MS (A child) v The Secretary of State for the Home Department

An academic appeal should be entertained only sparingly. The criteria identified in Hutcheson v Popdog Ltd [2011] EWCA Civ 1580 are a gateway to discretion, not the end of the inquiry. The decisive question is whether determining the issue is in the public interest. Relevant considerations include practical utility, likely recurrence, public importance and the availability of domestic remedies. The construction of “transfer decision” in article 27(1) of Regulation No 604/2013 was academic because the applicant had obtained the relief sought and domestic remedies might suffice. The appeal was therefore dismissed without deciding whether refusal of a take-charge request engages article 27(1).

MS, an Afghan national and unaccompanied minor, claimed asylum in France and asserted that MAS, lawfully present in the United Kingdom, was his brother. France made three take-charge requests under Dublin III. The Secretary of State refused them, relying substantially on an earlier denial by MAS that he had siblings.

The Upper Tribunal quashed the refusals, found that MS and MAS were brothers, and remitted the matter. By the time of the appeal, the Secretary of State had accepted a further request, MS and MAS had been reunited, and MS had been granted asylum. The Secretary of State nevertheless pursued two grounds concerning the meaning of “transfer decision” in article 27 and the tribunal’s fact-finding role. Ground 2 was conceded if Ground 1 succeeded. The central issue was whether Ground 1 should be determined despite being academic.

1. Appeal dismissed. Hickinbottom LJ, with whom Simon LJ agreed, dismissed the appeal without determining the merits of Ground 1. The issue was academic between the parties, and it was not in the interests of justice to decide it in the circumstances. The Master of the Rolls agreed and added observations.
2. The principles in Hutcheson v Popdog Ltd [2011] EWCA Civ 1580 apply. The relevant criteria are only a gateway to the court’s discretion. The court must still decide whether, in all the circumstances, determination is in the public interest. Academic appeals remain rare. A point of some public importance is insufficient where there is no evidence of substantial recurrence, the decision may be unhelpful outside a live dispute, and domestic remedies may provide an effective answer.
3. The possible reluctance of the Court of Justice to answer hypothetical questions reinforced the conclusion, but was not relied upon as the basis of decision. The court therefore left unresolved whether “transfer decision” in article 27(1) of Regulation No 604/2013 includes refusal of a take-charge request.
4. The Secretary of State conceded that, if article 27 applied, the reviewing court should determine whether there was a sufficiently solid factual basis for the decision, adopting the formulation in Ghezelbash v Staatssecretaris van Veiligheid en Justitie [2016] 1 WLR 3969. The court consequently did not need to determine Ground 2 independently.
5. The Master of the Rolls observed that the Upper Tribunal had quashed the refusals under ordinary domestic judicial review principles, not article 27. Residual fact-finding powers may be available, and an article 8 ECHR challenge may require the court to decide proportionality and resolve disputed facts. Nothing said on appeal showed that the tribunal was wrong to proceed on that basis. ZT (Syria) and RSM (Eritrea) were distinguishable because they concerned attempts to bypass or override applicable Dublin procedures.

• Court of Appeal (Civil Division) — Appeal dismissed on 30 July 2019 without determining the academic construction issue concerning article 27 of Dublin III: [2019] EWCA Civ 1340.
• Upper Tribunal (Immigration and Asylum Chamber) — On 19 July 2018, quashed the Secretary of State’s refusal decisions, found that MS and MAS were brothers, and remitted the matter for lawful decisions.