UK - HA, AA and NA v Secretary of State for the Home Department, JR/10195/2017, 19 April 2018

Facts:

The applicants, HA, AA and NA are a family unit, HA and AA are married and NA is their child. HA is a British citizen (originally a stateless Bidoon from Kuwait), AA is a stateless Bidoon from Kuwait and their child, NA, is considered by the applicants to be a British citizen.

In April 2014, AA and NA made an entry clearance application to the UK for family reunion with HA on the basis that HA was a refugee. This was refused by the Secretary of State for the Home Department (SSHD) on the basis that HA was no longer a refugee. AA and NA later travelled to Greece where they claimed asylum. The Greek authorities subsequently lodged a take charge request to the UK authorities on the basis of Article 17(2) of the Dublin Regulation. This was refused by the UK authorities on the basis that HA is not a beneficiary of international protection but has been naturalised as a British citizen. The Dublin Regulation did not, therefore, apply to the applicants. Thus, for the purposes of family reunion, the relevant application for entry clearance would have to be made.

Later reconsideration requests on the part of the Greek authorities and the applicants’ legal counsel were refused by the SSHD. The applicants subsequently applied for judicial review of the State’s decision where they claimed that the case fell squarely within Dublin III, that the SSHD had not addressed the best interests of the child, they had taken into account irrelevant considerations but had not taken into account AA and NA’s mental ill-health and they had violated their obligations under Article 7 of the Charter of Fundamental Rights and Article 8 of the ECHR. 

Decision & reasoning:

Finding that the Dublin III and Charter of Fundamental Rights applies to the applicants, the Upper Tribunal, first, outlines the best interests of the child, the right to respect for family life and the right to an effective remedy under Dublin III and the Charter, as well as Articles 6, 9 and 17(2) of Dublin. In respect to the latter, the Tribunal notes that whilst the State has a wide discretion to apply 17(2), its discretion is not untrammelled (as per ZT Syria).

The Tribunal notes that whilst the citizenship of NA is still pending, the State still had an obligation when assessing the position of AA to take NA’s best interests into account. Conversely, upon an assessment of the State’s decision letter it was clear that there had been no assessment of the child’s best interests. As a result, this constituted a failure to take into account a relevant matter.

The Tribunal further underscores that the State had considered irrelevant matters in its first refusal letter, namely that there had been a failure to provide conclusive evidence that entry clearance could not be obtained. According to the Tribunal, this is not adequately explained nor does it flow from Dublin III. Noting that Article 17(2) as a discretionary clause (unlike Articles 7-16) must be read through the lens of Article 7 Charter/Article 8 ECHR and the best interests of the child, the Tribunal finds that the State had, through its entry clearance argument, prevented further consideration of Articles 7/8 where discretion under 17(2) was applicable. Moreover, any argument by the State advancing that HA could exercise his free movement rights was unattractive to  the Tribunal. HA was not seeking employment in Greece, there appeared to be no prospect of him finding work and he does not speak Greek. The SSHD was, therefore, held to have taken into account irrelevant matter.

Conversely, the Tribunal held that the SSHD had failed to take into account relevant matter, notably a psychiatric report submitted by the applicants describing AA’s and NA’s vulnerability and that they suffer from PTSD. Relying on MK,IK and HK the Tribunal found that the SSHD is not only bound to take into account information submitted by the Greek government. There were manifest errors in the decision letters and no reference to humanitarian issues or the best interests of the child. Thus, the SSHD’s decision was flawed on standard public law grounds.

Last, the Tribunal examines whether the SSHD’s decision was incompatible with Article 7 Charter/8 ECHR. Ascertaining that both articles have the same meaning the Tribunal specifically focuses in on Article 7 and thus the proportionality of the decision taken by the State. Differentiating this case from ZT (Syria) and RSM where Dublin III had not been engaged, the Tribunal notes that the starting point for the potential breach must be the best interests of the child. In light of the vulnerability of her mother (suffering from PTSD and pregnant at the time) NA’s best interest is to be with both parents, especially since the family unit relies on HA as the primary carer. The Tribunal notes that HA cannot live in Greece, that he does not fulfil the financial requirements of Appendix FM of the Immigration Rules, that AA is stateless and that there is no third country that they could be together as a family. With this in mind there is, therefore, a significant interference with the right to family life. The unstable, precarious environment and the poor accommodation available for AA and NA as well as their mental health all amount to compelling and compassionate circumstances which merits the application of Article 17(2).

Concomitantly, the Tribunal finds Article 9 Dublin III to be relevant in this case and, thus the UK to be also responsible under this article, since HA’s change of status to a UK citizen does not alter the fact that he had international protection (as per ZN(Afghanistan)). The Tribunal finds the rejection of the take charge request on the basis of HA’s British citizenship to have been irrational, especially since Article 9 Dublin III includes families which came into being after the grant of protection.

The Tribunal therefore finds the refusal to accede to the take charge request as a breach of Article 7 Charter/8 ECHR (and Article 6(1) of the HRA 1998) on the basis that the SSHD’s decisions were disproportionate and not justified. 

Outcome:

Given the highly exceptional nature of making a mandatory order (which in this case would require the State to accede to the take charge request) the Tribunal makes a declaration that the decision was unlawful, as it violated the applicants article 7 Charter and 8 ECHR rights, and quashed it.