RSM (A Child), R. (On the Application of v The Secretary of State for the Home Department

This is an appeal about the Secretary of State’s obligations to an unaccompanied child asylum seeker, RSM, under an EU legislative measure known as Dublin III. This measure specifies how the member states of the EU are to determine which of them is responsible for processing an asylum application. Thus, the first stage in the asylum process is to determine which state (by which I mean unless otherwise stated, a member state of the EU) should examine his claim. The second stage is to determine the claim itself.

RSM, when aged 13 years, had travelled to Italy from Yemen with an adult, SB, his father’s cousin. He was originally from Eritrea. He and his mother and younger brother had left Eritrea some years before and gone to Yemen, but they had to flee Yemen because of the civil war there. They decided to go to Italy by boat. RSM travelled with SB, his father’s cousin, and arrived in Italy in April 2016, but his mother and younger brother were drowned taking a similar journey in June 2016. RSM claimed asylum in Italy, which began the process to determine his claim. He was accommodated at the time of the proceedings by the Italian authorities in Rome.

The Italian authorities went no further than the first stage. In August 2016, SB and RSM made it clear to them that RSM wished to live with his aunt, ZAM, who had obtained refugee status in the UK. On 13 September 2016 RSM was officially recognised by the Italian authorities as an unaccompanied minor. He was given the date of 4 January 2017 for the next stage in his asylum claim, which was an asylum interview. The respondents, ZAM for herself and in her capacity as RSM’s litigation friend, asked the Secretary of State to approach the Italian authorities so as to take over RSM’s asylum claim under Dublin III. The Secretary of State took no action. These judicial review proceedings were brought in November 2016 in the Upper Tribunal to force the Secretary of State to take action.

The Upper Tribunal (McCloskey P and HHJ Finch) found in RSM’s favour and announced its decision on 19 December 2016 with reasons to follow. These were contained in its judgment handed down on 12 April 2017. By its order of the same date, it decided that the Secretary of State had failed to exercise her discretion under Article 17.1 of Dublin III (explained below), and made a mandatory order against the Secretary of State to admit RSM to the UK. The Secretary of State appeals against that order.

I will analyse the judgment in more detail below. The Upper Tribunal initially granted an order to admit the child to the UK with liberty to apply. On further application, the Upper Tribunal imposed and extended time limits for complying with the order, as explained below (paragraph 53). In the event, on 10 January 2017, shortly after RSM’s asylum interview, the Italian authorities made a request to the UK to take charge of RSM and the UK accepted this request. It not clear to this Court whether the existence of proceedings in this jurisdiction had an effect on the timing of the request.

RSM is now living with ZAM in this country, and this appeal will not affect his position in any way. This Court has permitted this appeal to continue because the Upper Tribunal has made similar orders in other cases and the Secretary of State wishes to test the extent of the obligations imposed by Article 17.1 of Dublin III and also the effect of the European Convention on Human Rights (“the Convention”) in RSM’s situation. The fundamental issue is whether the Secretary of State should have taken proactive steps, using powers conferred by Article 17.1, to short-circuit the processes that might otherwise apply to bring him from Italy to the UK.

Children now form a sizeable proportion of Europe’s refugees. Some are unaccompanied or separated. Some travel with unrelated adults under arrangements which exploit them. Governments seek to identify unaccompanied children, and ensure they receive appropriate protection and treatment. Article 3 of the UN Convention on the Rights of the Child (“the UN Convention”) provides that the best interests of the child must be a primary consideration in all decisions affecting children. The position of child migrants is given specific attention in Articles 20 and 22, which places obligations on states to provide special protection and assistance to a child “temporarily or permanently deprived of his or her family environment” or seeking refugee status. Article 35 of the UN Convention requires states to take all appropriate measures to prevent “the abduction of, the sale of or trafficking of children for any purpose or in any form”. States are urged to assist in the unification of refugee children with their families.

The issues about unaccompanied children came to greater public attention as a result of what the media called “the Calais jungle”. Unaccompanied children seeking asylum were waiting over a year to have their claims determined in France in squalid conditions in a makeshift camp, and some of them had family members in the UK. Two things happened that are of relevance to this case. First, on 20 January 2016 the Upper Tribunal ordered the Secretary of State to admit some of the Calais children (and a vulnerable adult) into the UK. This Court heard an urgent appeal from this order in which it had to consider the effect of Dublin III on their situation, in claims for judicial review against the Secretary of State brought on the claimants’ behalf, of attempts to bypass the French process for giving effect to Dublin III: R (ZT (Syria)) v Secretary of State for the Home Department [2016] 1 WLR 4894. I will come to that judgment in due course. Unlike the respondents in that case, RSM seeks to use one of the provisions of Dublin III, namely Article 17.1. Second, Lord Dubs drew public attention to the Immigration Bill then before Parliament which required the Secretary of State to accept a specified number of these children. This procedure is outside Dublin III and will result in some 480 children being transferred to the UK.

The parties have helpfully analysed the grounds of appeal into four issues with sub-issues. In summary, the four issues concern the questions (1) whether the discretion under Article 17 was available to be exercised when RSM’s claim was being examined by the Italian authorities (this is essentially the fundamental issue described in paragraph 6 above), (2) whether the Upper Tribunal was right to rely on certain ministerial statements which it identified, (3) whether a stage had been reached when the respondents were entitled to claim that the Secretary of State had violated Article 8 of the Convention and finally (4) whether the mandatory order made by the Upper Tribunal was an appropriate remedy in any event.

I have set out the detailed agreed issues in the final paragraph of this judgment with a summary of my answers for the reasons given in this judgment to each of the issues and sub-issues. As a result of those answers, I would allow this appeal.

To interpret Article 17 correctly, it is important to see what function it plays in Dublin III and to consider what help in determining its meaning can be derived from the jurisprudence of the Court of Justice of the European Union (“the CJEU”), and the case law in this jurisdiction. So I propose first to examine the relevant provisions of Dublin III and then the main points in that jurisprudence. I will then describe the events which followed RSM’s arrival in Italy, which are relevant to the third and fourth issues. After that I will summarise the judgment of the Upper Tribunal. Then I will turn to the issues on this appeal, which I will take individually.

EU Regulation 604/2013 of 26 June 2013, which I call Dublin III, establishes, as I have explained, a method for allocating responsibility for determining which of the signatory states should process a claim for asylum. Dublin III replaced EU Regulation 343/2003 (“Dublin II”). In this part of my judgment, I identify the provisions of Dublin III most relevant to this appeal. I have put the text of those provisions into the Appendix to this judgment (for convenience I have included all the relevant provisions even if extracts appear within the body of the judgment).

One of the aims of Dublin III is that there will only be a single state responsible for dealing with an asylum claim, namely the state where the claimant is physically present. This would prevent an asylum applicant being repeatedly transferred from one state to another. Article 3.1 contains the foundational provision:

Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.

This prevents multiple claims by the same claimant, which would undermine a state’s ability to decide in which state the claim was made. But there are, as explained below, some circumstances in which a claimant may be transferred to another state and so the initial stage is about determining responsibility for dealing with a claim. This is the responsibility-determination stage as opposed to the stage at which the substantive claim is considered. Chapter III sets out a number of criteria for deciding whether a claimant is entitled to asylum.

The function of Article 17 is to introduce a degree of flexibility into this scheme. It reads as follows:

Discretionary Clauses

17.1.

By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation.

The Member State which decides to examine an application for international protection pursuant to this paragraph shall become the Member State responsible and shall assume the obligations associated with that responsibility. Where applicable, it shall inform, using the ‘DubliNet’ electronic communication network set up under Article 18 of Regulation (EC) No 1560/2003, the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of, or to take back, the applicant.

The Member State which becomes responsible pursuant to this paragraph shall forthwith indicate it in Eurodac in accordance with Regulation (EU) No 603/2013 by adding the date when the decision to examine the application was taken.

17.2.

The Member State in which an application for international protection is made and which is carrying out the process of determining the Member State responsible, or the Member State responsible, may, at any time before a first decision regarding the substance is taken, request another Member State to take charge of an applicant in order to bring together any family relations, on humanitarian grounds based in particular on family or cultural considerations, even where that other Member State is not responsible under the criteria laid down in Articles 8 to 11 and 16. The persons concerned must express their consent in writing.

The request to take charge shall contain all the material in the possession of the requesting Member State to allow the requested Member State to assess the situation.

The requested Member State shall carry out any necessary checks to examine the humanitarian grounds cited, and shall reply to the requesting Member State within two months of receipt of the request using the ‘DubliNet’ electronic communication network set up under Article 18 of Regulation (EC) No 1560/2003. A reply refusing the request shall state the reasons on which the refusal is based.

Where the requested Member State accepts the request, responsibility for examining the application shall be transferred to it.

Taking sub-Article 2 first, a determining state may issue a “take charge request” or TCR to another state. That other state can then accept the claimant. Turning to Article 17.1, another state may decide to examine an application for international protection lodged with it by a third country national or a stateless person.

It may be helpful here to indicate the main area of dispute on this appeal. The approach of the Secretary of State is that a state is not obliged to proactively take any step under Article 17.1. It can wait until the state which is responsible for determining which state should deal with the claim makes its decision as to whether to issue a TCR under Article 17.2. If this is so, then, as the respondents point out, there may be a delay in an unaccompanied child being united with his family, and he may suffer distress or even psychological harm in the meantime. The respondents say that, under the Secretary of State’s general approach, what happens is simply that the time when the UK becomes the responsible state is being delayed.

There are two further groups of provisions which are relevant: first, those dealing with unaccompanied minors, and, second, some administrative provisions which are said to shed light on the meaning of Article 17.

Unaccompanied minors are children who are travelling without an adult responsible for them. The recitals to Dublin III refer to the provision of the UN Convention that the interests of the child shall be a primary consideration and to the desirability of ensuring that all the applications of a family are processed in a single member state. In summary, the state where the child lodges an asylum claim must try to identify family members present in other member states and must, if it is in the child’s best interests, transfer the child and responsibility for dealing with the child’s asylum claim to the state which is dealing with the asylum claim of the other family members. A child should not be transferred for any other reason. Article 6 is relevant here (see the Appendix).

Articles 7 to 15 of Dublin III appear in Chapter III, which is headed “Criteria for determining the member state responsible.” Article 8 provides that the claims of unaccompanied children may be processed where a family member is present and that unaccompanied children should be united with family members. To that end, that member state may call for the assistance of international or other relevant organisations, and may facilitate the minor’s access to the tracing services of such organisations.

Article 9.1 creates a similar exception to the general rule in Article 3.1 by providing that where a family member has obtained refugee protection in a state, that state shall be responsible for dealing with the claim of other family members even if physically present in another state.

Article 17 deals with the case where there is, say, a humanitarian reason why a state which is not responsible under the criteria in Dublin III should examine an application. Thus Article 17 confers a discretion – which as I shall explain is a wide discretion – on that state to do so. I will refer to the state which exercises that discretion as an “electing” state, and to the state which Dublin III requires to process an asylum claim as the responsible state. As explained, where the claimant is an unaccompanied minor, the responsible state is:

that where a family member or a sibling of the unaccompanied minor is legally present, provided that it is in the best interests of the minor. (Article 8.1)

Clearly that enables an unaccompanied child’s asylum claim to be dealt with in the state where his family is present rather than where the unaccompanied child himself is present, and that promotes family reunification. Where family reunification is desirable but the nearest relative is not a “family member or a sibling” (as provided in Article 8.1), the state where the child is present can invoke Article 17.2. Likewise, subject to the child making an asylum application, Article 17.1 will be available and will enable the electing state to become the responsible state (though the original responsible state which receives the TCR issued by the electing state is not bound to accede to that request).

