BAA, R (on the application of) v The Secretary of State for the Home Department

THE IMMIGRATION ACTS

Before

THE HON. MR JUSTICE LANE, PRESIDENT

Between

THE QUEEN ON THE APPLICATION OF

BAA (A CHILD BY HIS LITIGATION FRIEND, TAA)

TAA

(ANONYMITY DIRECTION MADE)

Applicants

and

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent

Representation :

For the Applicants: Ms M Knorr, Counsel, instructed by Bhatt Murphy Solicitors

For the Respondent: Ms H Masood, Counsel, instructed by the Government Legal Department

(1) Article 17(2) of Regulation 604/2013 of the European Parliament and of the Council (“Dublin III”) confers a discretion on a Member State to examine an application for international protection “in order to bring together any family relations, on humanitarian grounds, based on family or cultural considerations”. Although the discretion is wide, it is not untrammelled: R (HA & others) (Dublin III; Articles 9 and 17.2) [2018] UKUT 297 (IAC). As in the case of any other discretionary power of the Secretary of State in the immigration field, Article 17(2) must be exercised in an individual’s favour, where to do otherwise would breach the individual’s human rights (or those of some other person), contrary to section 6 of the Human Rights Act 1998.

(2) The Secretary of State’s Article 17(2) decisions are susceptible to “ordinary” or “conventional” judicial review principles, of the kind described by Beatson LJ in ZT (Syria) v SSHD [2016] 1 WLR 4894 as “propriety of purpose, relevancy of considerations and the longstop Wednesbury unreasonableness category” (para 85).

(3) Where a judicial review challenge involves an allegation of violation of an ECHR right, such as Article 8, it is now an established principle of domestic United Kingdom law that the court or tribunal must make its own assessment of the lawfulness of the decision, in human rights terms. If, in order to make that assessment, the court or tribunal needs to make findings of fact, it must do so.

(4) Nothing in paragraphs (1) to (3) above is dependent upon Article 27 (remedies) of Dublin III applying to the facts of the case. Nevertheless, what the Upper Tribunal held in R (MS) (Dublin III; duty to investigate) [2019] UKUT 9 (IAC) regarding the scope of Article 27 is correct and nothing in the Court of Appeal judgments in MS [2019] EWCA Civ 1340 suggests otherwise. The reference to a “transfer decision” in Article 27 encompasses a refusal to take charge of a Dublin III applicant. That includes a refusal to take charge under Article 17(2).

(5) It would be remarkable if the Secretary of State’s investigatory responsibilities were materially narrower in an Article 17(2) case which concerns an unaccompanied minor and his or her best interests, than they would be in respect of any other take-charge request under Dublin III. Where the request under Article 17(2) raises issues that involve an asserted family life within Article 8 ECHR/Article 7 of the Charter of Fundamental Rights, then, in the normal course of events, the Secretary of State’s degree of engagement with the relevant United Kingdom local authority should be no less than in the case of any other unaccompanied minor, where the take-charge request is made under Article 8 of Dublin III on the basis that the relation in the United Kingdom is a sibling or a “family member” or “relative” as defined.

(6) Even in Article 17(2) cases, the principles of procedural fairness may mean that the Secretary of State may be required to provide an indication or gist to an applicant or his alleged United Kingdom relation, of matters of concern that may lead to a refusal to take charge of the applicant: R v SSHD ex parte Fayed [1998] 1 WLR 763; R (Balajigari) v SSHD [2019] 1 WLR 4647. This is, however, an area where one cannot lay down hard and fast rules. Even where Article 8 ECHR is in play, there may be exceptions. Furthermore, the process must not become so elaborate as to defeat the aim of expeditious decision-making, particularly where the best interests of minors are concerned.

(7) The references to “exceptional circumstances” in the Secretary of State’s Dublin III Guidance (18 April 2019) do not render the Guidance unlawful. Those working in the immigration field know that the use of “exceptional” in the context of Article 8 ECHR is not to be used as setting a particular (high) threshold but, rather, as predictive of the outcome of the application of the principles of proportionality to the facts of a particular case. Nothing in the Guidance suggests its author is telling caseworkers to do anything other than follow the settled law on this topic.

JUDGMENT

Covid-19: This judgment was handed down remotely by circulation to the parties' representatives by email, release to BAILII and publication on the Courts and Tribunals Judiciary website. The date and time for hand-down is deemed to be 10.30 a.m. on Tuesday 23 June 2020

A. INTRODUCTION

1. The first applicant, BAA (“A1”) is an unaccompanied asylum-seeking child (now aged 17). He left Syria, the country of his nationality, making his way to Greece, where he currently resides in a hostel.

2. A1 claimed asylum in Greece. He told the authorities there that he had been forcibly recruited at the age of 13 to fight with the Kurdish Army against ISIS. A1 said he was ill-treated by the Kurdish Forces.

3. On 7 October 2019, Greece requested the United Kingdom to take charge of A1’s asylum claim, pursuant to Article 17(2) of Regulation 604/2013 of the European Parliament and of the Council (the Dublin III Regulation). The request stated that A1’s cousin, TAA (“A2”) resides in the United Kingdom and that A1 wished to be reunited with him.

4. The respondent refused Greece’s request on 5 November 2019. Greece asked the respondent to reconsider. Having done so, the respondent again refused on 16 January 2020 to exercise her discretion under Article 17(2). Greece made a further request for reconsideration. The respondent considered that this request was not formally within the scope of the Dublin III Regime. The respondent told Greece “your request for re-examination is an invalid request. Nonetheless, the UK has taken this opportunity to consider the evidence provided to her and reassess her previous decisions to date in the form of a supplementary response”. The outcome was, however, that the respondent refused again to take responsibility pursuant to Article 17(2) for the consideration of A1’s asylum claim and, thus, for A1 to be transferred to the United Kingdom for that purpose.

