In R (RSM (A Child)) v Secretary of State for the Home Department [2018] EWCA Civ 18 the Court of Appeal considered the ambit of Article 17 of the Dublin III regulation, the so-called “discretionary clause”, and found it to be narrow indeed.

The challenge

RSM, an unaccompanied child in Italy as a result of his mother and brother having drowned in the Mediterranean, wished to join his aunt, who is a recognised refugee in the UK. Unlike the children of the Calais “jungle” in Secretary of State for the Home Department v ZAT and others [2016] EWCA Civ 810, RSM had claimed asylum in the EU member state in which he found himself. But Italy had made no “take charge” request to the UK under Dublin III.

Therefore RSM’s aunt, as his litigation friend, asked the Secretary of State to use the discretion that was said to exist under Article 17(1) to take over the young man’s asylum case. The judicial review was of the Secretary of State’s failure to do so.

Article 17(1) provides:

1. By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation.

The Upper Tribunal found in favour of RSM and ordered the Secretary of State to admit him to the UK. By the time the Secretary of State’s appeal reached the Court of Appeal, Italy had made a take charge request and UK had accepted it, but the court agreed to hear the case anyway.

The judgment

The Court of Appeal was critical of all aspects of the Upper Tribunal’s approach. It held that Article 17(1) has no application where a person is not present in the UK. The word “lodged” in Article 17(1) means lodged in the UK; the asylum seeker must be within the jurisdiction.

Lady Justice Arden, giving the leading judgment, expressed concern that any other approach would undermine the objectives and smooth operation of Dublin III and could also result in insufficient consideration being given to the best interests of the child, which the host state is best placed to determine (paragraph 120). The court held that “the policy of Dublin III is to be found in the principle of mutual confidence, which is a fundamental tenet of EU law” (paragraph 122).

The Court of Appeal was also critical of a mandatory order having been used as a remedy.  It held that the tribunal ought first to have considered remitting the matter to the Secretary of State for consideration. The terms of the order, besides being insufficiently precise, failed to make clear that it was not intended to interfere with the processes in another member state, an echo of the earlier “mutual confidence” point (paragraphs 161 to 165).

The Court of Appeal disagreed with the Upper Tribunal’s finding that RSM’s case reached the threshold for invoking Article 8 as identified in ZAT. The test is no “less onerous when the asylum seeker engages with the system” (paragraph 143).

Again, the principle of “mutual confidence” comes to the fore: the time taken by Italy was not unacceptable (paragraph 142) and the Italian authorities should be trusted to make the appropriate decisions. RSM had arrived in Italy in April 2016 and the transfer request was made in January 2017. His mental condition did not make it “imperative” to take “even more urgent action” (paragraph 143).

The Court of Appeal also expressed the view, obiter, that ministerial statements made by the government in the course of attempting to fight off the “Dubs amendment”, the clause that became section 67 of the Immigration Act 2016, were too general to give rise to remedies in public law (paragraph 131). Statements such as

we want to make rapid progress… we want to find ways of improving the process further so that, when cases are identified, we can take charge and ensure that these children come to the UK quickly

were, as many such as the author suggested at the time, “too general” to constitute policy statements which the decision-maker was bound to follow under the principle in Lumba v Secretary of State for the Home Department [2011] UKSC 12.

In his concurring opinion, Lord Justice Singh cities Beatson LJ in ZAT: “only after it is demonstrated that there is no effective way of proceeding in that jurisdiction should they turn to the authorities and courts in the United Kingdom”.

Challenging Dublin III

The UK’s judicial review jurisdiction offers the opportunity to air a broad range of arguments to give effect to the rights that the Dublin III procedure confers on individuals. These are discussed in the Free Movement course on Dublin III, citing cases such as C-63/15 Ghezelbash and R (EM (Eritrea) and others) v Secretary of State for the Home Department [2014] UKSC 12.

There are lawyers ready, willing and funded to bring these challenges in the UK and a tradition of public interest challenges. But in ZAT and in RSM, the Court of Appeal has first confined, and then arguably squashed, the attempts of advocates and the Upper Tribunal to make the UK the jurisdiction of choice for injecting a purposive, human rights based approach into the bureaucratic Dublin procedure.

Criticism is arguably better directed at the bureaucratic Dublin procedure than at the Court of Appeal. It is unlikely, however, that efforts in the UK will switch from legal challenges to advocacy for the time being: Brexit means that the UK will not be party to Dublin IV and it is not known yet whether it will be able to negotiate any similar arrangement with the EU. There is also a strong case for trying to increase legal challenges to Dublin III in other EU jurisdictions.