HA v SECRETARY OF STATE FOR THE HOME DEPARTMENT

The applicants who have been anonymised challenge 3 decisions of the respondent to refuse to accept a take charge request (“TCR”) made by the Republic of Greece pursuant to Article 17.2 of EU Regulation 604/2013 (“Dublin III”). Permission for judicial review was granted by the President of the Upper Tribunal, Mr Justice Peter Lane, and Upper Tribunal Judge Dawson on 19 February 2018. The applicants have been granted anonymity, given the age of the youngest, and the sensitive nature of their circumstances. This is a decision of the Upper Tribunal to which both members of the panel have contributed.

The factual matrix which gave rise to the application is highly unusual, if not unique, and is unlikely to occur again. There are three applicants, HA, AA and NA whom we refer to as A1, A2 and A3 respectively. A1 and A2 married in January 2005; A3 is their child. A1 is a British Citizen; A2 is a stateless Bidoon from Kuwait seeking asylum in Greece with A3 who, it is the applicants’ case, is a British Citizen.

A1 was originally a stateless Bidoon from Kuwait. Prior to his flight from Kuwait in 2005, he married A2 who is also a stateless Bidoon. On arrival in the United Kingdom A1 applied for asylum. Although that claim was rejected he was granted Humanitarian Protection in October 2005 for a period of three years. Subsequent to that, and a successful application for ILR granted in 2011, he was on 25 January 2013 naturalised as a British Citizen. He then returned to Kuwait where he was reunited with A2. The couple’s first child, A3 was born on 15 December 2013. By operation of section 2 of the British Nationality Act 1981, A3 appears to be a British Citizen although that issue is as yet unresolved.

In April 2014 A2 and A3 travelled to Lebanon where they made an entry clearance application to the United Kingdom for family reunion with A1 on the basis that A1 was a refugee. The respondent refused that application on the basis that A1, having been naturalised, was no longer a refugee.

In 2015, an application was made for a British passport for A3. That application was refused on the basis that the documents provided were insufficient to show her entitlement to British citizenship.

In June 2017, A2 and A3 travelled to Greece, initially overland through Turkey. They then crossed from Turkey to Greece by sea, arriving in Chios. That journey was traumatic, given that water surged into the boat, and they feared they would drown. It is the applicants’ case, relying on the report of Dr Manolesou, that the current diagnoses that both A2 and A3 suffer from PTSD result from that event.

On 6 July 2017, A2 and A3 claimed asylum in Greece. Subsequent to that, the Greek authorities made a TCR to the British Government on 21 August 2017. That application was refused on 26 September 2017 in the following terms:

That refusal was followed on 16 October 2017 by a reconsideration request by the Greek government pursuant to article 5 of the Dublin III Implementing Regulation 1560/2003. That request was refused on 24 October 2017 in the following terms:

The first step taken by the applicants to challenge the decisions was the service on 31 October 2017 of a pre-action protocol letter, annexing a number of documents including copies of the refusal decisions referred to above, and drawing the respondent’s attention to the fact that A1 had been granted Humanitarian Protection in 2005. It was also pointed out that A1 had been granted Indefinite Leave to Remain in 2011. The pre-action protocol letter was copied to the Greek Government’s Dublin Unit.

There was no substantive response to the pre-action protocol letter and on 6 December 2017, this application was lodged, containing a request for expedition which was refused on the same day.

On 22 December 2017, the applicants’ representatives served on the respondent a copy of a DNA test confirming that A1 and A2 were the biological parents of A3.

On 19 January 2018, the applicants’ solicitors made a further request for expedition supported by a psychiatric report on A2 and A3. The report was copied to the respondent’s lawyers.

On 24 January 2018, the respondent made a further decision refusing to take charge of A2 and A3’s asylum applications.

The applicant’s grounds have been amended with permission to challenge that decision also.

For the avoidance of doubt, except for anonymising those involved, what is set out above reproduces the letters in their original form with all the errors they contain.

