Secretary of State for the Home Department v AM & Ors, R. (On the Application of)

An expedited process for assessing whether unaccompanied asylum-seeking children should be transferred from another member state may operate outside, and without prejudice to, Regulation 604/2013. Its procedural requirements do not then apply. Article 8 of the European Convention on Human Rights applies independently only in very exceptional circumstances, including systemic deficiencies in the foreign legal system which prevent an effective remedy.

The process must nevertheless satisfy common law fairness. A finding of procedural unfairness ordinarily requires the designated public decision-maker to reconsider the matter fairly. It does not, without more, permit a court or tribunal to direct the executive to exercise its powers in a particular way. A mandatory transfer order was therefore incompatible with the proper separation of judicial and executive functions.

The Secretary of State appealed against mandatory orders made by the Upper Tribunal in four judicial review claims concerning unaccompanied asylum-seeking children formerly living in the Calais camp. The children had been refused transfer to the United Kingdom under an expedited process established with the French authorities.

The Upper Tribunal held that the process was procedurally unlawful under Regulation 604/2013, Article 8 of the European Convention on Human Rights and the common law. It ordered the Secretary of State to admit each child and make a fresh decision. All four children were subsequently admitted.

The appeals concerned whether the expedited process engaged the Dublin III regime, whether it was unfair at common law, whether Article 8 applied, and whether mandatory admission was a lawful remedy.

1. The appeals against the mandatory orders were allowed. The expedited process operated outside, and without prejudice to, Regulation 604/2013. Its procedural requirements therefore did not govern that process. Article 17 was not engaged because there had been no application for international protection under the Regulation. The process was limited to assessing the criteria for mandatory transfer in Article 8.

2. The expedited process was nevertheless unfair at common law. The additional evidence before the Court of Appeal displaced the factual basis on which the Secretary of State challenged that conclusion. Her submissions addressed the process generically and did not challenge the Upper Tribunal's findings of unfairness in the four individual cases. Ground 4 was therefore rejected.

3. Article 8 of the European Convention on Human Rights did not apply. It was not interchangeable with the procedural requirements of Dublin III or the common law. It could operate independently only in very exceptional circumstances, including where systemic deficiencies rendered the French legal system incapable of providing the children with an effective remedy. No such basis was established. The Upper Tribunal also gave insufficient recognition to the children's placement under the jurisdiction of the French care system.

4. A breach of procedural fairness ordinarily requires reconsideration by the public decision-maker entrusted with the relevant function. The appropriate relief was therefore a quashing order or declaration. Procedural unfairness did not itself authorise a mandatory order requiring the Secretary of State to admit the children. Such an order improperly directed the executive's exercise of its powers and failed to respect the separation of judicial and executive functions.

5. The Secretary of State had also breached the duty of candour and co-operation applicable to judicial review proceedings in the Upper Tribunal. Although the children had already entered the United Kingdom and would not be returned to France, the legally erroneous mandatory orders had to be set aside. The Secretary of State was ordered to pay 50% of the respondents' costs on the standard basis.

1. Court of Appeal (Civil Division): Allowed the Secretary of State's appeals against the mandatory admission orders. It upheld the finding of common law unfairness but rejected the Upper Tribunal's conclusions under EU law and Article 8 of the European Convention on Human Rights.

2. Upper Tribunal (Immigration and Asylum Chamber): Held that the expedited process was unlawful under Regulation 604/2013, Article 8 of the European Convention on Human Rights and the common law. It ordered the Secretary of State to admit each child and undertake fresh decision-making. It subsequently granted permission to appeal.