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DNA evidence proves Home Office wrong about Calais child


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A new Court of Appeal judgment has confirmed that the Home Office wrongly denied that a child asylum seeker seeking transfer to the UK had a brother already living in this country.

The Home Office, as is its wont, claimed that the two young men were not related. As Colin’s post on the Upper Tribunal decision in this case explains, at the start officials dismissed the idea of verifying the relationship using DNA evidence and then decided that undertaking a DNA test in France was not possible anyway. Fortunately, the Upper Tribunal found that the boy and his brother were related even without any DNA evidence and therefore the Home Office had to take charge of the boy’s asylum claim in the UK.

The new judgment in MS (A child) v Secretary of State for the Home Department [2019] EWCA Civ 1340 records that once the boy arrived in the UK. a DNA test proved that his claim had been true all along:

…the Secretary of State took the pragmatic step of soliciting a further take charge request from France, which he accepted on 27 July 2018. MS and MAS were then re-united in the United Kingdom, whilst MS’s asylum claim was determined. MS thus in practice obtained everything that he sought from his judicial review. In fact, to complete the history, a DNA test undertaken here proved that MS and MAS were indeed brothers; and, in due course, MS was granted asylum.

Lord Justice Hickinbottom went on to dismiss the Home Office’s appeal without considering its merits. The Secretary of State had been granted permission by the Upper Tribunal on two grounds related to the scope and intensity of judicial review of decisions made under Article 27 of the Dublin III Regulation, but the judge concluded that these were now academic and not of outstanding public importance:

When our courts consider whether to accept academic claims or appeals, as this court emphasised in Hutcheson, the focus is upon whether – and the extent to which – determining the issue is in the public interest. I accept that the issue raised here may be of some, but certainly not outstanding, public importance. Article 27(1) has been in force since mid-2013, and there appears to be no case in which the issue raised here has been live. There is no evidence that there are any substantial number of cases raising the issue, behind this one… In my view, it would not be helpful if this court were to determine the scope of article 27 in the circumstances of this case.

A great result for MS and his brother, who have finally been reunited and proved that they were telling the truth the whole time.

Interested in refugee law? You might like Colin's book, imaginatively called "Refugee Law" and published by Bristol University Press.

Communicating important legal concepts in an approachable way, this is an essential guide for students, lawyers and non-specialists alike.

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Alex Schymyck

Alex Schymyck

Alex is a barrister at Garden Court Chambers