In R (BAA) v Secretary of State for the Home Department [2021] EWCA Civ 1428 the Court of Appeal has clarified the reach of Article 8 in Dublin III family reunion judicial reviews.

Unlawful refusal to accept Syrian asylum seeker

The case was about an unaccompanied minor from Syria who had applied for asylum in Greece and wanted to join his cousin, a recognised refugee, in the UK. Greece made a take charge request under article 17(2) of the Dublin III Regulation which the UK repeatedly refused.

It was common ground that these refusal decisions were unlawful. Among other things, the Upper Tribunal held that the refusals breached BAA’s right to family life under Article 8 of the European Convention on Human Rights. The take charge request has now been accepted and BAA admitted to the UK.

The Court of Appeal nevertheless continued its practice of indulging academic appeals brought by the Home Office in the Dublin III context. The department argued that the line of authority culminating in R (FwF) v SSHD [2021] EWCA Civ 88 established that the Dublin III process can be relied on to protect Article 8 rights in all but very exceptional cases. 

Article 8 and Dublin III

The Court of Appeal distinguished a number of previous cases, starting with R (ZT (Syria)) v SSHD [2016] EWCA Civ 810, as concerning situations where applicants had sought to circumvent the Dublin III process. FwF was also distinguishable, this time because the unaccompanied minors were still in the Dublin III process (paragraph 94).

The position in BAA was different from both those scenarios:

95… From the time when BAA sought judicial review, through to the time of the hearing before the Upper Tribunal, the Dublin III process was complete. Had legal action not been instigated, there is no reason to think it would have been resumed… Thus, the legal action here cannot be characterised as an avoidance of the Dublin process. The illegalities of approach by the SSHD here cannot properly be thought to be ‘incidental’, since they led to the refusal of the TCR [take charge request] and the ostensible end of the Dublin process, until they were challenged and exposed. If through illegality, the child claimant is deprived of ‘the rights which Dublin III gives him against member state 2’… then he must be entitled to assert his Article 8/Article 7 rights in the course of a judicial review, once illegality is established.

Why does any of this matter now that the UK is out of the EU? Regulations provide for the family reunion provisions of Dublin III to take charge requests made before 1 January 2021. Where there are ongoing legal challenges to these decisions:

98… If a public law error is established, other than an ‘incidental’ error which did not alter the outcome, then the court will consider evidence as to the underlying Article 8/Article 7 rights. If, on the facts, the transitional provisions enfranchise a resumed Dublin III process, then it would be consistent with the approach of this court in FwF to identify the public law errors, give declaratory relief and set a timetable for a fresh decision pursuant to Dublin III. The court will have to consider whether, on the facts, the delay involved in that process would breach those rights. That delay would itself be a consequence of the illegality.

Public law errors could include the application of the unlawful policy guidance identified in Safe Passage International [2021] EWHC 1821 (Admin).

The last two sentences of paragraph 98 allude to the fact that there may be situations where the court will need to decide for itself whether an applicant is entitled to Dublin III family reunion, rather than remit for a fresh decision.

New evidence in human rights cases

A point of wider interest from the judgment concerns the approach that courts should take in human rights cases to evidence that a decision-maker was not aware of:

46. Where a salient fact emerges before a court or tribunal in the course of its own review in a human rights case, then unless that fact was known, or should have been known, it must be wrong in principle to condemn an earlier decision in relation to the rights in question, whether a matter of a decision as to proportionality or otherwise. That does not prevent the court relying upon the newly emerged fact or facts in reaching its own conclusions: indeed it is under an obligation to do so. The view of Beatson LJ [in R (A) v Chief Constable of Kent [2013] EWCA Civ 1706) that the appropriate procedure in such circumstances is to request a fresh decision may well be right in many cases. No doubt the court or tribunal will be astute to ensure that no step is taken which will infringe the rights of the individual before the matter is conclusively resolved.

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The Court of Appeal case law in this area is confusing. The Supreme Court has repeatedly refused to hear a case on the issue, most recently turning down FwF for permission to appeal. BAA is the most coherent and authoritative analysis of the law and one that preserves an important role for Article 8 in upholding the rights of unaccompanied asylum-seeking children.

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