2003. 50 It is apparent from Article 27(3) to (6) of Regulation No 604/2013 that, in order to ensure that those remedies are effective, the asylum seeker must, inter alia, be given the opportunity to request within a reasonable period of time a court or tribunal to suspend the implementation of the transfer decision pending the outcome of his or her appeal and have legal assistance. 51 It follows from the foregoing that the EU legislature did not confine itself, in Regulation No 604/2013, to introducing organisational rules simply governing relations between Member States for the purpose of determining the Member State responsible, but decided to involve asylum seekers in that process by obliging Member States to inform them of the criteria for determining responsibility and to provide them with an opportunity to submit information relevant to the correct interpretation of those criteria, and by conferring on asylum seekers the right to an effective remedy in respect of any transfer decision that may be taken at the conclusion of that process. 52 As regards, second, the objectives of Regulation No 604/2013, it is apparent from recital 9 thereof that, while it confirms the principles underlying Regulation No 343/2003, Regulation No 604/2013 is intended to make the necessary improvements, in the light of experience, not only to the effectiveness of the Dublin system but also to the protection afforded applicants under that system, to be achieved, inter alia, by the judicial protection enjoyed by asylum seekers. 53 A restrictive interpretation of the scope of the remedy provided in Article 27(1) of Regulation No 604/2013 might, inter alia, thwart the attainment of that objective by depriving the other rights conferred on asylum seekers by that regulation of any practical effect. Thus, the requirements laid down in Article 5 of the regulation to give asylum seekers the opportunity to provide information to facilitate the correct application of the criteria for determining responsibility laid down by the regulation and to ensure that such persons are given access to written summaries of interviews prepared for that purpose would be in danger of being deprived of any practical effect if it were not possible for an incorrect application of those criteria — failing, for example, to take account of the information provided by the asylum seeker — to be subject to judicial scrutiny.”
“ In the light of all the foregoing considerations, the answer to the first question is that Article 27(1) of Regulation No 604/2013, read in the light of recital 19 of the regulation, must be interpreted as meaning that, in a situation such as that in the main proceedings, an asylum seeker is entitled to plead, in an appeal against a decision to transfer him, the incorrect application of one of the criteria for determining responsibility laid down in Chapter III of the regulation, in particular the criterion relating to the grant of a visa set out in Article 12 of the regulation.”
“…in order to satisfy itself that the contested transfer decision was adopted following a proper application of the take charge procedure laid down in that regulation, the court dealing with an action challenging a transfer decision must be able to examine the claims made by an asylum applicant who invokes an infringement of the provisions set out in Article 21(1) of that regulation (see, by analogy, judgment of7 June 2016 , Karim, C-155/15, EU:C:2016:410, paragraph 26).”
“…it must be stated that Article 27 of the Dublin III Regulation makes no distinction between the rules which can be relied on in the context of the remedy for which it provides, and that recital 19 of that regulation refers, in general terms, to review the application of that regulation.”
“58 Moreover, the restriction of the scope of the judicial protection afforded by the Dublin III Regulation relied on in this respect would not be consistent with the objective, set out in recital 9 of that regulation, of strengthening the protection for applicants for international protection, since that strengthened protection is manifested principally by the grant, in essence, of procedural safeguards for those applicants (see, to that effect, judgment of7 June 2016 , Ghezelbash, C-63/15, EU:C:2016:409, paragraphs 47 to 51). 59 The fact, mentioned by the referring court in its second question, that the requested Member State would be willing to take charge of the person concerned despite the expiry of the periods laid down in Article 21(1) of that regulation, cannot be decisive. 60 Indeed, as the remedy provided for in Article 27(1) of the Dublin III Regulation can be applied, as a matter of principle, only in a situation where the requested Member State has accepted, either explicitly, in accordance with Article 22(1) of that regulation, or implicitly, under Article 22(7) thereof, that fact cannot, in general, lead to a limitation of the scope of judicial review provided for in Article 27(1) (see, to that effect, judgment delivered today, A.S., C-490/16, paragraphs 33 and 34). 61 Moreover, as regards more specifically Article 21(1) of that regulation, it is necessary to point out that its third subparagraph provides, in the case of the expiry of the periods laid down in the two preceding subparagraphs, for a full transfer of responsibility to the Member State in which the application for international protection was lodged, without making that transfer subject to any reaction by the requested Member State. 62 In the light of all the foregoing considerations, the answer to the first and second questions is that Article 27(1) of the Dublin III Regulation, read in the light of recital 19 thereof, must be interpreted as meaning that an applicant for international protection may rely, in the context of an action brought against a decision to transfer him, on the expiry of a period laid down in Article 21(1) of that regulation, even if the requested Member State is willing to take charge of that applicant.”
