HA v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Under Article 9 of Dublin III Regulation, a family member who obtained British citizenship after receiving international protection remains a person allowed to reside as a beneficiary of that protection. Citizenship does not, of itself, displace the United Kingdom’s potential responsibility.

The discretion in Article 17.2 is wide but constrained by the Regulation, Article 7 of the Charter and Article 8 of the Convention. The decision-maker must consider family life and a child’s best interests as a primary consideration. A proposed entry-clearance route cannot rationally end that assessment where it prevents proper consideration of those matters. A court may quash an unlawful refusal and declare the breach, but should not ordinarily compel exercise of a merely permissive discretionary power.

The applicants were a British citizen father, his stateless Bidoon wife, and their child, who were separated after the mother and child sought asylum in Greece. Greece made requests under Article 17.2 of Dublin III Regulation for the United Kingdom to take charge of their asylum claims. The Secretary of State refused three times, principally on the basis that the family could pursue entry clearance.

The applicants sought judicial review of the refusals. They contended that the Secretary of State had failed to assess the child’s best interests, family life, their mental ill-health and the father’s prior grant of humanitarian protection. The central issues were the scope of Articles 9 and 17.2 and whether the refusals were proportionate and lawful.

1. The claim succeeded. The Tribunal quashed the refusal decisions and declared them unlawful for breach of Article 7 of the Charter and Article 8 of the Convention. It declined to make a mandatory order requiring acceptance of the take-charge request.

2. Article 17.2 of Dublin III Regulation confers a wide discretion, but it is not untrammelled. The Secretary of State had to consider the request through the lens of Article 7 of the Charter and/or Article 8 of the Convention, with the child’s best interests as a primary consideration. The decision letters and case notes showed no assessment of the child’s interests, despite the request identifying a minor and compassionate circumstances.

3. The asserted availability of entry clearance was an irrelevant consideration where it precluded proper consideration of family life, proportionality and the child’s interests. It was also circular to reject an Article 17.2 request because an Article 8-based entry-clearance application might be made. The Secretary of State should have considered relevant psychiatric evidence provided before the final decision. The decisions were inadequately reasoned and contained material factual and legal errors.

4. The refusals were disproportionate. The mother and child had PTSD; the mother was pregnant; the father could not realistically reside in Greece; and there was no realistic alternative country in which the family could live together. The entry-clearance requirements were not realistically met. These were compelling and compassionate circumstances.

5. Article 9 remained potentially applicable because the father’s later British citizenship did not change the fact that he had received humanitarian protection. The Tribunal did not decide the child’s nationality, but noted that a British citizen child would fall outside Dublin III.

6. Following Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997, the Tribunal would not compel exercise of a permissive discretion. It instead quashed the decisions, made a declaration, and directed that the decisions be remade on a timetable after hearing the parties.

not stated in the judgment.