T & Ors, R (on the application of) v Secretary of State for the Home Department

An unaccompanied minor without a family member legally present in a Member State is liable under Article 6 of Dublin II to removal to the Member State where the minor first lodged an asylum application. The wording of Article 6 must be read with the Regulation’s general principles, including the requirement that one Member State examine the application and the anti-avoidance provisions concerning later applications.

The Secretary of State is not invariably required to obtain or consider concrete post-reception planning arrangements before transferring an unaccompanied minor. A rebuttable presumption applies that another Member State will comply with its obligations under EU law and international treaties. Cogent grounds may require consideration of particular post-reception arrangements before removal.

Three linked judicial review claims concerned unaccompanied asylum-seeking minors who had previously lodged asylum applications in Italy or the Netherlands and had subsequently claimed asylum in the United Kingdom. The Secretary of State proposed removal under Article 6 of Council Regulation (EC) No 343/2003, commonly known as Dublin II.

The principal issue was whether Article 6 made the United Kingdom responsible because each minor had lodged a later application there, or whether responsibility remained with the Member State where the first application had been lodged. A further issue was whether the Secretary of State was required, in every case, to consult the proposed receiving State about transitional or post-reception arrangements and take those arrangements into account before removal.

1. Article 6 of Dublin II. The court accepted the Secretary of State’s construction. Article 6 had to be read in the context of Articles 3.1, 4.1, 4.4, 4.5 and 5.2, which contemplate examination by a single responsible Member State, responsibility arising when an application is first lodged, and safeguards against avoiding responsibility by making a later application. The phrase “has lodged” in Article 6 did not mean “has most recently lodged”. The relevant State was therefore the first State in which the minor lodged an application. R (Mosari) v Secretary of State for the Home Department [2005] EWHC 1343 Admin supported that conclusion. (paras [47]-[53])
2. The vulnerability and welfare of unaccompanied minors did not justify reading a materially different policy into Dublin II. Those matters were addressed through the Regulation’s consultation provisions, related EU instruments, the general presumption of co-operation between Member States, and the discretionary power in Article 3.2. Each claimant was accordingly in principle liable to removal under Article 6. (paras [51]-[55], [85])
3. Post-reception arrangements. Dublin II and Regulation 1560/2003 required consultation about the transfer itself, including its timing, place and practical arrangements. They did not impose an invariably applicable duty to consult about post-reception or transitional planning arrangements. Those matters were principally addressed by the Reception Directive and other applicable instruments. (paras [59]-[61])
4. A sending State may ordinarily rely on a rebuttable presumption that the receiving Member State will comply with EU law, applicable directives and international treaties. The presumption does not prevent consideration of post-reception arrangements where cogent grounds are advanced in the particular case. The Secretary of State was not required in every case to compare the concrete arrangements in the United Kingdom with those in the receiving State. R (Nasseri) v Secretary of State for the Home Department [2009] UKHL 23 and [2010] AC 1 were applied. (paras [63]-[75], [81]-[84])
5. Section 55 of the Borders, Citizenship and Immigration Act 2009 applied to Dublin II removal decisions, but it did not itself displace the rebuttable presumption or require consultation about receiving-State post-reception arrangements in every case. Paragraph 26.4 of the Enforcement Instructions and Guidance did not govern Dublin II removals in the manner contended for; Chapter 28 reflected the specific Dublin II regime. The court respectfully disagreed with any contrary indication in R (J) v Secretary of State for the Home Department [2009] EWHC Admin 1182. (paras [67]-[78])
6. MA’s claim was dismissed. The balance of BT’s and A’s claims was adjourned for further consideration with liberty to apply. No declaratory relief was granted and there was no order as to costs. Permission to appeal was granted on the Article 6 issue but refused on the second issue. (paras [159]-[170], [188]-[204])

First-instance judicial review proceedings. The judgment records that permission to appeal was granted on the Article 6 issue and refused on the consultation issue.