Case summaries

The Secretary of State had appealed the decision of the FTT (supported by the Upper tribunal) on several grounds of error in law. The Court upheld the tribunal on the issue of whether they had considered the gravity of the respondent’s offences  (section 72 of the 2002 Act); but found that the tribunals had indeed erred when considering the application of Article 1C(5) of the Refugee Convention, and on the applicability of Article 8 ECHR. They consequently remitted the case of MM’s deportation to the Upper Tribunal for re-examination in its entirety, based on these errors in the previous decisions. The statement of the referral left open for the respondent the possibility of an appeal on the basis of Article 3 ECHR. 

The imposition of a "one-off" expedited procedure in France for unaccompanied children wishing to reunite with their family in the UK fell within the framework of the Dublin Regulation. The failure by the UK Secretary of State to give full effect to the Dublin Regulation (most notably Article 17) and the Commission’s Implementing Regulation was unlawful and as a consequence the applicant was deprived of a series of procedural safeguards and protection.

In addition the applicant’s procedural rights have been violated by virtue of the procedural deficiencies and shortcomings during the interview and review stage of the applicant’s request for family union. The lack of adequate enquiry, sufficient evidence gathering and a rushed mechanical decision making procedure meant that the applicant was subject to a process which did not adequately meet his needs.

This case dealt with the issue of whether the Supreme Court’s four-stage test for the determination of sexual orientation asylum claims, set out in HJ (Iran) and HT (Cameroon) v Secretary of State for the Home Department (“HJ (Iran)”), still held good, specifically the third and fourth stages which draw the distinction between those who would conceal their sexual orientation and whether the material reason for that is fear of persecution or for other reasons.
 

The Federal Supreme Court rules that the separate detention of families with minor children and the placement in a children’s home violates the right to family life in Art. 8 ECHR, if less intrusive measures than detention have not been taken into consideration.

Following the careful examination of International, European and domestic law, the Court concluded that the grant of refugee status supersedes any order made by a Family Court (regarding the return of the child to Pakistan), because it is the Secretary of State for the Home Department  that is the entrusted public authority to deal with asylum matters.  However, were the Family Court to discover new facts, the relevant public authority would be responsible, in principle, under the tenets of UK Administrative Law to review their decision. 

Judicial review to challenge the failure/refusal of the Secretary of State for the Home Department (“SoS”) to determine the application of the applicant’s spouse and two youngest children for family reunification in the UK on the following grounds: a failure to apply the SoS published policy; irrationality; breach of all the family members’ rights under Art. 8 ECHR; and (regarding the two children in the UK), breach of the duties owed under s.55 of the Borders, Citizenship and Immigration Act 2009 (“the 2009 Act”).

The Upper Tribunal found that:

1) the Home Office family reunification policy embraces a series of flexible possibilities for proof of identity;

2) the reunion applications were not examined and determined which involves a public law misdemeanour within the applicant’s grounds for challenge; and

3) in any case where withdrawal or a consent order is proposed judicial scrutiny and adjudication are required.

Article 17 forms an integral part of the Dublin Regulation and should be applied in a manner which furthers the aims and objectives of the Regulation in general. Article 17 is a justiciable right and should be particularly relied upon in circumstances where one of the overarching values of the Dublin Regulation, namely expedition, is not being fulfilled in the procedures of the host Member State. Article 17 is not subject to a prior assessment of non-satisfaction of Article 8 (family reunification) of that same Regulation.

Applicants who engaged with Dublin authorities should be subjected to less onerous standards when assessing the success of an Article 8 ECHR claim.

The UK Upper Tribunal held that there had been a failure of the Secretary of State to lawfully exercise the discretion conferred by Article 17 of the Dublin Regulation and ordered the Secretary of State to admit the applicant to the UK, based on: (1) the deficiencies of the Italian asylum system in the present case, namely the lack of sufficient expedition to register the asylum application and initiate Dublin proceedings; (2) the deficiencies and delay in the guardianship system in Italy; (3) the expected lengthy procedures for a “take charge” request and subsequent Dublin transfer; (4) the need to take into account the best interests of children.

Analysing the legality of the refusal to grant child benefit payments to parents who are not habitually resident within the State for the benefit of their children.

Article 3 ECHR is triggered in cases involving the removal of a seriously ill individual where the absence of appropriate treatment in the receiving country or the lack of access to such treatment, exposes the individual to a serious, rapid and irreversible decline in his or her state of health resulting in intense suffering or to a significant reduction in life expectancy.

Access to sufficient and appropriate medical care must be available in reality, not merely in theory and the impact of removal on an applicant must be assessed by considering how an applicant’s condition would evolve after transfer to the receiving State.

This case dealt with the extent to which in the case of a child the prospect of discrimination could amount to a real risk of persecution sufficient to found a successful asylum claim in a situation where a comparably placed adult would not be at such a risk.