UK: Judicial review of the discretion afforded in the interpretation of Article 17(2) Dublin III

Tuesday, June 23, 2020

On 23 June 2020, the Upper Tribunal (Immigration and Asylum Chamber) published its judgment concerning judicial review of the Secretary of State for the Home Department’s (the SoS) duties in relation to Article 17(2) Dublin III Regulation.

The case concerns a Syrian national who is an unaccompanied minor residing alone in Greece, where he made a request for asylum. The Greek authorities submitted a request for the United Kingdom to take charge of the asylum request so that he may be reunified with his cousin pursuant to Article 17(2) Dublin III. This request was refused by the SoS on the basis that, inter alia, the family relationship was not within the scope of Article 2 Dublin III. The applicant made a request for judicial review of the three decisions rejecting the request for the United Kingdom to take responsibility for his asylum request.  

The Upper Tribunal (the UT) noted, inter alia, that the SoS’s discretion in relation to Article 17(2) must be exercised in the individual’s favour where to do otherwise would breach the individual’s human rights. Moreover, where such an allegation is made, the SoS has a duty to make an assessment on the lawfulness of its decision in human rights terms after taking into consideration, in the case of unaccompanied minors, the principle of the best interests of the child.

The UT highlighted the need to consider whether, on the totality of the evidence, family life had been shown to exist on the balance of probabilities, and whether the decision refusing to take charge of the asylum request disproportionately interfered with the applicant’s family life. Indeed, the Upper Tribunal noted that there was sufficient evidence to show that family life between the applicant and his cousin exists, based on, inter alia, extreme emotional dependency between the applicant and his cousin, and evidence that the applicant’s cousin assumes a position of a father figure. The Upper Tribunal concluded all three decisions were erroneous as, inter alia, they were issued on the assumption that this relationship did not exist. It added that to deny reunification would amount to an unjustified interference with his Article 8 ECHR rights.

Many thanks to Jennine Walker, Head of UK Legal and Arrivals at Safe Passage, for informing the EWLU team about this judgment.  

This item was reproduced with the permission of ECRE from the ELENA Weekly Legal Update. 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.                               

Unaccompanied minor