Immigration and Asylum Chamber
Heard at Field House
On 12 June 2019
Upper Tribunal Judge Kamara
The Queen (on the application of FwF & FrF
(by his litigation friend NF))
(Anonymity Direction made)
Secretary of State for the Home Department
Application for judicial review: substantive decision
Having considered all documents lodged and having heard the parties' respective representatives, Ms C Kilroy QC & Ms M Knorr, of Counsel, instructed by Bhatt Murphy Solicitors, on behalf of the Applicants and Mr R Dunlop QC & Ms J Moore, of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 12 June 2019.
Decision: the application for judicial review is granted
The Tribunal has made an anonymity direction and the applicants will be referred to throughout as "FwF and FrF". The applicants' brother will be referred to as "NF" and other relatives are similarly anonymised.
1. The issues in this challenge are threefold. Firstly, whether there was a failure by the Secretary of State to disclose reasons for the Take Charge Request (TCR) refusal and/or to correct the misimpression of the French authorities. Secondly whether the respondent's delay and failure to accept responsibility for the applicants' asylum claims was unlawful and in breach of EU law, common law and Article 8 ECHR and thirdly, whether the applicants' fundamental rights were breached as the United Kingdom was the Responsible Member State by default from 15 January 2019.
Background and Procedural History
2. The applicants are nationals of Afghanistan. They are now aged 16 and 18. The applicants were orphaned by early 2014 and left Afghanistan around three years ago with their elder sister who abandoned them during their journey. The applicants arrived in France in December 2017. Thereafter they approached the Red Cross stating that they wished to reunite with their brother NF in the United Kingdom. The applicants came under the care of French social services in January 2018.
3. It is accepted that NF is the applicants' older brother. NF left Afghanistan in the year 2001 and was recognised as a refugee in the United Kingdom in the year 2002. He became a British Citizen in 2008. He is married to SF and they have three children of their own.
4. The applicants' asylum claim was registered by the French authorities on 8 November 2018. France made a 'Take Charge Request' ("TCR") in respect of each applicant to the UK under Art 8(1) of the Dublin III Regulation on 15 November 2018. At this point the applicants were aged 17 and 15.
5. On 28 January 2019 the respondent rejected the TCR in relation to FwF. The respondent was not satisfied that NF was FwF's brother as he claimed. A decision was made to reject the TCR in respect of FrF's claim, but this decision was not communicated.
6. On 1 March 2019, a pre-action protocol letter was sent by Bhatt Murphy Solicitors in which it was argued that the respondent had acted unlawfully in several respects. There appears to have been no response to the said letter.
7. On 8 March 2019 sent the Afghan documents relied upon by the applicants to the FCO in Kabul for verification. On or around 23 March 2019, the respondent asked the French authorities to send new TCRs.
8. These proceedings were issued on 21 March 2019 on the grounds summarised in . An application for urgent consideration was granted the same day. The applicants sought various orders and declarations.
9. The respondent received further TCRs relating to FwF and FrF on 25 March 2019.
10. On 29 March 2019, the respondent filed an Acknowledgment of Service and Summary Grounds of Defence.
11. Permission was granted on the papers on 4 April 2019 by Upper Tribunal Judge Allen on the following basis.
"The grounds of challenge identify arguable challenges to the failure on the part of the Respondent to accept the Take Charge Requests/give reasons for the refusal. All three grounds may be argued. For the reasons set out in the Reply, I accept that the claim cannot properly be regarded as being academic."
12. On 8 May 2019, the respondent filed Detailed Grounds of Defence. On 22 May 2019, the respondent confirmed that it accepted the relationship between the applicants and NF.
13. On 3 June 2019, the respondents informed the French authorities that the TCRs were accepted. The Secretary of State subsequently wrote to Bhatt Murphy Solicitors to state that he considered the applicants' Dublin III claim to be academic and inviting them to withdraw the claim. An attached skeleton argument explained that the respondent's view was that part of the second ground was the subject of argument in R (FA (a child by her Litigation Friend HA) and HA) v SSHD, JR/5523/2018; R (TT (a child by her Litigation Friend ST) and ST) v SSHD, JR/5405/2018 and R (AT (a child by her Litigation Friend OT)) v SSHD, JR/5406/2018 (hereinafter referred to as FA & Others) and the remaining grounds had been overtaken by events.
14. In a decision sent on 7 June 2019, I gave permission to the applicants to rely on further evidence which was filed on 30 May 2019 and sent in reply to evidence relied upon by the respondent.
15. On 10 June 2019, counsel for the applicants forwarded a note on the scope of the substantive hearing, which robustly challenged the respondent's attempt to dismiss the claim as academic or to restrict the scope of the claim owing to the issues before the Upper Tribunal in FA & Others. Reference was made to four similar cases before this Tribunal in which permission had been granted in circumstances where a TCR had been accepted and where the respondent's attempts to seek stays had been unsuccessful.
Relevant Legal Framework
The Dublin III Regulation
16. Article 8(1) which provides:
"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..."
17. Article 21 provides, materially, as follows:
"Submitting a take-charge request
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."
18. Article 22 of Dublin III provides, materially, that:
"Replying to a take charge request
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.
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."
19. Article 29(1) provides.
"Modalities and time limits
The transfer of the applicant or of another person as referred to in Article 18(1)(c) or (d) from the requesting Member State to the Member State responsible shall be carried out in accordance with the national law of the requesting Member State, after consultation between the Member States concerned, as soon as practically possible, and at the latest within six months of acceptance of the request by another Member State to take charge or to take back the person concerned or of the final decision on an appeal or review where there is a suspensive effect in accordance with Article 27(3)."