It is, we consider, appropriate to set out the decisions in full, given that the respondent has elected not to provide any further evidence, save for the brief CID notes submitted only on the date of hearing.

The applicants submit that the decisions are unlawful on the grounds that the respondent acted unlawfully in:

The respondent resists these assertions, arguing that although she accepts that Dublin III and CFR are engaged, the application should be dismissed as the respondent:

The respondent contends also that even if the decision were unlawful, the appropriate remedy would be by way of a declaration and not a mandatory order.

Following directions issued by Upper Tribunal Judge Dawson, this application was listed before the President of the Upper Tribunal, Mr Justice Peter Lane, and Upper Tribunal Judge Dawson on 19 February 2019. They granted permission and the hearing of the substantive application was listed to be heard on 28 March 2018 before us.

The grant of permission, so far as is relevant, states:

Dublin III provides in its recitals:

These are reflected in the following articles of Dublin III:

Dublin III are subject to the EU Implementation Regulations 1560/2003 (as amended by EU Regulations 118/2014). These, amongst other matters, set out the forms to be used and the means of proof by which the State responsible for examining an application for international protection is determined.

Given the provisions of recital (39) we consider it appropriate to set out articles 7, 24 and 47 of the CFR:

As noted above, the respondent accepts that this is an application to which Dublin III and the CFR apply. As we are thus applying European law, we take a purposive approach to interpretation in the light of the recitals.

Article 17.2 does not set any specific criteria, but the Dublin Regulations themselves and the CFR provided the general parameters within which decisions must be taken, albeit that the general provisions set out in articles 21 and 22 do not apply. There is, we accept, a wide discretion available to the respondent under the article, but it is not untrammelled. As was said in ZT Syria [2016] EWCA Civ 810 at [85]:

We begin our analysis of the decisions in considering first the best interests of the child. We bear in mind that if she is, as is contended, a British Citizen, then Dublin III cannot apply to her as she is not a third country national. That is, not, however material as in assessing the position of A2, the respondent’s duty is still to take A3’s best interests into account as a primary consideration. It is not contended that she could be separated from her mother.

Ms Masood submitted that in assessing any public law error, it was to be borne in mind that A1’s status as a British Citizen, meant that the alternative route to family reunion through an entry clearance application was open to them, and still would be even were the TCR made. It was not, however, conceded that the application would succeed. It would be for the applicants to show in an entry clearance application that there were insurmountable obstacles to family life that could not be overcome and, in this case, that EU Free Movement rights could not be exercised. This, it was submitted, is what was meant by “exceptional circumstances” in the second refusal letter. Those were, however, to be distinguished from the very exceptional circumstances identified in ZT (Syria). It was implicit in the decision that the best interests of the child were taken into account, but that said, this does not necessarily mandate accepting the TCR.

While we accept the respondent’s submission that the best interests of A3 cannot “trump” other considerations, there is no evidence either in the decision letters or in the CID notes provided that there had been any assessment of the child’s best interests. As the initial request expressly referred to a minor, and referred to compassionate circumstances, that is a significant defect. We consider that this was a failure to take into account a relevant matter.

The sole basis for refusal in the first letter - failure to provide conclusive evidence that entry clearance could not be obtained – is not one which is adequately explained in the context, nor does it flow from Dublin III. As we observed during submissions, a TCR under article 9 would be susceptible to the same argument as regards (as is the case here) pre-flight spouses and children of those granted international protection in the United Kingdom as they could always request family reunion.

There is, we accept, a difference between article 17 and articles 7 to 16 in that the provisions are not discretionary, albeit that article 16 permits of exceptions. We accept that it is for the respondent to consider an application made under article 17.2 through the lens of article 7 CFR and/or article 8 ECHR, taking account also of the best interests of a child. That approach is consistent with the normative provisions in article 16 that where there are issues of dependency within a family life context, the family should be brought together.

