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

Under Regulation 604/2013 (Dublin III), failure to answer a take-charge request within two months has the statutory consequence of deemed acceptance. A purported refusal after that period has no legal effect. Where the transfer occurs within Dublin III’s overall time limits, incidental unlawfulness, procedural failings and delay within those limits do not themselves establish a breach of Dublin III.

Dublin III is not a mirror image of Article 8. Its breach is not automatically a breach of Article 8 or Article 7 of the Charter. An unaccompanied minor cannot use Article 8 to supplement Dublin III rights unless there are very exceptional circumstances, such as systemic deficiencies preventing an effective remedy.

The respondents were brothers from Afghanistan who claimed asylum in France while minors and sought transfer to the United Kingdom to join their elder brother. France made take-charge requests under Dublin III. The Secretary of State failed to respond within two months, purported to refuse the requests after the deadline, and was found to have delayed and failed to investigate properly.

The Upper Tribunal declared that the conduct breached Dublin III, EU law and Article 8, and later awarded damages. The damages award was not appealed. The central issue before the Court of Appeal was whether incidental unlawfulness in administering Dublin III was automatically a breach of Article 8, and whether the delay interfered with the respondents’ family life.

Disposition

The appeal was allowed. The Upper Tribunal had erred in treating the Secretary of State’s incidental unlawfulness as a breach of Dublin III and Article 8.

1. Dublin III time limits. Article 22(1) required a reply to a take-charge request within two months. Under Article 22(7), failure to act meant that the request was deemed accepted and the requested state became responsible. A purported refusal after the deadline was unlawful but had no legal effect. The next stage was transfer within the overall time limit in Article 29.
2. Overall compliance. Dublin III and the Implementing Regulation did not contain sufficiently clear sub-rules allowing a court to attribute responsibility for delay within the transfer period and find a breach despite compliance with the overall time limits. Such an approach would undermine uniformity and legal certainty. The respondents were transferred within the applicable period.
3. Article 8. Dublin III was designed partly to respect family links, but its provisions went significantly beyond the obligations imposed by Article 8. Incidental unlawfulness, including failure to follow policy or an investigative duty, was not automatically a breach of Article 8 or Article 7 of the Charter.
4. Supplementing Dublin III. The principle in [2016] EWCA Civ 810 and the subsequent authorities applied even where an applicant had invoked Dublin III. Article 8 could supplement or override the scheme only in very exceptional circumstances, such as systemic deficiencies preventing an effective remedy. No such circumstances existed.
5. Positive obligation. On the facts, any Article 8 obligation was positive because the respondents had no prior right to enter the United Kingdom. The Article 8(2) requirement that an interference be in accordance with law therefore did not govern the discharge of that obligation. In any event, compliance depended on the overall outcome.
6. Alternative conclusion. Even assuming that Article 8 could be relied on, the delay did not interfere with family life. The respondents had never lived with their brother, had limited prior contact with him, and were transferred within the Dublin long-stop period.

• Court of Appeal (Civil Division). Allowed the Secretary of State’s appeal.
• Upper Tribunal (Asylum and Immigration Chamber). On 15 August 2019, declared that the Secretary of State’s processing of the take-charge requests was unlawful and breached Dublin III, EU law and Article 8. A later judgment awarded damages, but that award was not appealed.