20. Regulation (EC) No. 1560/2003 ("the Implementing Regulation") was enacted so as to enable Regulation (EC) No. 343/2003 (the Dublin II Regulation) to be applied (see Recital (9)).
21. Article 5 of the Implementing Regulation provides:
"1. Where, after checks are carried out, the requested Member State considers that the evidence submitted does not establish its responsibility, the negative reply it sends to the requesting Member State shall state full and detailed reasons for refusal.
2. Where the requesting Member State feels that such a refusal is based on a misappraisal, or where it has additional evidence to put forward, it may ask for its request to be re-examined. This option must be exercised within three weeks following receipt of the negative reply. The requested Member State shall endeavour to reply within two weeks [?]"
22. Article 12(2) of the Implementing Regulation states that:
"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."
23. Article 2 (5) makes the following provisions in respect of UAMs:
a) Where the United Kingdom receives a TCR from France under Article 8(1) or 8(2) of [Dublin III], the United Kingdom shall provide a decision on the TCR to France within 10 working days of the conclusion of engagement with the relevant United Kingdom local authority; and, where France request an urgent reply in such cases, the United Kingdom shall endeavour to provide a decision in a shorter time.
b) Where either party accepts responsibility for examining an application for international protection under Article 8(1) or 8(2) of [Dublin III], the party where the unaccompanied minor has lodged the application for international protection shall aim to transfer the unaccompanied minor to the other party within 15 working days.
Home Office Policy on Dublin III Regulation Version 1.0 (2 November 2017) - page 38 of 46
24. Unaccompanied children: notifying local authorities and or social services
"You must ensure that both local authority children's social services at the child's point of entry and where the child's family member, sibling or relative reside are notified of the transfer request under the Dublin III Regulation. This must be done as soon as possible after the formal request to take charge is received from the requesting State."
"You must engage the local authorities' children's social care teams throughout the process, seeking their advice in every case."
25. In advance of the hearing, two files of pleadings and evidence were provided along with two files of relevant authorities.
26. Counsel for both parties provided detailed skeleton arguments and oral submissions.
The applicants' case
27. The basis of the applicants' legal challenge is set out in the grounds of claim and in counsels' written and oral submissions.
28. In relation to ground 3, Ms Kilroy objected to a new issue being raised in the respondent's skeleton argument, that issue being that there was no family life between the applicants and NF. She summarised a number of authorities which supported the existence of family life between family members, particularly involving minors where there had been a long separation. Ultimately, I decided that I would not consider this issue because it was not properly pleaded by the respondent and no application had been made to amend the DGD. I therefore did not invite Ms Kilroy's detailed submissions on this aspect.
29. The core of the claim in relation to the second ground, based on Ms Kilroy's submissions can be summarised as follows.
30. Regarding what were termed the Secretary of State's key failures, Ms Kilroy identified a series of issues which differed to those affecting the claimants in FA and others. These were:
i. The inertia of the EIU on receipt of the TCR and the failure to consider it until after the deadline passed;
ii. The unlawful refusal of the TCR in FwF's case because by operation of Article 22(7), the UK was automatically responsible;
iii. The failure to investigate the relationship between the applicants and NF properly or in line within his published policy;
iv. The failure to consider the admission of the applicants for DNA testing in circumstances where the UK was already responsible;
v. The failure to respond at all to the TCR in FrF's case;
vi. There was an unlawful failure to reconsider the rejections when new material was presented;
vii. The failure to refer to the relevant local authority (LA);
viii. The insistence of verifying documents provided with the FCO in Kabul which wasted 3 months with no verification occurring.
31. In addressing the respondent's argument that these claims were academic, Ms Kilroy explained that the applicants' claim differed from that of the claimants in FA and others. In the applicants' case there was no contact with the LA by the EIU, no holding letters were sent to the transferring state prior to the 2-month deadline for response, no attempt at placement of the applicants and there was a refusal of the TCR request in FwF's case.
32. Regarding the respondent's reliance on Article 12(2), she described this as a red herring because it was not the duration of placements which caused the delay here but inactivity on the part of the Secretary of State. As France was not informed that more time was needed, responsibility for the applicants passed to the UK. Ms Kilroy acknowledged the justification for invoking Article 12(2) given in the Detailed Grounds of Defence (DGD) was to ensure that NF was a relative and not a trafficker, however this was not why the TCR was refused.
33. Ms Kilroy argued that the Sandhurst Treaty had no application as there was no engagement by the respondent with the LA. She contended that the only thing in common between FA and others and these applications was that the respondent's unlawful conduct caused delay.
34. It was argued that the Secretary of State had not explained why he would be permitted to send letters after the deadline to reverse the effect of Article 22(7); why would Article 12(2) permit him to take an unlawful approach in breach of R(MS) v SSHD (Dublin III; duty to investigate) UKUT 00009 and arguably there was a different burden if responsibility had already passed. Neither 12(2) nor 22(7) were mentioned in any correspondence. There was no evidence the respondent tried to pass responsibility back to France and there was no proper defence to this claim.
35. Ms Kilroy emphasised that the relevant TCR was the first one and that the timescales for each stage of the process could not be amalgamated into one. She relied upon Ghezelbash  1 WLR 2961, as the authority that Dublin III could be enforced by individuals. Mengesteab v Bundesrepublik Deutschland  1 WLR 865 was, she argued, the authority for the right to bring challenges after the expiry of time limits and in this case the UK argued unsuccessfully against that. At  of Mengesteab it was held that timescales cannot be derogated amongst member states. An approach confirmed by Shiri  2 CMLR 3.
