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

Same-day removal of an unaccompanied child under the Dublin Regulations, without a meaningful opportunity to contact a lawyer, social worker or other adviser, is unlawful. The child’s welfare must be treated as an important consideration. Where there is a real risk of absconding, appropriate detention may be preferable to removal without allowing access to advice. Removal arrangements must ensure that the receiving state will provide appropriate care and immediate support. The construction of Article 6 of the Dublin Regulations remained arguable and required determination at a full hearing.

Two judicial review claims concerned unaccompanied Eritrean children who had entered the United Kingdom and were liable to return to Italy under the Dublin Regulations. T had already been removed by an early-morning same-day process. M’s removal had been attempted, including the use of handcuffs, but was prevented.

The claims challenged the lawfulness of the removal process, the construction of Article 6 of the Dublin Regulations, the consultation requirement in Article 21(d), and the certification of claims concerning Article 3 and conditions for unaccompanied children in Italy. The court considered whether permission should be granted and what immediate relief was required.

1. Permission and unlawful removal. Permission was granted on all grounds. The same-day removal of T, carried out without any opportunity to contact a lawyer, social worker or other person able to assist, was unlawful. The process was also inconsistent with the Home Office arrangement that three days should ordinarily be allowed for advice and contact with a lawyer.
2. Welfare and safeguards. Under section 55 of the 2009 Act, the welfare of the child was an important consideration. The treatment of M, including handcuffing and physical injury, was wholly inconsistent with that obligation. Before removing an unaccompanied child, the Secretary of State had to ensure that suitable reception and care arrangements existed in the receiving state, including immediate access to appropriate support.
3. Detention and contact. Although detention of minors was generally undesirable, a genuine and appropriate fear of absconding could justify suitable detention if necessary to preserve the child’s opportunity to obtain advice. The court identified no conceivable justification for the same-day removal process in the circumstances presented.
4. Dublin Regulations. The argument that Article 6 prevented the removal of unaccompanied minors was arguable. The difference between Article 5, which referred to the state where the asylum seeker first lodged an application, and Article 6, which omitted the word first, did not clearly establish the claimant’s construction. The issue required determination at a full hearing. The construction of Article 21(d) was likewise identified as a discrete issue not requiring evidence.
5. Relief and case management. T’s removal was declared unlawful and an order was to be drawn requiring best endeavours to return her as soon as possible and, in any event, within 14 days. The remaining issues, including Article 3 and the safety of Italy for unaccompanied minors, required further evidence and could, if necessary, be separated or considered by the appropriate tribunal. The court emphasised the need for expedition.

The judgment is a first-instance Administrative Court decision. It refers to an earlier order by Blake J in T, but no appellate decision is stated.