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Dura Lex, Sed Lex: Refugee children must remain in Calais says Court of Appeal


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The UK government, and Europe, has spared no expense to ensure that wherever the people trying to get to Europe end up, it isn’t here. But the courts are seemingly doing their best to help. The Court of Appeal’s judgment in Secretary of State for the Home Department v ZAT & Ors (Syria) [2016] EWCA Civ 810 keeps unaccompanied children in the Jungle.

There are more than 10 million child refugees in the world today. Millions of them are unaccompanied. Families make what are to most people unimaginable choices about which child will be sent away from their families to seek safety alone. But the UK government has argued successfully that the law that keeps them out prevails over the law that could allow them in.

In August, the Court of Appeal (CA) overturned the determination of the Upper Tribunal (UT) that allowed asylum seeking children in the Jungle at Calais to join relatives here in the UK. They hadn’t been allowed to stay permanently; the Upper Tribunal had decided that the conditions in the camps were so disgusting and unsafe, and the right for a child to be with his family so strong, that the children should come to the UK for determination of their asylum claims.

The Court of Appeal didn’t disturb the UT’s assessment of the conditions in the Jungle. The UT had accepted that the camps were “a living hell” and said “the conditions prevailing in this desolate part of the earth are about as deplorable as any citizen of the developed nations could imagine.” Despite “the horror” of the camps, the CA stated “the tribunal took too broad brush an approach to the relevance of the appalling conditions in the camp.” The court decided that strict application of the the Dublin III Treaty, almost abandoned in Europe a few months ago, was more important than the children’s right to exercise their family life with relatives in the UK under Article 8 of the European Convention on Human Rights. To succeed in the future, it said, children would have to show an “especially compelling case under Article 8”, implicitly questioning whether the children in the case had done, and stated that “applications such as the ones made by these respondents should only be made in very exceptional circumstances where they can show that the system of the Member State that they do not wish to use, in this case the French system, is not capable of responding adequately to their needs.”

Reviewing the UT’s treatment of the evidence that the children in the case had been subject to violence in the camps and their poor physical and psychological condition, the court icily conceded that “the result [the UT] reached may have been justifiable.” But the CA still blamed the children for failing to pursue asylum claims in the Jungle (paragraph 82).

Whilst sparing these children an enforced return to France (two have already been recognised as refugees) the Court of Appeal accepted that French procedures had improved sufficiently since January to require future child applicants to endure the conditions pending consideration of their claims. The court didn’t deign to comment on UNHCR evidence that most claims took more than six months.   Even on the evidence of the French authorities, such a claim would take months to process while the children waited in the Jungle, at risk of further violence and exploitation. The Upper Tribunal had found last January that the French weren’t making any real efforts to facilitate asylum claims from the Jungle refugees, describing the French authorities’ measures to facilitate asylum claims or applications to be united with family members in other European states as “acutely inadequate”. The Court of Appeal accepted the evidence of the Home Office and their French counterparts that whatever problems there had been in the past, there was a clear and timely process for dealing with their asylum claims now. No need to extract them from the Jungle, it found, at least not to bring them to the UK. People who worked in the camps with the refugees disagreed, and gave evidence of their own clients’ frustrations at lodging a claim.

Paragraph 37 of the Court of Appeal judgment refers to these children’s cases as “very special facts”, but they aren’t. Nearly one hundred thousand unaccompanied children fled to Europe last year. Thousands of them become exploited and enslaved, even here in the UK. Volunteers in the Jungle, who provide social services to the children of the camps because the French won’t, talk about the heartbreak of realising another child has disappeared. Maybe they made it onto a lorry, but maybe they have been abducted by people traffickers.

One of the risks to children in the Jungle is the French police. There isn’t a single reference to the well-documented police brutality in either the determination of the UT or the CA judgment. It isn’t a secret and it isn’t new; in 2012, the French statutory ombudsman Défenseur des Droits reported on incidents of harassment between 2009 and 2011 by the police against migrants in Calais, including children. That report may not have assisted the courts in this case, but in a follow-up report dated 3 November 2015, while these children were still there, the Défenseur complained of the general failure of the police to respond adequately to the recommendations made in the 2012 report. Despite police acceptance of some of the criticisms of 2012, and the police abuse against the inhabitants of the camps continued and had actually gotten worse. At page 75 the report says,

It should be noted that the most recent allegations (for 2015) essentially relate to allegations of violence, in much greater volume than the types of actions which have been complained of up until now.

The evidence in the public domain of police violence in the Jungle is abundant. More than 40% of the people in the camps claim to have been assaulted by French police. A Bar Human Rights Committee Report, released in July 2016 but based on evidence that was publicly available at the time the Court heard the case, documents the fear the inhabitants have of the nightly tear gas attacks and beatings arbitrarily meted out. But the Court called the children’s fear of the French authorities “subjective”.

At the time the Court of Appeal heard the case in June 2016, there were hundreds of unaccompanied children living in the Jungle, all of them at risk. At that time, just a few months ago, the total population of the Jungle was half what it is now. The Court of Appeal’s judgment forces hundreds more children to remain in the camps for months, caught between the people traffickers and the French police’s tear gas and batons, until the French authorities take action on their claims for asylum or to join families elsewhere in Europe. The law is hard indeed.

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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Jared Ficklin

Jared Ficklin is a lecturer at the University of Liverpool School of Law and Social Justice, and co-director of the Liverpool Law Clinic.