RSM (A Child), R. (On the Application of v The Secretary of State for the Home Department

Article 17.1 of Regulation (EU) No 604/2013 applies only to an application for international protection lodged with the United Kingdom by an asylum seeker who is present there. It does not empower or require the Secretary of State to override or accelerate another member state’s processes merely because they involve delay. Article 17.2 has no application until the responsible state makes a take charge request.

An asylum seeker in another member state may invoke article 8 of the Convention in the United Kingdom only in very exceptional circumstances. The high threshold remains applicable where the claimant has engaged with the host state’s procedures. General ministerial statements do not create enforceable public law obligations unless sufficiently clear and specific. Any mandatory order must state precisely what the decision-maker must do and respect the processes of the other state.

An unaccompanied child asylum seeker in Italy wished to join his aunt, a recognised refugee in the United Kingdom. His representatives asked the Secretary of State to take responsibility for his asylum claim under article 17.1 of Regulation (EU) No 604/2013. The Secretary of State took no action before Italy issued a take charge request.

The Upper Tribunal allowed the child’s judicial review claim and ordered his admission to the United Kingdom: [2017] UKUT 124 (IAC). It found that the Secretary of State had failed to exercise her article 17 discretion, relied on ministerial statements concerning refugee children, and concluded that the delay met the exceptional threshold under article 8 of the Convention.

The Secretary of State appealed. The principal questions concerned the territorial scope of article 17.1, the need for a take charge request under article 17.2, the legal effect of the ministerial statements, the article 8 threshold, and the lawfulness of the mandatory order.

1. Appeal allowed. Article 17.1 of Regulation (EU) No 604/2013 preserves a member state’s sovereign discretion to examine an application for international protection which has been lodged with it, although responsibility would otherwise lie elsewhere. It is not a general power to override another member state’s Dublin processes whenever delay is alleged. Under domestic law an asylum claim must be made by a person present in the United Kingdom. The child’s representatives’ letter expressing an intention to claim asylum after admission was therefore insufficient. No article 17.1 discretion was available to the Secretary of State: paras [109]–[125], [166], [170].

2. Article 17.2 operates only when the responsible member state makes a take charge request. The scheme is state-driven and rests on mutual confidence that the host state will fulfil its obligations unless material facts indicate otherwise: paras [122], [126], [166].

3. Even if an article 17.1 discretion had arisen, it would not entail a duty to exercise it. An unlawful failure to consider a discretionary power would ordinarily lead to remittal for a decision by the Secretary of State, not an order dictating the substantive outcome: paras [125], [166], [170]–[171].

4. The ministerial statements relied upon by the Upper Tribunal were too general to constitute policies which the decision-maker was bound to apply or to create enforceable individual rights. Their references to speed, family reunification and the use of available tools did not impose a specific obligation under article 17: paras [127]–[131], [166], [172].

5. Under ZT (Syria), recourse to article 8 of the Convention outside the ordinary Dublin process is confined to very exceptional or especially compelling circumstances. Engagement with the host state’s system does not lower that threshold. The evidence showed that the Italian process advanced in reasonably timely stages after the child was recognised as unaccompanied. He had a guardian and state accommodation, and there was no evidence that the Italian system could not respond effectively or that his condition required more urgent action: paras [133]–[144], [166], [173]–[175].

6. The mandatory order was independently unlawful. It was imprecise, prescribed a result rather than appropriate steps, and failed expressly to protect the jurisdiction and processes of the Italian authorities. Mandatory orders must define the required conduct clearly, particularly where contempt consequences and international comity are engaged: paras [161]–[165], [166], [176].

1. Court of Appeal (Civil Division): The Secretary of State’s appeal was allowed unanimously. The Upper Tribunal had misinterpreted article 17, erred concerning ministerial statements and article 8, and made an inappropriate mandatory order: [2018] EWCA Civ 18 .
2. Upper Tribunal (Immigration and Asylum Chamber): The Tribunal allowed the judicial review claim, declared that the Secretary of State had failed lawfully to exercise the article 17 discretion, and ordered the child’s admission to the United Kingdom: [2017] UKUT 124 (IAC) .