As to administrative provisions, Article 18 sets out the obligations of the member state responsible for processing an asylum claim.

Articles 20 and 21.1 are at the start of a series of articles which set out the procedure to be followed where there is a TCR. Article 20.4 plays a significant role in the argument of the Secretary of State. It provides for the state where the claimant is present to be responsible for processing his claim, and not any other state to which he makes an asylum claim. This would appear to be designed to avoid multiple applications.

As I have said, to interpret Article 17 correctly, it is important to set it in the context of Dublin III and in the light of relevant jurisprudence of the CJEU and in this jurisdiction. We are concerned with the responsibility of the UK for an unaccompanied minor who has claimed asylum in Italy and who is in Italy in circumstances where he desires to be united with relations in the UK.

There are before us four relevant decisions of the CJEU. The first two, C-343/11 K v Bundesasylamt, and C-394/12 Abdullahi v Bundesasylamt, deal with the responsibility of states other than the host state for asylum claims and with the principle of mutual confidence, under which a person can only challenge decisions taken under Dublin III to transfer him to another state if he can show that there are systemic weaknesses in the other state’s processes, or a risk of inhuman or degrading treatment. The third case, C-648/11 MA v Secretary of State for the Home Department demonstrates the CJEU’s concern for vulnerable unaccompanied children. The last case is C-670/16 Mengesteab v Germany (judgment delivered on 26 July 2017), which was decided after the decision of this Court in ZT (Syria). I will therefore deal with it after I have summarised ZT (Syria), which established that there are substantial limitations on the ability of asylum claimants to seek remedies except against the state in whose territory they happen to be, but indicates that there may be a remedy under Article 17.1. Mengesteab is primarily relevant to the issue of when an asylum application is lodged under Dublin III for the purpose of triggering the state’s discretion under Article 17.1.

Dublin III came into force on 1 January 2014. Some of the jurisprudence of the CJEU concerns the predecessor legislation, which I will call Dublin II. Article 17.1 is the successor to Article 3.2 of Dublin II, which was known as “the sovereignty clause”. Article 3.2 provided:

(2)

By way of derogation from paragraph 1, each Member State may examine an application for asylum lodged with it by a third-country national, even if such examination is not its responsibility under the criteria laid down in this Regulation. In such an event, that Member State shall become the Member State responsible within the meaning of this Regulation and shall assume the obligations associated with that responsibility. Where appropriate, it shall inform the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of or take back the applicant.

Article 17.2 is the successor to Article 15 of Dublin II, which is headed “Humanitarian clause”. Article 15 provided as follows:

(1)

Any Member State, even where it is not responsible under the criteria set out in this Regulation, may bring together family members, as well as other dependent relatives, on humanitarian grounds based in particular on family or cultural considerations. In this case that Member State shall, at the request of another Member State, examine the application for asylum of the person concerned. The persons concerned must consent.

(2)

In cases in which the person concerned is dependent on the assistance of the other on account of pregnancy or a new-born child, serious illness, severe handicap or old age, Member States shall normally keep or bring together the asylum seeker with another relative present in the territory of one of the Member States, provided that family ties existed in the country of origin.

…

(4)

Where the Member State thus approached accedes to the request, responsibility for examining the application shall be transferred to it.

Article 15.2 of Dublin II contemplates family reunification where the asylum claimant is dependent on a person present in the territory of a member state (the host member state), but not, apparently, vice-versa. That converse situation arose in K v Bundesasylamt, where the persons present in the host member state were dependent on the asylum claimant. She was the mother-in-law of one of them who had children, including one recently born, and was seriously ill. The dispute arose because she had originally entered the EU via Poland and unlawfully entered Austria where her daughter-in-law had obtained asylum. The CJEU took the view that in that situation the expressions “dependent” and “relative” could be given a broader meaning in Article 15.2 (Judgment, paragraphs 37 and 38). Moreover that sub-Article imposed an obligation on the host member state, where the specific circumstances mentioned in that sub-Article were fulfilled (Judgment, paragraph 47).

Significantly, there was a second question in that case, namely whether Article 3.2 also imposed an obligation on a state to take responsibility for an asylum claim where the claimant potentially had a right to family life with persons within the territory of that state. That is the situation in the present case. The CJEU declined to answer the second question on the basis that it did not arise. In so doing, the CJEU may be taken to have distanced itself from the Opinion of Advocate General Trstenjak that the member state might have to exercise its discretion under Article 3.2 where Articles 3 or 8 of the Convention would be violated if it did not do so. The CJEU noted that there was a distinction to be drawn between Article 3.2 and Article 15.2 in that the former contained an open-textured discretion (my words) whereas the latter created a general rule that there would be family reunification in specified circumstances. It held:

27.

In that regard, it should be noted that, while Article 15(1) of Regulation No 343/2003 is an optional provision which affords the Member States extensive discretion with regard to deciding to ‘bring together’ family members and other dependent relatives on humanitarian grounds based in particular on family or cultural considerations, Article 15(2) of the same article, however, restricts that power in such a way that, where the conditions laid down in that provision are satisfied, the Member States ‘normally keep together’ the asylum seeker and another member of his family.

In the subsequent case of Abdullahi v Bundesasylamt [2013] ECR I-0000, the CJEU affirmed the holding in K v Bundesasylamt that Articles 3.2 and 15.1 conferred a wide discretion on member states. It went on to hold that, because of the principle (“the principle of mutual confidence”) under which EU states have confidence in each other to observe fundamental rights, including those conferred by the Refugee Convention of 1951, the only way in which an asylum applicant could challenge the state’s decision about the choice of criterion applicable to his case for determining the member state responsible for dealing with his claim was by pleading systemic deficiencies in the asylum procedure and in the conditions for the reception of asylum claimants, which provided substantial grounds for believing that the applicant for asylum would face a real risk of being subjected to inhuman or degrading treatment within the meaning of Article 4 of the EU Charter of Fundamental Rights and Freedoms (“the Charter”). The CJEU relied upon (C-411/10 NS (Afghanistan) v Secretary of State for the Home Department, paragraphs 94 and 106, and Case C-4/11 Puid, paragraph 30).

The CJEU has recognised that unaccompanied children are vulnerable. It has held that their claims should be determined in the state in which they are physically present and that they should not normally be transferred: MA v Secretary of State for the Home Department, [59]-[61]. That case decides that, to guarantee the best interests of children to have their claims rapidly processed, “as a rule, unaccompanied minors should not be transferred to another Member State”.

On 2 August 2016, this Court handed down its judgment in the Calais case: (ZT Syria). The respondents had started judicial review proceedings against the Secretary of State contending that the UK and not France, where the respondents were present, was responsible for determining their asylum claims as they had family members in the UK. The respondents had omitted to make any application to the French authorities at all. Relying on Article 8 of the Convention (right to respect for private and family life), the Upper Tribunal made an order directing the Secretary of State to admit them to the UK. The Secretary of State contended that this order should not have been made. The respondents should have made applications in France and the UK was not bound to take any action unless France decided to issue a TCR.

Beatson LJ, with whom Moore-Bick and Longmore LJJ agreed, gave the main judgment. He held Dublin III did not exclude the operation of Article 8 of the Convention. Dublin III and Article 8 operated side by side. That means as we shall see that Article 8 of the Convention cannot be invoked to bypass the processes laid down in Dublin III save in limited circumstances, such as where there are systemic deficiencies that would lead to a violation of Convention rights.

Mr James Eadie QC, for the Secretary of State, made a submission which this Court rejected but which is important because it led this Court to make observations about Article 17. The submission was that there was “an absolute rule that the determination of the responsible member state must be by the operation of the Dublin process and procedures in the member state in which the individual is present.”

One of the reasons why Beatson LJ rejected this submission was because Article 17 permitted an individual to make a request to the Secretary of State to exercise the power to take responsibility for an asylum claim, and the exercise of this power was subject to judicial review in limited circumstances on the usual grounds:

85.

A further reason for rejecting Mr Eadie's submission in its absolutist form is article 17 of the Dublin III Regulation. Since the relevant officials in the second member state have power to assume responsibility in a case in which the Regulation assigns it to another member state, it cannot be said that it is never open to an individual to request that state to do that…. In a context in which the exercise of power relates to relations between two member states as to the operation of a treaty arranging for the allocation of responsibility for examining applications for asylum between member states, this is clearly correct. There will be a wide range of relevant considerations for the decision-maker to take into account: see all the factors that the UT stated were relevant to the assessment of proportionality. But subject to the effective scope of judicial review being narrower for this reason, the exercise by the Secretary of State of her discretion is subject to the ordinary public law principles of propriety of purpose, relevancy of considerations, and the longstop Wednesbury unreasonableness category (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223) and, because of the engagement of article 8 of the European Convention, the intensity of review which is appropriate in the assessment of the proportionality of any interference with article 8 rights.

I have omitted the parts of paragraph 85 which deal with justiciability as the Secretary of State no longer rests her case on that principle.

Beatson LJ also considered whether a person claiming asylum in another state could rely on Article 8 of the Convention in proceedings in this country. In general, the European Court of Human Rights (“the Strasbourg Court”) regards Dublin III as providing equivalent protection to Article 8. However, there may be a violation in limited circumstances (see paragraphs 39 and 40 below). Beatson LJ cited this Court in R (CK (Afghanistan) v SSHD [2016] EWCA Civ 166 at [31] where Laws LJ held that an asylum claimant was only able to rely on Article 8 to challenge a decision to remove him under Dublin II if “an especially compelling case could be demonstrated”.

Beatson LJ further held that an asylum claimant present in a member state should claim asylum in that state and pursue his remedies there. He should not seek to bypass the Dublin system by claiming asylum in another state unless he had an exceptionally compelling case ([83], [95]), such as urgency or significant delay to family re-unification ([84]), or where the processes were not capable of adequately responding to his needs and providing an effective remedy ([95]). In ZT (Syria), Beatson LJ considered that the Upper Tribunal had set too low a hurdle ([92]) and emphasised the conditions at the camp rather than the effect on family life ([91]).

Beatson LJ summarised his approach in these terms:

95.

I consider that applications such as the ones made by these claimants should only be made in very exceptional circumstances where they can show that the system of the member state that they do not wish to use, in this case the French system, is not capable of responding adequately to their needs. It will, in my judgment, generally be necessary for minors to institute the process in the country in which they are in order to find out and be able to show that the system there is not working in their case. This is subject to the point that, as I have stated, these cases are intensely fact-specific. There will be cases of such urgency or of such a compelling nature because of the situation of the unaccompanied minor that it can clearly be shown that the Dublin system in the other country does not work fast enough. The case of the Syrian baby left behind in France when the door of a lorry bound for England closed after his mother got onto the lorry referred to in Mr Scott's fourth statement is an example. But save in such cases, I consider that those representing persons in the position of the claimants should first seek recourse from the authorities and the courts of the member state in which the minor is. Only after it is demonstrated that there is no effective way of proceeding in that jurisdiction should they turn to the authorities and the courts in the United Kingdom.

96.

In the present case, as well as deciding to bypass the French administrative and court system, the lawyers advising the claimants did not pursue the formal procedures for making an application on their behalf to the United Kingdom. It was argued on their behalf that no arrangement known or communicated to their lawyers identified a mechanism which they were able to pursue to allow the Secretary of State to consider the article 8 compatibility of refusing prompt entry to the United Kingdom. It is stated that the point did not feature in the pre-action correspondence or the Secretary of State's acknowledgment of service and summary grounds and that the Secretary of State's position was that she would only consider a Dublin “take charge” request by the French authorities. There is force in these submissions. It was only in March 2016 that Mr Gallagher's evidence on behalf of the Secretary of State identified alternative possibilities. Moreover, his evidence suggests that the first four claimants' applications could not have met the requirements of the provisions of the Immigration Rules to which he referred.