5. On 3 February 2020, the applicants filed an application for judicial review of the respondent’s decisions of November 2019 and January 2020. Permission to bring judicial review proceedings was granted by the Upper Tribunal on 18 March 2020. By consent, the grounds of application were subsequently amended in order to encompass a challenge to the respondent’s decision of April 2020.

6. Certain other elements of the amended grounds were not agreed by the respondent but, by order dated 4 May 2020, I gave the applicants permission to rely upon the amended grounds, as submitted.

B. THE HEARING

7. The hearing took place on 21 and 22 May 2020, by means of Skype for Business . I conducted the hearing from court 4 at Field House. Counsel, A2 and members of the public attended remotely via video. Although there were some intermittent issues regarding sound on 21 May, no substantial technical problems were encountered during the hearing and I am satisfied counsel were able to make their respective cases by the chosen means. I am grateful to Ms Knorr and Ms Masood for their detailed and clear oral and written submissions.

8. At the hearing, Ms Knorr, on behalf of the applicants, applied for permission to adduce a witness statement of A2 (who had already produced two such statements). This latest statement seeks to address two matters: the contention in Ms Masood’s skeleton argument that A2 had met A1 for the first time in Greece in June 2019; and that A1 was recorded by the Greek authorities as saying that A1 was 2 years old when A2 left Syria.

9. For the respondent, Ms Masood objected to the introduction of A2’s third statement. I decided de bene esse to admit this statement and to rule later on its admissibility.

10. Ms Masood applied for permission to adduce a supplementary witness statement of Ms Julia Farman of the European Intake Unit, UK Visas and Immigration, in which Ms Farman seeks to explain the policy of the EIU, with regard to requests under Article 17(2) on whether and, if so, when the EIU would request a family assessment from a relevant local authority in the United Kingdom. Although Ms Knorr did not formally object to the admission of Ms Farman’s supplementary statement, I decided to treat it in the same way as the third witness statement of A2.

11. In the event I decided to admit both statements. Whilst cognisant of the need to maintain the requisite degree of procedural rigour in judicial review proceedings, I decided to admit the statements, in the light of my conclusion that Article 27 of Dublin III applies, so as to ensure that the requirements of EU Law for the proceedings to provide an “effective remedy” for proper compliance with Dublin III; but that, in any event, the proceedings involve the determination of human rights within the ambit of ECHR Article 8/Charter of Fundamental Rights Article 7. I concluded that neither the applicants nor the respondent were, thereby, placed at any procedural disadvantage.

C. LEGISLATION AND GUIDANCE

12. The Annex to this judgment sets out the relevant provisions of the Dublin III Regulation, the two Implementing Regulations and the Home Office Guidance on Dublin III.

D. LEGAL ISSUES

13. Before embarking upon an examination of the detailed grounds of challenge to each of the three decisions of the respondent, it is necessary to address a number of general issues.

(1) The nature of Article 17(2) and its place within the Dublin III system

14. Article 7 of Dublin III establishes a hierarchy of criteria. At the top of that hierarchy sit unaccompanied minors. Article 8 provides that where a family member or a sibling of the unaccompanied minor is legally present in a Member State, it is that Member State which shall be responsible for examining the minor’s application for international protection. “Family members” are defined by Article 2. Article 8 provides that it must be in the best interests of the minor to have his or her claim examined by the Member State in which such a family member or sibling is legally present.

15. Article 8(2) places responsibility (again, subject to the best interests of the minor) on the State in which a relative is legally present, where that relative can take care of the minor. Article 2 defines “relative” as the applicant’s adult aunt or uncle or grandparent (subject to certain procedural requirements).

16. The effect of Article 8(4) is that, in the absence of a family member, sibling or relative, the Member State responsible for the examination of the minor’s application for international protection shall be the one where the unaccompanied minor has lodged their application; again, provided that is in the best interests of the minor.

17. Importantly, as Ms Knorr points out, Article 8(4) departs significantly from the mechanism of Dublin III, as it applies to adults, in that an unaccompanied minor who has been present in Member State A but who travels to Member State B and makes an application there, is not subject to any general requirement to return to Member State A in order to have the application considered.

18. Article 17(2) concerns a request by one Member State to another for that other Member State to exercise its discretion to examine an application for international protection, whether made by a minor or adult, “in order to bring together any family relations, on humanitarian grounds based in particular on family or cultural considerations”. This judicial review is concerned with the respondent’s decision-making under Article 17(2).

19. The expression “family relations” is undefined in Dublin III. It is clearly wider than “family members” and “relative”. It does, however, require there to be some relationship that is of a “family”, as opposed to merely a social, nature. This is so, even though Article 17(2) goes on to speak about the humanitarian grounds for bringing together the family relations being based on “family or cultural considerations”.

20. The words “even where that other Member State is not responsible under … Articles 8 to 11 and 16” make it plain that, although “family relations” can include “family members” and “relatives”, Article 17(2) is not to be invoked in their cases, since they are covered in the hierarchy set out in those other Articles.

21. Unlike Articles 8 to 11 and 16, where, subject to the best interests requirement, the presence in an EU State of “family members” or a “relative” is legally determinative of that State’s obligation to examine an asylum claim, in the case of Article 17(2), the obligation of examination does not arise unless and until the EU State decides to exercise its discretion and become responsible.

22. What this means is that the other provisions of Dublin III and the Implementing Regulations are relevant in an Article 17(2) case, only to the extent that those provisions do not concern the mechanism for establishing pre-existing responsibility. As a result, the provisions which deal with the identification, etc of family members, siblings or relatives have no application to Article 17(2).

23. Thus, contrary to Ms Knorr’s submission, Article 3 of the First Implementing Regulation has no bearing on Article 17(2); nor does Article 5. Although Article 13(2) and (3) of that Regulation were relevant, in relation to Dublin II, they have now been subsumed within Article 17(2) of Dublin III itself and do not call for separate consideration. So far as the Second Implementing Regulation is concerned, the provisions added by it to Article 12 of the First Implementing Regulation are to do with family members, siblings or relatives, none of whom are relevant in the case of Article 17(2).

