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

The meaning of Article 6 of Dublin II was not acte clair where an unaccompanied minor with no family in the European Union had lodged asylum applications in more than one Member State. The Court of Appeal therefore referred the construction question to the CJEU under Article 267. An appeal may be heard despite becoming academic where the issue is important, other cases await clarification, or a live issue remains. The court indicated that section 55 of the Borders, Citizenship and Immigration Act 2009 applies to removal decisions concerning children, but declined to determine the precise scope of any consultation duty without an established factual basis.

Three unconnected appellants arrived in the United Kingdom as unaccompanied minors and claimed asylum after previously claiming asylum in another European Union Member State. None had a relevant family member legally present in the European Union.

Before the Administrative Court, Davis J held that Article 6 of Dublin II made the Member State where each minor had first lodged an application responsible, and rejected a proposed duty to consult the receiving State about reception arrangements. Permission to appeal on the second issue was later granted following ZH (Tanzania). By the time of the appeal, the appellants’ asylum claims were to be determined substantively in the United Kingdom, but the issue remained important and a damages claim survived. The central questions were the proper construction of Article 6 and the scope of the domestic welfare duty on removal.

Disposition. The court declined to give a final construction of the second paragraph of Article 6. It ordered a reference to the CJEU under Article 267 of the Treaty on the Functioning of the European Union, subject to further assistance from counsel on the precise terms. It made no order on the consultation issue.

1. Academic appeals. Although the appellants’ individual removal issues had largely become academic, the court considered the point sufficiently important to hear. Other cases remained stayed pending clarification, and a damages claim remained live. The court applied the principles in R v Secretary of State for the Home Department, ex parte Salem [1999] 1 AC 450.
2. Article 6. It was common ground that Article 6 was comprehensive for unaccompanied minors within the hierarchy of criteria. Articles 7–14, including the first-Member-State rule in Article 13, therefore did not govern a child within Article 6. Article 5.2 appeared to operate temporally, by fixing the factual situation when the first application was lodged, rather than necessarily determining the venue for examination under Article 6.
3. The court recognised competing linguistic and purposive arguments. The general anti-abuse objectives and recitals of Dublin II could not override specific provisions properly construed. The authorities relied upon did not make the Secretary of State’s construction clear. Applying the approach in R v International Stock Exchange of the United Kingdom and the Republic of Ireland, ex parte Else (1982) Limited [1993] QB 534, the court could not accept that construction with complete confidence. The question was not hypothetical and had a sufficient factual foundation, applying Landesgrundverkehrsreferent der Tiroler Landesregierung v Beck [1999] ECR I-4977.
4. Consultation and welfare. It was common ground that section 55 of the Borders, Citizenship and Immigration Act 2009 was engaged when deciding whether to remove a child under Dublin II or to exercise the Article 3.2 derogation. In light of ZH (Tanzania) [2011] UKSC 4, the child’s best interests were a primary consideration, though not the paramount consideration. The court did not finally decide whether section 55 required consultation about specific reception arrangements in every case. The absence of established facts, the academic nature of the issue, and the possibility that the CJEU reference would resolve its practical significance made it inappropriate to say more.

• Court of Appeal (Civil Division). Heard the conjoined appeals and referred the Article 6 construction question to the CJEU under Article 267. The court made no order on the second issue.
• Administrative Court. Davis J held that Article 6 required removal to the Member State where the minors had first lodged asylum applications and rejected the proposed consultation duty: [2010] EWHC 3572 (Admin).