97.

That is not to say that in a case where legal representatives contend that the Secretary of State ought to consider a person outside the jurisdiction on the ground that she is under a positive duty to admit that person to the United Kingdom for family reunification they are entitled entirely to rely on her. In the present case, the claimants' representatives had been in communication with the Secretary of State. They furnished some of the material which they would have had to have furnished if they had applied for entry clearance in France or for asylum in the United Kingdom. They did not furnish all of what would have been required and did not make the first four claimants available for interview. I consider that it is incumbent on those representing the individual or individuals to furnish the authorities with all the information that would be needed in a formal application, including biometric data, as if they were seeking entry clearance. It cannot be right to shift the initial assessment from the country in which a minor physically is to another country or to justify seeking to do so by asserting that the first country is unable to act but to leave the Secretary of State without the information she will need to assess the application in the way she would have done had the person had reached the United Kingdom and made an application.

In the even more recent case of Mengesteab, Mr Mengesteab entered Germany, and made an asylum claim in September 2015. He was registered as an asylum seeker initially in September 2015 and then in October 2015. His request for asylum was then sent to the appropriate agency in Germany for determining his claim. In July 2016, he had an asylum interview. After that, he was able to lodge his claim in Germany. In August 2016, Germany sought to return Mr Mengesteab to Italy on the grounds that it appeared from fingerprint records that he had first entered the EU via Italy and was unlawfully present in Germany. However, Mr Mengesteab contended that Germany had failed to make the necessary TCR within the three-month period specified in Dublin III for this purpose. The correctness of this submission depended on when Mr Mengesteab made his application for asylum.

The CJEU held in answer to the fifth question before it that the three-month period ran from the date on which the competent authority within the state receives his formal application for asylum, that is, a written document confirming the request for asylum even if not one which the applicant had himself completed. This period had begun to run when his request was received by the appropriate authority (i.e. in September 2015), and so had expired. As a result, Germany retained responsibility for determining the claim. Under Article 17.1, a state could opt to scrutinise a claim even though it was not responsible for doing so under Dublin III.

The CJEU also held that the EU legislature, in enacting Dublin III, did not merely introduce organisational rules governing relations between member states for determining the member state responsible, but decided to involve asylum seekers in that process, by conferring on them, amongst other things, the right to an effective remedy in respect of any transfer decision that may be taken against them ([45]).

These events are relevant when I come to consider whether Italy, as the host state responsible for determining RSM’s asylum application, failed to carry out its responsibilities under Dublin III.

ZAM went to meet RSM in Italy. She and SB met with the director of the home where RSM was accommodated and a legal adviser on 10 August 2016 and explained that ZAM wished to care for RSM in the United Kingdom. The director then arranged for SB to sign a declaration severing his asylum claim from that of RSM.

In September 2016 the Italian authorities prepared a physiological report on RSM. On 13 September 2016 he was recognised as an unaccompanied minor. He was then transferred to accommodation for unaccompanied minors in Rome and a social worker was appointed for him. On 10 October 2016 the social worker confirmed that she had applied to the Italian court for delegated authority to administer asylum claims on RSM’s behalf. On 21 October 2016 the Mayor of Rome was appointed legal guardian for RSM. It is understood that the Italian court made an appropriate order for delegation to the social worker on some date after 14 October.

On 16 November 2016 RSM’s social worker and RSM initiated asylum proceedings in Italy. RSM was fingerprinted (the first stage in the asylum process) and given an interview date of 4 January 2017 for the formal lodging of his asylum claim. RSM’s asylum interview took place on 4 January 2017. On 10 January 2017 a TCR was made by Italy to the UK. There was then a short delay while the Secretary of State performed checks via the local authority on ZAM. On 25 January 2017 the UK accepted the TCR.

So far as the course of these proceedings is concerned, there was a pre-action protocol letter on 10 October 2016 from RSM’s solicitors. The claim was issued on 2 November 2016, seeking a declaration that the Secretary of State had failed to exercise her discretion under Article 17 of Dublin III and a mandatory order that he be admitted to the UK. The Secretary of State filed her summary grounds of opposition, having been ordered to do so with expedition. At the first hearing on 5 December 2016, McCloskey P granted permission for judicial review and ordered the Secretary of State to file evidence about her consideration of her discretion under Article 17 and adjourned the case for two weeks.

On 12 December 2016, the Secretary of State filed evidence from two witnesses and further evidence was later filed on behalf of RSM. In her witness statement, Ms Julia Farman, then the acting Head of the Dublin Unaccompanied Asylum-Seeking Children Unit at the Home Office, gave evidence about the Secretary of State’s approach to Article 17 of Dublin III:

10.

I understand the Tribunal has also raised the question of why the Secretary of State had not used her discretion under Article 17 to transfer RSM to the United Kingdom without waiting for the take charge process. I should point out that other member states will make take charge requests to the UK under Article 17 as well as Article 8. In general the Secretary of State would only exercise her discretion under Article 17 in a case where an individual had some family links to the UK but where he or she fell outside of Article 8. If Home Office officials received evidence that there was a close relationship between the unaccompanied minor and the family member in the UK which although not falling within Article 8 of the Dublin Unit was akin to such a relationship, the Secretary of State would likely consider using Article 17 to bring the minor to the United Kingdom.

11.

I should also explain that with regard to transfers under Article 17 although they are within the Secretary of State’s discretion, this does not mean that she simply will notify the member state where the minor is that the UK will process the minor’s asylum claim and that the Home Office will arrange transportation. Home Office officials would instead enter into a dialogue with the authorities of that member state given they have custody of the child. It would also be for the transferring member state to make the travel arrangements for a transfer under Article 17 whether or not a take charge request had been made under that Article.

The Government Legal Department kept the respondents’ solicitors informed of the events in Italy.

At a substantive hearing on 19 December 2016, the Upper Tribunal found in favour of RSM and ordered that he be admitted to the UK forthwith.

RSM did not arrive in the UK until about two months after the date of the order of the Upper Tribunal for the reasons explained in this paragraph. On 20 January 2017, the respondents’ solicitors applied to the Upper Tribunal under the liberty to apply. On 24 January 2017, the Upper Tribunal held a further hearing and ordered RSM to be admitted by 30 January 2017 at the latest. On 27 January 2017, the Government Legal Department made an application to vary the order made by the Upper Tribunal because of a need for Italian Magistrate approval. On 30 January 2017, the Upper Tribunal extended this time to 6 February 2017. On that date the Secretary of State applied to vary the order again due to no approval having been given by the Italian Magistrate and an extension was granted until 10 February. At a further hearing on 9 February 2017, the Upper Tribunal extended time to 14 February 2017. On that date, the Secretary of State sought a further extension due to the need to liaise with the Italian authorities over travel arrangements and an extension was granted on 16 February 2017. On 10 February 2017, the Italian Magistrate agreed that RSM could be released into UK care. On 16 February 2017 RSM arrived in the UK.

On 17 February 2017 (after RSM’s arrival in the UK) the Upper Tribunal set out its initial reasoning, which it later expanded on. On 31 March 2017, the Upper Tribunal gave permission to appeal and permission to bring proceedings to determine whether the Secretary of State was in contempt, as RSM’s legal representatives had sought. On 12 April 2017, the Upper Tribunal delivered its judgment and on 9 May 2017, the Secretary of State filed the appellant’s notice, grounds of appeal and skeleton for this appeal.

On this appeal, the Secretary of State had brought the court’s attention to further documents she had recently obtained from the Italian authorities, which she would expect to obtain in the normal course of a TCR. The first document was dated 16 November 2016 and gave information about RSM’s condition. There was also a declaration from him that he was born in Eritrea in 2004. A copy of his residency card was also produced. There was also a statement from SB making it clear that he did not have authority for RSM. These documents show that SB needed a Tigrinya interpreter.

As I have said, the Upper Tribunal made a mandatory order against the Secretary of State to admit RSM into the UK. In this section I examine in detail the process of reasoning by which it arrived at this result.

The Upper Tribunal began by holding that Article 17 applied to a situation where another state was not dealing with an asylum claim expeditiously. The Upper Tribunal considered that:

Article 17 has a role in circumstances where one of the overarching values of the Dublin Regulation, namely expedition, is not being fulfilled in the procedures and systems of the host Member State in any given case. The present case, imbued with powerful humanitarian elements and significant delays in Italy, provides a concrete illustration of the potential operation of Article 17. ([43])

In other words (my words), Article 17 could be used proactively to achieve expedition where another Article would otherwise govern the transfer of responsibility. The Upper Tribunal rejected the submission of the Secretary of State that Article 17 has no application where Article 8 of Dublin III would in principle apply ([42] to [43]).

The Upper Tribunal held that it was “abundantly clear” that before the start of the proceedings the Secretary of State had not given any consideration to exercising her discretion under Article 17. It rejected the argument that a decision under that Article had been implicitly made ([39] to [40]).

The Upper Tribunal then held that it “follows inexorably from our analysis above that the first limb of the Applicant’s challenge succeeds.” ([41]). It held that this conclusion (that there was a failure to exercise the discretion) was sufficient to dispose of the case so that the remainder ([42] to [49]) was obiter. The Upper Tribunal referred to “the comparative novelty of Article 17 challenges” ([41]).

The Upper Tribunal held that the Secretary of State “evidently considers that the Article 17 discretion falls to be exercised only where the family reunification criteria found in Article 8 are not satisfied: (see [35] above).” ([42]).

At [44] to [45], the Upper Tribunal relied on various passages from ZT(Syria), particularly paragraph 85 which is set out at paragraph 37 above, to conclude that the exercise of the discretion under Article 17 could be based on a broad range of factors, and that in some circumstances consideration of particular factors would be obligatory ([45]).

In an earlier section of its judgment headed “The Secretary of State’s evidence” (beginning at [26]), the Upper Tribunal set out certain selected extracts from various ministerial statements and other government pronouncements. These were not part of the Secretary of State’s evidence but had been exhibited to ZAM’s solicitor’s witness evidence. The Upper Tribunal held at [26] that the Secretary of State’s evidence should be “prefaced” by these statements. There was no explanation as to why these particular extracts from these particular statements had been selected. At [28], the Upper Tribunal concluded that these extracts amounted to “government policy”, and that the Secretary of State’s evidence “falls to be evaluated by reference to the policy framework ascertainable from the above”.

Those passages were as follows:

The Secretary of State's Evidence

26.

It is appropriate to preface the evidence filed on behalf of the Secretary of State with certain Ministerial statements providing an insight into the United Kingdom Government's published policy in this field. These statements were made in the context of the advance of the Immigration Bill through the two chambers of Parliament. The first clear policy, statutory in nature, finds expression in what became known as the "Dubs Amendment", dating from 21 March 2016:

"Unaccompanied Refugee Children: Relocation and Support

The Secretary of State must, as soon as possible after the passing of this Act, make arrangements to relocate to the United Kingdom and support 3,000 unaccompanied refugee children from other countries in Europe.

(2)

The relocation of children under (1) shall be in addition to the resettlement of children under the Vulnerable Persons Relocation Scheme."

This later became section 67 of the Immigration Act 2016, though in modified form, omitting reference to 3,000 children and requiring the appropriate number to be determined by the Government after consulting with local authorities.

27.

