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

For interim relief requiring admission to the United Kingdom outside the initial procedures of the Dublin regime, an applicant must show a real prospect of establishing an especially compelling case under Article 8 ECHR. The assessment is intensely fact sensitive. Relevant matters may include mental health, unaccompanied-minor status and the practical speed of family reunification through the Dublin process.

Where compelling evidence shows that further delay creates an acute risk to children’s safety and wellbeing, their best interests may justify mandatory interim relief. The order may be framed to respect the functions and legal responsibilities of the foreign authorities. Judicial comity does not require a court to sacrifice the protection of children’s best interests.

The applicants were Syrian siblings, aged 15 and 11, who were unaccompanied in France and sought reunification with their adult brother in the United Kingdom. They applied urgently for interim relief in judicial review proceedings, requiring the Secretary of State to admit them to the United Kingdom.

They relied on psychiatric evidence of severe and escalating mental-health risks, including suicide risk, and on evidence that their attempts to progress through the French Dublin process had produced substantial delay. The central issue was whether they had a real prospect of establishing an especially compelling Article 8 case and whether interim relief should be granted pending substantive determination.

1. Interim relief was granted. The applicants had a real prospect of establishing at a substantive hearing that their case was especially compelling under Article 8 ECHR. The Tribunal ordered the Secretary of State to admit them to the United Kingdom.

2. The governing interim-relief inquiry was whether there was a real prospect of proving an especially compelling Article 8 case. That elevated threshold reflected the competing imperatives of maintaining the Dublin regime, which allocates responsibility between Member States for asylum claims, and protecting individual Convention rights. The Tribunal applied the approach in CK (Afghanistan) [2016] EWCA Civ 166 and Secretary of State for the Home Department v ZAT & Ors [2016] EWCA Civ 810.

3. The relevant factors were non-exhaustive and intensely fact sensitive. They included the applicants’ mental health, their status as unaccompanied minors, and the likely speed and effectiveness of the Dublin process in achieving family reunification. On the unchallenged evidence, both children faced serious psychiatric risk. The expert evidence established that delay in reunification could have life-threatening consequences and that measures in France would not adequately manage the risks.

4. The French process had not provided a reliable timetable for progress despite the applicants’ engagement with it. In those circumstances, waiting for uncertain future administrative action would be an unjustified abdication of judicial responsibility. The risk to the children tipped the balance both on the real-prospect inquiry and on the balance of convenience.

5. The comity concerns discussed in R (Dudaev) v Secretary of State for the Home Department [2015] 3 CMLR 37 did not govern this case. The order did not interfere with French judicial decisions or dictate the French authorities’ discharge of their obligations. It was framed without a timetable and with liberty to apply, thereby preserving the final assessment of the children’s best interests by the French authorities. Costs were reserved.

not stated in the judgment.