Court of Appeal decides, in the absence of an application under the Dublin III regulations, asylum seekers can only succeed on article 8 ECHR grounds in “exceptional circumstances”
Four asylum seekers, namely three unaccompanied minors and one disabled adult, were in “the jungle” – the (increasingly permanent) temporary refugee and migrant camp in Calais – since October 2015. Having fled from war-torn Syria, they were trying to join their siblings in the UK. The problem was that the French system for processing asylum claims under EU rules would involve considerable delays and the evidence showed that the conditions in the camp were wholly inadequate: these children experienced physical violence and their medical needs were unmet. So they ignored the EU rules and issued a claim in the UK.
The Upper Tribunal (UT) ordered the Home Secretary to admit the four respondents under article 8 ECHR, which protects the right to a private and family life. They have now been admitted, two have been granted refugee status and the other two are to have their asylum applications dealt with in the UK.
So the appeal is academic to those involved in that the four respondents have escaped “the jungle”, but the case has implications for future asylum seekers and the current EU asylum system.
Regulation 60/2013, or Dublin III as it is known, contains the EU-wide system for determining which Member State is responsible for processing an asylum application. An asylum seeker must first apply to the country in which they are in (France, in this case) and that country then determines the Member State responsible. If he or she is an unaccompanied minor and has family members in another Member State who can care for them, the application is passed to that country.
Simple enough, you might think. But the problem is that these children, having escaped from Syria, are stuck in the intolerable conditions of “the jungle” and would have to wait for the French system to process their application. According to the UNHCR (the UN High Commissioner for Refugees), these delays are on average 202 days and in some countries, including France, can have the result that unaccompanied minors simply become untraceable while awaiting the outcome of their application.
The Original Decision
The UT decided that, under article 8 ECHR, the four respondents should be allowed to enter the UK even though they had ignored the Dublin III processes. In essence, in carrying out the balancing exercise under article 8, the UT held that the Dublin III regime was a “material consideration of undeniable potency in the proportionality balancing exercise” and it “will require a strong and persuasive case” to override the Dublin III system.
This was the Home Secretary’s concern: should such a system be overridden by merely a “strong and persuasive case”? As Lord Justice Beatson said at , this appeal was about determining:
“In what circumstances can the processes and procedures of the Dublin III Regulation for determining the Member State responsible for processing an application for asylum be bypassed because of rights under the ECHR, in particular the right to family life under Article 8?”
Article 8 and Dublin III
The Home Secretary accepted that article 8 co-exists with the Dublin III regime but, an application such as this should only succeed in “exceptional circumstances”. At the procedural stage of the process – which is what this case concerned – there was good reason to uphold the procedures in place: cases should be dealt with in an orderly manner.
Beatson LJ accepted that an orderly process was necessary:
“There is a loose analogy with the triage stage of a visit to a hospital’s Accident and Emergency Department. Although there will be some cases where the patient arrives in such a serious state that it is obvious he or she must go to the front of the queue, it is not up to a patient or his or her family to decide on the priority to be given to him or her.”
He found support for this in the case law of the UK and the Court of Justice of the EU. In a number of cases, Convention rights trumped the application of the Dublin regulations: for example, where there are “systemic flaws in the asylum procedure and reception conditions resulting in unhuman or degrading treatment”. But how should that balancing exercise be carried out in these circumstances?
In R (CK (Afghanistan)) v SSHD  EWCA Civ 166, Laws LJ considered that the Dublin II regulation did not prohibit the autonomous application of the ECHR. But the maintenance of the regime had to have an impact on the application of article 8 because:
“if the Dublin system “was seen as establishing little more than a presumption as to which state should deal with which claim, its purpose would be critically undermined” and that “an especially compelling case under Article 8 would have to be demonstrated” to deny removal of the affected person following a Dublin II decision.”
The Court of Appeal concluded that the Dublin III regime was an important factor. As such, only in “exceptional circumstances” should an article 8 ECHR claim succeed in the absence of an application under the Dublin III regime.
Since the UT decision, systems have been put in place for the French and UK governments to improve the operation of the Dublin processes. But there is still concern that the French government is reactive and not proactive, which requires human rights organisations to locate and help unaccompanied minors before they fall to human traffickers or otherwise disappear.
But this judgment does not condemn asylum seekers to indeterminate delays in “the jungle”. It may be that applying under Dublin III will ensure a better chance of escaping intolerable conditions, even if there are delays. The right to an effective remedy under article 27 of Dublin III means that once an application is made, a lower threshold test is applied.
David Manknell of One Crown Office Row chambers was instructed by the Secretary of State for the Home Department in this appeal. He did not contribute to the writing of this post.