On 21 April 2016 the Minister for Immigration gave a written statement to Parliament concerning what later became known as the children at risk resettlement programme which described as the results of –

"………. work with UNHCR and informed by a round table with NGOs, local authorities and devolved administrations to provide a resettlement route to the UK, specifically designed for 'children at risk' from the Middle East and North Africa region ……

This broad category encompasses unaccompanied children and separated children – those separated from their parents and/or other family members – as well as other vulnerable children such as child carers and those facing the risk of child labour, child marriage or other forms of neglect, abuse or exploitation ….

We will commit to resettling several hundred individuals in the first year with a view to resettling up to 3,000 individuals over the lifetime of this Parliament, the majority of whom will be children."

That Statement also said as follows with regard to Dublin III family reunification:

"It is important to use the tools available to help children reunite with family wherever possible. The Government are committed to meeting our obligations under the Dublin regulation. We have seconded additional resource to the European Asylum Support Office totally over 1,000 days of expert support to Italy and Greece to implement and streamline the Dublin process, including to quickly identify children who qualify for family reunion. And we continue to work with the French authorities to address the situation in Calais, including through a permanent bilateral standing committee to improve cooperation on Dublin transfers, particularly family reunion.

….

The recent secondment of a senior asylum expert to the French Interior Ministry to improve the process for family cases has already resulted in a significant increase in the number of children being reunited with family in the UK. In the last six weeks 24 cases have been accepted for transfer to the UK from France under family unity provisions, more than half of whom have already arrived in the UK. Once an asylum claim has been lodged in another member state we have demonstrated that transfers can take place within weeks."

In the Parliamentary debate which followed on 10 May 2016, the Minister said the following in answer to a question regarding the implementation of the Dubs amendment:

"Clearly, there is a renewed focus given our acceptance of the Dubs amendment to the Immigration Bill. I absolutely want to use that as a means of speeding up and making more effective the processing of those with links to family in the UK. Vulnerable children can then be reunited with their extended family in the UK, which is in their best interests, and will no longer be isolated in France, Italy or Greece."

The Minister continued:

"As I have said, we want to make rapid progress. We are already taking children with family connections to the United Kingdom from France and we want to find ways of improving the process further so that, when cases are identified, we can take charge and ensure that those children come to the UK quickly. There are vulnerable children in Italy and Greece, which is precisely why we are opening a dialogue with those countries. We want to understand their systems properly and join up with them effectively so that we can identify such children and act to enable them to come to this country."

28.

Government policy is also ascertainable from one of its publications, entitled " Immigration Act 2016 Fact sheet – Unaccompanied Refugee Children (Section 67 )", dated July 2016. This contains inter alia, a series of "Key Questions and Answers", including the following:

"How will this work with the Dublin Regulation? …….

The Government will continue to work with other Member States to ensure that the Dublin Regulations, including the provisions on family unity, can work quickly and effectively. Over 30 children were accepted for transfer under Dublin from France between January and April this year and there are many more cases in train following intensification of co-operation between the UK and France, which included the secondment to the France Interior Ministry of a senior UK expert. We had a secondee in the Dublin Unit in Italy and are about to send another to the Dublin Unit in Greece …..

We expect the Dublin Regulation will provide the legal framework for the transfer from other European Countries of many of the cases that fall under the Act. Our aim is to use whatever tools work best for the countries and partners concerned and give us the best chance of transferring children quickly."

[Upper Tribunal’s emphasis]

To similar effect is the statement made by the Minister of State for the Home Office in Parliament on 31 October 2016:

"More widely in Europe, we are in active discussions with the UNHCR, other partner organisations and the Italian and Greek Governments to strengthen and speed up mechanisms to identify and assess unaccompanied refugee children and transfer them to the UK where that is in their best interests ….. I believe we should be acting in the best interests of the child and for that reason we are focusing on prioritising family reunion cases. "

[Upper Tribunal’s emphasis]

We consider that the witness statements filed on behalf of the Secretary of State fall to be evaluated by reference to the policy framework ascertainable from the above quotations.

At [46], the Upper Tribunal concluded that the Secretary of State had to take the content of those policies into account when exercising the discretion under Article 17, and that the failure to do so “is an obvious and freestanding factor”. The Upper Tribunal set out the various ministerial statements and held that although they were couched in general terms, “their orientation is consistent and unmistakable”. ([46]). By implication the Upper Tribunal concluded that the Secretary of State had failed to take into account her own policy ([47] to [49]).

The Upper Tribunal considered the challenge under Article 8 of the Convention at [50] to [61]. At [50] it applied the reasoning in paragraph 95 of ZT (Syria)(set out at paragraph 41 above) but distinguished it on the basis that RSM had “engaged with the Italian Dublin Regulation system” ([51]). The Upper Tribunal considered that the main question for the Tribunal, was whether there was no effective way of proceeding in Italy ([51]). It took the view that “effective” was a relative and fact-sensitive issue, and that a factor in that was expedition ([52]). It placed reliance on the fact that (without seeking to judge whose fault it was) the lodging of a claim for asylum in Italy would have been attained some months ago but for the “erroneous assessment that RSM was not an unaccompanied child” ([54]). It considered some of the evidence as to when a TCR would be likely to be made and formed the view that it was unlikely to be made until May to September 2017 ([57]). It considered that the best interests of RSM, taken as a primary consideration, were served by immediate re-unification with his relatives ([58] to [59]).

Basing itself on paragraph 95 of ZT (Syria), the Upper Tribunal decided that the question for the Upper Tribunal was: “have the Applicants demonstrated that RSM’s asylum claim which entails a plea to be transferred to the UK under Article 8 of [Dublin III] is not being efficaciously processed?” ([60]). It concluded for the reasons that were already given in the short judgment on 19 December 2016 set out Appendix 2 to the judgment of 12 April 2017, that the Applicants had done so and that the ZT (Syria) threshold of very compelling circumstances was overcome ([61]).

The Upper Tribunal then made the orders set out in paragraphs 62 of the judgment:

62.

(a) The Secretary of State is hereby ordered to admit the first Applicant, RSM, to the United Kingdom.

(b)

It is hereby declared that there has been a failure by the Secretary of State to lawfully exercise the discretion conferred by Article 17 of the Dublin Regulation.

(c)

There shall be liberty to apply.

As regards (a), we decline to impose any time limit for admission as this duly respects the roles and responsibilities of the Italian authorities and provides a layer of protection for RSM: see [60] above. Furthermore, this species of orders has operated successfully in other cases and the mechanism of liberty to apply, in (c), can be invoked if necessary.

The Upper Tribunal added the following postscript about the effect of its order, which made it clear that by implication the order meant that the Secretary of State was to effect the admission of RSM into the UK within a reasonable time, as assessed by the Upper Tribunal:

68.

On 20 January 2017 the mechanism of liberty to apply was invoked on behalf of RSM as he had not been admitted to the United Kingdom. This resulted in further listings before the Tribunal on 24 January and 09 February 2107 and delayed the promulgation of this final judgment. See [25] above. This gave rise to further mandatory orders of the Tribunal requiring the Secretary of State to admit RSM to the United Kingdom by a specified date and to equip him with a travel document insofar as necessary. Ultimately, the Applicant's admission to the United Kingdom was effected on 16 February 2017. In the interests of economy, the “liberty to apply” orders are not appended.

69.

Finally, during the liberty to apply phase, the Applicants' legal representatives invited the Secretary of State's representatives to formally concede that the Tribunal's order of 19 December 2016 had been breached. We construe the Applicants' position to be one of pursuing a further remedy, in the form of a declaratory order, to reflect this. We shall treat this as a discrete, ancillary application. The concession sought was not provided.

70.

It was implicit in our order dated 19 December 2016 that the Secretary of State should effect the admission of the first Applicant, RSM, to the United Kingdom within a reasonable time. The Tribunal would, clearly, be the arbiter of reasonableness in the event of an asserted breach. During the “liberty to apply” phase, some further evidence was lodged on behalf of the Secretary of State. As the Applicants' representatives acknowledge in their application, this may be incomplete and further evidence may be required. We consider that directions for further evidence would indeed be necessary. This would inevitably give rise to increased costs and may, ultimately, require a further hearing in order to determine the issue raised.

In Appendix 2 to its judgment, the Upper Tribunal stated that the threshold of very compelling circumstances was overcome because “RSM’s personal circumstances…belong towards the upper end of the notional highly compelling spectrum and…the Italian Dublin Regulation system has not served him with the anxious attention, efficacy or expedition for which his unique, highly fact sensitive situation has been pleading since April 2016 or June 2016” (Upper Tribunal judgment, Appendix 2, [8]-[9]).

This Issue concerns the question whether, as the Upper Tribunal held, Article 17 of Dublin III can be used to require the Secretary of State to act proactively to bring an unaccompanied child asylum-seeker from the territory of another state to this country in order to unite him with family members even before the host state has issued a TCR and before the claimant has set foot in the UK. This entails a close analysis of Article 17.1. That Article empowers the Secretary of State to take over an asylum application “lodged” with the UK and so the question arises as to precisely when an application is lodged for the purposes of this Article.

My conclusion is that the Secretary of State is right to say that Article 17.1 depends on the asylum seeker having lodged an asylum claim in the UK, something that a result of our domestic law can only be done if the asylum seeker is within the jurisdiction. This means that the powers in Article 17.1 cannot be exercised unless (for example) the Secretary of State and the host state are able to come to some arrangement for transferring the child and bringing the child to the borders of the UK so that the necessary application can be made. Article 17.1 can then be activated. It may be necessary to take this course where it is not open to the host state to issue a TCR under Article 17.2. Clearly if the state issues a TCR under Article 17.2, it is that sub-Article which will apply, not Article 17.1. Where the Secretary of State triggers Article 17.1, the claimant will be able to live in the UK while his application is determined.

Secretary of State’s submissions on Article 17.1 of Dublin III

Asylum claimant must be present in the UK to lodge an asylum claim here

Ms Lisa Giovannetti QC, for the Secretary of State, relies on the legislative history of Article 17.1 and Article 17.2. She submits that Article 17.1 is the legislative successor to Article 3.2 of Dublin II and that it reserves to a state the power to ensure that one claimant can be united with another at least where that would not otherwise happen and where it has not already happened under the Dublin III system, and that this is the true scope of Article 17.1. By contrast, Article 17.2 is the legislative successor to Article 15 of Dublin II, which gives rise in certain circumstances to a positive obligation to promote family reunification on the part of the state. Indeed, as I have noted above, the CJEU so held in K v Bunesasylamnt (see paragraph 30 above).

Ms Giovannetti then turns to the limitations in Article 17.1 itself. She submits that Article 17.1 of Dublin III is not engaged unless the asylum claimant is present in the UK because it is only then that he can make an asylum claim. In R (European Roma Rights Centre) v Immigration Officer at Prague Airport (United Nations High Commissioner for Refugees intervening) [2005] 2 AC 1 (at [15] to [18] per Lord Bingham with whom Lord Hope, Lady Hale and Lord Carswell agreed), the House of Lords held that the expression “refugee” had to be understood as referring to a person who had entered but was not resident in the UK.

The definition of a “claim for asylum” in the Immigration Act 1993, section 1 also reflects the fact that an asylum claimant must be in the UK when he makes his claim for protection:

“claim for asylum” means a claim made by a person (whether before or after the coming into force of this section) that it would be contrary to the United Kingdom’s obligations under the Convention for him to be removed from, or required to leave, the United Kingdom…

On Ms Giovannetti’s submission, Immigration Rule 327 of the Immigration Rules also makes it clear that an asylum claimant must be present in the UK:

Under the Rules an asylum applicant is a person who either; (a) makes a request to be recognised as a refugee under the Refugee Convention on the basis that it would be contrary to the United Kingdom’s obligations under the Refugee Convention for them to be removed from or required to leave the United Kingdom, …

Ms Giovannetti submits that her interpretation of Article 17.1 is supported by Article 6.1 of Council Directive 2005/85/EC (“the Procedures Directive”), which enables a state to select a place for lodging an asylum claim. (There is a later directive on this subject but it does not apply to the UK). Article 6.1 provides:

Member States may require that applications for asylum be made in person and/or at a designated place….