36. Ms Kilroy briefly mentioned X & X v Staatssecretaris van Veiligheid en Justitie  3 CMLR 20, as authority for the proposition that a holding response could not be sent. She argued that the timescales for children should be shorter and those timescales were longstops, with reference to  of SSHD v ZT Syria  1 WLR 4894, MA (Eritrea) v SSHD (ECJ)  1 WLR 2961 at [55-61] as well as Article 24 of the Charter of Fundamental Rights of the European Union (CFR).
37. Turning her attention to the Implementing Regulation No 1560/2003, Ms Kilroy relied on Article 3(2) which she argued was the key source of the duty of investigation, as well as Article 5(1) which stipulated that detailed reasons for refusal were required.
38. Ms Kilroy addressed the respondent's reliance on Article 12(2) in some detail. She argued that it did not say anything about delays being lawful, rather that delays were not necessarily an obstacle to determining responsibility. This provision was relevant as to where a child was placed, which was not the case here because the respondent had initially decided there was no family link. Furthermore, she argued that there was no provision for reversing the effect of Article 22(7) of Dublin III. Finally, this provision was only intended to protect the child's best interests where strictly necessary, MA (Eritrea) considered.
39. Ms Kilroy argued that the delays in this case were not strictly necessary and contended that the TCRs were overlooked until the caseworker was reminded by a liaison officer in France that there had been no response. She submitted that there was nothing in 12(2) which amounted to a licence for a member state to fail to act promptly. That clear timescales applied was clear from the updating Implementing Regulation No 118/2014, where it was emphasised that investigating family links had to be done within the deadlines. Ms Kilroy argued that there was nothing to indicate that if a member state exceeded the deadlines, it could rely on 12(2) as a "get out of jail free card." In essence, Article 12(2) did not apply and it could not be said that procedures for placing the minors caused the extension of time. Further, it was not in the applicants' best interests for the UK not to accept the TCRs.
40. Addressing the respondent's argument that automatic responsibility had passed to the UK after two months but that the respondent could carry on considering the question of responsibility with a view to rejecting it, Ms Kilroy argued that there was nothing to say a member state could unlawfully reject TCRs after the time limit had passed. At this point Ms Kilroy handed me a table of delays in this case and took me to the GCID records for FwF. Briefly, there was no activity for nearly a month after the TCR was received on 15 November 2018. On 12 December 2018 NF's file was retrieved. Thereafter an undertaking form was sent to NF on 12 December 2018, following which there was no further activity until the respondent's French liaison officer chased the matter on 24 January 2019. The case was reallocated on 25 January 2019 and the refusal of the TCR followed on 28 January 2019.
41. Ms Kilroy asked me to note that there was no mention of Article 12(2) in the GCID notes or elsewhere. She argued that it was clear that the TCR was rejected in a panic. There was no attempt to contact NF to see if he had more evidence. For completeness, the GCID records regarding FrF were similar but for the fact that the TCR was never rejected.
42. Ms Kilroy's submissions turned to whether the decision to refuse the TCRs was lawful in any event. She argued that even if the respondent was entitled to rely on Article 12(2), the decision was still unlawful because he did not comply with MS and R (MK, IK and HK) v SSHD  UKUT 231. She contended that in a one-day period of decision making, there had been a failure to assess the applicants' best interests, cursory steps were taken to investigate their relationship to NF, they had failed to contact the local authority, failed to put the lack of evidence to the applicants, failed to consider DNA testing (in breach of MS/MK, IK) and failed to consider the evidence of the relationship which they had. She added that when NF realised there was an issue with evidence, he swiftly rectified this by sending a large quantity of material relating to the relationship to the EIU on 12 February 2019. According to the GCID records, there was no activity on receipt of this material and NF called the EIU twice to chase the matter. Ms Kilroy stated that it was only once the applicants' Pre-Action Protocol letter was received on 4 March 2019 that the respondent elected to send the documents to the FCO in Kabul, which led to further delay and eventually an acceptance of the relationship based on that material without verification.
43. Ms Kilroy took me to Annex II to the updating Implementing Regulation where in List A it is stated that if there is no probative evidence of the relationship, DNA or a blood test should be considered, which was a recognition that proof was not always available. She argued that the respondent had an obligation to investigate with reference to the headnote in MK, IK whose conclusions were reinforced in MS. The duty was that of best endeavours.
44. Referring to the respondent's GCID notes, Ms Kilroy asked me to note that there had been no mention of consideration of admission of the applicants for DNA testing. She clarified that she was relying on a duty to consider admitting as opposed to a duty to admit.
45. Ms Kilroy argued that the respondent had a continuing duty to investigate and that he ought to have told NF that the TCRs were going to be refused unless he sent further information. She stated that that one telephone call would have prompted all the material that NF provided and that when it arrived, the respondent ought to have considered it. With reference to MS where DNA evidence was not considered until after the decisions made, Ms Kilroy argued that it was unlawful for the respondent not to consider it before or to admit the applicants for the purpose of testing.
