Citizens UK, R (On the Application Of) v Secretary of State for the Home Department

A public authority which creates and operates an expedited, discretionary scheme affecting individuals must act fairly, even though it was not obliged to create the scheme. What fairness requires is objective and context-specific, but persons adversely affected must receive sufficient information to make meaningful representations and to consider a legal challenge.

Procedural safeguards available in a later, formal process do not excuse unfairness at an earlier decision-making stage. A bilateral process operating alongside Regulation 604/2013 may be lawful where it does not displace the Regulation’s procedures. However, a system which gives only inadequate reasons for adverse decisions, and thereby impedes correction, reconsideration and challenge, is procedurally unfair.

Citizens UK challenged the Secretary of State’s expedited process for assessing whether unaccompanied asylum-seeking children in the Calais camp should be transferred to the United Kingdom to join relatives. The process was introduced with the French authorities during the camp’s demolition in 2016. Children refused transfer generally received only a short reason conveyed through the French authorities.

Soole J dismissed the judicial-review claim on 18 September 2017. He held that the process fell outside Regulation 604/2013 and was fair in the exceptional operational circumstances. On appeal, further evidence showed that the French authorities had sought fuller reasons and that the Secretary of State had withheld them partly because of a perceived litigation risk.

The central issues were whether the process was governed by EU law, whether it was fair at common law, and whether the Secretary of State had complied with the duty of candour.

1. Appeal allowed. The expedited process did not constitute a procedure under Regulation 604/2013. An application for international protection is not merely an intention to apply after transfer to another Member State. The ordinary Dublin process remained available to the children in France. The United Kingdom and France could lawfully adopt a bilateral process alongside that Regulation, provided it did not derogate from its safeguards. The appeal therefore failed on the EU-law grounds.

2. The common-law duty of fairness applied. A scheme does not escape that duty merely because the Secretary of State was under no obligation to create it. Fairness is an objective question for the court. Its content depends on context, but ordinarily requires a person adversely affected to know enough of the case against them to make worthwhile representations or seek a remedy.

3. Giving notice through the French authorities was not inherently unfair in this sensitive cross-border context. However, the short entries in the spreadsheet did not adequately explain refusals where the asserted family relationship was potentially qualifying but was regarded as unproven. The children could not identify what further material might change the outcome, nor realistically assess whether to challenge it.

4. The availability of a later formal Dublin application did not cure that defect. The expedited process produced an adverse decision and at least delayed family reunion. In practice, its information was used during the later filter process, and some children might have abandoned a formal application because they did not know why they had failed.

5. The Secretary of State seriously, though not deliberately, breached the continuing duty of candour and co-operation. The evidence before the High Court materially misled it about why fuller reasons had not been given. The Court granted a declaration that the process was unfair and unlawful at common law. No further remedy was appropriate. The Secretary of State was ordered to pay 50% of Citizens UK’s costs on the standard basis if not agreed.

• Court of Appeal (Civil Division): Allowed the appeal and declared that the expedited process breached the common-law duty of procedural fairness.
• High Court, Administrative Court: Soole J dismissed the judicial-review claim on 18 September 2017. He granted permission to appeal. No citation for that judgment is stated.