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

The Dublin Regulation and the Human Rights Act 1998 operate alongside each other. Neither regime automatically prevails where their operation affects family life protected by Article 8 ECHR.

Where strict adherence to the Dublin procedures interferes with Article 8 rights, the decisive question is whether that interference is proportionate. The Regulation and its objectives are a highly potent public-interest consideration. An Article 8 claim justifying departure from its ordinary procedures therefore requires a strong and persuasive case and will rarely succeed.

The balance may nevertheless favour a practical accommodation where exceptionally vulnerable family members face urgent harm, prolonged delay and an inadequate substitute for reunification, while the essential structure of the European asylum system can be preserved.

Four Syrian nationals, including three unaccompanied minors and a mentally unwell adult dependent on one of them, were living in the Calais camp known as “the jungle”. They sought swift entry to the United Kingdom to reunite with three siblings already recognised as refugees there.

The Secretary of State refused to admit them unless they first pursued the procedures under the Dublin Regulation in France. The evidence indicated that this route could entail substantial delay and continued exposure to dangerous conditions, although it was likely ultimately to result in a United Kingdom take-charge request.

In this judicial review, the central issue was whether insisting on the full Dublin procedure disproportionately interfered with the applicants’ Article 8 ECHR family-life rights.

1. The application succeeded. The Tribunal granted permission for judicial review and made a mandatory order requiring admission of each of the first four applicants once that applicant, or their representative, sent the French authorities a letter claiming asylum and supplied the Secretary of State with a copy and confirmation of sending.

2. The Dublin Regulation, the ECHR and the Human Rights Act 1998 are separate but coexisting regimes. They are not competing systems. Where their requirements pull in different directions, complete harmony may be impossible. In an Article 8 interface case, the court must decide whether giving exclusivity to the Dublin regime produces a disproportionate interference with Convention rights.

3. The Regulation’s purpose of orderly allocation of responsibility for asylum claims, and the wider public interest in effective immigration control, carried substantial weight. It was a material consideration of undeniable potency. Article 8 should not lightly be used to circumvent Dublin procedures; successful cases would be rare and require compelling facts.

4. On the exceptional facts found, the refusal was disproportionate. The relevant factors included the applicants’ youth, trauma and mental illness; the dependency of the fourth applicant on the third; prior family life; the absence of parental support; the grave conditions in Calais; the likely prolonged delay in France; and the immediate availability of meaningful care from the refugee siblings in the United Kingdom.

5. The applicants had not yet made asylum claims and were therefore not then asylum seekers. The appropriate remedy was consequently conditional. It preserved the general Dublin structure by requiring an asylum claim to be initiated in France, while preventing administration of that system from disproportionately impairing the applicants’ Article 8 family life.

• Upper Tribunal (Immigration and Asylum Chamber): First-instance judicial review. Permission to apply for judicial review was granted and the substantive application succeeded. The Tribunal also granted the Secretary of State permission to appeal to the Court of Appeal.