24. Ms Masood submitted that, read correctly in its own terms, Article 17(2) contains a very broad discretion. In support, she pointed to the judgment of the First Chamber of the CJEU in MA & Others v International Protection Appeals Tribunal & Others (C-661/17 (23 January 2019)). Albeit speaking about Article 17(1), the Court said as follows:-

“58. It is clear from the wording of Article 17(1) of the Dublin III Regulation that that provision is optional in so far it leaves it to the discretion of each Member State to decide to examine an application for international protection lodged with it, even if that examination is not its responsibility under the criteria defined by that regulation for determining the Member State responsible. The exercise of that option is not, moreover, subject to any particular condition (see, to that effect, judgment of 30 May 2013, Halaf , C-528/11, EU:C:2013:342, paragraph 36). That option is intended to allow each Member State to decide, in its absolute discretion, on the basis of political, humanitarian or practical considerations, to agree to examine an asylum application even if it is not responsible under the criteria laid down in that regulation (judgment of 4 October 2018, Fathi , C-56/17, EU:C:2018:803, paragraph 53).

59. In the light of the extent of the discretion thus conferred on the Member States, it is for the Member State concerned to determine the circumstances in which it wishes to use the option conferred by the discretionary clause set out in Article 17(1) of the Dublin III Regulation and to agree itself to examine an application for international protection for which it is not responsible under the criteria defined by that regulation.

60. That finding is also consistent, first, with the case-law of the Court relating to optional provisions, according to which such provisions afford wide discretionary power to the Member States (judgment of 10 December 2013, Abdullahi , C-394/12, EU:C:2013:813, paragraph 57 and the case-law cited) and, second, with the objective of Article 17(1), namely to maintain the prerogatives of the Member States in the exercise of the right to grant international protection (judgment of 5 July 2018, X, C-213/17, EU:C:2018:538, paragraph 61 and the case-law cited).

61. In the light of all the foregoing considerations, the answer to the first question is that Article 17(1) of the Dublin III Regulation must be interpreted as meaning that the fact that a Member State, designated as ‘responsible’ within the meaning of that regulation, has notified its intention to withdraw from the European Union in accordance with Article 50 TEU, does not oblige the determining Member State to itself examine, under the discretionary clause set out in Article 17(1), the application for protection at issue.”

25. It is, however, in my view plain that the discretion afforded to an EU State by Article 17(2) is not as wide as the respondent contends in the present proceedings. Unlike Article 17(1), Article 17(2) involves two Member States. Member State A triggers the mechanism by asking Member State B to take responsibility for an applicant for international protection. If Member State B refuses the request, it must “state the reasons on which the refusal is based”. No practical purpose would be served by the requirement to give reasons, if the Article 17(2) discretion were so wide as to be unchallengeable.

26. Furthermore, Recital (39) to Dublin III makes it plain that the Regulation respects fundamental rights, as set out in the Charter of Fundamental Rights of the European Union. Recital (39) specifically mentions Article 7 of the CFR (Respect for Private and Family Life), which parallels Article 8 of the ECHR. It also mentions Article 24, which provides that in “all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration”.

27. In R (on the application of HA & Others) v Secretary of State for the Home Department (Dublin III; Articles 9 and 17.2) [2018] UKUT 00297 (IAC), the Upper Tribunal (UTJ Rintoul and UTJ Rimington) concluded that, whilst the Article 17(2) discretion is wide, it is not untrammelled. It was, the Tribunal found, necessary to consider an Article 17(2) application “through the lens of Article 7 CFR and/or Article 8 ECHR, taking account of the best interests of a child”. I respectfully concur.

(2) Does Article 27 apply to Article 17(2)?

28. Article 27 (Remedies) provides that the applicant for international protection shall have the right to an effective remedy, in the form of an appeal or review, in fact and in law, against a transfer decision, before a court or tribunal. Given its position within Dublin III, it is hard to see why Article 27 does not encompass appeals or reviews of negative decisions under Article 17(2). It would, for example, be remarkable if a negative decision under Article 17(2), which gave as its reason that the refusing State declined to exercise its discretion in favour of a particular racial group, could avoid legal challenge, on the basis that Article 27 does not apply to it.

29. Once that point is accepted, as I consider it must be, then the principle of effective remedy is established as regards Article 17(2). As we shall see, this will be relevant when we come to examine Ground 2 of the applicants’ challenge to the respondent’s decisions in the present case, which concerns Article 7 CFR/Article 8 ECHR. However, as we shall also see, it is not essential for the applicants that Article 27 applies, in order for them to rely upon and make good that ground.

(3) The scope of judicial review of Dublin III decisions

30. Before me, there was no issue between Ms Knorr and Ms Masood that, like any other public law decision, a decision of the respondent to refuse an Article 17(2) request is susceptible to challenge on ordinary United Kingdom public law grounds.

31. In R (ZT (Syria)) v Home Secretary [2016] 1 WLR 4894, the Court of Appeal rejected the respondent’s suggestion that Article 17 of Dublin III might not be subject to challenge on such 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. Mr Eadie suggested, or came close to suggesting, during the course of the hearing that a refusal to exercise the power under article 17 was not justiciable. That, in my judgment, is unsound in principle and also finds no support in the authorities. Abdullahi v Bundesasylamt (Case C-394/12) [2014] 1 WLR 1895 recognised only that the second member state has a wide margin of discretion in deciding whether to assume responsibility pursuant to the provision in the Dublin II Regulation that is the equivalent of article 17. 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.” (Beatson LJ)

32. The applicants contend that the respondent’s decisions are, for various reasons, infected by public law errors of the kind described by Beatson LJ. Ground 2 is, however, of a different nature. It alleges that the decisions are incompatible with A1 and A2’s protected family life rights under Article 7 CFR/Article 8 ECHR. In order to determine if this is so, Ground 2 submits that the Upper Tribunal “must assess for itself whether the ongoing interference with the applicants’ right to family life under the CFR/ECHR is proportionate, if necessary taking into account evidence that was not before the decision-maker”.