46. On the basis that not all the documents had been passed to the UK by France, Ms Kilroy contended that the applicants had provided more than enough information to conclude they were likely to be related. She also made the following points. Regarding the undertaking form, NF had been given a tight deadline to complete this while having no legal representatives. He provided no additional evidence because of his erroneous belief that France had forwarded all the evidence he provided previously. The respondent then did nothing. Ms Kilroy argued that if there is a requirement to send additional evidence, the Secretary of State must contact an individual to ask for more. NF had been given no guidance as to what more was required and he believed that all the material had already been provided. She argued that by the Secretary of State rejecting the TCR the implication was that NF was lying and this ought to have been put to him. In any event, even when NF voluntarily provided more evidence, it was not considered. Additionally, in FrF's case no rejection of the TCR was sent to France and no explanation had been provided for not considering it.
47. Ms Kilroy argued that the respondent's failure to engage with LA was a different issue to that in FA, where the Secretary of State had made a positive decision on family link and was awaiting a LA assessment. In the applicants' case, the assessment was prompted by NF and the LA was able to provide useful information about the family link after visiting NF and his family. Ms Kilroy referred to the respondent's "blanket policy" of never contacting the LA unless a positive family link was made which was a breach of the Secretary of State's Dublin III Regulation guidance.
48. With reference to aspects of the policy, Ms Kilroy asked me to note that the decisions of the EIU were informed by the LA assessment. She argued that this policy was discussed with LA representatives, the respondent's policy team and the EIU before being drawn up. Evidence disclosed during the hearing in FA and others and which was produced for this claim, confirmed that the policy team were aware of the importance of the LA in assessing the family link. In summary that evidence showed the EIU previously told the policy team that it was not their practice to request a LA assessment until the positive family link had been established, however the advice to the minister was that the LA should be contacted in every case. Ms Kilroy argued that for the respondent not to comply with policy had the effect of depriving the Secretary of State of highly relevant information on the family link. In the applicants' case, the LA had no hesitation in assessing the family link, at the applicants' request, and provided a report in 17 days.
49. In relation to the impact on the applicants of the stated failures, Ms Kilroy took me to the evidence of the damage which she argued was caused by the delay and the refusal of the TCR. That evidence included psychiatric assessments of the applicants which included the effect on the applicants caused by their separation in France because the delay had led to FwF coming of age. Separation was not the sole source of trauma. The applicants were extremely vulnerable and a swift reunification was required.
50. Ms Kilroy submitted that the respondent's delay caused a deterioration in the applicants' respective mental states which led to risks of suicide and damage. She advised me that the day before the respondent rejected the TCRs, he had been informed by UNHCR of a group of children who had self-harmed and were suicidal while awaiting reunification.
51. On the question of damages, Ms Kilroy confirmed that this would be addressed in written submissions, if necessary, after judgment had been reached.
52. Ms Kilroy confirmed that she still relied on Ground 1 but did not wish to supplement the submissions set out in her skeleton argument.
53. In concluding, Ms Kilroy submitted that the respondent's decision-making was clearly unlawful and interfered with the applicants' family life. The applicants had still not arrived in the United Kingdom and no date had been given for their transfer from France.
The Respondent's case
54. The respondent's case is set out in the Detailed Grounds of Defence and in Mr Dunlop's amended skeleton argument and oral submissions, summarised as follows.
55. Mr Dunlop did not pursue his objection to the additional documents the applicants sought to have admitted, given that I had previously granted permission for these documents to be relied upon.
56. Regarding Ground one, Mr Dunlop was, like Ms Kilroy, content to rely on his skeleton argument.
57. Mr Dunlop's principal argument was that the applicants' claims were academic. He submitted that if it was right that the UK became responsible for the applicants on 15 January 2019 (rather than 3 June 2019 when the Secretary of State wrote to accept responsibility) the period of 6 months referred to in Article 29(1) of Dublin III had yet to expire and thus there was no breach of EU law or Article 8. Relying on  of his skeleton argument, Mr Dunlop expanded on the principles involved. He particularly relied on what was said in R v SSHD Ex p. Salem  1 AC 450 at  regarding a good reason in the public interest being required, which also applied to judicial review hearings, applying R v SSHD ex P Goloshvili  EWHC 614 (Admin).
58. Addressing the argument that permission was granted, Mr Dunlop argued that this was not determinative in that the grant of permission merely decided whether the grounds were arguable. Mr Dunlop submitted that the Tribunal should not grant remedies in vain and resources should not be used for academic cases. He acknowledged that this application raised issues of importance but that these points were to be determined elsewhere in FA and others. He expressed concern regarding the potential for a difference in approach by the Tribunal.
59. Regarding the third ground, Mr Dunlop accepted that there was no contention in the DGD that there was no family life between the applicants and NF but nor was there an express admission of family life. Ultimately, he argued that the onus was on the applicants to demonstrate a breach of Article 8. He argued that if family life was presumed, there would be no breach because the delay was far too short to amount to a breach of Article 8.
60. Mr Dunlop submitted that the first TCR was made less than seven months ago, if the French authorities complied with Sandhurst Treaty, 15 working days from 3 June would be 24 June 2019 and there was no reason to think the applicants would not be transferred. He argued that even if all those seven months were the UK's fault there would be no breach. Some of the delay was inevitable because NF did not submit all the documents.
61. Referring to Askar v UK App. No 26373/95, Mr Dunlop submitted that that judgment was handed down five years after an application for family reunion was made; that application was seen as manifestly unfounded and the delay did not prejudice the final determination. In the applicants' case, the sponsor had not lived with them before, but this did not prejudice the outcome. Referring to R(Mambakasa) v SSHD  EWHC 319 (Admin), which he asked me to note was upheld by the Court of Appeal in Anufrijeva v Southwark LBC  QB 1124 it had taken six months to get confirmation of refugee status, while the delay was found to be unreasonable under common law, there was no breach of Article 8 found. He contended that Ms Kilroy's submissions on administrative failings did not demonstrate a breach of Article 8.
