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

The Dublin Regulation governs an expedited process which determines whether unaccompanied children in one Member State should be transferred to another under its family-reunion criteria. A Member State may accelerate time limits or relax formal steps to promote expedition, but it cannot selectively disapply the Regulation’s substantive and procedural safeguards or those in the implementing Regulation.

Where a process determines life-changing family-reunion claims by vulnerable children, procedural fairness requires adequate information, fair interviews, sufficient enquiry and evidence gathering, and conscientious fact-finding. Humanitarian pressure and the need for speed do not justify materially deficient procedures. The same conclusion follows through the procedural protection of Article 8 ECHR and the common law.

The first applicant was an unaccompanied Eritrean child in France who sought transfer to the United Kingdom to join his claimed maternal uncle, OA, a recognised refugee. The Secretary of State refused transfer through the joint French-United Kingdom Calais expedited process because the claimed relationship was not accepted.

The applicants challenged the continuing refusal. They contended that the process omitted required safeguards, including adequate best-interests assessment, reliable and fair interviews, proper information, and adequate investigation of the claimed relationship. The Secretary of State maintained that the process operated outside the Dublin Regulation and that any further evidence should instead be pursued through the ordinary French Dublin procedure.

The central issues were whether the Dublin regime governed the expedited process and whether its procedures were fair and lawful.

1. Claim allowed. The Tribunal quashed the refusal of transfer and declared the refusal and continuing failure to admit AM unlawful.

2. The expedited process fell within the Dublin Regulation and its implementing measure. It was lawful to accelerate the Regulation’s backstop time limits and to waive formal steps such as registration of an asylum application in France and a formal take-charge request, where that promoted expedition. Those adjustments did not permit the Secretary of State to exclude other mandatory provisions, including Article 17 and procedural safeguards. The United Kingdom had therefore acted unlawfully by selectively disapplying substantial parts of the EU-law regime.

3. AM was deprived of material safeguards. The process did not adequately inform children of the applicable criteria. AM’s interview omitted the prescribed best-interests, family and health questions. The telephone interview of OA was conducted in circumstances that gave no reliable opportunity to clarify, verify or correct critical answers. The process lacked adequate enquiry, evidence gathering and conscientious fact-finding.

4. Procedural fairness was required under the Dublin measures, the procedural dimension of Article 8 ECHR and the common law. The humanitarian challenge and need for expedition were important, but could not excuse procedural deficiencies in decisions affecting isolated and vulnerable children’s only realistic prospect of family life. The process was incapable of responding adequately to AM’s needs or providing an effective route forward.

5. The Tribunal ordered the Secretary of State to arrange AM’s transfer to the United Kingdom, using best endeavours and no later than midnight on 22 May 2017, and to commence a fresh decision-making process by that date. Further best-interests and safeguarding checks could continue after transfer. Costs were awarded to the applicants.

Not an appeal from a lower-court judgment. This judicial review followed the Tribunal’s earlier refusal to stay the proceedings and an interim ruling concerning fresh decision-making.