33. As I understand her, Ms Masood’s submission regarding Ground 2 is that the nature of the challenge articulated in Ground 2 remains rooted in Beatson LJ’s “ordinary public or principles of propriety of purpose, relevancy of considerations, and the longstop Wednesbury unreasonableness category”, albeit acknowledging what he describes as the “intensity of review demanded in the human rights context”. The logic of this submission means it is not limited to challenges to Article 17(2) discretionary decisions. It applies to all challenges to Dublin III decisions of the respondent.

34. In order to address this issue, it is necessary to examine in detail the judgment of the Upper Tribunal (UTJ Grubb and UTJ Blum) in R (on the application of MS) (a child by his litigation friend MAS) v Secretary of State for the Home Department (Dublin III; duty to investigate) [2019] UKUT 00009 (IAC). The Upper Tribunal’s judgment in MS was appealed to the Court of Appeal: [2019] EWCA Civ 1340. Although the respondent’s appeal was dismissed on the ground that the challenge to the relevant part of the Upper Tribunal’s judgment was academic, and did not satisfy the criteria for the Court to engage substantively with the matter, the judgments of Hickinbottom LJ and the Master of the Rolls will nevertheless need to be examined.

35. The applicant in MS claimed asylum in France, which requested the United Kingdom to take charge of the examination of his claim, on the basis that MS had an older brother in the United Kingdom. The respondent did not consider MS and the individual in question were brothers. It therefore rejected the request, in a number of decisions, which were challenged by way of judicial review in the Upper Tribunal.

36. The Upper Tribunal found what I shall describe as conventional public law errors in each of the three decisions of the respondent; and quashed them. At paragraph 171 of its judgment, the Tribunal then engaged with another ground of challenge, based on the submission of MS that the Tribunal “should, for itself, decide whether the ‘criteria’ for determining responsibility in Article 8 of the Dublin III Regulation are met on the facts”.

37. As advanced by Ms Kilroy, MS’s case was predicated on Article 27 of Dublin III requiring there to be an effective remedy, in fact and law, in respect of the respondent’s decisions in MS’s case. Before the Upper Tribunal, the respondent took the stance that a “transfer decision” in Article 27 did not include the rejection of a take charge request.

38. The Upper Tribunal rejected the respondent’s submission that a “transfer decision” did not include a refusal to take charge. At paragraph 187, the Upper Tribunal noted that Recital (19) to Dublin III recognises the need for an “effective remedy in respect of decisions regarding transfers …” (Upper Tribunal’s emphasis). Furthermore, the decisions of the Grand Chamber in Ghezelbash v Staatssecretaris van Veiligheid en Justite (Case C-63/15) and Mengestead v Bundersrepublik Deutschland (Case C-670/16) acknowledged both the breadth of Recital (19) and the judicial remedy envisaged in Article 27. The Upper Tribunal was in “no doubt that the Grand Chamber contemplated an individual being entitled to challenge the correctness in application of the “criteria” to determine which Member State is responsible under the Dublin III Regulation whether the effect of the decision led to the individual’s transfer to another Member State or , as in this case, left him or her in the Member State in which he or she currently was present” (paragraph 188).

39. At paragraph 190, the Upper Tribunal noted that, in Ghezelbash , the Grand Chamber had affirmed that the effective remedy covered questions of both fact and law. There was no suggestion that a court or tribunal determining whether the Dublin III Regulation had been correctly applied was limited to determining the legality of the decision based upon public law principles. On the other hand, the Advocate General in Ghezelbash , in her opinion at paragraphs 90 and 91, had found it was for the national court’s procedural rules to govern the intensity of the review process and its outcome. The effectiveness of a judicial review guaranteed by Article 47 nevertheless required an assessment of whether there was a “sufficiently solid factual basis” for the transfer decision.

40. At paragraph 193, the Upper Tribunal, whilst finding the Advocate General’s opinion to be “far from an unambiguous statement of the approach that Ms Kilroy invites us to take”, held that it provided some support for the view that a challenge was not restricted to legality alone, as regards the requirement for the decision to have a “sufficiently solid factual basis”. The Upper Tribunal concluded that the application of Article 27 meant that an individual “must have the ability to challenge the application of the criteria not only as legally wrong, but also as factually wrong” (paragraph 193).

41. The Upper Tribunal, however, was at some pains to point out that its conclusion on Article 27 was compatible with domestic public law. At paragraph 194, citing cases from Edwards v Bairstow [1956] AC 14 to R (Al-Sweady & Others) v Secretary of State for Defence [2009] EWHC 2387 (Admin), by way of Anisminic v Foreign Compensation Commission [1969] 2 AC 147, the Upper Tribunal observed that, whilst fact-finding in a judicial review, including by reference to post-decision evidence, was rarely undertaken, it was not unknown; and that there was “no insurmountable procedure or obstacle to a factual enquiry being undertaken in judicial review proceedings” (paragraph 195). Indeed, in some cases involving “precedent fact”, the judicial review proceedings inevitably had to take this form: R v SSHD, ex parte Khawaja [1984] AC 74 and R (A) v Croydon LBC [2009] UKSC 8.

42. All this led the Upper Tribunal to the following conclusion:-

“200. In our judgment, the approach in the Croydon case provides a strong, and indeed compelling, basis for the approach taken by the CJEU in respect of Art 27 of the Dublin III Regulation and which we analysed above. The application of the hierarchy criteria in the Dublin III Regulation, in particular in this case whether MAS and MS are brothers, is a ‘hard-edged‘ fact. As the CJEU jurisprudence signals, whether those criteria have been correctly applied is intended ultimately to be a factual issue for a court or tribunal to be determine.

