ON APPEAL FROM THE QUEEN'S BENCH DIVISION
MR JUSTICE DAVIS
REF NO: CO19952009
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE MOSES
MRS JUSTICE BARON
| THE QUEEN ON THE APPLICATION OF MA, BT, DA
|- and -
|SECRETARY OF STATE FOR THE HOME DEPARTMENT
|- and -
|The AIRE Centre
Mr Stephen Knafler QC and Ms Bryony Poynor (instructed by Paragon Law) for the third Appellant (DA)
Mr Steven Kovats QC (instructed by Treasury Solicitor),) for the Respondent
Written submissions by Catherine Meredith (instructed by Freshfields Bruckhaus Deringer LLP) for The AIRE Centre, Intervener
Crown Copyright ©
Lord Justice Maurice Kay :
This is the judgment of the Court
" is the unaccompanied minor liable to be so removed under Article 6 of Council Regulation EC343/2003 (Dublin II) to the Member State where [he or she] first lodged his or her application? The position of the Secretary of State is that unaccompanied minors in such a situation are liable to be removed. The position of the [appellants] is that they are not and that the Member State responsible for determining their applications for asylum is the one where the unaccompanied minors have most recently lodged their applications: that is to say, in the present cases, the United Kingdom."
The judgment of Davis J
"In a Dublin II context the Secretary of State is not, in the case of unaccompanied minors, invariably required first to take into account, before seeking to transfer, concrete transitional planning with regard to such minors in the proposed receiving Member State. Such requirement, in my view, only arises in circumstances where cogent grounds are adduced so as to call for such matters to be taken into account before such removal is to be effected."
He refused permission to appeal on this issue but permission was subsequently granted by Sullivan LJ in the light of the supervening Supreme Court decision in ZH (Tanzania) v Secretary of State for the Home Department  UKSC 4, which had led Mr Stephen Knafler QC, on behalf of the appellants, to reformulate their case to take account of what Baroness Hale said in that case (at paragraphs 26-29).
Issue 1 : construction of Article 6 of Dublin II
"it is appropriate at this stage, while making the necessary improvements in the light of experience, to confirm the principles underlying the [Dublin] Convention."
Dublin II was anticipated by the conclusions of the Council at a meeting in Tampere in October 1999, when it was agreed to work towards a Common European Asylum System. Recitals (3) and (4) state:
"(3) The Tampere conclusions also stated that this system should include, in the short term, a clear and workable method for determining the Member State responsible for the examination of an asylum application.
(4) Such a method should be based on objective, fair criteria both for the Member States and for the persons concerned. It should, in particular, make it possible to determine rapidly the Member State responsible, so as to guarantee effective access to the procedures for determining refugee status and not to compromise the objective of the rapid processing of the asylum applications."
1. Member States shall examine the application of any third-country national who applies at the border or in their territory to any one of them for asylum. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.
2. By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation "
The Secretary of State maintains that she has now agreed to examine the applications of the appellants by reference to this derogation.
1. The criteria for determining the Member State responsible shall be applied in the order in which they are set out in this Chapter.
2. The Member State responsible in accordance with the criteria shall be determined on the basis of the situation obtaining when the asylum seeker first lodged his application with a Member State.
When the applicant for asylum is an unaccompanied minor, the Member State responsible for examining the application shall be that where a member of his or her family is legally present, provided that this is in the best interests of the minor.
In the absence of a family member, the Member State responsible for examining the application shall be that where the minor has lodged his or her application for asylum."