In the UK, the designated place is within the jurisdiction (see Immigration Act 1993, s 1, paragraph 74 above).

Ms Giovannetti submits that Mengesteab is not authority for the contrary position. The applicant was within the host jurisdiction throughout the asylum process. The conclusions of the CJEU must be understood against that fact. They make sense if the applicant is present, not if the applicant is abroad.

Thus, on Ms Giovannetti’s submission, a person making “an application for international protection” for the purposes of Article 17.1 must be within the jurisdiction and thus the Secretary of State had no exercisable discretion under Article 17.1 while RSM was in Italy.

Future claims: asylum claims cannot be made from abroad

Ms Giovannetti submits that the wording of Article 17 cannot be extended to cover “future claims” by persons who have not yet entered the jurisdiction. A mere letter in which a person expresses a desire to make an asylum claim after entering the jurisdiction cannot be an application for Article 17 purposes. On her submission, the CJEU jurisprudence does not suggest otherwise. Moreover, if Article 17 applied when the claimant was in another state but had failed to make an application there, the provisions in Dublin III for the applicant to be given information (Article 4) and to have an interview (Article 5) could not be operated.

Moreover, there would be obvious practical difficulties in examining, or determining, an out-of-country asylum claim if the applicant has not made a claim in the country where he is present. Furthermore, Article 17.1 makes provision for notification on Eurodac, which proceeds on the basis that a person concerned has already made an application for asylum. This is inconsistent with the concept of future claims being lodged. There are also no provisions for the transfer of persons who had made future claims. All these matters pointed against Article 17.1 extending to future claims. In Abdulallahi, there was no issue as to whether the claim had been lodged.

On Ms Giovannetti’s submission, Soole J was correct to hold in R (Citizens UK) v SSHD [2017] EWHC 2301 (Admin) at [238] to [243] that for Article 17.1 to apply an application must have been made to the state, and the CJEU in NS (Afghanistan) at [64] to [68] had proceeded on that basis. The respondents’ argument would require a state to take responsibility for considering an application before it has been lodged.

Presence of child asylum-seeker in the responsible state is likely to be necessary to determine his best interests

In addition, Ms Giovannetti submits that another factor which indicated that future claims were not included was that it could not be in the best interests of the child for a state to transfer the child to another state without its making enquiries as to what would be in the child’s best interests. The child’s best interests could be looked after and made a primary consideration without Article 17 having the meaning for which Mr Fordham contended. That point was not diminished by the fact that there could be extreme circumstances – as where the Syrian baby had unexpectedly been separated from its mother and left behind in France when she entered the UK (see passage cited from ZT (Syria) at [95] set out in paragraph 41 above) – when it would be obvious that the Secretary of State had to take immediate steps to obtain the transfer of an unaccompanied minor.

Article 8 of the Convention operates alongside and not within Dublin III

Ms Giovannetti distinguishes any steps taken by the Secretary of State in pursuance of an obligation imposed by Article 8 of the Convention or by a request under Article 17.2. Article 8 may require the Secretary of State to take steps to facilitate the admission of a non-national to join family members in the UK, but such steps are not taken under Dublin III. In this case, Article 17.2 was not engaged because Italy had made no request under that sub-Article. In this case the Upper Tribunal simply relied on Article 17 without stating which paragraph was in point.

Ms Giovannetti submits that the wording of Article 17.1 is clear. It confers an unrestricted discretion on states. This is a factor which on her submission weighs against the application of Article 17 in the way the Upper Tribunal applied it. If the state has an obligation to consider using its discretion as the Upper Tribunal held, then the Secretary of State may be asked to take that step not simply in the case of unaccompanied child asylum-seekers but also in the case of adults making applications from other states, even if it would not otherwise be responsible for considering their claims. This would undermine the efficient working of Dublin III.

Article 20.4 requires host state to process an asylum application

Ms Giovannetti submits that Article 20.4 of Dublin II (see paragraph 25 above) provides significant support for the Secretary of State’s interpretation of Article 17.1. It allows a state to consider an application made by a claimant in another state but it does not require it to do so. On the contrary, it expressly states that “the determination of the member state responsible shall be made by the member state in whose territory the applicant is present”, reflecting the principle that there should be a single determination of responsibility to consider the substantive claim.

Principle of mutual confidence means that the UK should show restraint

Moreover, Ms Giovannetti submits, there is a principle of mutual confidence (see paragraph 32 above) which entails the presumption of compliance by the host member state. Italy had not demonstrated any unwillingness to perform its responsibilities. There is nothing to show that RSM was an unaccompanied minor child until August 2016. The procedures for interview and so on are for the protection of individual children against traffickers and others. To take a child out of the queue does not assist the orderly process. Member states are permitted to operate their own procedural systems except where stated.

Paragraph 85 of ZT Syria is distinguishable

Ms Giovannetti submits that in ZT (Syria) at [85] (set out at paragraph 37 above), this Court did not consider whether an application could be made by a claimant outside the UK. All that this Court said was that, if Article 17.1 applied, then public law principles apply. All sorts of obligations follow if a state assumes responsibility to determine who should have responsibility, including taking fingerprints (Article 9 of the Eurodac Regulation 603/2013).

The ramifications of the respondents’ interpretation are extensive

Ms Giovannetti submits that, if the respondents are correct, any applicant who applies from anywhere in the EU would fall within Article 17. Moreover, as she also contends, Article 17.1 confers an unrestricted discretion and so it could be exercised on any basis. There may be group requests. They may be based on reception conditions in the place where the asylum seeker is resident or there may be delays in the substantive procedure there.

She submits that there is no need for a provision of this breadth. If, for example, the Secretary of State wishes exceptionally to grant asylum to a political figure in another country, she has discretion to act outside Dublin III.

The respondents’ submissions on Article 17.1 of Dublin III

Mr Michael Fordham QC, for the respondents, seeks to uphold the judgment of the Upper Tribunal. He submits that Article 17.1 confers a proactive and protective discretion, exercisable as in the Syrian baby case.

ZT Syria established that there is a discretion exercisable in this case

Mr Fordham makes some preliminary points which are based on ZT (Syria). First, he submits that this Court in ZT (Syria) recognised that an overseas child and UK-based family member are entitled to invoke Article 8, under which a legal duty to admit the child for family reunification can arise. Second, there was a relevant power to assume responsibility under Article 17 of Dublin III. The Secretary of State would have to take into account all the factors listed in ZT (Syria) at [85]. In the Syrian baby case, the SSHD exercised her discretion under Article 17 to admit the child. Third, the order made in ZT (Syria) was for admission to the UK. Nobody suggested that, if the Upper Tribunal had found a breach of Article 8, the nature of the order made was wrong.

Mr Fordham also relies on paragraph 85 of ZT (Syria)(paragraph 37 above). In this paragraph Beatson LJ states that the Secretary of State, when making a decision as to whether to use Article 17, would be subject to judicial review even though the scope of judicial review would be narrower because the power concerns relations between two member states as to the operation of a treaty allocating responsibility for examining asylum applications.

The Upper Tribunal’s interpretation promotes the purposes of Dublin III

Mr Fordham submits that the Upper Tribunal was right to hold that Article 17 should be applied in a manner which furthers the aims of Dublin III. He submits that a broad and protective interpretation is needed to guarantee primacy of the best interests of children and fulfilment of Article 8 of Dublin III. If a child has a right under Article 8.2 of Dublin III to come to this country, Article 17.1 must apply to give effect to that right. Article 17.1 must be read with Article 8 of Dublin III. In that way, Article 17.1 can be used to expedite family re-unification.

No TCR is necessary under Article 17.1

Mr Fordham submits the discretion conferred by Article 17.1 is wide. It is exercisable whenever a state, including the UK, notifies other states of its decision to be the asylum-examining state. Article 17.2 applies where a responsible state, in this case Italy, requests a third state to agree to be the asylum-examining state. However, Article 17.2 only enables the requesting state to make a request for the purposes of family reunion or humanitarian grounds.

Mr Fordham submits that the exercise of the discretion under Article 17.1 does not depend on the host state having served a TCR. This much seems to be common ground. The Secretary of State’s submissions envisage that the UK will consider using Article 17.1 where the host country cannot use Article 17.2, but there are good grounds for unification of an applicant with other asylum seekers already present in the UK.

Future claims can be “lodged” under Article 17.1

Mr Fordham submits that Article 17.1 does not mean that an asylum claimant must be present in the UK to make an asylum application. Such a contention would on his submission severely restrict the possibility of proactive protective intervention by the Secretary of State.

Mr Fordham submits that Article 17.1 applies to a “future claim”. He submits that it is sufficient for Article 17.1 to know that the individual would be coming to the UK to claim protection.

Mr Fordham submits that if the Secretary of State decides to exercise her discretion under Article 17.1, the asylum seeker would come to the United Kingdom. Indeed Article 17 contains provisions about travel arrangements. Mr Fordham submits that it is implicit in Dublin III that, once a state decides to examine an asylum application, the exercise of the Article 17.1 discretion must modify any requirement that he is present within its territory.

Mr Fordham submits that the courts should interpret Article 17.1 harmoniously with human rights. In NS (Afghanistan) (see paragraph 32 above) at paragraph 47, the CJEU held that the member states have to comply with the Charter. This matters, because Article 17.1 in the extraterritorial context can give rise to human rights and will require justification. Mr Fordham accepts that a purposive interpretation of Article 17.1 to give effect to human rights may have far-reaching consequences, but that is not a good answer to an argument based on human rights. He submits that human rights are best regarded as within Article 17.1 rather than as external to it.

Secretary of State can exercise discretion under Dublin III to take an application from overseas

Mr Fordham submits that, even if the UK’s international obligations under the Refugee Convention do not extend to the consideration of asylum applications lodged abroad, UK law does not prevent the Secretary of State from exercising her discretion under Dublin III. This matter can be dealt with in-country by making the arrangements. It is open to a state to decide to choose to deal with an application overseas and that it follows that travel arrangements will then be made.

Mengesteab: lodging a claim simply means informally notifying it

Mr Fordham submits that Mengesteab is authority for the proposition that the lodging of an asylum claim does not require a formal asylum claim. All that is needed is that the state knows that the individual has requested protection. In their pre-action protocol letter of 26 September 2016, the respondents’ solicitors requested the Secretary of State to procure the transfer of RSM to the UK to enable him to make an asylum application here. Mr Fordham submits that this was an asylum application lodged with the UK within the meaning of Article 17.1.

Mr Fordham submits that in Mengesteab the CJEU decided (at paragraphs 99 to 102) that Article 6 of the Procedures Directive could not be invoked in relation to the meaning of “lodged” in Dublin III. Dublin III uses the expression “on the territory” in Article 3.1, but it is absent from Article 17. A domestic provision could not restrict an Article 17 discretion. In my judgment, this submission misreads the judgment of the CJEU. Its judgment refers to Article 6.4 not 6.1 of the Procedures Directive. The CJEU’s ruling was specific to Article 6.4, which provides for member states to have autonomy to make rules about the translation of documents relevant to a claimant’s examination. There was no need to do this if there was some general principle of state autonomy in procedural matters

Mr Fordham submits that the Secretary of State is entitled to insist that the individual is here before the procedural requirements of an asylum claim are complied with but that does not make any difference in this case because it is concerned with the exercise of the discretionary powers in advance of determining the asylum claim. There is no difficulty for a state providing information to Eurodac under Article 20.4 because that individual would enter into the UK as a result of the exercise of discretionary powers in favour of a person outside the jurisdiction.