62. Mr Dunlop repeated the submissions on family life which were included in his skeleton argument but were not pleaded previously. I have not summarised these arguments because this point never previously formed part of the respondent's case.
63. Mr Dunlop addressed the Dublin III time limits, stating that the overall time limit of eleven months had not been breached and thus it was hard to see how it could be a breach of Article 8. The decision in A and S v Staatssecretaris van Veiligheid en Justitie  3 CMLR 20 amounted to recognition that the 11-month time limit was often exceeded. He submitted that the seven-month delay was not all the fault of the UK because somewhere along the way NF's evidence was not produced to the Secretary of State. That missing evidence included the names of the parents of NF and the applicants, which NF had recognised and provided later. Also missing was a signature from the applicants showing they consented to the TCR. Their letters to that effect were not sent to the Secretary of State and the evidence which was provided did not prove a family link. The respondent wrote to NF inviting him to provide evidence to prove the relationship. It was not in dispute that NF did not send any further information because he reasonably and wrongly believed all the evidence had already been sent. The Secretary of State should not be blamed for this. It was only in February, three months after the TCR that all the information was provided. Any delay was well short of the time needed to result in a breach of Article 8. He indicated that he would leave the issue of damages until after a decision had been reached on whether there was a breach.
64. Mr Dunlop responded directly to Ms Kilroy's submissions regarding the respondent's conduct. He emphasised that Ms Kilroy had said little about the first ground.
65. As for ground two, Mr Dunlop argued that The Sandhurst Treaty procedure required a departure from the 2-month time limit under Article 22(7) of Dublin III where the best interests of the child were in issue. He further argued that the United Kingdom was not deemed responsible until ten days after the conclusion of engagement with the relevant local authority. He submitted that it would not be right for there to be no exceptions and that the receiving member state should respond within two months regardless of the best interests of the child, for example in a case where the TCR was made without the child's consent.
66. Mr Dunlop contended that the proper interpretation was to say even if the two-month limit had passed, a member state should continue to consider whether it is in the best interests for the child to be transferred and this is what happened here.
67. Returning to the Sandhurst Treaty, Mr Dunlop emphasised that the time limits start after conclusion of engagement with the LA because the best interests have to be determined first. He argued that the only conclusion was that the UK became responsible for the applicants on 15 January 2019 not 3 June 2019 as an automatic consequence of the lack of response.
68. Referring to Mengesteab v Bundesrepublik Deutschland  1 WLR 865, where there had been a delay in asking a previous country to take charge, there had been no need for any further correspondence, as well as Shiri  2 CMLR 3 where a delay of six months of the other country taking the person back led to an automatic transfer of responsibility. Applying this here, the United Kingdom became responsible on 15 January 2019, but this did not mean there was a breach. The sanction was an automatic transfer of responsibility and in any event, there is no breach of Article 29 where the transfer is within 6 months.
69. In relation to the other points made by Ms Kilroy, Mr Dunlop categorised them as common law points which would not attract damages. Regarding the refusal of the TCRs, all the UK had was identity documents in same surname and a letter from NF and it was not unreasonable to conclude that this was not enough without signed consent from applicants. The respondent needed to rule out the possibility of trafficking. The evidence of Ms Farnham in her witness statement of 29 January 2019 was that this was all that was received by the Secretary of State, however there was no reason to dispute NF's claim that he sent more evidence. Nonetheless it was reasonable for the Secretary of State not to accept the family link.
70. As for the submission that the respondent ought to have sent a minded to refuse letter to NF, Mr Dunlop argued that this would be too much of an administrative burden and that the letter to NF made it clear and obvious that he needed to provide supportive evidence of the relationship. There was no need for further notice for common law fairness
71. On the issue of engagement with the LA, advice was sought from the LA in this case, but not at the start of the process. There was no absolute requirement to follow published policy. The reason for not doing so was that the caseworker did not want to tax the LA where the family link was not accepted which was a good reason.
72. As for DNA testing, it did not follow it was needed in every case. In this case there was no evidence of a family link at first but when further evidence came to light it was considered and accepted and there was therefore no need to consider DNA. He asked where a declaration would take these applicants.
73. Ms Kilroy argued that the respondent's academic argument had undergone a metamorphosis. Today, the respondent was arguing that the delay would have made no difference, the defence run in FA and others, in that Article 8 is separate to the Dublin III breaches, relying on the eleven-month overall timescale. By contrast in the skeleton argument it was effectively accepted by the respondent that findings on Dublin III were required in order to decide if there had been a breach of Article 8. Ms Kilroy asked me to note that there was no reliance on the eleven-month argument previously. She disputed Mr Dunlop's contention that this case raised only common law fairness issues, stating that there were mixed issues of Dublin III, Article 8 and common law fairness. In FA and others, the issues had been different as the family link was accepted.
74. Regarding the case law on Article 8, Ms Kilroy emphasised that Mambakasa said the question was whether the delay was so extreme as to constitute an interference with their Article 8 rights. Addressing the respondent's submissions on Askar she argued that the issue was whether delay alone sufficed where there was no prejudice. At  of Askar an issue of resources was raised, which was a defence in FA and others. At the time of the TCRs being issued in November 2018 this was no longer an issue as more resources had been provided to the EIU. The key issue in this case was not whether there was interference, which there was because denial of reunification under Dublin III amounts to an interference with family life, but whether it was proportionate. She stressed that the applicants' argument did not only concern delay but also unlawful actions, inaction, breach of guidance, breach of the Dublin III timescales, unlawful decision making which led to an unlawful decision.
