Guidance for lone asylum seeking minors held unlawful

R (Safe Passage International) v Secretary of State for the Home Department [2021] EWHC 1821 (Admin) (02 July 2021) 

In these proceedings, Dingemans LJ and Dove J held that policy guidance issued by the SSHD to Home Office caseworkers concerning the application of Regulation 604/2013 (Dublin III) to unaccompanied minors seeking asylum in the UK was unlawful in part. The challenge was to three policy guidance documents published by the SSHD, entitled Dublin III Regulation Policy Guidance, version 3.0 (Policy v.3) published for Home Office staff on 30 April 2020, Dublin III Regulation Policy Guidance, version 4.0 (Policy v.4) published for Home Office staff on 14 August 2020 (replacing Policy v.3), and Requests made to the UK under the Dublin III Regulation prior to the end of the Transition Period, version 1.0 (Policy v.5) published for Home Office staff on 31 December 2020 (replacing Policy v.4) and set out how the Dublin III Regulation would apply in the UK following the end of the transition period for leaving the EU. Parts of Dublin III continued to apply pursuant to the Immigration, Nationality and Asylum (EU Exit) Regulations 2019, (the 2019 Regulations), made pursuant to powers in the European Union (Withdrawal) Act 2018, so that outstanding requests under Dublin III could be processed. The challenge was brought by Safe Passage International which provides help to unaccompanied asylum seeking minors (UAMs) who are also known as unaccompanied asylum seeking children (UASCs) and are among the most vulnerable persons in society. Safe Passage submitted that the guidance set out in each successive policy document was unlawful on three main grounds.

First, it argued that the guidance inaccurately states the investigatory duties imposed by the Dublin III on the UK following receipt of a Take Charge Request (TCR) from another Member State. It was submitted that the relevant guidance provides only for information to be obtained from the local authority once the family link had been established, which came too late in the process to allow for relevant information to be obtained to inform the assessment. It was said that there was no process for case workers to give UAMs notice of concerns before refusing TCRs, which had led to errors in a number of cases. Further it was said that the use of the word “onus” in the guidance was inaccurate. Secondly, it was said that the guidance wrongly states that TCRs can be summarily refused if the SSHD’s investigation has not been completed within the two month time limit imposed by Dublin III. Thirdly, it was said that the guidance sets out a practice in relation to re-examination requests which is unlawful because it misapplies the decision of the Court of Justice of the European Union (CJEU) in the case of X and X v Staatssecretaris van Veiligheid en Justitie (C‑47/17 and C‑48/17, ECLI:EU:C:2018:900). The SSHD submitted that the challenges to Policy v.3 and v.4 of the guidance should not be entertained as those versions had been superseded and had been rendered academic. She also sought permission to rely on a late witness statement from the head of the European Intake Unit (EIU) at the Home Office. 

Lord Justice Dingemans

Giving the judgment, Dingemans LJ granted the application for judicial review. As to the late admission of the witness statement, by Julia Farman head of EIU, it set out details of the numbers of applications processed since 31 December 2020 and practices employed by caseworkers which were different from v.5, which applied at the time. 

The SSHD argued that the statement was responding to evidence from the charity relating to disclosure and that it discharged her duty of candour because it demonstrated that there had been a variation in practice regarding refusals of applications from March 2021. The court said that the statement should have been served in line with the directions timetable. Procedural rigour applied to public law cases as in any other case and there was no good reason not to have served the statement on time on 31 March. This was so as the relevant change of practice reported to have occurred after 1 March 2021 had already occurred and details of the processing of applications connected to UAMs decided after 31 December 2020 could have been provided to that date. But after considering all the circumstances of the case, Dingemans LJ held that:

72. … in my judgment, appropriate to admit the statement. This is because the statement does provide updating information about the practices operated by the case workers after 1 March 2021, and the evidence (together with the earlier evidence) serves to illustrate the issues raised by the challenge to the Policy Versions. It was apparent that both parties were able to deal fairly with the material. The Secretary of State must bear the costs consequences of making this application late.

As to the next issue, namely whether the court should consider challenges to Policy v.3 and v.4, the SSHD submitted that the court should not entertain the challenges to Policy v.3 and v.4 because they had been overtaken by Policy v.5 and the challenge was academic. Safe Passage submitted that the claim had been brought promptly. Safe Passage had asked for expedition of the hearing, the challenge was to Policy v.3 and then amended to add in the later versions, and permission to apply for judicial review to challenge all the policy versions had been granted, and Safe Passage was entitled to an adjudication of the claim. Dingemans LJ held that:

74. In my judgment this court should consider the challenges to Policy v.3 and v.4, in addition to the challenge to Policy v.5. This is because permission to apply for judicial review had been granted to bring the challenge to all the Policy Versions, the claims have not been compromised, and Safe Passage was entitled to a determination of the challenge in circumstances where the challenge to Policy v.5 was a development of the challenges to Policy v.3 and v.4, so that the time taken to consider the separate challenges would not be increased.

