BJ & Ors, R (on the application of) v Secretary of State for the Home Department

Article 9 of the Dublin III Regulation applies where a family member was granted residence as a beneficiary of international protection, even if that person later acquires the nationality of a Member State. The provision allocates responsibility for examining an asylum claim to the state which granted protection; it does not require that protection to remain current.

The written desire required by Article 9 is that of the persons to be transferred. It does not include a family member who was previously granted protection in the requested state. An Article 17(2) humanitarian request requires material capable of raising that issue. In its absence, the requested state has no general duty to investigate possible humanitarian, best-interests or family-life grounds.

The applicants were a mother and her children who had claimed asylum in Greece. Their husband and father had previously been recognised as a refugee in the United Kingdom, but later became a British citizen. Greece made a take-charge request under Article 9 of the Dublin III Regulation.

The Secretary of State refused the request on the basis that the father was no longer a beneficiary of international protection. The applicants sought judicial review. They also contended that the request should have been considered under Article 17(2), and that the Secretary of State had failed to investigate the children’s best interests and family-life considerations.

The central issues were the meaning of Article 9 after a former beneficiary acquired Member State nationality, whose written consent Article 9 required, and whether the material supplied triggered duties under Article 17(2) or wider investigative duties.

1. The claim succeeded on Article 9. The decision refusing the take-charge request was quashed because it rested on an erroneous interpretation of Article 9 of the Dublin III Regulation.

2. EU-law interpretation requires a systematic approach. The court must consider whether EU law defines the expression; whether ordinary meaning resolves it; the possible meanings if it does not; the provision’s objective; the interpretation which preserves its effectiveness and best achieves that objective; and the consequences of each interpretation.

3. Article 2(f) defines a beneficiary of international protection by reference to nationality and a grant of protection. The grant is an historical fact, although nationality can change. Read in its legislative context, Article 9 preserves the responsibility of the Member State which granted protection for examining qualifying family members’ claims. That responsibility does not diminish with time, movement to another Member State, or acquisition of Member State nationality. Article 9 therefore covered the family member who had been granted protection before becoming British.

4. The phrase “persons concerned” in Article 9 refers to those subject to the transfer request. It does not require the written consent of the family member previously granted protection in the requested state. Such a requirement could not be implied consistently with the standard forms and would introduce delay, complexity and uncertainty into the Dublin scheme.

5. Grounds 2 to 4 failed. The Greek request was made under Article 9. It contained no proper Article 17(2) humanitarian request and insufficient material to raise one. The Secretary of State was not obliged to investigate further possible humanitarian grounds, the children’s best interests, or family-life claims. Judicial review did not become a full merits appeal as at the hearing date, and the further evidence was not admitted.

not stated in the judgment.