The Secretary of State for the Home Department v FTH, R. (On the Application of) (Rev 1)

Article 8 of the ECHR is engaged where an unaccompanied child in one Member State seeks transfer to another to reunite with a close relative. The availability of an effective Dublin III process, including judicial enforcement in the first Member State, will ordinarily provide sufficient protection for that right.

An independent obligation under article 8 arises only in very exceptional circumstances, such as systemic deficiencies denying an effective remedy or compelling urgency making the Dublin process too slow. Procedural unfairness at common law does not necessarily amount to an infringement of article 8.

The respondent, an Eritrean national, was an unaccompanied child in France who claimed that his brother, a recognised refugee, lived in the United Kingdom. His transfer application was refused under an expedited process connected with Dublin III, without adequate reasons. He later made an asylum application in France, a take-charge request was accepted, and he was transferred to the United Kingdom.

The Upper Tribunal held that the expedited process breached Dublin III, common-law procedural fairness and the procedural requirements of article 8 of the ECHR. It quashed the relevant decisions, made a declaration and awarded damages for the article 8 breach.

The Secretary of State appealed on the narrow ground that the article 8 declaration was inconsistent with R (AM) v Secretary of State for the Home Department [2018] EWCA Civ 1815. The central issue was whether AM was binding and materially distinguishable.

The Court of Appeal allowed the appeal.

1. Article 8 and Dublin III. The court accepted that article 8 was engaged where an unaccompanied child sought transfer to another country to reunite with a sibling. Engagement did not establish infringement. Under R (ZT (Syria)) v Secretary of State for the Home Department [2016] EWCA Civ 810 and RSM (Eritrea) v Secretary of State for the Home Department [2018] EWCA Civ 18, the effective availability of the Dublin III process, supported by judicial remedies, ordinarily protected the child’s article 8 rights. An independent obligation to admit the child arose only in very exceptional circumstances, such as systemic deficiencies denying an effective remedy or compelling urgency showing that the Dublin process was too slow.
2. Effect of AM. The court held that the ratio of R (AM) v Secretary of State for the Home Department [2018] EWCA Civ 1815 applied even though the expedited process operated outside Dublin III. The availability of the ordinary Dublin route normally provided sufficient protection, including where a child had been rejected in the expedited process and consequently failed or delayed making a formal asylum application in France. The possibility that earlier adverse findings might affect a later Dublin process did not create a material distinction.
3. Distinctions rejected. The form of relief sought or granted could not determine whether article 8 had been breached. The respondent’s vulnerability was not shown to be materially greater than that of the AM claimants. There was no evidential basis for concluding that earlier legal advice would have led him to make an asylum application in France. The French authorities’ care obligations and the procedural safeguards available under Dublin III remained relevant.
4. Orders. The Secretary of State had breached the common-law duty of procedural fairness, but had not breached article 8. The declaration was amended to refer only to the common-law breach, and the order awarding damages was quashed.

• Court of Appeal (Civil Division) — In [2020] EWCA Civ 494, the appeal was allowed. The declaration was restricted to breach of the common-law duty of procedural fairness, and the damages order was quashed.
• Upper Tribunal (Immigration and Asylum Chamber) — On 12 June 2018, the tribunal held that the expedited process breached Dublin III, common-law fairness and article 8. On 20 November 2018, it awarded £12,000 damages for the article 8 breach.