On 30 April 2020 the Home Office published an updated policy on the Dublin III Regulation which has some significant changes for family reunification cases. The new policy includes updates on Article 9, Article 13.2 (entry and/or stay), Article 17.2 (discretionary clauses), working with local authorities in response to a take charge request involving unaccompanied minors, and on timescales. 

Reconsidering a take charge request

The most significant change in the policy relates to what happens after a take charge request is refused and the requesting state makes a request for re-examination.

Article 5.2 of the implementing regulations provides that the member state that receives a request for re-consideration shall “endeavour to reply within two weeks”. But, unlike the timescale for reply to an initial take charge request, this is not mandatory and there are no consequences for failing to meet the deadline.

Until recently, the Home Office was reviewing re-examination requests as they were made. If the evidence clearly showed a family link between the sponsor and the applicant, the Home Office accepted responsibility for the applicant’s asylum claim, even if was months after the reconsideration request was made.

The new policy incorporates the decision of the Court of Justice of the European Union in the cases of C-47/17 and C-48/17 X and X. It states that if the Home Office does not manage to send a response to the re-examination request within the two weeks, responsibility reverts to the sending state. And that is it. 

This comes with no obligation whatsoever on the Home Office to actively try to assess the merits of a re-examination request within the two weeks. In other words, the Home Office could simply ignore a re-examination request for two weeks and allow responsibility for the applicant’s asylum claim to revert back to the sending state. 

The new policy says:

The CJEU in X and X C-47/17, C-48/17 confirmed that this [making a request for re-exam] must be done within 3 weeks of the receipt of the negative reply. The requested Dublin State shall strive to reply to a re-examination request within 2 weeks. However, in X and X  the CJEU also ruled that if a reply to the request for re-examination is not received within 2 weeks that process ends and the requesting Dublin State retains responsibility, unless it is possible to make a new request to take back or take charge within the time limits in Dublin III.

The old policy used to say: “[h]owever, a lack of an answer within 2 weeks [to a request for re-examination] is not the same as accepting the request as acceptance by default is not possible at this stage in the procedure. Further information on this can be found in Article 5(2) of Implementing Regulation 1560/2003 as amended by Implementing Regulation 118/2014”. This has been removed.

This change to the policy reflects what organisations such as Safe Passage have seen happening in practice in the last few weeks. When it comes to unaccompanied asylum seeking children left stranded in overpopulated refugee camps on the Greek islands, this policy seems particularly cruel and unnecessary.

The Home Office interpretation of the judgement in X and X is questionable, to say the least. X and X was a take back request case. By simply applying it to family reunification cases, the Home Secretary completely ignores her obligation to respect family life and to make the best interests of children a primary consideration.

Other changes to the policy 

Other shocking changes to the Dublin III policy include:

1. Instructions to caseworkers to refuse a take charge request in unaccompanied children’s cases if they are unable to consider it substantially within the two months deadline, so as to avoid becoming responsible by default as provided for by Article 22(7) of the Regulation.
2. The bold statement that take charge requests made under the discretionary clauses of Article 17 are not subject to the default acceptance provisions of Article 22(7). This is because of the discretionary nature of the article, which expressly recognises that the state to whom the request has been made is not otherwise responsible.
3. In cases involving minors, instructions to caseworkers not to engage the local authority until it has been confirmed that the sponsor and the applicant are related. Previously the policy said that councils should be notified “as possible after the formal request to take charge is received from the requesting State”, while now, the “initial notification to the Local Authority should be sent […] following the establishment of the family link”.

The only positive change to the new policy seems to be the implementation of the Upper Tribunal decision in R (BJ & Ors) v Secretary of State for the Home Department (Article 9, Dublin III; interpretation) [2019] UKUT 66 (IAC). The policy finally acknowledges that Article 9 of Dublin III, which allows family members who are beneficiaries of international protection to sponsor applicants in take charge requests, now “includes British citizens who were formally individuals recognised as refugees who have since obtained citizenship”. 

This amendment comes some 14 months after the judgment in BJ & Ors was published. 

What about Brexit? 

This policy will be very short-lived. As of 31 December 2020, the UK will have completed the Brexit transition period – if the Prime Minister does not request an extension by 1 July 2020 – and it will no longer be a party to the Dublin III Regulation.  

Under the “saving and transitional provisions” of the Immigration, Nationality and Asylum (EU Exit) Regulations 2019, the Home Office will still consider take charge requests made before 31 December 2020 under Articles 8, 9, 10, 11, 16 and 17.2 of Dublin on which a final decision has not yet been made. 

The most important thing to notice is that Article 5.2 of the implementing regulation, discussed above, will no longer be applicable after the end of the transition period. This means that if a take charge request is refused after 31 December 2020, it will no longer be possible to ask for re-examination of that refusal.

The new policy instructing caseworkers to refuse a take charge request if they are unable to meet the two-month deadline makes it more likely that unaccompanied asylum seeking children will be separated from their families after the transition period has expired. 

There is considerable uncertainty regarding the prospects of a replacement system. A March 2020 statement of policy merely reiterated that “the UK position is… to continue working together with the EU to reunite unaccompanied asylum-seeking children with family and keep them safe”. Whether or not this will really be a government priority, especially given the coronavirus crisis and its fallout, remains be seen.