75. Ms Kilroy argued that the respondent's submissions raised no defence to the Secretary of State's conduct and described Article 12(2) as a blanket permission to extend the timescale. This could not be right because it would not be in the best interests of the children to have permission for a member state to extend the timescale because they forgot about the case. That was in contravention of X & X.
76. Regarding the Sandhurst Treaty, while Mr Dunlop said this provided justification, he had not addressed the preamble which stated that there was nothing in the Articles which alter the requirements to comply strictly with timescales or to act in the best interests of the child. There was no blanket extension of Article 22(7) and no wording to that effect. The time for accepting a TCR runs from 10 days from engagement with the LA and did not mean timescales could be extended.
77. Ms Kilroy argued that Mr Dunlop's argument that the various failures made no difference because the six-month period ran from 15 January 2019 was the wrong way of looking at it. The position was that France should carry out the transfer as soon as possible and within six months. Owing to the Sandhurst Treaty, the deadline was 15 days, that being around the end of January or early February 2019.
78. With reference to R (Citizens UK) v SSHD  4 WLR 123, Ms Kilroy argued that the decision had been unlawful. NF could not have known what evidence of the family link the respondent had. The Secretary of State could have listed what evidence they had and there was no guidance generally or on the facts as to what additional evidence was required. With reference to  of MK, IK as well as MS there was also a duty to investigate rather than to simply sit back.
79. Ms Kilroy argued that Mr Dunlop was wrong to state that the LA issue in relation to the policy guidance was dealt with in FA and others. She submitted, with reference to MS and MK, IK that in the Secretary of State not asking the LA for their view on the family before rejecting the TCRs, he had carried out an unlawful practice.
80. On the DNA evidence point, Ms Kilroy argued that if undertaken this could have resulted in the family link being accepted much earlier than the week prior to the hearing. The respondent could have decided to admit the applicants months ago and do DNA rather than waiting for documents to be verified in Kabul. The delay was not in accordance with the law and not proportionate.
81. Responding to Mr Dunlop's argument that there was no proof provided to the respondent to establish a family link, Ms Kilroy argued that sufficient evidence was provided or at least enough to trigger a need to investigate rather than to refuse the TCRs.
82. Lastly, Ms Kilroy relied on TP & KM v United Kingdom (2002) 34 EHHR 2 at  where a procedural breach involving a failure to respect family life and breach of Article 8 was found to result in a loss of the opportunity of being together as well as stress and anxiety. The substantive breach in the applicants' case was the failure to reunify.
83. Mr Dunlop resurrected the argument made earlier that this claim was academic. The permission decision addressed this point and considered it arguable that the claims were not academic. The fact that the TCRs were accepted shortly before the substantive hearing of this matter does not render the applicants' arguments academic. Furthermore, the matters raised in the second ground, as to whether the interference with the applicants' family life was in accordance with the law and proportionate, are relevant to the claim for declarations and damages under EU law and the Human Rights Act 1998. Indeed, the respondent's DGD at  suggested that the focus at the substantive hearing be on the determination of the substantive issues, with damages to be decided separately.
84. I will address the grounds in numerical order.
85. The first ground relates, partially, to the contention that the French authorities refused to provide any written material emanating from the Secretary of State due to concerns that the UK wished France to withhold such material. Ms Kilroy elected not to expand upon the content of her skeleton argument on this issue. There was no evidence before me that the respondent is responsible for any apprehension on the part of the French or that the French authorities have been misled. If the French authorities are acting unlawfully, then this conduct ought to be challenged elsewhere. It is also the case that the first ground refers to the respondent's failure to disclose the reason for the TCR refusal to the applicants. This aspect could be incorporated into the complaints as to the respondent's conduct in the second ground. This first ground is, therefore, not made out.
86. The Secretary of State's processing of the TCRs was unlawful and in breach of EU law, common law and Article 8 ECHR for the following reasons.
87. The respondent was required to reach a decision in response to the TCRs within the two- month time limit stipulated in Article 22(1) of Dublin III and failed to do so. As a result, the respondent was obliged to take charge of the applicants under Article 22(7). Indeed, Mr Dunlop did not argue that the transfer of responsibility did not take place. Nor did the Secretary of State reach a decision on the TCRs within a reasonable time.
88. The witness statement of Ms Farman does not explain or justify the failure by the EIU to respond to the TCRs. There were no supporting witness statements provided by any of the caseworkers who made entries on the GCID records which might explain the delays. There is no indication on the face of those records that there was a good reason for the delay. The picture painted by the GCID records is of no activity of any description taking place following the receipt of the TCRs on 15 November 2018 and 9 December 2018. The first GCID entry was made on 10 December 2018. The evidence shows that there was no attempt by the EIU to process the TCRs with any sense of urgency.
89. The GCID records show that there was a little activity from 10 December 2018, when initial administrative steps were taken to obtain NF's Home Office file and send him undertaking forms. The dilatory approach continued after receipt of the file and forms, where there is no indication of any decision making taken place until after responsibility had automatically passed to the Secretary of State on 15 January 2019.
90. The respondent was prompted into action after a query from Ms Villanueva, the respondent's French-based Dublin III liaison officer on 24 January 2019. The Secretary of State's response to Ms Villanueva's query, contained in a letter dated 24 January 2019, was that the EIU were still "making enquiries and conducting safe-guarding checks." There is no evidence on the face of the GCID notes or elsewhere that this was the case. There were no enquiries made or safeguarding checks made subsequently, instead an almost immediate decision was made to refuse both applicants on 25 January 2019, with no evidence of thought being given as to whether any further investigation was required. That there is a duty of investigation was established in MS and MK, IK.
