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

Member States may agree an expedited transfer scheme alongside Dublin III, provided that the ordinary procedure and its safeguards remain available. An intention to claim asylum after transfer is distinct from an application for international protection. A voluntarily introduced administrative scheme remains subject to common law fairness. Where refusal turns on disputed evidence, fairness requires sufficient reasons to permit meaningful representations and a legal challenge. Fairness is required at each relevant decision-making stage; access to a later procedure does not excuse an unfair earlier decision. Agreed notification through foreign authorities may be fair, but withholding adequate reasons because they might facilitate legal challenge undermines the rule of law. Public authorities owe a continuing duty of candour in judicial review. Materially misleading omissions may breach that duty even without bad faith.

Citizens UK, a non-governmental organisation, challenged the Secretary of State’s expedited process for assessing whether unaccompanied asylum-seeking children in France could transfer to the United Kingdom to join family members. The process was agreed with the French authorities before the demolition of the Calais camp. It used Dublin III family relationship criteria without requiring a registered asylum application in France or a formal transfer request.

Refusals were communicated through the French authorities using a spreadsheet containing brief conclusions. A subsequent filter process generally required new information. Soole J dismissed the judicial review claim and granted permission to appeal. The Court of Appeal heard the appeal alongside the Secretary of State’s appeals in the separate AM cases.

Further evidence disclosed on appeal explained the decision to withhold fuller reasons. The issues were whether the scheme contravened EU law, common law fairness or Article 8 of the European Convention on Human Rights, and whether the Secretary of State had breached her duty of candour.

Appeal allowed unanimously. Singh LJ’s reasoning was accepted by Asplin and Hickinbottom LJJ. A declaration of breach of the common law duty of fairness was sufficient.

1. The EU grounds failed. An application for international protection differed from an intention to apply after transfer. Ordinarily, a child in France had to apply there, followed by the applicable Dublin III procedures. The expedited process’s legal character was an objective question, unaffected by officials’ descriptions. It operated outside Dublin III. Asylum was a shared EU competence, and Member States could agree a parallel process which preserved access to the ordinary procedure and its safeguards. RSM and ZT (Syria) supported that conclusion (paras 46–51).

2. The voluntary and discretionary character of the scheme did not remove the duty of fairness. The duty also applied where an applicant had no pre-existing right to admission. Its content depended on the legal and factual context. Fairness was an objective question for the court, rather than a review of the authority’s assessment of what fairness required. Urgency could affect the timing of representations, but administrative convenience could not justify unfairness (paras 68–87).

3. The systemic inadequacy of refusal reasons made the process unfair. A brief reason could suffice where the disqualifying relationship was obvious. Where a qualifying family relationship was disputed, a conclusion alone failed to explain the concerns which needed answering. Children could neither make meaningful representations nor realistically challenge legality. Fuller reasons already existed and could have been communicated without practical difficulty (paras 88–92, 99–102).

4. Access to the full Dublin III procedure did not cure that defect. Fair treatment was required at every relevant decision-making stage. Refusal under the expedited process caused at least delay in family reunion. Earlier assessments also influenced subsequent consideration and could discourage children from applying formally. However, agreed notification through the French authorities was permissible in the context of co-operation on French territory. Anufrijeva was distinguishable (paras 78, 93–98).

5. There was a serious breach of the duty of candour and co-operation. Public authorities had to provide full and accurate explanations of material facts, including adverse matters and their significance. The evidence omitted that British officials had withheld fuller reasons partly to avoid legal challenge, leaving Soole J materially misled. Bad faith was not established. Asplin LJ emphasised that the duty continued throughout the litigation (paras 105–106, 168–172, 178, 187–189).

6. The Article 8 ground was left undecided. The court also questioned, without deciding, whether Citizens UK satisfied the victim requirement in section 7 of the Human Rights Act 1998. Given the generic challenge and the historical process, further substantive relief was inappropriate. The Secretary of State was ordered to pay 50% of Citizens UK’s costs, assessed on the standard basis if not agreed; indemnity costs were refused (paras 103–104, 173–177).

• Court of Appeal (Civil Division), [2018] EWCA Civ 1812 : allowed Citizens UK’s appeal on common law procedural fairness, rejected the EU grounds and left the Article 8 ground undecided. Granted declaratory relief and ordered the Secretary of State to pay 50% of Citizens UK’s costs on the standard basis.
• High Court, Administrative Court: Soole J dismissed the judicial review claim by order dated 18 September 2017 and granted permission to appeal. The Court of Appeal received further evidence which had not been before him.