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

When deciding whether to accept a take-charge request under the Dublin regime, the Secretary of State must take account of all material considerations and take reasonable steps to obtain the information needed for a lawful decision. The Dublin Regulation and its implementing regulation impose fact-sensitive duties of enquiry, investigation and evidence gathering. Those duties continue where there are renewed take-charge requests and successive decisions.

Where the availability of DNA evidence was decisive to alleged family links, the Secretary of State could not remain passive. Failure to investigate testing options, relevant foreign law, or temporary admission for testing breached those duties and the procedural aspect of article 8.

MK, a refugee lawfully resident in the United Kingdom, asserted that IK and HK, two vulnerable children seeking asylum in France, were her children. The French authorities made take-charge requests under the Dublin Regulation. The Secretary of State refused the requests on the ground that the family relationship had not been proved, notwithstanding the applicants’ willingness to undergo DNA testing.

After successive refusals and reconsideration decisions, the applicants sought judicial review. The central issue was whether the Secretary of State had lawfully rejected the requests without investigating the feasibility of DNA testing in France, the relevant French law, or admission to the United Kingdom for that purpose.

1. The judicial-review application succeeded. The Tribunal quashed all three refusal decisions and made a mandatory order requiring the Secretary of State to take all reasonable steps and use her best endeavours to facilitate DNA testing, liaise with the French authorities, and make a fresh decision.

2. The Secretary of State had failed to take account of material considerations. She had not investigated the availability of DNA testing in France, the relevant French domestic law, or the possibility of admitting the children to the United Kingdom for testing. Those omissions also breached the public-law duty of enquiry derived from Secretary of State for Education and Science v Metropolitan Borough Council of Tameside, [1977] AC 1014.

3. The Dublin Regulation, read with Commission Regulation (EC) 1550/2003, imposed explicit and implicit duties of investigation and evidence gathering. Article 22(1) required the requested Member State to make the necessary checks. The Secretary of State’s contention that the applicants bore the entire evidential burden, and that she had no duty to investigate, was inconsistent with that legislative scheme.

4. The duties were fact-sensitive and required reasonable steps, rather than an absolute and unlimited inquiry. In this case, DNA evidence was the decisive missing evidence and the Secretary of State accepted that it would lead to acceptance of the requests. Reasonable performance of the duties therefore required proactive investigation of the available means of obtaining it.

5. The duties were not exhausted by the first refusal. Renewed take-charge requests and successive decisions remained governed by the Dublin regime. The same failures infected each decision and also breached the procedural dimension of article 8 ECHR.

6. The Tribunal declined to determine for itself whether the children were biologically related to MK or to order immediate family reunification. The Secretary of State remained the primary decision-maker. Fresh decisions were required after the evidential deficiency had been addressed.

not stated in the judgment.