UK High Administrative Court: Citizens UK v. SSHD – Dubs ‘expedited process’ stands outside the Dublin III Regulation

Monday, September 18, 2017

On 18 September 2017, the UK High Administrative Court published its decision in case Citizens UK v. Secretary of State for the Home Department (SSHD), regarding a request for judicial review of the “expedited process” established by the British and French governments and in relation to the so-called Dubs amendment. The same issues had been considered by the UK Upper Tribunal (Immigration and Asylum Chamber) in the leading judgment of AM v. SSHD. In that occasion, the UK Upper Tribunal found that the expedited procedure fell within the framework of the Dublin III Regulation and that the applicants had been deprived of a series of procedural safeguards. However, the UK High Administrative Court disagreed with that decision.

First, it considered the making of an application for international protection as an essential requirement of the Dublin III Regulation, in respect of which there could be no waiver or derogation. Without an application, it argued, there is no basis to proceed with the determination of the responsible Member State. As a result, Article 17 of that Regulation cannot be called upon without an application at least being made to the Member State. The High Court did not find that the expedited process included the making of an application for international protection, either to France or to the UK. The interview forms could have contained no more than a wish to make an application for asylum in the UK in the event of a transfer, rather than the making of an application itself. Therefore, the expedited process stood outside the Dublin III Regulation.

Secondly, the High Court found that Article 6 DRIII (guarantees for minors) does not give rise to a freestanding obligation on the UK in the absence of an application. It also found that, while the evidence on the availability of the asylum procedure in France is not clear-cut, the prevailing point is that unaccompanied asylum seeking children were unwilling to invoke the French asylum procedure.

Thirdly, it rejected the contention by Citizens UK that the effect of the expedited process was to make the UK the determining state and to be conducting an interview under Article 5 DRIII. Despite the fact that the Home Office and the French authorities referred to Article 17 DRIII (discretionary clauses) on their different material, the expedited process had to be understood as falling outside DRIII.

Fourthly, the High Court relied upon the reluctance of unaccompanied minors to apply for asylum in France to conclude that, since those who were unsuccessful in the expedited process can still apply for asylum in France and have the Dublin process at their disposition, the provision of representation or of an effective remedy were not necessary for the operation of a lawful system. Finally, while acknowledging the shortcomings in the course of the expedited process, the High Court found that there was no systemic failure and that the system was fair and reasonable.

This item was reproduced with the permission of ECRE from the weekly ELENA legal update supported by the Fundamental Rights and Citizenship Funding Programme and distributed by email. The purpose of these updates is to inform asylum lawyers and legal organizations supporting asylum seekers and refugees of recent developments in the field of asylum law. Please note that the information provided is taken from publicly available information on the internet. Every reasonable effort is made to make the content accurate and up to date at the time each item is published but no responsibility for its accuracy and correctness, or for any consequences of relying on it, is assumed by ECRE, the IRC or its partners.



Dublin Transfer
Effective access to procedures
Request that charge be taken
Unaccompanied minor
Vulnerable person