The respondent’s argument, based on her policy, is that only if (in summary) it could be shown that there were insurmountable obstacles to family unity, in essence an article 7 or 8 case, that an Article 17.2 application should be entertained. In effect, it would only be acceded to in a situation where a viable article 8 application could be made. The submission that an application could be rejected on the basis that such an application could be made is a circular argument. Further, if a proper consideration of article 7/article 8 and the best interests of the child requires discretion to be exercised to accede to a request, then whether an application for entry clearance could be made is not relevant if it precludes overall/further consideration under Article 7/8.

Whether or not an application could be made in Greece at all is a matter on which we have received post-decision evidence and submissions. We conclude that there is no legal bar to an application being made, albeit that there may be requirement to pay a fee (which may or may not be waived). Further, the application that would be made would be to join A1 in the United Kingdom with a view, presumably, to settlement, is for a different purpose from that behind Dublin III.

The respondent sought to persuade us also that it would be open to A1 to use his right of free movement to live with his family in Greece, and on that basis, there would be no obstacles to them being united during the asylum determination process. We find that an unattractive argument. There is nothing to suggest that A1 could exercise his free movement rights to reside in Greece. He is not seeking a job, and moreover, there appears to be no prospect of him finding employment given his limited skills and inability to speak Greek. On the basis of Dano v Jobcentre Leipzig [2014] EUECJ C-333/13, he has no right of residence in Greece. We observe also that the purpose of Dublin IIIs is not just ensuring family unity but also (recital (15)) that decisions taken in respect of the members of one family should be taken by a single member state to ensure consistency. In any event, the duration of the process is not an issue on which we received any evidence, and that would make A1’s staying in Greece precarious at best.

Accordingly, we accept Ms Kilroy’s submission that in concluding that an application for entry clearance could be made, the respondent has taken into account an irrelevant matter.

Ms Masood submitted that it should be borne in mind that the A2 could have applied for family reunion after 2007 when the Immigration Rules had changed and after A1 had been granted ILR in 2011. All that had been done was an application on the wrong basis which was not appealed.

Further, it was submitted that little information had been provided to the Respondent (but see for example the schedules to Dublin Implementation as a comparator). Ms Masood defended the decision letters asserting they were in some respects lacking in clarity, but their essential meaning was clear. It was to be noted also that in respect of the third decision this had not come about as a result of a formal request by the Greek authorities but by what was expressly an informal request.

It was also submitted that the psychiatric report had been submitted in support of an application for the matter to be expedited, indicative of the manner in which information had trickled towards the respondent.

The application has evolved, however, and there is some merit in the respondent’s submission that information has trickled to her; and, that it was brief. The initial application from the Greek government was succinct, stating

“This family is a single parent family with one minor child and without supportive environment in Greece That’s why the alien is totally dependent on her husband and needs his support so as to be in a safe and emotionally supportive environment. For this reason the alien wishes to be transferred to the United Kingdom with her child, and her application for asylum to be examined by your authorities so that the family members be reunited”

While brief this contains a significant amount of information. Its brevity is also to be considered in the context of what is required under the Implementation Regulations. It does, we find, set out the relevant information, and importantly how the Greek government had assessed the family.

We were referred also to R (on the application of MK, IK (a child by his litigation friend MK) and HK (a child by her litigation friend MK) v Secretary of State for the Home Department (Calais; Dublin Regulation - investigative duty) IJR [2016] UKUT 231 (IAC) at [39] to [41] in terms of the respondent’s duties on receipt of a TCR.

This duty was, Ms Kilroy submitted, set out in the respondent’s policy entitled “Dublin III Regulation” of 2 November 2017 at in particular page 44 and that in this case the respondent was arguing to the contrary. We find that is so. The policy provides:

Drawing these strands together, we find no merit in the submission that the respondent was bound only to take into account information submitted by the Greek government. While there is some merit in the observation that the psychiatric report was submitted under cover of a letter which did not emphasise its importance to the substance of the decision, we consider that the respondent should have taken it into account. The third decision was at that point in draft, but equally as the CID notes show, legal advice was being taken, and it was to the legal advisers that the report was sent. This is not a requirement even to investigate, which might have been expected bearing in mind the grant of humanitarian protection, but merely to take into account relevant factual information which had been forwarded to the respondent prior to the last decision.

