In a newly reported judgment the Upper Tribunal has quashed the Secretary of State’s decision to refuse a request from the Greek government to take charge of the asylum claims of a mother and her three children so they could reunite with the father, who lives in the UK. The case is R (BJ & Ors) v Secretary of State for the Home Department (Article 9, Dublin III; interpretation) [2019] UKUT 66 (IAC).

The Home Office had refused to let the family come to the UK because the father, who had previously been recognised as a refugee, had become a British citizen. As a result, the mother and children were stuck in Greece while the father remained in the UK, despite the family having been identified by the Greek government as eligible for transfer to the UK.

The Home Office argued that Article 9 of the Dublin III Regulation only applied to current beneficiaries of international protection and therefore excluded this family because the father was no longer a refugee. That is despite an Upper Tribunal decision from last year which rejected that interpretation. The present tribunal chose not to adopt the reasoning of the earlier decision, but fortunately still concluded that Article 9 applies to both current and former beneficiaries of international protection. The decision is a victory for common sense.

Article 9 states:

Where the applicant has a family member, regardless of whether the family was previously formed in the country of origin, who has been allowed to reside as a beneficiary of international protection in a Member State, that Member State shall be responsible for examining the application for international protection, provided that the persons concerned expressed their desire in writing.

The key issue was therefore how to interpret the requirement that the family member “has been allowed to reside as a beneficiary of international protection”. The Upper Tribunal proceeded on the basis that this was a fundamentally ambiguous provision which needed to be interpreted very carefully, but it could have reached the same decision from a straightforward reading of the provision. The phrase “has been allowed” refers to an action which has been completed in the recent past but is not necessarily ongoing. If the drafter had intended the action to be ongoing they would have used the phrase “has been residing” to indicate that the family member must still be a beneficiary of international protection.

The judgment contains a lengthy summary of how legislative interpretation works in EU law followed by detailed consideration of the purposes of the Dublin III Regulation, with relatively little reasoning of why the purpose requires Article 9 to be interpreted in this way. That structure is reflected in the headnote:

1. The approach to interpreting a provision of EU law requires a systematic approach, looking at the words in the context of the structure of EU law as a whole and asking:

(i) Is the meaning of the provision defined in EU Law?
(ii) If not, can the words be given their usual, ordinary meaning?
(iii) If not, what are the possible different interpretations?
(iv) What is the objective of the provision?
(v) Which interpretation best preserves its effectiveness?
(vi) Which interpretation best achieves the objective?
(vii) What are the consequences of the different interpretations?

2. (i) The phrase “family member…..who has been allowed to reside as a beneficiary of international protection” in Article 9 of Dublin III is to be interpreted as including a person who has, since the grant of international protection, acquired the nationality of the an EU member state; and,
(ii) The phrase “persons concerned” in Article 9 of Dublin III does not include the family member or members previously granted international protection in the requested state.

This case is an excellent result, but the Upper Tribunal has issued a long and complex judgment to resolve an ambiguity which does not really exist if the legislation is read neutrally, rather than by a Home Office official determined to refuse as many Dublin III take-charge requests as possible. It is depressing that the Home Office chose to invent a linguistic problem for judges to tackle rather than admitting this family to the UK when asked to do so by the Greek government.

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