201. Although we were invited to treat the application of the hierarchy criteria as being a ‘precedent’ or ‘jurisdictional fact’, it is unnecessary for us to decide that issue given our view, based upon the CJEU’s jurisprudence of the scope of Art 27. Suffice it to say, that there may not be an altogether easy analogy between cases where the “fact” arises prior to, and in order to give jurisdiction to, a decision-maker to exercise the power or duty vested in that decision-maker and cases involving the hierarchy criteria under the Dublin III Regulation where the criteria, in effect, are likely to occupy the whole of the decision-making required of the relevant State, here the requested State in accepting a TCR. But, as we say, it is unnecessary for us to decide this issue and we do not.”

43. Crucially for our purpose, beginning at paragraph 202, the Upper Tribunal engaged with the proposition, advanced by MS, that where Article 8 of the ECHR and/or Article 7 of the CFR is in issue, the nature of any judicial review is different from the situation that pertains when those or any other human or fundamental rights are not in play:-

“202. Ms Kilroy also prayed in aid of her argument that we should decide the factual issue of the relationship between MS and MAS, the case law concerning a court or tribunal’s role in determining whether a decision has breached an individual’s human rights.  She, of course, placed reliance upon Art 8 of the ECHR and Art 7 of the CFR, in particular (but not exclusively) the procedural/fairness dimension of those provisions. She reminded us that Art 47 of the CFR also creates an obligation to provide “an effective remedy” for breaches of the CFR.

203. It is now well-recognised that an “intense” review or, arguably, merits assessment arises in cases where the judicial review claim is that the decision in determining whether the challenged decisions are contrary to section 6 of the Human Rights Act 1998 (see, e.g., R (Nasseri v SSHD [2009] UKHL 23 , Bank Mellat v HM Treasury (no. 2) [2013] UKSC 38 and 39 , and R (Lord Carlile of Berriew) v SSHD [2014] UKSC 60 ) . The court or tribunal must, for itself, determine whether a breach of the relevant Convention right has occurred.

204. The principle was encapsulated by Underhill LJ in R(Caroopen & Myrie) v SSHD [2016] EWCA Civ 1307 , where he stated at [73] that:

“… where the issue raised by a judicial review challenge is whether there has been a breach of Convention rights, the Court cannot confine itself to asking whether the decision-making process was defective but must decide whether the decision was right.”

205. That language – whether the decision was “right” – echoes the approach of the CJEU to scope of the ‘effective remedy’ required by Art 27 of the Dublin III Regulation.

206. In Belfast City Council v Miss Behavin' Ltd   [2007] UKHL 19 Lady Hale said, at [31]:

"The role of the court in human rights adjudication is quite different from the role of the court in an ordinary judicial review of administrative action. In human rights adjudication, the court is concerned with whether the human rights of the claimant have in fact been infringed, not with whether the administrative decision-maker properly took them into account."

207. Consequently, where a breach of Art 8 is alleged, the court must for itself determine whether the challenged decision is a proportionate interference with the individual’s art 8 rights. It is not constrained only to determine whether it has been lawfully applied (see, e.g. Miss Behavin’ Ltd and R (SB) v Governors of Denbigh High School [2006] UKHL 15 ). It was this approach which was adopted by the UT in the HA case (at [53]-[56]).

208. We do not consider that this approach is limited to the issue of proportionality under Art 8.2. It must also apply to establishing that the right, upon which reliance is placed, is actually engaged.  We accept this approach must be applied to Art 8, whether relied upon for its procedural/fairness’ dimension or substantively. It was not suggested before us that any different approach should be applied in respect of Art 7 of the CFR. Whether, therefore, family life exists between MAS and MS based upon their claimed relationship as brothers is also a matter which a court or tribunal must determine for itself. We reject Mr Lewis’ submission that this, in effect, puts the ‘cart before the horse’. Only if the right is engaged can the court indulge in a merits review. To say otherwise would effectively remove from the court or tribunal in cases where ‘engagement’ was the, or an, issue, determination of a vital part of the individual’s claim that his Art 8 right was breached. We see no basis in the case law for it. Indeed, in the Al-Sweady case, a strongly constituted Divisional Court (Scott Baker LJ and Silber and Sweeney JJ) made plain that the factual enquiry extended in that case to the underlying facts of one individual’s claim under Arts 2 and 3, namely whether he had been killed on the battle-field or, as he alleged, in a camp under the control of British forces in Iraq (see [16]). The Court accepted that cross-examination of witnesses was necessary in order for the Court to resolve that ‘hard-edged’ factual issue. Mutatis mutandis , we conclude, so it was in this case for us to resolve the ‘hard-edged’ issue of fact of whether MAS and MS are related as claimed as an aspect of their reliance upon Art 8 of the ECHR (and Art 7, CFR).”

44. At paragraph 210, the Upper Tribunal therefore decided “Issue IV in the applicant’s favour”.

45. In view of what transpired when MS reached the Court of Appeal, it is necessary to see what Issue IV comprised and its relationship with the three previous issues. At paragraph 86, the Upper Tribunal summarised the principal legal issues as follows:-

“86. We can summarise the principal legal issues raised in this case as follows:

I. Is the Secretary of State under a duty to investigate the relevant circumstances when considering a TCR under the Dublin III Regulation?

II. If there is such a duty, what is the proper scope of that duty? Does any duty include a duty to facilitate and/or secure the obtaining of a DNA sample from an individual in the requesting state?

III. If there is such a duty, does that duty continue once the Dublin III Regulation process is concluded?

IV. How should a court or tribunal approach a challenge in judicial review proceedings to a refusal to accept a TCR? Is it restricted to considering a challenge based upon public law principles or is it required to decide for itself whether the criteria for determining responsibility under the Dublin III Regulation have been correctly applied?”