“90. Article 27(1) does not specify how that examination is to be conducted. That is therefore a matter for the national court to oversee pursuant to domestic procedural rules. Those rules would also govern the intensity of the review process and the outcome — that is, whether a successful challenge would result in the application being remitted to the competent national authorities for reconsideration, or whether the decision is taken by the courts themselves, subject always to the principle of effectiveness. 91. I therefore conclude that the Dublin III Regulation should be interpreted as meaning that an applicant (in circumstances such as those in the main proceedings) is able to challenge, on appeal or by review, a transfer decision under Article 27(1) and to request the national court to verify whether the criteria in Chapter III have been correctly applied in his case. The effectiveness of judicial review guaranteed by Article 47 of the Charter requires an assessment of the lawfulness of the grounds which were the basis of the transfer decision and whether it was taken on a sufficiently solid factual basis. The manner in which the examination is conducted as to whether the Chapter III criteria have been applied objectively and fairly in any particular case is governed by national procedural rules. Subject to the principle of effectiveness, those rules also govern the intensity and outcome of the appeal or review process.”
“Parliament has provided that a public body’s power or duty to act in a particular way depends upon the existence of a particular factual situation and the public body’s assessment of that factual situation is challenged, in certain cases the court will determine whether the relevant factual situation actually exists. In such cases, the court will not permit the public body to confirm itself power to act (or to deny itself power to act) by an erroneous conclusion as to the relevant fact.”
“27. But the question whether a person is a "child" is a different kind of question. There is a right or a wrong answer. It may be difficult to determine what that answer is. The decision-makers may have to do their best on the basis of less than perfect or conclusive evidence. But that is true of many questions of fact which regularly come before the courts. That does not prevent them from being questions for the courts rather than for other kinds of decision makers. 1. The arguments advanced by Mr Béar might have to provide an answer in cases where Parliament has not made its intentions plain. But in this case it appears to me that Parliament has done just that. In section 20(1) a clear distinction is drawn between the question whether there is a "child in need within their area" and the question whether it appears to the local authority that the child requires accommodation for one of the listed reasons. In section 17(10) a clear distinction is drawn between whether the person is a "child" and whether that child is to be "taken to be" in need within the meaning of the Act. "Taken to be" imports an element of judgment, even an element of deeming in the case of a disabled child, which Parliament may well have intended to be left to the local authority rather than the courts. 2. I reach those conclusions on the wording of the 1989 Act and without recourse to the additional argument, advanced by Mr Timothy Straker QC for M, that "child" is a question of jurisdictional or precedent fact of which the ultimate arbiters are the courts rather than the public authorities involved. This doctrine does, as Ward LJ pointed out in the Court of Appeal[2008] EWCA Civ 1445 ,[2009] PTSR 1011 , para 19, have "an ancient and respectable pedigree". Historically, like the remedy of certiorari itself, it was applied to inferior courts and other judicial or quasi-judicial bodies with limited jurisdiction. Thus a tithe commissioner could not give himself jurisdiction over land which had previously been discharged from tithe (Bunbury v Fuller (1853) 9 Ex 111), [1853] EngR 768; and a rent tribunal could not give itself jurisdiction over an unfurnished letting (R v Fulham, Hammersmith and Kensington Rent Tribunal, Ex p Zerek[1951] 2 KB 1 ). Although of course such a body would have to inquire into the facts in order to decide whether or not to take the case, if it got the decision wrong, it could not give itself a jurisdiction which it did not have. 3. In R v Secretary of State for the Home Department, Ex p Khawaja[1984] AC 74 , the same principle was applied to the power of the Home Office to remove an "illegal entrant". The existence of the power of removal depended upon that fact. It was not enough that an immigration officer had reasonable grounds for believing the person to be an illegal entrant. As Lord Scarman put it, ". . . where the exercise of executive power depends upon the precedent establishment of an objective fact, the courts will decide whether the requirement has been satisfied" (p 110). 4. This doctrine is not of recent origin or limited to powers relating to the liberty of the subject. But of course it still requires us to decide which questions are to be regarded as setting the limits to the jurisdiction of the public authority and which questions simply relate to the exercise of that jurisdiction. This too must be a question of statutory construction, although Wade and Forsyth on Administrative Law suggest that "As a general rule, limiting conditions stated in objective terms will be treated as jurisdictional" (9th ed (2004), p 257). It was for this reason that Ward LJ rejected the argument, for he regarded the threshold question in section 20 as the composite one of whether the person was a "child in need". This was not a limiting condition stated in wholly objective terms so as to satisfy the Wade and Forsyth test (para 25). 5. However, as already explained, the Act does draw a distinction between a "child" and a "child in need" and even does so in terms which suggest that they are two different kinds of question. The word "child" is undoubtedly defined in wholly objective terms (however hard it may be to decide upon the facts of the particular case). With a few limited extensions, it defines the outer boundaries of the jurisdiction of both courts and local authorities under the 1989 Act. This is an Act for and about children. If ever there were a jurisdictional fact, it might be thought, this is it.”
“… where the issue raised by a judicial review challenge is whether there has been a breach of Convention rights, the Court cannot confine itself to asking whether the decision-making process was defective but must decide whether the decision was right.”
"The role of the court in human rights adjudication is quite different from the role of the court in an ordinary judicial review of administrative action. In human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account."