91. Further failings include the unlawful refusal of FwF's case after responsibility had automatically passed to the UK by operation of Article 22(7), the lack of a formal response to the TCR in FrF's case and the respondent's failure to reconsider the rejections after the new material was received from NF.
92. The respondent relies on Article 12(2) of the Implementing Regulation as well as Article 2(5)(a) of the Sandhurst Treaty, stating that the latter requires a departure from the time-limit in Article 22(7) of Dublin III and consequently the UK is not deemed responsible for minors until at least ten working days after "the conclusion of engagement with the relevant UK local authority." This is not an attractive argument. The Sandhurst Treaty enables a more rapid, simplified, process for the purpose of protecting the best interests of unaccompanied minors as opposed to enabling the UK to evade the strict timescales of Dublin III. Furthermore, Article 2.4 of the Sandhurst Treaty states that Dublin III timescales apply and, in any event, has no relevance to the applicants' case because no referral to the LA was ever made.
93. While Article 12(2) applies to the duration of procedures, in that a failure to observe the time limits shall not necessarily be an obstacle to determining the member state responsible, this does not assist the Secretary of State given the series of failings by the EIU which led to the delays in this case or the resulting damage to the mental health of the applicants. The purpose of Article 12(2) is to protect the best interests of the child and it is for the respondent to demonstrate why it was in the best interests of the applicants to exceed the timescales. That argument has not been made.
94. The evidence before the Secretary of State sufficed to establish the family link in this case, even if not all the evidence sent by NF was provided by France with the TCRs. On that last point, it is still unclear what evidence was disclosed by France or what of NF's documents were not included with the TCRs. The evidence the respondent considered included evidence of the identity of NF and his family as well as evidence from Afghanistan which supported the identities of the applicants. NF and the applicants share the same family name. Given that there is no strict requirement under Dublin III for proof of a family link to be submitted with the TCRs, the respondent's decision to refuse the applications without carrying out any investigation or referring the case to the LA was unreasonable.
95. The respondent points to the fact that NF did not send the evidence which he had already provided to France in response to the respondent's letter. This is an unreasonable criticism given that NF was unrepresented at this stage and had never been informed what documents the French authorities had included with the TCRs. The respondent could have simply informed NF that there was insufficient proof of a family link on file, specified what evidence was on the applicants' file or telephoned NF to discuss the likely outcome on the evidence available. It is worth emphasising that there was no evidence before the respondent to undermine the applicants' relationship to NF. Nonetheless, the respondent had an alternative option available to him if he was dissatisfied with the evidence of family link, that of admitting the applicants to the UK for DNA testing, if this could not be achieved in France, in accordance with MK/IK and MS. Had these alternatives been considered, the respondent would have been bound to accept the TCRs in a prompt manner. The respondent has provided no explanation as to why DNA was not considered, nor is there any defence to this aspect of the case. Consequently, the claim made in the grounds that the respondent failed to give the applicants and NF the opportunity to respond to concerns and failed to consider admitting the applicants for DNA testing amounts to procedural failings.
96. The respondent caused further delay in taking responsibility for the applicants by requiring further verification of the Afghan documents (Taskeras) from the FCO in Kabul, notwithstanding that certified translations had been provided and there was no reason to doubt the family link. The request for verification was made on 8 March 2019, nearly two months after responsibility for the applicants had automatically passed to the UK. A disclosed email refers to the respondent being concerned that the documents were issued recently and had been provided late. Both of those claims were inaccurate. The Afghan documents predated the applicants' departure from Afghanistan and had already been provided to the French authorities. There is nothing in any of the material provided which indicates that there was ever any reasonable basis for doubting the family link. Indeed, the respondent's Dublin III Guidance refers to copies of Taskeras being evidence of a relationship, without verification being required.
97. The respondent pursued the verification of the Taskeras for a further two months and until informed that there was no prospect of this taking place. By contrast, admitting the applicants for DNA tests would have addressed the family link without the need for such an unproductive delay.
98. The Secretary of State failed to engage with the LA in this case, in breach of his own policy. The said policy requires the respondent to notify the local authority of a transfer request "as soon as possible" after the TCR is received, to "engage local authorities' children's social care teams throughout the process, seeking their advice in every case" and to take into account the LA's assessment in deciding whether to accept or reject a TCR.
99. The LA's assessment of a family link and the best interests of a child ought to have been central to the respondent's duty to investigate upon receipt of the TCRs, yet there was no referral to the relevant LA in this case at any stage. The respondent's position, communicated in a letter from the GLD dated 26 April 2019 was that the Secretary of State was taking his usual position and would "only contact the local authority once the family link is established?" This practice of only contacting the local authority if a positive assessment is made meant, in the applicants' case, that a negative decision was made without any input from the LA. Ultimately, the applicants' solicitors requested an assessment from the LA, which was obtained in a little over two weeks and provided strong support for family reunification. Had the respondent engaged with the LA from the outset as the policy requires, the assessment was likely to have been available within the two-month deadline and it is further likely that the TCRs would have been accepted.