46. The Upper Tribunal determined Issues I, II and III in favour of the applicant. Having done so, it applied its findings in those issues to the facts and circumstances of the three decisions under challenge. The Upper Tribunal found that those decisions fell to be quashed on conventional public law principles. It was at this point in its judgment that the Upper Tribunal turned to examine Issue IV. In the light of its conclusion on that matter, it made findings of fact, by reference to evidence adduced at the hearing (including oral evidence), upon which it held, on the balance of probabilities, that MS was the brother of the individual present in the United Kingdom.

47. We can now look at what happened in the Court of Appeal. Hickinbottom LJ introduced the case as follows:-

“5. The tribunal gave the Secretary of State permission to appeal to this court on two grounds, as follows.

i) The tribunal erred in holding that, for the purposes of article 27 of Dublin III, "transfer decision" includes the rejection of a take charge request, which involves no transfer. Therefore, it is submitted that the requirement of article 27, that an asylum applicant should have "the right to an effective remedy, in the form of an appeal or a review, in fact and law, against a transfer decision, before a court or tribunal", does not apply in this case where there has been no decision to transfer MS.

ii) Even if "transfer decision" does include a rejection of a take charge request, the tribunal erred in proceeding on the basis that the tribunal itself must determine, as a matter of preliminary fact, whether the relevant Dublin III criteria (including any required relationship) are met.

I will call these "Ground 1" and "Ground 2" respectively.”

48. By the time the matter came before the Court of Appeal, a DNA test had established that MS and the other individual were, indeed, brothers and the Secretary of State accepted that fact. MS therefore contended that, although the Upper Tribunal had been right to hold that Article 27 applied, the matter was academic and the Court should dismiss the appeal on that basis.

49. At paragraph 13, Hickinbottom LJ described Ground 1 as “narrow, turning upon the proper construction of Article 27”. Hickinbottom LJ noted that Ground 2 was “effectively conceded by the Secretary of State in the course of the hearing before us”. The Secretary of State accepted that, if Article 27 of Dublin III applies, the domestic Court, “which is conducting the Article 27 review of the transfer decision should (i.e. is able to and required to) determine whether there is a ‘sufficiently solid factual basis’ for it, the quotation coming from the opinion of Advocate General Sharpston in [ Ghezelbash ]”. Therefore, if the Secretary of State failed on Ground 1 “he therefore conceded Ground 2 by accepting that the Tribunal did not err in its approach to the factual question of whether the relevant Dublin III criteria (including any required relationship) had been met”.

50. At paragraph 40 of his judgment, Hickinbottom LJ observed that, before the Upper Tribunal, “the core issue with regard to lawfulness was the extent to which the Secretary of State had an ‘investigative duty’ which extended to facilitating and securing the provision of a DNA sample from an asylum applicant in France”. He then noted the reasons why the Upper Tribunal had quashed the three decisions of the Secretary of State. At paragraph 41, Hickinbottom LJ said this:-

“41. The tribunal therefore found the three decisions unlawful and quashed them without reference to article 27 of Dublin III. No reference to that provision was made until, having quashed the decisions, the tribunal dealt with the submission by Ms Kilroy (who also appeared below) that article 27, read with article 47 of the Charter, applied to a decision of the Secretary of State to reject a take charge request; and it required the tribunal to determine for itself whether MS met the relevant criteria in Dublin III notably that he is MAS's brother.”

51. Hickinbottom LJ proceeded to set out the competing arguments of Ms Giovannetti (for the Secretary of State) and Ms Kilroy (for MS) on the Article 27 issue. At paragraph 53, he said that “I see the force in Ms Kilroy’s submission on the substantive issue of the construction of article 27 in Ground 1”. However, because he found that the matter was “now entirely academic as between the parties, I would exercise the court’s discretion not to determine it”.

52. Sir Terence Etherton MR gave a short judgment, with which both of the members of the Court agreed. He did so in order “to add … a short amplification of the place of article 8 of the ECHR and ordinary domestic law principles of judicial review in the proceedings below and on this appeal” (paragraph 59).

53. At paragraph 60, the Master of the Rolls noted that MS’s grounds of judicial review:-

“… stated that the Secretary of State owed a domestic duty to act compatibly with article 8 of the ECHR pursuant to section 6 of the Human Rights Act 1998, and those duties existed alongside Dublin III and were not subsumed or replaced by it”.

54. At paragraph 62, the Master of the Rolls noted Ms Giovannetti as accepting “that there could be judicial review under ordinary domestic law principles even if the alleged unlawfulness arose under Dublin III itself”.

55. The remainder of the judgment needs to be set out in full:-

“63. It is apparent from the judgment of the tribunal that its decision to quash the Secretary of State's refusal to accept France's take charge requests was made on that basis (see the way the tribunal summarises MS's case in paragraphs 44 and 45). The issue of article 27 arose only in the context of the subsequent question whether, having concluded that the decisions of the Secretary of State should be quashed, the tribunal should decide for itself whether the criteria for determining responsibility under article 8 of Dublin III were met on the facts.

64. Hickinbottom LJ has set out in paragraph 5 above the two grounds of appeal. In her arguments for dismissing the appeal on the footing that it is academic Ms Kilroy relied upon, among other things, the right to challenge refusals by the Secretary of State of take charge requests as infringements of article 8 of the ECHR, irrespective of rights and obligations under Dublin III, applying ordinary domestic law judicial review principles and also bearing in mind the Secretary of State's acceptance on the appeal that (1) there is residual power in judicial review proceedings to make findings of fact, and (2) when called upon to determine whether there is a breach of article 8 of the ECHR, the court has to decide proportionality for itself, and it may be required to resolve issues of disputed fact.

65. ZT (Syria) and RSM (Eritrea) , cited in the Grounds of Defence and in the arguments before us on the appeal, are not relevant to that line of argument and are plainly distinguishable on their facts as cases in which the applicants were seeking to bypass or override express procedures under the Dublin process which would otherwise have applied.

