MS, R (on the application of) v Secretary of State for the Home Department

A requested Member State considering a take charge request under the Dublin III Regulation must investigate the basis of the request and act reasonably to establish whether the responsibility criteria are met. The duty may require reasonable steps to determine whether DNA testing can lawfully and practicably be obtained in the requesting State or, if appropriate, in the United Kingdom.

The duty is not an indefinite rolling obligation after the second refusal. Fairness nevertheless requires disclosure of the gist of adverse concerns and an opportunity to answer new material or matters which take the applicant by surprise. An effective remedy requires the court or tribunal to determine for itself whether the responsibility criteria were correctly applied in fact and law. Oral evidence is admitted only where necessary to resolve the matter fairly and accurately.

MS was an unaccompanied Afghan minor seeking to join MAS in the United Kingdom. France made two take charge requests under Article 8(1) of the Dublin III Regulation, asserting that MAS was MS’s brother. The Secretary of State rejected both requests, and later made a third rejection after further evidence had been supplied in judicial review proceedings.

MS challenged the three refusals. The claim raised the scope of the requested State’s investigative duty, whether it extended to DNA testing, whether that duty survived a second refusal, and the intensity of judicial review under Article 27. The Tribunal also had to decide whether MS and MAS were brothers and what remedy should follow.

1. The claim succeeded. The Tribunal quashed the refusals dated 27 July 2017, 21 August 2017 and 12 March 2018.

2. A requested Member State has a duty to investigate a take charge request under the Dublin III Regulation. Following R (on the application of MK, IK and HK) v Secretary of State for the Home Department [2016] UKUT 00231 (IAC), the duty arises from the Regulation and its implementing legislation, the child’s best interests, procedural protection of family life, public-law duties of inquiry, and fairness. It requires the State to act reasonably and take reasonable steps. It may require investigation of DNA testing in the requesting State and, if that is not possible or practicable, consideration of testing in the United Kingdom.

3. The Tribunal did not follow MK insofar as it treated the investigative duty as continuing without limit. The Regulation establishes a finite process. After a second rejection, the duty continues only to the extent required by fairness. The applicant must know the gist of the adverse case and have a fair opportunity to answer material or concerns not previously disclosed.

4. The first two refusals were unlawful because no reasonable steps had been taken to investigate DNA testing or to consider admission for testing. The first refusal also failed to disclose the adverse material in MAS’s earlier asylum claim. The third refusal was unlawful because the option of admission for DNA testing had not been lawfully considered and relevant evidence, including MOS’s statements and the medical evidence relevant to the relationship, had not been lawfully assessed.

5. Article 27 provides an effective remedy in fact and law against a refusal of a take charge request. The Tribunal must decide for itself whether the responsibility criteria have been correctly applied; it is not confined to ordinary public-law review. This does not ordinarily require oral evidence. Such evidence is admissible only where necessary to decide the matter fairly and accurately.

6. On the evidence, MS and MAS were brothers. It remained for the Secretary of State to determine whether it was in MS’s best interests for the United Kingdom to examine his asylum claim under Article 8. No mandatory order requiring acceptance of the requests or entry clearance was made.

• Upper Tribunal (Immigration and Asylum Chamber): Original judicial-review proceedings challenging the Secretary of State’s refusals of France’s take charge requests dated 27 July 2017, 21 August 2017 and 12 March 2018. The Tribunal quashed all three decisions and left the best-interests decision under the Dublin III Regulation to the Secretary of State.