Next, Dingemans LJ examined the erroneous advice set out in the two parts of the policy guidance. First of all, that part of v.3 which directed that information should be obtained from a local authority only once the family link had been established. Concerns about creating extra work for local authorities had been a point of concern for the Home Office, but there was evidence that local authorities welcomed early involvement in investigating TCRs. Dingemans LJ held that:

76. In my judgment that part of the Policy v.3 which directed that information should be obtained from a local authority only once the family link had been established was erroneous in law. It is apparent from the evidence before the Court that concerns about creating extra work for local authorities had been a point of concern for the Home Office, although there was also some evidence that local authorities welcomed early involvement in investigating TCRs.

In R (FWF) v SSHD (JR/1626/2019), the UT had stated that the local authority should be involved on receipt of the TCR, but there were other dicta from the UT in other cases that the SSHD’s investigatory duty upon receiving a TCR was a duty to conduct a reasonable investigation, not an absolute one. 

As to erroneous advice in the policy guidance, two parts of the policy guidance contained erroneous advice. First that part of v.3 which directed that information should be obtained from a local authority only once the family link had been established. Further, concerns about creating extra work for local authorities had been a point of concern for the Home Office, although there was evidence that local authorities welcomed early involvement in investigating TCRs. The court applied R (MK and IK) v SSHD [2016] UKUT 231 (IAC) to hold that there was an investigative duty on the SSHD, acting through her caseworkers, to act reasonably in carrying out that duty. 

It was common ground that there was an investigative duty on the SSHD which required her, acting through the case workers, to act reasonably in carrying out that duty. The court agreed that it would not be in every case that a local authority would need to be involved before a family relationship had been established, but in the court’s view the guidance in question misstated the law when it said (at page 44) that “The European Intake Unit (EIU) will work with the local authority in which the family member, sibling or relative of the child is residing. Local authorities will be requested to undertake an assessment with the family or relative(s) once the family link has been established …” (emphasis added). 

Dingemans LJ deciphered that this advice established a bright line that the local authority should not undertake an assessment with the family or relative until the family link had been established. As the evidence before the court, and some of the decided cases showed, the local authority’s assessment assisted the SSHD in making an informed decision about whether there was a family link, and whether the request should be accepted. The creation of the bright line was therefore an erroneous statement of the law and his Lordship held:

77. In my judgment it was not saved by other references to the investigative duty, for example, at page 16 that “the Dublin state shall as soon as possible take appropriate steps to identify family members and may call for the assistance of international or other relevant organisations …”. This is because that general guidance did not alter the specific bright line established by the guidance that local authorities should not be involved unless and until a family link had been established.

Notably, local authority assessments assisted the SSHD in making an informed decision about whether there was a family link and whether the request should be accepted and the creation of the bright line was therefore an erroneous statement of the law. However, the court considered R (FWF) and R (BAA) v SSHD [2020] UKUT 227 (IAC) and noted that v.4 removed that bright line guidance and the unlawful guidance was limited to v.3 in that respect. 

The court noted that the second erroneous part of the guidance related to the expiry of the two-month time limit where it had not been possible to establish whether a family link had been established or whether it would be in the UAMs’ best interests for the claim for international protection to be determined in the UK. Dublin III required Member States to carry out investigations on a TCR quickly to enable the process for the commencement of international protection. On the other hand, the guidance did not provide for a TCR to be rejected only if all reasonable endeavours to complete inquiries had been used. The advice in v.3 was thus wrong in law because it provided for TCRs to be rejected where inquiries were incomplete in light of the application of the decision in X and X v Staatssecretaris van Veiligheid en Justitie. Amendments made to v.4 and v.5 had not removed that advice.

Safe Passage identified that it was seeking: declarations that Policy v.3, v.4 and v.5 were unlawful; a quashing order in respect of Policy v.5; and a direction that the SSHD notify and send the judgment and order to member states and relatives of UAMs who received refusals of TCRs when the unlawful guidance was in place. The SSHD said that all the relief sought should be refused. As to remedy, the court explained that the right order to make was a declaration identifying the specific parts of the guidance which were wrong in law. It was not appropriate to make a quashing order in respect of v.5, as substantial parts of the guidance were not erroneous. It was also inappropriate to order the SSHD to notify the terms of the judgment to Member States and relevant family members in the UK. It was for the SSHD to give practical effect to the declaration made. 

Comment 

In light of Brexit, Dublin III transfers are no longer on the cards. Nonetheless, the court found that the Home Office policy on deciding family reunion applications was unlawful and significantly distorted the law. According to Safe Passage, more than 500 UAMs had their applications to reunite with their family in the UK under the EU’s family reunion rules rejected last year.

They were then stranded alone in Europe during a global pandemic, instead of being safe with their families and the Home Office must reconsider these cases and reunite families previously wrongly turned away.

“Those children who had family reunion claims wrongfully refused can now ask for their cases to be re-examined by the Home Office in order to be reunited with their loved ones” and Jennine Walker of Safe Passage emphasised that court action should not have been needed for Home Office to decide applications fairly and lawfully, and she  urged the UK “to put these wrongs right by swiftly reuniting those refugee families whose applications were refused.”

About Asad Ali Khan, BA, MSc, MA, LL.B (Hons), LL.M

Senior Partner, Khan & Co, Barristers-at-Law
This entry was posted in Asylum, Brexit, Children, CJEU, Judicial Review and tagged , , , , , . Bookmark the permalink.

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