66. Ms Giovannetti, perhaps rather surprisingly in view of the way matters proceeded in the tribunal below and the concession by the Secretary of State on Ground 2 of the appeal, urged us to express no view about the application of ordinary domestic law principles of judicial review in a case such as the present one as, she emphasised, that is not the subject of the notice of appeal. It is sufficient, therefore, to conclude this description of the way the issue arose in this case and on the appeal by recording that nothing was said to us to indicate that the tribunal was wrong to approach the case as it did, by reviewing the Secretary of State's decision on the basis of ordinary judicial review principles.”

56. As can be seen from the above recitation of the judgment of the Upper Tribunal in MS , it is by no means apparent that the Upper Tribunal determined Issue IV in the applicant’s favour and embarked upon the resulting fact-finding exercise to establish whether he and his alleged sibling were, indeed, brothers, only because the Upper Tribunal had decided, for other reasons, to quash the challenged decisions. As the Master of the Rolls observed, that was certainly not the way in which MS had put the challenge in his judicial review grounds, where the Article 8 ECHR/section 6 HRA duties were described as existing “alongside Dublin III”.

57. The fact that the Upper Tribunal chose to address Issue IV only after it had addressed the other grounds of challenge that led to the quashing of the decisions is explicable in terms of the structure of the judgment. But that does not mean the Upper Tribunal regarded Issue IV as relevant only because it had quashed the decisions on other grounds. There is no statement in the judgment that even begins to suggest this. On the contrary, as we have seen, the Upper Tribunal was concerned to justify its conclusions on Issue IV by reference to domestic case law including, importantly, the House of Lords judgments in Denbigh High School and Miss Behavin’ as well as the judgment of Underhill LJ in Caroopen . There would have been no point in such a justification if Issue IV were not regarded by the Upper Tribunal as a free-standing ground of challenge.

58. As I read the judgment of the Master of the Rolls, he was concerned to make the point, so far as he was able to do so in the light of the way in which matters unfolded in the Court of Appeal, that the Upper Tribunal in MS was not wrong to approach the case in the way it did “on the basis of ordinary judicial review principles”. It is plain from paragraph 64 of his judgment that the Master of the Rolls regarded those principles as encompassing the determination by the Tribunal of issues of proportionality, wherein “it may be required to resolve issues of disputed fact”.

59. The principle that issues of disputed fact may require to be decided in judicial review proceedings involving a human rights ground of challenge has been emphatically confirmed by the judgment of Underhill LJ in R (Balajigari) v Home Secretary [2019] 1 WLR 4647; [2019] EWCA Civ 673. The case involved the nature of a judicial review against a decision of the respondent that an individual had acted dishonestly in respect of financial information provided, respectively, to the respondent and to Her Majesty’s Revenue and Customs. Where Article 8 was in play, and the issue involves the proportionality of the respondent’s decision, Underhill LJ was in no doubt that the allegation (of dishonesty) had to be determined by the Tribunal, by means of its own factual investigation:-

“104. If such an article 8 challenge does proceed by way of judicial review in the UT, and the claimant’s article 8 rights are found to have been engaged, the tribunal will, as already noted, have to consider for itself whether the alleged dishonesty on the part of the claimant has been proved and whether removal is proportionate, which in most cases is likely to be determined by the question of dishonesty. It will not be confined, as would usually be the case and as in these proceedings thus far, to reviewing the facts only on the ground of irrationality. This is because, where a claim for judicial review includes a pleaded ground that the Secretary of State’s decision either does or would violate article 8, that amounts to an allegation that there has been or will be unlawful conduct contrary to section 6 of the 1998 Act. That allegation has to be adjudicated by the tribunal on its merits: it is an argument based on illegality and not simply irrationality. For a recent summary of the law in this regard see R (Caroopen) v Secretary of State for the Home Department [2017] 1 WLR 2339, paras 68-83, per Underhill LJ.”

60. At paragraphs 68 to 83 of Caroopen , Underhill LJ undertook an analysis of the case law, including Denbigh High School , Naseri, Bank Mellat No 2 , Miss Behavin’ and Lord Carlile’s case , similar to that undertaken by the Upper Tribunal in MS . Indeed, as we have seen, at paragraph 204 of its judgment, the Upper Tribunal cited the passage at paragraph 73 of Caroopen , where Underhill LJ held that, in challenges of this kind, “the Court cannot confine itself to asking whether the decision-making process was defective but must decide whether the decision was right”.

61. It is, therefore, established that in a judicial review which challenges a decision on the ground that it actually or potentially violates a person’s protected human right, the court or tribunal must determine that issue for itself (albeit ascribing weight to the decision-maker’s expertise and statutory or other relevant functions). Where there is a dispute as to the primary facts that must be ascertained before that issue can be determined, the court or tribunal must resolve that dispute.

62. The legal principle I have just stated is part of our domestic law of judicial review. It has been reached by the domestic courts applying section 6 of the Human Rights Act 1998, which prohibits a public authority from acting incompatibly with an ECHR right. Where an ECHR right is in play, this legal principle is not dependent on Article 27 of Dublin III or, indeed, any other piece of EU legislation regarding the availability of an effective remedy, even where the challenged decision is made under EU law. Nor is the principle dependent upon there being some other public law error in the impugned decision.

63. The fact that a decision of the respondent, which is otherwise free from public law error, may fall to be quashed, as a result of a fact-finding exercise of the kind undertaken in MS and the present case, needs to be seen in context. In most instances, there is unlikely to be any dispute as to the primary facts. The issue in contention will, rather, be about what weight should be ascribed to particular factual elements in order to strike the proportionality balance. A decision which is free from public law error, where the evidence available to the respondent does not disclose a reason why the decision might be in breach of section 6 of the Human Rights Act 1998, will not get past the “permission” stage on judicial review. Although there is no legal requirement for there to be an independent public law error, a genuine dispute as to primary facts is likely to arise only where there has, in practice, been some such error, such as a breach of procedural fairness (as in Balajigari ).