Mr Fordham submits that once it is accepted that “lodged” means “authorised under Dublin III”, and, once it is accepted that that argument is merely based on domestic arrangements, the Secretary of State’s arguments must fail. There is a difference between “lodging” for the purposes of Dublin III and for all the provisions of asylum law and EU law. The Secretary of State is not deciding the substantive claim but simply the question of admission to the UK to have the application heard. If there are practical problems because the child is out of the jurisdiction, the child, who is owed a human rights duty, must come here and this state becomes the asylum-determining state.

Mr Fordham submits that it was not argued before the Upper Tribunal that there was a domestic layer in the concept of lodging an application which permits procedures compliant with Article 6 of the Convention and which gives states autonomy to lay down locational rules. He submits that this is a new analysis and that this point was not taken before the Upper Tribunal. (The Secretary of State on this appeal accepts that not all the arguments that should have been advanced on Article 17 were made to the Upper Tribunal.) But in any event, Mr Fordham submits that this is not so because Article 17.1 is engaged whenever there is an asylum claim “lodged with” a state. Moreover, in Mengesteab, the CJEU held that the claimant there had lodged his application by submitting it in writing to the appropriate agency within the state. It said nothing about his having to be present in the state at that point in time. Mr Fordham submits that Mengesteab is authority for the proposition that the member state cannot invoke a domestic requirement in order to interpret the instrument.

Mr Fordham submits that Soole J in Citizens UK was wrong to say that Article 17 has no function at all until there is a TCR. It would be an error of law not to consider Article 17.1 until a TCR is received. In this case the Secretary of State mis-appreciated her functions under Article 17.1.

The major purpose of Dublin III was to prevent multiple asylum claims and to allocate responsibility for determining which state should examine the claim. We have been shown nothing which suggests that it was also part of its purposes to make a substantial addition to the obligations of member states by requiring them to consider applications sent from applicants from any other country. As Ms Giovannetti points out, there is no logical stopping point in Mr Fordham’s submission. If his interpretation is correct, it cannot be limited to unaccompanied children who are asylum seekers. It would have to apply to any asylum seeker, and thus would go far beyond family re-unification. It would also undermine the objectives of Dublin III of making a more orderly system of scrutinising asylum claims across the EU by encouraging applications to states which were not the host states. These matters indicate that the Upper Tribunal cannot have been right simply to conclude that “Article 17 [had] a role in circumstances where one of the overarching values of the Dublin Regulation, namely expedition, is not being fulfilled in the procedures and systems of the host Member State in any given case.” ([43]).

The only authority which we have seen which imposes any obligation on a state which is not the responsible state is K v Bundesasylamt (paragraphs 30 to 31). The CJEU there declined to answer the question whether Article 3.2 of Dublin II imposed a positive obligation to take responsibility for an asylum claim if that would promote family reunification. The only obligation it imposed was under Article 15.2 of Dublin II which contained much more specific language directed to family reunification. As the Secretary of State submits, the discretion conferred by Article 17.1 relates only to “applications for international protection lodged with” the UK. The critical question is when is an application “lodged” for this purpose? As a matter of the ordinary use of English, the word “lodged” would appear to refer to an application which has actually been lodged. As explained in these conclusions, the context also supports that approach. The use of the past participle is in my judgment a strong indication although it cannot be a conclusive one. We have not examined any of the other language versions of Dublin III, but it has not been suggested that other language versions would shed any different light on the meaning of “lodged”.

I do not accept that the fact that the words “in the territory” appear in some articles of Dublin III but not in Article 17.1 provides support for Mr Fordham’s argument. Article 17.1 has to be interpreted against its context, including the fact that the UK at least interprets the Refugee Convention as requiring the applicant to be within the jurisdiction if he wishes to rely on its international obligations. Mr Fordham does not dispute the fact that both the Refugee Convention and domestic law are so limited.

As explained above, this Court in paragraph 85 of in ZT (Syria) referred to the operation of Article 17, but it was not concerned in this connection with the question of whether any claimant had entered the UK and lodged an application for asylum. The point was simply not raised or discussed in the judgment. Accordingly this Court is not bound by that decision to hold that an application can be made and lodged for Article 17.1 purposes when the applicant is outside the jurisdiction. This Court must therefore reach its own view on the subject.

Nor is the Court assisted by reference to the Syrian baby case. It cannot matter whether the Secretary of State acted under Article 17.1 or not as there was no judicial decision on this. The action taken was plainly correct on any basis.

Mr Fordham submits that Mengesteab is authority of the CJEU which decides when an asylum application is lodged, and, as its holding makes no reference to any requirement that the applicant must be within the jurisdiction, that cannot be part of the meaning to be attached to the lodging of an application in Dublin III, which is a matter of EU law. I do not consider Mengesteab is authority which decides that a requirement for the applicant to be in the jurisdiction of the state when he lodges an application for asylum would not apply in EU law for the purposes of Dublin III, if that is what the receiving state’s domestic law requires. As Ms Giovannetti points out, the CJEU was not concerned with that issue as Mr Mengesteab was in Germany at all material times.

Likewise, in ZT (Syria) the question of whether an application could be a future application did not arise.

As I have explained in paragraph 44 above, Mengesteab also held that the purposes of Dublin III are not limited to the orderly handling of asylum claims and that the EU adopted Dublin III for wider purposes, including giving claimants the ability to challenge transfers by the host state. But that does not apply in the situation where an applicant in one state wishes to make an application for asylum to the state in which he is not located. He has such rights as the host state provides against its own authorities. There is no need for him to have any remedy against the other state in such circumstances.

Ms Giovannetti relies on the fact that Article 20.4 provides that where there are multiple asylum applications, the host state shall examine the claim. But as Mr Fordham points out, Article 20.4 importantly contemplates that an asylum applicant may have in fact made applications to other countries. It does not say that those applications are not “lodged” with the states in question. However, Article 20.4 is a useful indication that refugee protection is at least generally a matter for the state in which the applicant is actually present. Article 20.4 dovetails with her interpretation of Article 17.1, as do Articles 4 and 5 on which Ms Giovannetti relied (see paragraph 81 above).

In my judgment, it is clear from the Procedures Directive that the states can lay down where asylum applications are to be made. That must refer to the application itself, and not to an intention to make an application. It must follow in my judgment that states may require the application to be made by an applicant who is present in the state. This would in any event be the more normal expectation for a person claiming international protection.

It is interesting to note that (although counsel did not address this point and so I can take it no further: it is anyway a small point) the CJEU in K v Bundesasylamt appears to have assumed that a claimant would be physically present in the state in which he had “lodged” an asylum claim for the purposes of Article 3.2 (now Article 17.1). In support of its conclusion that a state could have an obligation to secure family reunification of a claimant who was already present within its territory with other persons so present, it prayed in aid the fact that Article 3.2 also applied where the claim was not a state’s responsibility, a situation that was analogous only if the claimant was in its territory:

30   Article 15(2) of Regulation No 343/2003 refers not only to the situations in which Member States ‘bring together’ the asylum seeker and another member of his family, but also those where they ‘keep’ them together, the persons concerned being already on the territory of a Member State other than that which is responsible under the criteria laid down in Chapter III of Regulation No 343/2003.

31      That interpretation is not only consistent with Article 3(2) of Regulation No 343/2003, according to which each Member State ‘may’ examine an application for asylum lodged with it by a third-country national, even if that examination is not its responsibility under the criteria laid down in that regulation, but it is also the interpretation most apt to ensure the effectiveness of Article 15(2) of that regulation.

I also accept the submission of Ms Giovannetti that it might well be contrary to the best interests of the child for an electing state to intervene before the responsible state has completed its processes. As already mentioned, there is a risk that unaccompanied children are separated from their families because they are being trafficked. Article 17.2 expressly contemplates that the host state will have to carry out some checks. It is essential in the vast majority of cases that the appropriate checks are carried out. The CJEU has itself held it to be desirable that transfers of unaccompanied children should be avoided where possible. The host state must be able to make enough inquiries to fulfil its own obligations under the UN Convention and to be satisfied that it is the child’s best interests to be transferred to another state. This interpretation is supported by the reference in Article 8.2 (see the Appendix) to an “individual examination” of the relative with whom the unaccompanied child is to be united. Those words are in my judgement wide enough to include a check that the relative is indeed the appropriate person to look after the child. The interpretation is also supported by the Procedures Directive. It is obvious that Dublin III does not prescribe all the detailed requirements for applications, and that the process for making enquiries relating to the best interests of a child falls within the procedural autonomy of states.

Dublin III is premised on the basis that states will fulfil their obligations to respect family life and the right to respect for family life may indeed involve a state taking steps to unite children with their relatives. These obligations exist under Article 8 of the Convention and Article 7 of the Charter. Mr Fordham argues that steps taken under Article 8 fall within Dublin III. He points out, correctly, that this Court held in ZT (Syria) that Dublin III did not exclude those obligations. But the effect of this argument is that Dublin III becomes a mechanism for giving effect to the rights arising purely from those obligations which does not exist under the Convention or the Charter, as the case may be. As I have said, the object of Dublin III is to enable states to carry out their obligations under the Refugee Convention consistently with their obligations under the Convention. I do not, however, consider that it is part of the object of Dublin III to give effect to additional rights of protection for rights guaranteed by the Convention (or indeed the EU Charter of Fundamental Rights).

Article 8.2 of Dublin III requires states to take children for the purposes of family reunification where that is in the child’s best interests. This provision is not in my judgment self-executing. It is silent as to the mechanism for implementing a state’s obligations and so in my judgment that mechanism has to be found in some other provision, such as Article 17, for carrying out any transfer that may be involved. The effect of the Secretary of State’s interpretation is that the host state has to make a TCR, to which the requested state must respond. This approach is consistent with the aim of Dublin III to create an orderly process for dealing with claims. It means that if the host state is not acting appropriately, remedies have to be sought in that jurisdiction. At this point, the policy of Dublin III is to be found in the principle of mutual confidence, which is a fundamental tenet of EU law. Its application means that the UK was bound to assume that (in this case) Italy was fulfilling its obligations under Dublin III unless it became aware of material facts indicating the contrary. The principle supports Ms Giovannetti’s interpretation of Article 17.1, since the scheme of Dublin III did not intend to leave any gap which one state has to fill by taking proactive steps to accelerate or bypass the processes in another member state.

Mr Fordham makes the important point that, if Article 17.1 only applies where an application has been lodged by a person within the jurisdiction, it will have a narrow field of application because most applicants will not be able to make valid applications on that basis if they are present in some other state. This does not mean that Article 17.1 is never capable of being operated but it would mean that the Secretary of State would have to be prepared to allow a person to complete an application at the borders or to enter the jurisdiction to make the claim. But the critical difference is that the Secretary of State could not be forced as a result of Article 17 to take on an application by the mere fact of a claimant sending in an application from abroad. Such compulsion would be inconsistent with the origin of Article 17.1 as a clause intended to preserve the sovereign power of states to treat asylum claims in a way that would not be constrained by the principal provisions of Dublin III. That result is consistent with the overall scheme of Dublin III that, save where it gives asylum claimants rights, the procedure is to be state-driven and not claimant-driven. This is consistent with the description of the Article as consisting of “Discretionary clauses”.

