UK Upper Tribunal rules on authorities’ investigative duties to verify family link and right to effective remedy following rejection of take charge request

Thursday, July 19, 2018

On 19 July 2018, the UK Upper Tribunal ruled on case MS (a child by his litigation friend MAS) v. Secretary of State for the Home Department, which concerned a 17-year-old Afghan who, having fled Afghanistan and reached Europe where he lived in destitution, is now in children’s accommodation in France. In June 2017, he lodged his asylum application in France and submitted evidence, including photographs and evidence of financial support, to demonstrate the family relationship with his brother, who lives in the UK. The French authorities issued a take charge request to the UK Home Office, which rejected the request and subsequent reconsideration on the basis that the evidence submitted did not suffice to establish the family relationship.

Contrary to the Home Office’s arguments, the Upper Tribunal found that the Home Office had an investigative duty upon receipt of the take charge request, in line with the Upper Tribunal’s decision in MK, IK and HK. This duty goes beyond considering the evidence sent by the authorities of the requesting State and checking the Home Office records. This would include, if necessary, the duty to take all reasonable steps to facilitate and secure DNA testing, including in determining the options of DNA testing in the requesting State and, if not, in the UK.

Relying upon the jurisprudence of the Court of Justice of the European Union, namely C‑63/15 Ghezelbash and C‑670/16 Mengesteab, the UK Upper Tribunal found that the right of the individual to an effective remedy under the Dublin III Regulation includes judicial scrutiny of a decision refusing a take charge request. The Upper Tribunal considered that the question of whether or not MS and MAS were brothers was a question of fact that had to be determined by the Tribunal as it engaged a fundamental right, namely the right to family life. Based on the oral testimony and other information, the Upper Tribunal found that MS and MAS were indeed brothers. In light of the conclusions above, the Upper Tribunal quashed the Home Office’s decisions to refuse the take charge requests and ordered the Home Office to make a new decision on the take charge request.

We would like to thank Sonal Ghelani, Solicitor, The Migrants’ Law Project, for bringing this case to our attention. The applicant was represented by counsel Charlotte Kilroy and Michelle Knorr (Doughty Street Chambers) instructed by Jane Ryan (Bhatt Murphy).


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 remedy (right to)
Family member
Family unity (right to)
Request that charge be taken