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New case on children seeking entry under the Dublin Regulation


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Official headnote:

(I) The question of whether the Secretary of State has made a decision on the exercise of the discretionary power in Article 17 of the Dublin Regulation is one of fact which will be determined on the basis of evidence, direct or inferential.

(II) Article 17 is an integral part of the Dublin regime. The suggestion that the Article 17 discretion falls to be exercised only where the family reunification criteria in Article 8 are not satisfied is misconceived.

(III) Article 17 has a role in circumstances where one of the overarching values of the Dublin Regulation, namely expedition, is not being fulfilled in the procedures and systems of the host Member State.

(IV) Relevant government policy statements constitute, as a minimum, material considerations to be taken into account in deciding whether to exercise the discretionary power in Article 17. The Lumba principle is also engaged.

(V) The judicial assessment of the efficacy of the Dublin systems and procedures in the host Member State will invariably be fact sensitive and will take into account the overarching aims and objectives of the Dublin Regulation, including the maintenance of inter-Member State solidarity and mutual trust and respect, together with expedition.

(VI) Expedition has special force in the case of unaccompanied children.

(VII) The discretion to judicially determine essentially academic issues in judicial review proceedings will normally be informed by the overriding objective.

Source: R (on the application of RSM and Another) v Secretary of State for the Home Department (unaccompanied minors – Art 17 Dublin Regulation – remedies) [2017] UKUT 124 (IAC)

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Colin Yeo

Immigration and asylum barrister, blogger, writer and consultant at Garden Court Chambers in London and founder of the Free Movement immigration law website.