Citizens UK v Secretary of State for the Home Department

Dublin III depends on an application for international protection. That requirement, the lodging of the application and a take-charge request where the Regulation requires one are fundamental parts of its mechanism, rather than formalities capable of waiver. A scheme using Dublin III criteria without those elements operates outside Dublin III. Its lawfulness is then assessed under the common law, by reference to all the circumstances, including the urgency of the humanitarian operation, the constraints of acting in another State, the safeguards provided and the availability of the ordinary Dublin process. Dublin safeguards are not automatically transplanted into such a scheme. An expedited process for unaccompanied minors was held fair overall, although information and reasons were deficient. Material obtained in it was not to be used against an applicant in a later Dublin application.

The claimant NGO sought judicial review of an expedited UK-French process used after the closure of the Calais camp. The process assessed unaccompanied minors who wished to join family members in the United Kingdom and transferred some children, while rejecting others. The claimant argued that the process was in substance governed by Dublin III and its procedural safeguards, or alternatively that it failed common-law standards of fairness and Article 8 of the ECHR.

The Upper Tribunal had reached the contrary conclusion in AM v SSHD, holding that Dublin III applied and that the safeguards had been breached. The central issues were whether the expedited process involved an application for international protection, a lodged application or a take-charge request, and whether the process was lawful if it stood outside Dublin III.

1. The claim for judicial review was dismissed. The expedited process did not involve an application for international protection to France or the United Kingdom. Dublin III therefore did not apply. An affirmative answer to the interview question asking whether a child wished to claim asylum in the UK indicated only an intention to claim asylum if transferred.
2. The making of an application was essential to Dublin III because the Regulation concerns the allocation of responsibility for examining an application. It was not a formality capable of waiver. The same applied to lodging an application, subject to cases where the authorities themselves controlled the preparation of the necessary report or appointment of a representative. A take-charge request was also a central part of the Dublin mechanism where the Regulation required one.
3. Article 17 was not engaged. Article 17.1 required an application to have been lodged with the United Kingdom, and Article 17.2 expressly presupposed an application. The process was limited to assessment against the mandatory Article 8 criteria.
4. The common-law duty of fairness had to be assessed in the context of all the circumstances. The court declined to transplant Dublin III safeguards wholesale into an ad hoc scheme operating outside the Regulation. Relevant circumstances included the vulnerable position of the children, their reluctance to claim asylum in France, the urgent humanitarian crisis, the constraints of operating with French consent in another sovereign State, the conscientious Article 8 assessment, and the continuing availability of the full Dublin process.
5. The process involved proper inquiry, interpreters, some social-worker assistance, centralised decision-making and opportunities in the CAOMIs to provide further information. Its shortcomings included confusion about its scope, the review process and Article 17, together with sparse reasons and limited communication of adverse decisions. Considered as a whole, and despite the risk of individual error, the process was fair and reasonable and there was no systemic failure.
6. Because the expedited process was without prejudice to later Dublin applications, material obtained during it, including alleged inconsistencies, was not to be taken into account in any future Dublin application. The court disagreed with the Upper Tribunal’s generic conclusions in AM v SSHD, while expressing respect for that specialist tribunal.