That meaning does not prevent the Secretary of State from granting international protection to others who are not refugees in the sense given by the Refugee Convention, but that would be outside Dublin III. Ms Giovannetti made this clear in response to pertinent examples given by my Lord, Lord Justice Singh, in argument. The reference in Article 17.1 to applications “lodged” cannot be to applications under some other process with which Dublin III is not concerned.

To conclude, in my judgment, for the reasons given above, it follows that the responsibility of the UK under Article 17.1 is not engaged unless an application is lodged in the United Kingdom by the asylum seeker in accordance with section 1 of the Immigration Act 1993 and Immigration Rule 327. None of the various arguments which I have accepted above is conclusive on its own, but in my judgement they cumulatively point to the answer I have given. That means that, when the respondents’ solicitors wrote to the Secretary of State in this case in September 2016, she had then no discretion because RSM had not lodged any asylum application within the UK as required by Article 17.1 of Dublin III. That remained the position until after the Upper Tribunal made its mandatory order. Therefore, there was no discretion available to her to exercise and no basis for holding that she had failed to exercise it. Moreover, even if she had failed to exercise a discretion, the normal course would have been to remit the matter back to her so that she could reach a fresh decision, and not to make a mandatory order.

In my judgment, Article 17.2 has no application where the responsible member state, that is, the state responsible for determining which state should determine the asylum claim, has not issued a TCR.

If the appellant is right on Article 17, this issue does not arise. However, as the point was argued I will briefly express my conclusions on it. The relevant policies were set out in paragraphs 26 to 28 of the Upper Tribunal’s judgment (paragraph 64 above).

Ms Giovannetti submits that the statements cited by the Upper Tribunal were not specifically directed to Article 17. She also submits they were too general and lack sufficient clarity or were insufficiently specific to give rise to a public law remedy. If all the Upper Tribunal had sought to derive from them was that delay is inimical to asylum-seeking children, the Secretary of State would not disagree. They do not give rise to individual rights: see per Lord Bingham CJ in R v DPP ex parte Kebilene [2000] 2 AC 326 at 399E:

I would, furthermore, be very hesitant to hold that a legitimate expectation could be founded on answers given in Parliament to often very general questions: to do so is to invest assertions by the executive with a quasi-legislative authority, which could involve an undesirable blurring of the distinct functions of the legislature and the executive.

Mr Fordham accepts that the policies relied on by the Upper Tribunal were not related to the power under Article 17 but were in the context of and use of available powers. He submits that the policies were clear (“use whichever tools work best” (para 46 of the Upper Tribunal’s judgment)). Mr Fordham submits that in ZT (Syria) this Court referred to similar policies, but I have been unable to find any comparable reference in that judgment. Instead, the Court referred to the Joint UK/French ministerial declaration on Calais, which was an agreement between France and the UK on measures to help alleviate the migrant situation in Calais. A policy statement of that kind was of direct applicability to the circumstances in that case in a way that the assorted ministerial statements cited by the Upper Tribunal in this case were not.

Mr Fordham submits that the Upper Tribunal’s findings on ministerial statements were proper and justifiable. Having determined that the Secretary of State had a broad discretionary power under Article 17, it was proper for the Upper Tribunal to look to see whether there was an associated policy. Public law relevance of public policy statements does not depend on status or label, but on their substance. There is no lack of clarity in stating publicly that unaccompanied refugee children should be relocated as soon as possible, and family reunification under Dublin III should involve use of the tools available to enable them to come to this country. This policy framework is properly referenced. A clear departure from it, for which no good reason is given, is not justifiable.

In my judgment, Ms Giovannetti is correct to say that the material that the Upper Tribunal quoted in its judgment was too general to give rise to the finding that the decision-maker had to take these general statements into account when making her decision, or that these statements constituted policy statements which the decision-maker was bound to follow under the principle in Lumba v SSHD [2012] 1 AC 245. It follows in my judgment that the Upper Tribunal was wrong to treat the policy statements as giving rise to remedies in public law, and that the appeal should also be allowed on this ground.

Article 8 of the Convention provides:

Article 8

1.

Everyone has the right to respect for his private and family life, his home and his correspondence.

2.

There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

In ZT (Syria), as explained above, this Court held that a person seeking asylum in another state of the EU could only rely on Article 8 in English and Welsh courts in very exceptional circumstances: see paragraphs 37 to 39 above. The Upper Tribunal recognised that the question whether RSM could rely on Article 8 was intensely fact-sensitive. It held that, as RSM had, unlike some claimants in ZT (Syria), engaged with the Dublin process, he had a lower hurdle to cross and that the threshold was overcome, mainly on account of the fact that he was a vulnerable unaccompanied child and there had been considerable delay in dealing with his case (see paragraphs 66, 67 and 70 above).

Secretary of State: Upper Tribunal wrong to hold RSM could rely on Article 8 of the Convention

Ms Giovannetti submits that in ZT (Syria) this Court laid down the correct approach to claims of Article 8 violations when Dublin III applies. Beatson LJ held that if there were an “especially compelling case”, Article 8 could override the Dublin regime. He reiterated the importance of the “significant evidential presumption” that the other state will comply with its own internal obligations. The Upper Tribunal in this case failed to give effect to the principle of mutual confidence. Furthermore, applications to other states were only to be made where an applicant can show the system of the host state was not capable of responding to their needs and such persons should seek recourse from the courts of that Member State.

This case was not especially compelling. At the outset, RSM had one relative near him: SB. He had never previously lived with ZAM, and he was being accommodated and cared for in accommodation which was not like the makeshift camps in ZT (Syria).

The timetable was reasonable in the circumstances: one only has to look at the fact that a TCR was in fact issued in January 2017. Time could only really start to run once the family told the authorities in Italy that RSM would be best in the United Kingdom, which was only in August 2016. An asylum interview had been arranged for 4 January 2017. That meant that his asylum application could then be made. There was no basis for concluding that the Italian procedure was unreasonably slow, or defective, in this case.

There was no evidential basis for the Upper Tribunal’s finding that there would be no outcome to RSM’s case until May/September 2017. The respondents had to show that there was no effective way of proceeding in Italy and they had in the event failed to show that.

The question of “compelling” circumstances for ZT (Syria) purposes had to be in the context of unaccompanied children generally. This, submits Ms Giovannetti, is a very high threshold, since being an asylum seeker at that age is bound to involve trauma. The Upper Tribunal was wrong in its application of Article 8 and was wrong to hold that there was any lower threshold in this respect because RSM had made an asylum application.

The present case was quite different from ZT (Syria). RSM was within the Italian system. He had a guardian. The Upper Tribunal failed to have sufficient regard to what was happening in Italy. There was an appointment for an interview after which he could make an asylum claim. The TCR was likely to follow within a relatively short time. The Italian court wanted to be sure that everything was in order before a transfer.

Respondents: RSM’s case overcame the hurdle for showing violation of Article 8 of the Convention

Mr Fordham seeks to uphold the decision of the Upper Tribunal. He submits that ZT (Syria) establishes the threshold for a breach of Article 8 in the way the Dublin III arrangements were progressing. He submits that there was a need for urgent action. There were no remedies for the delays in the system in Italy. There was no way of challenging the administrative procedure and no provision for legal aid or assistance. The systems in Italy were overwhelmed with lengthy delays. The Secretary of State’s in-country liaison officer had asked to no avail if the asylum claim could speed up. The Upper Tribunal on his submission properly directed itself on the weight to be given to immigration control and the significance of Dublin III, recognising the need for an orderly process. The Upper Tribunal correctly placed emphasis on the specific circumstances and risks of the case and rightly acknowledged and followed the factors relevant to the assessment of proportionality as set out in ZT (Syria).

Mr Fordham submits that the Upper Tribunal had to take into account the evidence about the fragile mental state of RSM. There was evidence that RSM had started “switching off” out of frustration when ZAM went to see him. Dr Claire O’Driscoll, Clinical Psychologist, gave evidence after seeing him in September 2016 that he had post-traumatic stress disorder and was at risk of a further deterioration in his mental health the longer he remained separated from ZAM.

In my judgment, Ms Giovannetti is correct to focus on the Italian processes and I agree with her that there is no evidence that there was unacceptable delay in dealing with RSM’s case. Once it was established that he was an unaccompanied child, the process moved forward by stages which took place in a reasonably timely fashion. The Italian court appointed a guardian who was able to keep the respondents’ solicitors informed. This case did not meet the high hurdle set in ZT (Syria) and there is no basis in that case for holding that the test is less onerous where the asylum seeker engages with the system.

Having come to that conclusion I would not wish it to be thought that I am not mindful that unaccompanied minors are often fragile people. In this case, RSM was understandably distressed at having tragically lost his mother and brother and, as ZAM reports after seeing him, angry because he was being kept so long in Italy. However, on the other side of the scale, Mr Scott was able to speak to him and take some instructions from him, and his guardian was in touch with him and able to report on his progress and conditions to the respondents’ solicitors. While, of course, urgency was very desirable, there is no evidence that RSM’s condition made it imperative to take even more urgent action than was in fact taken. As my Lord, Lord Justice Peter Jackson observed in argument, there is a risk that by prioritising the case of one child, the position of other needy unaccompanied children is prejudiced. The court and tribunals of England and Wales must trust the Italian authorities to make appropriate decisions in that regard, unless it has been shown that the system is not operating effectively.

I would also allow the appeal on this ground.

This issue concerns the propriety of the mandatory order which the Upper Tribunal made against the Secretary of State in its judgment. I have explained that there were a number of further applications in which time limits were imposed. The Upper Tribunal made it clear in those hearings that, when it held that the Secretary of State was required to admit RSM, it meant that she was expected to take positive steps to persuade the Italian authorities to release RSM at a time when their procedures were not complete.

I approach this issue on the basis that, contrary to my conclusions on Issue 1, the Upper Tribunal was right to make an order requiring the Secretary of State to take steps to assist bring RSM to the UK to join ZAM.

submissions

The Secretary of State’s submissions: mandatory order was too wide and uncertain

Ms Giovannetti submits that the order made by the Upper Tribunal interfered with the sovereign power of the UK to protect its own borders and its order interferes with the conduct of diplomatic relations with another state. In addition, the Upper Tribunal’s approach disturbed the orderly process for determining claims and this was contrary to the aims of Dublin III.

Moreover, submits Ms Giovannetti, at the time when the Upper Tribunal made its order the Italian courts had already appointed a guardian to look after the child’s interests. The order made by the Upper Tribunal interfered with a legal process in another state.

If the state’s positive obligation to ensure unification of RSM with his family members was violated, Ms Giovannetti submits that the most that the Upper Tribunal should have ordered was that the Secretary of State should liaise with the guardian to see if the child could be transferred to the UK.

Ms Giovannetti submits that Article 17.2 provided no basis for the Secretary of State to require Italy to transfer RSM to the UK. In any event, the question whether the UK should take charge of a child under the Article 17 was one for the decision of the Secretary of State and not for the Upper Tribunal.

In addition, submits Ms Giovannetti, the Upper Tribunal’s order wholly failed to make it clear that the Upper Tribunal intended the Secretary of State to take positive steps to ensure that RSM was brought to the UK. That was made clear by the Upper Tribunal’s postscript (set out in paragraph 68 above) which the Upper Tribunal added to its written judgment. It was imperative that the terms of the mandatory order should be entirely free from doubt.

Submissions of the respondents

Mr Fordham accepts without demur the principle that an order of any court or tribunal must be clear as to its terms, and the importance of that principle. In fairness, he accepted that there was a lack of specificity in the present order.