There are in addition, a number of concerns about the decision letters themselves. They are barely coherent and in the first two make no reference to humanitarian issues, or the best interests of the child. Viewed cumulatively or individually, the letters lack any proper reasoning, and make several errors including the reference to paragraph 281 of the Immigration Rules, and the factually incorrect assertion in the third letter that A2 and A3 were not seeking international protection because A1 is British.

Accordingly, for these reasons, we find that the respondent’s decision is flawed on standard public law grounds.

We turn next to the more complex issue of whether the decision is incompatible with article 7 of the CFR and article 8 of the ECHR. It is not suggested to us that the effect of these provisions is different. Given article 52(3) of the CFR, and the established jurisprudence of the CJEU that they should be treated as equivalent, we accept that is so, and we remind ourselves of recital (39) in assessing this issue which we have cited at paragraph 22 above. Further, in light of NS [2011] EUECJ C-411/10 at [116] – [122], it is not arguable that protocol 30 of the CFR prevents us from so doing, and in that respect we rely also on the observations of Mostyn J in R (oao) AB v SSHD [2013] EWHC 3453.

We find that there is no effective difference between article 7 and article 8 but bearing in mind it was accepted that the CFR was engaged we find little purpose in exploring issues under article 8 because there is no rivalry between the schemes of Dublin III and the CFR on the one hand and ECHR (article 8) on the other. The CFR, as accepted by Ms Masood, was engaged. We have cited the caselaw in relation to Article 8 to underline, by analogy, that we as the Tribunal must consider proportionality as a result of article 7.

We consider that the factual matrix in this application is very different from that in RSM or ZT (Syria) about which there was much argument. In those cases, the Dublin III process had not been engaged and what was being considered were the respondent’s duties and obligations under article 8. Here, the Dublin process has begun and the issue is how article 7 (or article 8 ECHR) duties and obligations affect the exercise of discretion exercised under Dublin III. It is thus a situation different from that identified in ZT (Syria) at [65]. We accept also, bearing in mind that this is a case involving human rights, that article 27 (right to an effective remedy) of Dublin III applies here. It was not properly argued before us that it is not applicable and we find that interpreting that article in the light of recital (19) that it is. It follows that, the intensity of review must be commensurate with the issues involved. The scope of the review is addressed by Beatson LJ at [76] – [77] and we apply that guidance.

Unlike in ZT (Syria) we are not being asked to evaluate the asylum determination system of another member state. We consider also that as was held in RSM at [121], Dublin III does not have as its object to give effect to additional rights of protection for rights guaranteed by the Convention – see also paragraph 122. In that case a TCR had not been initiated and so article 17.2 had no application [126]. There is here no interference with the Greek authorities and the observations of Singh LJ in RSM at [174] are not applicable. It is not the case that we are giving effect to ‘additional rights’ but only respecting those rights expressed in the Recital of Dublin III as being applicable and to which ‘full observation is to be given’ in the exercise of the incorporated rights.

Further, we note that at [83] of ZT (Syria) Beatson LJ rejected the respondent’s argument that Dublin III strikes the proportionate balance for the purposes of article 8.

We were taken at some length to CK (Afghanistan) [2016] EWCA Civ 166 which Ms Kilroy submitted was also to be distinguished as in that case, there had been no request from France to take charge, and as it had been decided under Dublin II which differs from Dublin III in that the latter expressly introduces remedies for those affected. In this regard we note what Laws LJ at held [31] to [32], and we agree that that can, in the light of Article 27 of Dublin III and the observations of Beatson LJ in ZT(Syria) referred to above, be distinguished.

Ms Kilroy submitted that as the unlawfulness here was not just in the public law sense, but also in terms of section 6 of the Human Rights Act 1998, following Begum v Denbigh High School [2006] UKHL 15 and Belfast City Council v Miss Behavin [2007] UKHL 19, it is for the Upper Tribunal to make a finding on whether there has been a breach of article 8 (or, for that matter, article 7 of the CFRR). As we have identified above we consider that the approach courts must take to address proportionality in the caselaw cited below have equal applicability to Article 7.

In Denbigh High School Lord Bingham held [30]:

Further, in Miss Behavin’ at [26] – [27] Lord Rodger held:

Accordingly, we have undertaken an analysis of the proportionality of the decision, bearing in mind also the respondent’s policy.

Ms Kilroy submitted that this case fell squarely within Dublin III. She submitted further that the sole basis of the Secretary of State’s decision appeared to be that A2 and A3 can apply for entry clearance. She submitted that there is simply no evidence that the best interests of the child had been taken into account nor had the Secretary of State properly considered the circumstances of the applicants in terms of their mental health.

Ms Kilroy advanced further that it was worrying that the Secretary of State had, despite the terms of the grant of permission, still not provided any evidence or a witness statement explaining the reasoning behind the decisions. That was despite having asked for time so to do.

Ms Kilroy submitted that if the respondent’s argument were correct, the A2 and A3 would be the subject of two parallel processes: an assessment of their asylum claims and applications for entry clearance, which would be inefficient. There was no rationale for the need to make an entry clearance application; and, the insistence on such procedures was contrary to the procedural duties which flowed from properly applying the best interests of the child as set out in article 24 of the CFR.

With respect to the best interests of a child and in particular the position of a British Citizen child, Ms Kilroy relied on ZH (Tanzania)v SSHD [2011] UKSC 4 at [32] and [33]:

Ms Kilroy submitted further that on the principles set out in Chikwamba [2008] UKHL 40, the observation by the respondent in the third decision that the applications had “every chance of success” was not a reason why A2 and A3 should not be admitted to the United Kingdom under Article 17.2 on merely procedural grounds, this serving no purpose; and, by analogy with the appellant SS in MM (Lebanon) v SSHD [2017] UKSC 10 at [102] and [104], A2 and A3 have strong cases. Here, as A2 is illiterate and dependant on A1, as well as having a child and being pregnant, the case is even stronger. It was submitted also that there was no real prospect of A1 being able to exercise EU Free Movement rights as he does not speak Greek and is unlikely to be able to get employment.

Ms Kilroy submitted that A1 is, in effect, in an impossible situation: either give up the home and job he has here and be with his wife and child where his position would also be precarious; or, remain here and be separated from his family who both suffer from serious mental ill-health including PTSD. The respondent’s exercise of her discretion was, it was submitted, flagrantly unlawful.

In addition, Ms Kilroy submitted that article 9 of Dublin III is relevant in this case as, because although it had not formed part of the request made by Greece (who could not have known on the information given to them that A1 had previously been granted Humanitarian Protection), its applicability was relevant in assessing proportionality as there was no sensible or rational basis for treating the applicants differently based on A1’s nationality. The Respondent had full knowledge that he had previously been granted humanitarian protection and the dates thereto.

Ms Masood submitted that, as was submitted in RSM at [85], article 8 was not engaged. We do not accept that. The difference here is that article 17.2 is engaged as a result of the TCR made by Greece but there is nowhere a detailed analysis of the article 8 ECHR case made by Greece. In particular, Ms Masood accepted that CFR was engaged and thus article 7 the equivalent to article 8 was in play.

Ms Masood submitted that, even if the decisions were incompatible with article 8, other routes are available. It should be noted that A1 had spent significant periods of time in Greece. The date of decision is also, given that this is a judicial review case, relevant. The purpose of Dublin III is we accept to maintain family unity during the determination process and while that has occurred here to a limited extent, that is, however, not the only purpose of Dublin III.

Ms Masood submitted in respect of article 9 of Dublin III that that there was no case law on its meaning, and the specific point of its applicability had not been pleaded. She submitted that article 17.2 gave the requested state an extensive discretion, albeit not untrammelled, and the process was clearly optional.

In response, Ms Kilroy submitted that it is wrong in principle to expect the applicants to have understood the law and its intricacies in making their applications, but not to expect the same high standards of the respondent’s caseworkers in their analysis which gave no indication of any of the correct standards being applied or the proper factors taken into account.

The starting point for analysing the potential breach must be the best interests of the child. Given her age, and that she has already been diagnosed as suffering from PTSD, as has her mother, we find that the general rule that it is in her interest to be with both parents is all the stronger as the family unit relies to a great extent on A1 as carer and provider as detailed in the witness statements and in the psychiatric report which was not properly taken into account. The witness statements and psychiatric report are consistent with the limited references made in the TCR by the Greek authorities. Further, as A2 is pregnant, her ability to care for A3 is limited, and that ability is limited also by her own mental ill-health.

We do not consider that it is necessary for us to decide on A3’s nationality and as an application for a British passport is pending, it would not be right for us to do so. We do, however, accept that if she is a British Citizen as appears to be the case, given that she was born within marriage after her father was naturalised, that she would fall outside the scope of Dublin III Regulation which applies only to non-EEA nationals.

We accept also that, for the reasons set out above, A1 cannot reside in Greece; he has no right to reside there, nor is there any realistic prospect of him being able so to do. We accept he can and does visit, but that is a precarious basis of stay, and there is no indication of when A2 and A3’s situation will be resolved. Further, in this case, as A2 is assessed as stateless, and A3 is a minor, there is no third country in which they could be together as a family.

We also note that given A1’s very low income, that there is simply no basis on which the requirements of Appendix FM of the Immigration Rules could be met; paragraph EX.1 of that Appendix does not apply in Entry Clearance Cases). There is, thus, a significant interference with the right to family life during the Dublin III process. The obstacles to family life continuing in anything other than a very precarious and unstable environment are, we consider, given the poor accommodation available, the effect on A2 and A3, and their mental ill-health are such that they do amount to compelling and compassionate circumstances.

A further factor in the applicants’ favour arises in respect of Article 9 of Dublin III, set out above. As we have already identified and confirmed in the CID notes disclosed, A1 was granted humanitarian protection until 2011. His change of status subsequently to British citizen does not alter the fact that he was in receipt of international protection.

In ZN(Afghanistan) [2010] UKSC 21 the Supreme Court held:

We note that the phrase “who has been allowed to reside as a beneficiary of international protection” is in effect the same as the phrase formerly used in paragraph 352D of the Immigration Rules. While we accept that the rules of construction applicable in EU law are not necessarily the same as the canons of construction applicable in domestic law, we do not accept that there would be any difference in this case. Indeed, the same policy factors identified by Lord Clarke at [35] would be applicable here, and the interpretation would be consistent with the purposes of Dublin III which include that principle that claims of families should be determined in the same country for reasons of amongst other things consistency – see recital (15).

Whether the Greek government should have sought to invoke article 9 is not a matter for us, but it appears that it, unlike the UK government, it was unaware of the previous grant of leave to A1 or its basis. In these circumstances it is in fact likely that the ‘responsible’ member state is the UK.

The fact that A1 has acquired British citizenship is, we consider, not a rational or sensible basis for rejecting the request. As explained above, it is not logically related to the availability of an entry clearance route which is available to the pre-flight families of those granted international protection. A further mismatch occurs as article 9 of Dublin III includes families which came into being after the grant of protection.

We bear in mind that the bringing together of the family would only be for the purposes of assessing a protection claim, and that thus the interference must be all the greater to result in a breach of article 8 ECHR/article 7 CFR. We are, however, satisfied that the refusal to accede to the TCR is a breach of the applicants’ article 8 or 7 rights. We reach that conclusion as, given the severity of the effect on them, it would in the light of their particular circumstances, ill-health, nationalities (or lack thereof), and article 9 of Dublin III, that it is disproportionate and not properly justified by the respondent. We therefore find that on the material before the respondent, the decisions were not compatible with article 8 of the Human Rights Convention and were thus unlawful under section 6 (1) of the Human Rights Act 1988.

We therefore turn to the issue of remedy.

Ms Kilroy submitted that the only remedy that would be effective in this case would be a mandatory order requiring the respondent to accede to the TCR. While the use of mandatory orders was to be approached with caution, as was noted in R (ota RSM) v SSHD [2018] EWCA Civ 18 and in ZT (Syria), those cases fell to be distinguished on the basis that those cases concerned article 17.1, and more importantly, were concerned with scenarios where the Dublin III process had not commenced and the Secretary of State’s article 8 obligations were being used to bypass the proper procedures whereas here, it was an alleged breach of those obligations in the operation of Dublin III which was in issue. It was also submitted that quashing the decision would be inconsistent with the approach taken to human rights issues set out in Denbigh and Miss Behavin.

Ms Masood submitted that it was not appropriate to make a mandatory order in the circumstances where what was primarily in issue was an inter-state process. She relied on the protracted nature of the process, submitting that although there was no time limit relevant to Article 17.2, it was nonetheless a relevant factor.

Ms Masood submitted also that if, as the applicants aver, A3 is a British Citizen, then it would not be correct to order the respondent to accept a TCR relevant to her.

It was submitted that while the issues of remedy is one for the court’s discretion, and that should, even though RSM is not directly on point, be exercised with extreme caution. While comity did not arise as it had in RSM at [176] as the Greek Courts were not involved, the Greek state is seized of the issue.

Ms Kilroy re-iterated that the appropriate remedy here is a mandatory order, and that comity of approach did not arise here. She submitted, that delay did not, in this context militate against a mandatory order, relying on Ghezelbash at [56] – [58]:

We remind ourselves that the decision impugned in this case was one arising from the exercise of a discretion conferred on the respondent. On that basis, and following Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997, a court should not compel any authority to do more than consider the exercise of a power which is merely permissive and does not impose an obligation to act.

There are, we consider, other factors which militate against a mandatory order in this case. Owing to the lengthy process, we do not know the current position of the Greek authorities or whether they have decided to consider the substantive protection claims. We were given no information in this regard. Further, the position of A3 is unclear, and if (as appears to be the case) she is a British Citizen, a TCR simply could not apply to her. It also appears to us that there is the alternative remedy of a TCR under article 9.

As against that, we appreciate the urgency of the situation, and that there is the prospect of a child being born to A2 in the very near future. Also, there is significant merit in the submission that the respondent has made three successive unlawful decisions.

Nonetheless, although we accept that there has been no material change in circumstances, other than that A2 and A3’s situation is more precarious and A2 is, owing to pregnancy and her continuing mental ill-health less able to care for A3, we are not persuaded that we should take the highly unusual step of making a mandatory order in respect of A2, let alone A3 who appears to be a British citizen.

We do, however, consider it appropriate to make a declaration that the decision was unlawful as it breached the applicants’ article 7 CFR and article 8 ECHR rights, and to quash it. We also consider that it would, after seeking the parties’ views, be appropriate to draw a timetable for the decision to be remade, in the light of the declaration, and in light of our decision on article 9, and to make orders to that effect.

There is an issue identified during the hearing which, although it does not form part of our reasoning, merits further comment. We consider that the omission of spouses from article 16 of Dublin III is problematic. It is odd that the relationship between spouses should be omitted from the list of family relationships, yet those between siblings and between adult children and a parent are included, resulting in a definition of a “family” which is somewhat at odds with how it is usually understood. Arguably, that could give rise to arguments of inequality of treatment within the meaning of article 20 of the CFR, there being no apparent justification given for distinction of treatment. While we are aware of academic arguments that article 16 should be interpreted as applying to spouses (Footnote: ¹), such arguments would almost inevitably require a preliminary reference to the European Court of Justice.