B & Anor, R (on the application of) v Secretary of State for the Home Department & Anor

In a Dublin II transfer case, a challenge based on articles 8, 9 or 14 to the receiving state’s religious-dress law requires a flagrant violation: a nullification or destruction of the essence of the right. Courts should be very slow to invalidate legislation of a democratically elected foreign legislature, although exceptional assessment may be appropriate. The restriction imposed by French Law 2004-228 was not even a Convention violation. It applied only in public schools, involved expulsion rather than criminal punishment, and left alternative education and religious observance available. Section 55 of the Borders, Citizenship and Immigration Act 2009 makes the child’s best interests a primary, but not paramount, consideration. It does not require remaining in the UK where removal with the primary carer is proportionate to immigration control and Dublin II.

The appellants, an Iranian father and his daughter, challenged the Secretary of State’s decision to remove them to France under the Dublin II Regulation, which had accepted responsibility for their asylum claims. Their original challenge concerned French Law 2010-1192, but permission to appeal was limited to articles 8, 9 and 14 of the Convention by reference to French Law 2004-228, and to section 55 of the Borders, Citizenship and Immigration Act 2009.

Hickinbottom J dismissed the judicial review claim in the Administrative Court: [2013] EWHC 2281 (Admin). The appeal concerned whether removal exposed the daughter to a sufficiently serious violation of her Convention rights because she might be excluded from French public schools while wearing religious clothing, and whether the Secretary of State had properly considered her best interests.

The Court of Appeal unanimously dismissed the appeal.

1. Foreign legislation. A UK court should be very slow to hold that legislation enacted by a democratically elected legislature of another European Union member state is incompatible with the Convention. The caution illustrated by R (Begum) v Denbigh High School [2006] UKHL 15 did not remove the power to assess compatibility. Exceptional circumstances might justify such an assessment.
2. Qualified Convention rights. In a foreign case, removal alleged to breach a qualified right such as article 8 or 9 requires a stringent flagrancy threshold. Flagrancy means nullification or destruction of the very essence of the right, as explained in R (Ullah) v Special Adjudicator [2004] 2 AC 323 and Mamutkulov and Askarov v Turkey (2005) 41 EHRR 494. The Strasbourg decisions concerning the six conjoined applications relating to the French law, together with Sahin v Turkey (2007) 44 EHRR 5, showed that the restriction was not even a violation, still less a flagrant one. The law applied only in public schools, imposed expulsion rather than criminal punishment, allowed education by other means, and did not prevent religious observance at home or in places of worship.
3. Dublin II. The Dublin II Regulation supports a clear and foreseeable allocation of responsibility between Member States. In the alternative Article 3 analysis, the court treated EM (Eritrea) v SSHD [2014] UKSC 12 as confirming that a significant evidential presumption of compliance may be rebutted by evidence of a real risk of ill-treatment, and that systemic deficiencies are not indispensable. That discussion was unnecessary to the result under articles 8, 9 and 14. The evidence did not come close to rebutting any presumption of French compliance.
4. Section 55. Under section 55 and article 8, the child’s best interests are integral to proportionality and are a primary, but not paramount, consideration. They must be assessed carefully before being weighed against other considerations. No other consideration is inherently more significant, although the best interests may be outweighed cumulatively. The Secretary of State considered the daughter’s circumstances, her continued care by her father, the availability of alternative education, and the need for effective immigration control and implementation of Dublin II. Section 55 did not require her to remain in the UK merely because she preferred to do so or because education might be better there. The section 55 challenge therefore also failed.

1. Court of Appeal (Civil Division): The appeal was dismissed. The court rejected the Convention and section 55 challenges.
2. High Court, Queen’s Bench Division, Administrative Court: Hickinbottom J dismissed the judicial review claim in its entirety: [2013] EWHC 2281 (Admin).