A v Secretary of State for the Home Department

Permission to appeal in a Dublin II Regulation case should be granted where proposed constructions are arguable and have a real prospect of success. The term “guardian” is not necessarily confined to a person with formal legal responsibility. The use of “legal guardian” elsewhere in the Regulation may support a wider construction. The meaning of the situation obtaining when an asylum application was first lodged may also require consideration. If those issues alter the proposed destination and family-life analysis, proportionality under article 8 of the ECHR may require reconsideration.

A 16-year-old unaccompanied applicant from Somalia sought permission to challenge removal directions and certification of his article 8 claim under section 93.2(b) of the 2002 Act. He had first claimed asylum in Italy, but had a half-sister and a brother in the United Kingdom whom he sought to characterise as his guardian under article 2(2) of the Dublin II Regulation.

Toulson J refused permission to apply for judicial review in the Administrative Court on 25 November 2005. Keene LJ refused permission to appeal on the papers. The renewed application concerned the meaning of “guardian” and the situation to be considered when the first asylum application was lodged.

1. Appeal allowed. Permission to appeal was granted because both proposed points of construction had a real prospect of success. Neither submission could be said to have no such prospect.
2. Article 6 of the Dublin II Regulation concerns the Member State responsible for an unaccompanied minor where a family member is legally present, provided that this is in the minor’s best interests. Article 2(2) includes the guardian of a minor and unmarried applicant, but “guardian” is undefined.
3. The narrow construction adopted by Wilson J in G, confining “guardian” to formal legal responsibility, did not make the wider construction unarguable. The use of “legal guardian” in article 15 supported an arguable distinction. Responsibility by law or custom might be relevant.
4. The proposed construction of article 5.2, referring to the situation truly obtaining when the asylum application was lodged whether or not then discernible, was not self-evidently correct but merited consideration. The issue was recurring and affected the welfare of minors.
5. Toulson J’s article 8 proportionality conclusion was reached on the basis that removal would be to Italy and that there was no relevant family life in the United Kingdom. If both construction points succeeded, removal would be to Somalia and proportionality would require reconsideration.
6. The matter was to proceed as a substantive appeal in the Court of Appeal rather than be remitted for a substantive judicial review hearing, since the High Court would face persuasive authority from Wilson J and a further appeal might follow.

• Court of Appeal (Civil Division): In [2006] EWCA Civ 676, the renewed application succeeded. Permission was granted for a substantive appeal in this court.
• Administrative Court, Queen’s Bench Division: Toulson J refused permission to apply for judicial review on 25 November 2005.
• Court of Appeal (Civil Division): Keene LJ refused permission to appeal on the papers on 11 April 2006.