Secretary of State for the Home Department v FWF & Anor, R (On the Application Of)

This appeal concerned the interaction between Regulation 604/2013 (Dublin III) and article 8 ECHR (and article 7 CFR) when a member state acts unlawfully in the course of discharging Dublin III obligations. The Upper Tribunal had found a series of procedural failings by the Secretary of State in relation to take-charge requests (TCRs) and concluded those failings breached Dublin III and article 8, awarding declarations and damages. The Court of Appeal held that incidental unlawfulness in the operation of the Dublin scheme is not ipso facto a breach of article 8: a breach of Dublin III (or procedural failings while Dublin procedures remain within the overall statutory time limits) will not automatically amount to an interference with article 8 rights. The court applied the established approach in the ZT (Syria) line of authority that Dublin procedures ordinarily provide adequate protection of family life and that article 8 will only displace Dublin III in very exceptional cases.

Background and parties:

• The respondents are two Afghan brothers who made asylum claims in France as unaccompanied minors and sought to join an elder brother in the United Kingdom. France submitted take-charge requests on about 15 November 2018. The Secretary of State did not respond within two months and later, after a period of delay and other procedural steps, refused and then, subsequently, accepted responsibility; the brothers were transferred to the United Kingdom on 25 June 2019.

Nature of the claim and procedural history:

• The respondents applied to the Upper Tribunal for judicial review, alleging breaches of Dublin III, breaches of the duty to investigate and procedural failings, and breaches of article 8 ECHR/article 7 CFR. The UT (Judge Kamara) found unlawful processing of the TCRs, breaches of EU law and article 8, granted declarations and later awarded damages (£15,000 each). The Secretary of State appealed to the Court of Appeal; permission to appeal was granted (Davis LJ, 12 June 2020).

Issues framed by the Court of Appeal:

• Whether the Secretary of State breached Dublin III and, if so, whether such breach or incidental unlawful conduct amounted to an article 8 ECHR breach.
• Whether a member state's procedural errors in operating Dublin III automatically render its conduct not "in accordance with the law" for article 8(2) purposes.
• The legal relationship between Dublin III procedures and article 8, including the relevance of the ZT (Syria) line of authority and the distinction between positive and negative obligations under article 8.

Reasoning and decision:

• The court accepted that the Secretary of State had acted unlawfully in a number of procedural respects (an unlawful refusal after the two-month period, failures to investigate properly, failure to engage local authority and use DNA testing, and other delays), but concluded those incidental unlawfulness findings did not automatically translate into a breach of article 8. The court explained that Dublin III is a distinct regulatory scheme with its own remedies (for example, article 22(7) deeming acceptance where a reply is not given within two months and transfer time limits). Where a transfer occurs within the overall Dublin time limits, the scheme has been complied with and legal certainty requires that incidental procedural failures within that framework should not be treated as automatic article 8 breaches.
• The court emphasised the ZT (Syria) principle that article 8 will only displace the Dublin procedures in very exceptional cases (for example systemic deficiencies in the other member state), and applied that approach. It also treated the respondents' case as, at most, involving positive obligations under article 8 (admission for family reunion) and held the "in accordance with law" requirement under article 8(2) does not sensibly apply to such positive-obligation claims in the manner advanced by the UT.
• On the facts, because the respondents were transferred within the overall Dublin limits and the delay did not meet the threshold for an article 8 interference, the Court of Appeal allowed the Secretary of State's appeal and set aside the UT's conclusion that there had been an article 8 breach.

Appeal allowed. The Court of Appeal held that although the Secretary of State had committed incidental unlawfulness in processing the take-charge requests under Dublin III, that unlawfulness did not automatically constitute a breach of article 8 ECHR. Where a transfer takes place within the overall time-limits set by the Dublin scheme, the scheme has, in general, been complied with and article 8 will only displace Dublin III in very exceptional circumstances. The UT erred in treating the procedural failings as ipso facto breaches of article 8.

Appeal from the Upper Tribunal (Asylum and Immigration Chamber) (Judge Kamara) order dated 15 August 2019. Permission to appeal was given by Davis LJ on the papers (order sealed 12 June 2020). The appeal was heard in the Court of Appeal (Civil Division) and judgment delivered 28 January 2021 ([2021] EWCA Civ 88).