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

Article 17(2) of the Dublin III Regulation confers a wide but constrained discretion to accept responsibility for an asylum claim in order to unite family relations on humanitarian grounds. The discretion must be exercised compatibly with human rights.

A refusal is reviewable on ordinary public-law grounds. Where Article 8 rights are alleged, the court or tribunal must decide for itself whether the decision is lawful in human-rights terms and must resolve necessary disputed facts. In a case concerning an unaccompanied minor and asserted Article 8 family life, the Secretary of State should ordinarily obtain a relevant local-authority assessment. Fairness may also require advance notice of material concerns before refusal.

Greece asked the Secretary of State under Article 17(2) of the Dublin III Regulation to take charge of BAA, an unaccompanied Syrian child seeking asylum there, so that he could join his adult cousin, TAA, in the United Kingdom.

The Secretary of State refused on 5 November 2019, 16 January 2020 and 20 April 2020. BAA and TAA obtained permission to bring judicial review and challenged those refusals, the lawfulness of the Secretary of State’s Dublin III guidance, the investigation undertaken, procedural fairness, and compatibility with Article 8 ECHR and Article 7 of the Charter.

The central issues were the scope of the Article 17(2) discretion and remedy, the required judicial-review intensity, and whether the evidence established protected family life and disproportionate interference with it.

1. The claim succeeded. The Tribunal quashed each refusal and declared that each was unlawful because it breached BAA’s Article 8 ECHR and Article 7 Charter rights. It declined mandatory relief, so that the Secretary of State could urgently undertake any remaining checks, including a local-authority assessment.

2. Article 17(2) gives a wide discretion, but not one immune from legal constraint. It must be exercised in an individual’s favour where refusal would breach human rights, contrary to section 6 of the Human Rights Act 1998. The provision covers family relations wider than the defined categories of family member and relative, although the relationship must be familial rather than merely social: [18]-[27].

3. A refusal is susceptible to conventional judicial review. Where a claimant alleges an actual or potential breach of Article 8, however, the Tribunal must determine lawfulness for itself. This includes resolving necessary primary facts and assessing proportionality; it is not dependent on Article 27 applying or on a separate public-law error: [61]-[66]. Article 27 nevertheless encompasses a refusal to take charge, including under Article 17(2): [28]-[29], [66].

4. For an unaccompanied minor whose request raises asserted Article 8 family life, the Secretary of State should ordinarily engage the relevant United Kingdom local authority to the same degree as in an Article 8 take-charge case. The disclosed practice of seeking an assessment only after establishing the link and deciding to exercise discretion was incompatible with the applicable obligations: [76]-[81]. Fairness may require disclosure of the gist of concerns before refusal, subject to context and the need for expedition: [91]-[94].

5. On all the evidence, BAA and TAA enjoyed Article 8 family life. Their extreme emotional dependency and TAA’s father-figure role made refusal disproportionate. The decisions were also affected by irrationality, irrelevant considerations, inadequate investigation and procedural unfairness: [163]-[178]. The guidance’s references to exceptional circumstances did not impose an unlawful threshold: [67]-[75].

not stated in the judgment.