100. The respondent's breach of policy is not inadvertent in this case but a departure from his published policy. Not only is it unlawful on ordinary public law principles but the policy to involve the LA in every case was expressly approved by the Minister notwithstanding the EIU evidence to the policy team about their previous practice. The justification for the breach of policy set out in the DGD is that the policy did not envisage a request for an assessment. This is plainly wrong, given that the policy requires the respondent to engage with the LA "throughout the process." It would be nonsensical for the respondent to merely notify the LA of the TCR and then not to follow this up with a request for an assessment of the family link and best interests of the children. The respondent also raises concerns regarding conserving the resources of the LA in cases where a family link is not established, by way of an explanation for not referring all cases. There is no rational justification for this departure from the policy given the desire of the LAs to be engaged with this process on receipt of the TCRs (as stated by Ms Farman in her statement dated 13 May 2019) and the willingness of the relevant LA in this case to conduct the assessment at the applicants' request. Mr Dunlop suggested that the policy and practice in question were under review but referred to no evidence in support of that contention. On the contrary, the relevant parts of the policy are unchanged in the most recent version published on 18 April 2019.
101. Under Dublin III and the CFR, the applicants have a right to an effective remedy. In view of the above findings, it is the case that their fundamental rights have been breached by the UK, as the responsible member state as of 15 January 2019.
102. There were never any safeguarding concerns raised by either the French or UK social services regarding the applicants and in any event the respondent belatedly accepted the TCRs on 3 June 2019. There have, in this case, been a series of breaches of Article 8 ECHR/Article 7 CFR.
103. The applicants and NF are siblings and notwithstanding that the applicants were born in Afghanistan after NF's departure, there exists a family life between them. The applicants are orphaned and NF, as their adult sibling, has stepped into the breach. He is willing and able to care for the applicants, has visited them in France and provided them with financial and emotional support. Were it not for the respondent's failure to act promptly at all times including in accepting the TCRs, the applicants would have been transferred to the UK far earlier and most likely within the usual timescales of two months for a decision and 15 days for their transfer to the UK. The applicants had not arrived at the time of the hearing.
104. The respondent's multiple breaches of Dublin III led to a more prolonged delay to family reunion than was necessary. In addition to being minors at the time of the TCRs, the applicants were vulnerable as orphans, having been abandoned by another sibling and enduring difficult conditions during the two years or more between leaving Afghanistan and arriving in France. The unchallenged medical evidence is that the applicants suffer from complex PTSD and FwF additionally suffers from Major Depressive Disorder. The psychiatric report refers to the effect of the delay and uncertainty on the applicants' mental health which include distress, risks of self-harm and suicide and to cause them to lose trust in NF. Indeed, FrF expressed suicidal ideation and refused to eat for days after learning of the refusal of the TCRs.
105. It is apparent from the substantial quantity of documents disclosed in FA and Others, that the Secretary of State was advised of the serious risks caused by delays in progressing the cases of unaccompanied minors but failed to prioritise the applicants' welfare, instead causing delay in the manner set out in the preceding paragraphs. An email to the Secretary of State on 24 January 2019, refers to the French government receiving "very problematic news from UNHCR concerning minor cases with the UK. We have serious fears about the mental and physical health of these minors?. Due to these excessive delays, their mental state has deteriorated considerably; a child tried to kill himself last weekend and others are on hunger strike."
106. The respondent argues that there was no breach of Dublin III because the overall 11-month time frame has yet to be exhausted. There is no merit to this argument because each member state is responsible for compliance with the particular timescales imposed on them under the regulations. There is no provision for a member state to use the entire time frame for its own purposes. To ignore these time frames would render Dublin III meaningless and unenforceable.
107. The respondent's conduct amounted to a clear interference in the applicants' rights under Article 8 ECHR. As at the date of the hearing the interference was ongoing. Given the breach of Dublin III, this breach cannot be said to be in accordance with the law. Nor is the breach necessary or proportionate given that the TCRs were accepted. Indeed, Mr Dunlop did not argue that it was.
The following Orders are made
1. A declaration that the respondent's delay in responding to the TCRs and his failure to properly investigate and accept responsibility for the applicants' asylum claims is unlawful;
2. A declaration that the respondent breached his obligations under EU law (Dublin III and the CFR) and Article 8 ECHR;
3. The parties are to provide written submissions on the question of quantum of damages, if not agreed.
Upper Tribunal Judge Kamara
Direction Regarding Anonymity - Rule 14 of the Tribunal 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.
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 the Tribunal 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 Rules Practice Direction 52D 3.3).
Immigration and Asylum Chamber
The Queen (on the application of FwF & FrF (a child by his litigation friend, NF))
Secretary of State for the Home Department
Decision and Directions of Upper Tribunal Judge Kamara
UPON hearing Ms Charlotte Kilroy QC and Ms Michelle Knorr for the Applicants and Mr Rory Dunlop QC and Ms Jo Moore for the Respondent at a hearing on 12 June 2019;
IT IS ORDERED THAT:
1. The Applicants' application for judicial review is allowed;
2. There be a declaration that the Respondent's delay in responding to the TCRs and his failure to properly investigate and accept responsibility for the Applicants' asylum claims was unlawful;
3. There be a declaration that the Respondent breached his obligations under EU law (Dublin III and the CFR) and Article 8 ECHR;
4. The question of quantum of damages is to be decided following written submissions by the parties to be submitted by 12 July 2019;
5. The Respondent pay the Applicants' reasonable costs, on the standard basis, to be assessed if not agreed;
6. There is to be a detailed assessment of the Applicants' publicly funded costs, which are payable by the Lord Chancellor under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Upper Tribunal Judge Kamara
Dated: 15 August 2019
Sent to the Applicant, Respondent and any interested party / the Applicant's, Respondent's and any interested party's solicitors on (date):
Home Office Ref: