The UK authorities do not emerge with much humanitarian credit from this newly reported tribunal case. For years the government has strenuously resisted the obviously meritorious and compassionate request by a stateless refugee family to be reunited. As a result of blind adherence to strict rules and a deliberately narrow interpretation of EU law, the wife and British child were forced to take desperate measures and risk the dangerous Mediterranean crossing.

Thankfully, this is one refugee story that does have a happy ending. The case is HA & Ors, R (on the application of) v Secretary of State for the Home Department (Dublin III; Articles 9 and 17.2) [2018] UKUT 297 (IAC).

Back in 2005 a stateless Bidoon from Kuwait successfully sought asylum in the UK and was granted humanitarian protection. He eventually became a British citizen in January 2013. He then applied for his wife and child, who was born in December 2013, to join him in the UK. The application was refused because he was now a British citizen, was no longer a refugee, could no longer benefit from the special refugee family reunion rules and therefore had to meet all the normal immigration requirements including the minimum earnings threshold.

This refusal came despite the fact that the wife had a strong claim to be a refugee herself, the child was a British citizen by birth and the husband had no way to live in Kuwait because he and his family were stateless Bidoons. If ever there was a case for the family to be reunited outside the Immigration Rules, this was it.

The wife and child managed to cross to Greece to claim asylum. The Greek authorities suggested to the UK that they be transferred to the UK where they had a family member. This was consistent with the Dublin Regulation, an EU asylum law governing which country should be responsible for deciding an asylum application and which emphasises the importance of family unity.

The UK refused the request of the Greek authorities on the basis that the husband and father was no longer a refugee and therefore the relevant provisions of the Dublin Regulation no longer applied.

The case turned on whether the right to family unity in “Dublin III”, as it is known to lawyers, depends on the family member being a current beneficiary of international protection or whether being a former beneficiary is sufficient. The tribunal came down in favour of the latter interpretation, thankfully for this family. Daniel Rourke of the Migrants’ Law Project at Islington Law Centre, which represented the family, tells me that

Following the judgment, on 26 April 2018, the Home Office agreed to accept responsibility for the asylum claims of the mother and daughter under Art. 17(2) of the Dublin III Regulation. It was a relief to the family that they were able to be reunited in the UK several weeks later, shortly before the birth of the couple’s second child. That does not of course obviate the significant impact of the seven months’ unnecessary delay and uncertainty that the vulnerable mother and child were subjected to as a result of the initial refusal.

I leave you with the particularly obscure official headnote:

(1) Article 9 provides:

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 phrase “who has been allowed to reside as a beneficiary of international protection” in Article 9 of Dublin III is in effect the same as the phrase formerly used in paragraph 352D of the Immigration Rules and following ZN (Afghanistan) [2010] UKSC 21 at [35]. Acquisition of British citizenship by a family member does not alter the fact that he was in receipt of international protection and so article 9 would still apply.

(2) Article 17.2 of Dublin III does not set any specific criteria, but the Dublin Regulations themselves and the CFR provided the general parameters within which decisions must be taken, albeit that the general provisions set out in articles 21 and 22 do not apply. There is, we accept, a wide discretion available to the respondent under the article, but it is not untrammelled, it is for the respondent to consider an application made under article 17.2 through the lens of article 7 CFR and/or article 8 ECHR, taking account also of the best interests of a child. That approach is consistent with the normative provisions in article 16 that where there are issues of dependency within a family life context, the family should be brought together.

(3) The decision impugned in this case was one arising from the exercise of a discretion conferred on the respondent. On that basis, and following Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997, a court should not compel any authority to do more than consider the exercise of a power which is merely permissive and does not impose an obligation to act.

As Daniel mentioned, this case was decided in April, so it seems odd that it has only just been reported.