The case for the appellants
i) In Article 5.2, and also in Article 4.1, the draftsman used the words "first lodged". If it had been intended to refer to the first application in the second paragraph of Article 6, the same wording would have been used.
ii) Although this novel construction would mean that unaccompanied minors were being treated in a wholly different way from other applicants, there are good reasons why that should be so. Unaccompanied minors are particularly vulnerable and it is appropriate that they should have their applications considered as soon as possible and without further unwanted travel. By definition, they have no family anywhere in the EU and they may have had bad experiences in the first Member State which prompted their further flight. Indeed, if her factual case is correct (as to which there is as yet no determination), BT's history is a graphic illustration of such a background. Unaccompanied minors are placed first in the hierarchy of criteria set out in Articles 6-12 and it is not surprising if there is something exceptional about their treatment.
iii) It is not a point against this approach that Article 5.2 refers to "the basis of the situation obtaining when the asylum-seeker first lodged his application with a Member State". That deals with the point in time in relation to which the application is to be judged, not the venue for its determination.
iv) Although there are parts of Dublin II which plainly contemplate the removal of accompanied minors with their asylum-seeking families to the country of first lodging (Article 4) or of unaccompanied minors in order that they may join or rejoin family members in another Member State, none of these provisions contemplates the removal of unaccompanied minors without family members in the EU.
v) Anti-abuse provisions (such as those in Article 4) should not be assumed to resonate with the position of unaccompanied minors without family members in the EU. Whilst some such unaccompanied minors are no doubt acting abusively, most or many are not.
i) It is important to construe the second paragraph of Article 6 in the context of Dublin II as a whole. In particular, the words "has lodged" have to be read in conjunction with Article 5.2.
ii) The construction contended for by the Secretary of State is also consistent with the general principles set out in Article 4.
iii) The appellants are seeking to read words into Article 6 so that "has lodged" is read as "has most recently lodged". The Secretary of State's construction requires no such addition and is closer to the natural meaning of the words used.
iv) The appellants' construction was rejected by Lightman J in Mosari (paragraph 12 above) and by Davis J in the present case and is inconsistent with the Proposal of the Commission which preceded Dublin II, which stated at paragraph 2.2:
"the general principle is that responsibility for examining an asylum application lies with the Member State which played the greatest part in the applicant's entry into or residence in the territories of the Member States, subject to exemptions designed to protect family unity."
The Proposal did not exempt unaccompanied minors without family from the general principles of the Dublin convention.
v) Any departure from the basic approach should be pursuant to a derogation under Article 3.2 rather than by an excessively strained construction of the second paragraph of Article 6.
vi) Although there is an absence of direct and binding authority on the point, the Secretary of State's construction is consistent with the recent jurisprudence of the CJEU (Case C-411/10), (NS v Home Secretary and others, in which Advocate General Trstenjak delivered her Opinion on 22 September 2011), the Supreme Court (In re E (Children) (Abduction: Custody Appeal)  2 WLR 1326) and the ECtHR (MSS v (1) Belgium (2) Greece (2011) 53 EHRR 28 (Grand Chamber).
"In Regulation 343/2003/EC establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ L50 25 February 2003, pl), where an applicant for asylum who is an unaccompanied minor with no member of his or her family legally present in another Member State has lodged claims for asylum in more than one Member State, which Member State does the second paragraph of Article 6 make responsible for determining the application for asylum?"
Issue 2: consultation with the receiving Member State
"(1) The Secretary of State must make arrangements for ensuring that
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom
(2) The functions referred to in subsection (1) are
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts or an immigration officer
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State "
The Secretary of State has given such guidance in the form of Every Child Matters: Change for Children ...November 2009).
"Other member states are entitled to assume not conclusively presume, but to start with the assumption that other member states will adhere to their treaty obligations. And this includes their obligations under the European Convention to apply Article 3."
" if the complaint is not about refoulement but about the conditions under which a returned asylum seeker would be held in Greece, that should be taken up with the Greek authorities and, if unsuccessful, before the European court by way of complaint against Greece. It was not a basis for proceedings against the United Kingdom."
Mr Nasseri was not a child and section 55 did not fall to be considered. It was a case about Article 3 of the ECHR and Part 2 of Schedule 3 to the Asylum and Immigration (Treatment of Claimants etc) Act 2004.
"not only to how children are looked after in this country while decisions about immigration, asylum, deportation or removal are being made, but also to the decisions themselves. This means that any decision which is taken without having regard to the need to safeguard and promote the welfare of any children will not be 'in accordance with the law' for the purposes of Article 8.2."