Secretary of State for the Home Department v ZAT & Ors (Syria)

The procedures for determining responsibility under the Dublin III Regulation coexist with rights under article 8 of the European Convention on Human Rights. However, a person who has not invoked those procedures in the Member State where they are present may bypass them only in an especially compelling case.

Objective reasons must ordinarily demonstrate that the first Member State cannot respond adequately. Recourse should generally first be sought from its authorities and courts. An exception may arise where particular urgency or the compelling circumstances of an unaccompanied minor clearly show that the Dublin process cannot operate quickly enough. Any direct application to the United Kingdom must provide the information needed for a proper assessment, including identity, age, relationships and biometric data.

The Secretary of State appealed from an order of the Upper Tribunal, reported as [2016] UKUT 00061 (IAC). The tribunal had ordered the admission of three unaccompanied Syrian minors and a vulnerable Syrian adult from a makeshift camp near Calais. Their adult siblings had refugee status in the United Kingdom.

The applicants had neither claimed asylum in France nor made formal applications for asylum or entry clearance in the United Kingdom. The tribunal nevertheless held that insisting upon the Dublin III procedures would interfere disproportionately with their family life under article 8 of the European Convention on Human Rights.

The central issue was when article 8 could impose a positive obligation upon the United Kingdom to admit a person who had not first invoked the Dublin III procedures in the Member State where that person was present.

1. Appeal allowed. The Upper Tribunal had applied too low a threshold when deciding whether article 8 could displace the initial procedures of the Dublin III system. A merely strong and persuasive case was insufficient. A person seeking to bypass those procedures had to demonstrate an especially compelling case.

2. The Dublin regime and article 8 coexist. Neither excludes the other. The orderly operation of the Dublin system nevertheless has profound weight because it enables identity, age, biometric data and claimed family relationships to be verified, protects against trafficking and allocates responsibility between Member States. The principle of mutual confidence also creates a significant evidential presumption that participating states will respect fundamental rights.

3. Applicants must establish objective reasons for bypassing the authorities and courts of the Member State where they are present. Subjective fear or mistrust of its procedures is insufficient by itself. Minors should generally institute the process there and seek recourse from its authorities and courts. Direct recourse to the United Kingdom is ordinarily justified only after demonstrating that no effective means of proceeding exists in that jurisdiction.

4. An exception may arise where the case is so urgent or compelling that the Dublin system in the first Member State clearly cannot operate quickly enough. Vulnerability, psychiatric evidence, the best interests of a child and the need for expeditious family reunion are material. Conditions in a camp are not the focus of an article 8 family-life claim, but may affect the severity and proportionality of the interference when considered together with delay.

5. The discretionary power in article 17 of the Dublin III Regulation is justiciable. Although the Secretary of State enjoys a wide discretion, its exercise remains subject to ordinary public law principles and to appropriately intensive proportionality review where article 8 is engaged.

6. A person asking the United Kingdom to undertake the initial assessment must provide all information required for a formal application, including biometric data. The Upper Tribunal's result might have been justifiable on the evidence, but the Court of Appeal was not satisfied that it was inevitable under the correct test. Remittal was inappropriate because the Secretary of State accepted responsibility for the asylum claims and did not seek the applicants' return to France.

• Court of Appeal (Civil Division): The Secretary of State's appeal was allowed because the Upper Tribunal had applied too low a threshold for bypassing the Dublin III procedures on article 8 grounds. No further order was made because the applicants would remain in the United Kingdom.
• Upper Tribunal (Immigration and Asylum Chamber): In [2016] UKUT 00061 (IAC), the tribunal granted permission to apply for judicial review and ordered the Secretary of State to admit the four applicants, provided that they sent letters to the French authorities claiming asylum.