Mr Fordham also accepts that in future cases a child’s legal guardian should be asked whether he or she wished to be served with the proceedings and the answer to that should be provided to the Tribunal. But, for the reasons given in the next paragraph, I consider that this is necessary but not of itself sufficient to address the situation. It places the asylum application under the control of courts which are not in the responsible state for the purposes of Dublin III.

Mr Fordham took us to evidence of communications between his clients’ solicitors and the guardian, in addition to the ninth statement filed on this appeal of Mr Mark Scott, a partner in the respondents’ solicitors. I would admit those documents in evidence. The guardian was kept informed and she in turn provided information about RSM. But the communications could be perceived to be in the context of the solicitors driving the matter forward through the judicial review proceedings which they were intending to take or had taken in London. In my judgment, this is not the appropriate type of liaison or impression to be given. The guardian had responsibilities under Italian law and to the Italian courts, and the principle of mutual confidence (at least) required that she be able to perform those duties without any pressure from orders made in this jurisdiction.

Mr Fordham does not accept that the order was intended to affect the actions of the Italian authorities. The position he contends was the same as in R (SA & AA) v SSHD [2016] UKUT 00507 at [37], where the Upper Tribunal held as follows:

This is an order [a mandatory order against the Secretary of State to admit certain persons to the UK] framed in mandatory terms. In subjecting the Secretary of State to the obligation to admit the Applicants to the UK no qualification has been added. In particular, no timetable or time limit has been ordered by the Tribunal. The significance of this in the present case is that the Applicants are under the supervision and care o the French authorities. The order does not speak directly to them and can have no consequences for the discharge by the French authorities of their legal obligations to the Applicants under French law.

In R (AR) v SSHD, 3 August 2017, at [49], McCloskey P also made it clear that the Upper Tribunal “had repeatedly held that it would not intrude on the rights and responsibilities of foreign agencies and authorities in compliance with their obligations under foreign legal systems.” Mr Fordham submits that there is no evidence that the order in this case in fact cut across the Italian authorities.

Be that as it may, if the order was not intended to affect the Italian authorities, the order should have spelt that out.

Mr Fordham submits with regard to the Syrian baby case that a mandatory order could have been made against the Secretary of State. Mr Fordham contends that this was conceded in argument in ZT (Syria). The Secretary of State clearly had power to admit RSM to the UK.

Mr Fordham submits that the Italian system was not effective. He submits that RSM had a “human rights entitlement” to come to London and it was the duty of the Secretary of State to admit the child. However, that does not of itself entitle RSM to jump the queue or disregard the process in Dublin III. Of course, ZAM was concerned about RSM’s psychological health, but there is no suggestion that the Italian authorities were not aware of this or were not able to deal with it.

In any event, to again make the point made by Peter Jackson LJ in argument, prioritising one child means diverting attention from another child. It is not enough to say, as Mr Fordham says, that the problem would be solved by the transfer. Expedition of one case inevitably means delay to another, and the Dublin system could not have been intended to operate in that way as between applicants.

My conclusions on the appropriate remedy

In my judgment the mandatory order made by the Upper Tribunal was flawed because (among other reasons) it was unclear in its terms. As Lord Toulson, with whom the other members of the Supreme Court agreed, held in OPO v Rhodes [2016] AC 219, [79]:

Any injunction must be framed in terms sufficiently specific to leave no uncertainty about what the affected person is or is not allowed to do. The principle has been stated in many cases and nowhere more clearly than by Lord Nicholls of Birkenhead in Attorney General v Punch Ltd [2003] 1 AC 1046, para 35:

“An interlocutory injunction, like any other injunction, must be expressed in terms which are clear and certain. The injunction must define precisely what acts are prohibited. The court must ensure that the language of its order makes plain what is permitted and what is prohibited. This is a well-established, soundly-based principle. A person should not be put at risk of being in contempt of court by an ambiguous prohibition, or a prohibition the scope of which is obviously open to dispute.”

In the OPO case, as I explained at the hearing, the order had been drafted and agreed between counsel for all parties, not the Court, but it still fell foul of this principle. This Court was shortly thereafter required to construe it. In this case, the form of the order was stipulated by the Upper Tribunal. In making an order of this breadth, the Upper Tribunal had to be completely clear in expressing what it intended the Secretary of State to do. It might well have taken the course that, contrary to what appears to be its usual practice, the parties should have the opportunity to make submissions on the form of the order and to put forward suitable wording.

In this case, if there was a positive obligation on the Secretary of State to take action to protect the Article 8 rights of the child, the Upper Tribunal failed to consider what steps the Secretary of State could appropriately take having regard to the fact that RSM was within the Italian jurisdiction and subject to guardianship there. These matters had to be carefully considered before relief could be given. The Syrian baby case is not in my judgment analogous. There was extreme urgency in that case. I have commented already on the communications with the guardian (paragraphs 153 to 154 above).

The order of the Upper Tribunal should have specifically made it clear that nothing in it was to apply to the Italian authorities but was merely directed to the Secretary of State. The wording should, as Ms Giovannetti submits, not have been couched as requiring a result but as requiring the Secretary of State to take steps which she could appropriately take when dealing with the Italian authorities.

I do not consider that I should go further than that on this appeal because I have concluded that no order should have been made and we are not required to approve the wording of any further order.

For the reasons given above, I would answer the issues agreed between the parties, which I have set out with minor modifications below, in the manner set out following each such issue, or sub-issue, respectively.  Accordingly, I would allow this appeal

Since writing this judgment, I have had the benefit of reading the judgment of Lord Justice Singh, with which I respectfully agree.

I agree that the appeal should be allowed for the reasons given by Arden LJ. I also agree with the additional remarks made by Singh LJ in his judgment below.

I agree that the Secretary of State’s appeal should be allowed for the reasons given by Arden LJ. I add a few remarks of my own only because, in my respectful view, the Upper Tribunal fell into error in a number of fundamental respects. I will briefly address each of the four issues summarised by Arden LJ at para. 9 above.

In relation to issue (1) I would wish to emphasise that the effect of Article 17.1 of Dublin III is to preserve the discretion which a member state would otherwise have to examine an application for asylum lodged with it by a third-country national. It is in this sense that the word “may” is used in that provision. It is for this reason that the provision, like its predecessor, Article 3.2 of Dublin II, is rightly described as “the sovereignty clause”.

I would also emphasise that, even if the discretion did arise, there would be no obligation to exercise it. The most that a person could ask for is that consideration should be given to the question whether the Secretary of State should exercise that discretionary power: see British Oxygen Co. Ltd. v Board of Trade [1971] AC 610, at 625 (Lord Reid); and R v Secretary of State for the Home Department, ex p. Fire Brigades Union [1995] 2 AC 513, at 550-551 (Lord Browne-Wilkinson) and 575 (Lord Nicholls of Birkenhead). In the present case the Upper Tribunal fell into error if and in so far as it concluded that the failure to consider whether to exercise a discretionary power should lead to the remedy which it granted, requiring the Secretary of State to admit RSM into the United Kingdom. The most that an unlawful failure to consider exercising a discretionary power could have led to was remittal to the Secretary of State to consider whether or not to exercise that power.

Turning to issue (2) I agree with Arden LJ that the ministerial statements upon which the Upper Tribunal relied in the present case (see paras. 26-28 of its judgment dated 22 December 2016) were too vague and general to give rise to any obligations in public law. However, I would observe that public law has developed in this context since the statement by Lord Bingham CJ in ex p. Kebilene [2000] 2 AC 326, at 399, cited by Arden LJ at para. 128 above: see in particular the decision of the Supreme Court in Lumba [2012] 1 AC 245, referred to by Arden LJ at para. 131 above. In so far as the reasoning of Lord Bingham CJ in Kebilene was based on the fact that some statements by ministers are made in Parliament and therefore may invest assertions by the executive with a “quasi-legislative authority” and may involve “an undesirable blurring of the distinct functions of the legislature and the executive”, I would prefer to leave that question for another case in which the issue may be more central to the resolution of the case and in which there could be full argument on the point. Suffice to say that there are cases “where the courts have entertained claims of breach of a legitimate expectation founded on ministerial statements in Parliament”: see the summary in R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin), at para. 53 (Richards LJ, giving the judgment of the Divisional Court).

Turning to issue (3), in my view, the Upper Tribunal misdirected itself in law when seeking to apply the test which had been laid down by this Court in ZT (Syria), at para. 95 in the judgment of Beatson LJ, which has already been cited in full by Arden LJ at para. 41 above. As this Court made clear in that passage, recourse to Article 8 in the context of the Dublin system will only be possible in very exceptional circumstances. As Beatson LJ said at the end of para. 95:

“Only after it is demonstrated that there is no effective way of proceeding in that jurisdiction should they turn to the authorities and the courts in the United Kingdom.”

In my view, the Upper Tribunal in the present case reformulated that question in the following way at the beginning of para. 60 of its judgment:

“have the Applicants demonstrated that RSM’s asylum claim … is not being efficaciously processed?”

This is not just a semantic point, although I would note that the word “efficacious” does not mean quite the same thing as “effective”. More importantly, the focus of what this Court was saying in ZT (Syria) was on the effectiveness of the legal system of the other member state concerned, whereas what the Upper Tribunal did was to focus on the particular case before it.

Turning to issue (4), in my view, there were real dangers in the Upper Tribunal making the order which it did:

“The Secretary of State is hereby ordered to admit the first Applicant, RSM, to the United Kingdom.”

This was a case, unlike ZT (Syria), which was already before the courts of the other member state concerned. I would wish to emphasise that, for reasons of comity, great caution needed to be exercised that nothing in the order had the effect of interfering with the due processes of the Italian legal system or appearing to have that effect.

The full title of Dublin III states that it is a measure “establishing the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (recast).” It is an essential component of the Common European Asylum System (“CEAS”), which consist of five measures or groups of measures. (The other four are the reception, qualification and procedures directives, and the Eurodac regulation). The CEAS forms a complete body of law (see per AG Jaaskinen in C-4/11 Puid v Germany [2014] QB 346).

Article 6 provides:

1.

The best interests of the child shall be a primary consideration for Member States with respect to all procedures provided for in this Regulation.

2.

Member States shall ensure that a representative represents and/or assists an unaccompanied minor with respect to all procedures provided for in this Regulation. The representative shall have the qualifications and expertise to ensure that the best interests of the minor are taken into consideration during the procedures carried out under this Regulation. Such representative shall have access to the content of the relevant documents in the applicant’s file including the specific leaflet for unaccompanied minors.

This paragraph shall be without prejudice to the relevant provisions in Article 25 of Directive 2013/32/EU.

3.

In assessing the best interests of the child, Member States shall closely cooperate with each other and shall, in particular, take due account of the following factors:

(a)

family reunification possibilities;

(b)

the minor’s well-being and social development;

(c)

safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking;

(d)

the views of the minor, in accordance with his or her age and maturity…

4.

For the purpose of applying Article 8, the Member State where the unaccompanied minor lodged an application for international protection shall, as soon as possible, take appropriate action to identify the family members, siblings or relatives of the unaccompanied minor on the territory of Member States, whilst protecting the best interests of the child.

Article 8 provides:

1.

Where the applicant is an unaccompanied minor, the Member State responsible shall be that where a family member or a sibling of the unaccompanied minor is legally present, provided that it is in the best interests of the minor….

2.

Where the applicant is an unaccompanied minor who has a relative who is legally present in another Member State and where it is established, based on an individual examination, that the relative can take care of him or her, that Member State shall unite the minor with his or her relative and shall be the Member State responsible, provided that it is in the best interests of the minor….