64. Before attempting a summary of the position, it is necessary to return to what the Upper Tribunal said at paragraph 208 of MS . Although the issue of whether a decision is contrary to section 6 of the 1998 Act will usually arise in the context of whether the decision was a proportionate interference with a right that is accepted to exist, the primary fact-finding which may be necessary is not limited to the issue of proportionality but must, as the Upper Tribunal held in paragraph 208, “also apply to establishing that the right, upon which reliance is placed, is actually engaged”. In that case, the issue was whether MS and the alleged sibling were brothers. If they were not, then Article 8(1) would not have been engaged. If they were, then not only was Article 8 engaged; on the facts of the case the refusal of the respondent to take charge was plainly unlawful in terms of Article 8(2).

65. In the present case, as we shall see, a similar approach is required. A1 must show, on balance, that he enjoys a family life with A2. That does not merely require showing that A1 and A2 have the alleged relationship of cousins. It also involves demonstrating that an Article 8(1) family life exists between them. The factors that will be relevant in determining that question, whilst closely related to issues of proportionality under Article 8(2), are, nevertheless, conceptually distinct.

66. It is time to draw these threads together:

(1) Although Article 17(2) of Dublin III confers a wide discretion on the respondent, it is not untrammelled.

(2) As is the case with any other discretionary power of the respondent in the immigration field, Article 17(2) must be exercised in an individual’s favour, where to do otherwise would breach the individual’s human rights (or those of some other person), contrary to section 6 of the Human Rights Act 1998.

(3) An Article 17(2) decision is susceptible to “ordinary” or “conventional” judicial review principles, of the kind described by Beatson LJ in paragraph 85 of ZT (Syria) as “propriety of purpose, relevancy of considerations, and the longstop Wednesbury unreasonableness category”.

(4) Where the judicial review challenge involves an allegation of violation of an ECHR right, such as Article 8, it is now an established principle of domestic United Kingdom law that the court or tribunal must make its own assessment of the lawfulness of the decision, in human rights terms.

(5) If, in order to make that assessment, the court or tribunal needs to make findings of fact, it must do so.

(6) None of the above is dependent upon Article 27 of Dublin III applying to the facts of the case.

(7) Nevertheless, what the Upper Tribunal held in MS regarding the scope of Article 27 is correct and nothing in the Court of Appeal judgments in that case suggests otherwise. The reference to a “transfer decision” in Article 27 encompasses a refusal to take charge of a Dublin III applicant. That includes a refusal to take charge under Article 17(2).

(4) The legality of the Secretary of State’s Dublin III Regulation Guidance (18 April 2019)

67. The applicants contend that the respondent’s Guidance to Caseworkers is unlawful. Ms Knorr submitted that the references to “exceptional circumstances”, and to it being “rare and on an exceptional basis” that a regulation 17(2) request would be accepted, involved the setting of an unlawful threshold.

68. I do not accept this criticism. Since Huang v Secretary of State for the Home Department [2007] UKHL 11, those working in the immigration field have known that the use of “exceptional” in the context of Article 8 ECHR is not to be used as setting a particular (high) threshold but, rather, as predictive of the outcome of the application of the principles of proportionality to the facts of a particular case. There is, in my view, nothing in the Guidance that suggests its author is telling the respondent’s caseworkers to do anything other than follow the settled law on this topic. My conclusion is reinforced by the statement in the Guidance that the situations where it would be appropriate to exercise discretion will be “rare”. The juxtaposition of “rare” and “exceptional” within the sentence containing that statement makes plain the correct approach is being applied.

69. It is also necessary to make the following point. Although Article 17(2) relates to the bringing together of “family relations”, the fact that this may be “on humanitarian grounds based … on … cultural considerations” makes it clear that the ambit of Article 17(2) encompasses cases that may elicit a favourable response, even where Article 8 ECHR/Article 7 CFR is not engaged. Just as Ms Masood correctly points out that the Guidance covers applicants who may not be children (whether or not accompanied), the fact that it extends beyond the classic Article 8 scenarios must be borne in mind, when reading it.

70. As can be seen from the extensive extracts from the Guidance set out in the Annex to this judgment, it does, contrary to Ms Knorr’s submissions, appropriately reference the best interests of children. I therefore reject the challenge to its validity, insofar as the applicants allege a deficiency in this regard.

71. I do not accept that the Guidance errs in law in requiring the requesting EU State to demonstrate what the exceptional circumstances or compassionate factors are said to be. I agree with Ms Masood it is plain from Article 17(2) that the requesting State needs to cite the humanitarian grounds upon which it relies and provide “all the material in the possession of the requesting Member State to allow the requested Member State to assess the situation”. That is clearly not incompatible with the requirement in Article 17(2) for the requested Member State then to carry out “any necessary checks to examine the humanitarian grounds cited”.

72. Although, as I have earlier held, Article 12 of the First Implementing Regulation (as amended by the Second Implementing Regulation) does not formally apply to a request under Article 17(2) of Dublin III, it is clear that the relevant local authority in the United Kingdom, in whose area the alleged relation resides, still needs to be involved in the process; not least in order to determine whether an unaccompanied minor’s best interests would be served by reuniting the minor with that individual. For the respondent, Ms Masood accepts as much.

73. Ms Knorr took issue with the reference in the Guidance to caseworkers in Article 17(2) cases acting “consistently with the immigration rules and policies on family members, for example the Immigration rules Appendix FM - Family Members”. I see no problem here. Acting consistently with the immigration rules, in particular Appendix FM, entails being aware of the elements of those provisions that are intended to ensure compliance with the United Kingdom’s obligations under the ECHR. It also entails being aware of the fact that, as was finally settled by the Supreme Court in Hesham Ali v Secretary of State for the Home Department [2016] UKSC 60, the respondent’s caseworker must still conduct an Article 8 exercise outside the rules, to ensure that, on the particular facts, section 6 of the 1998 Act is not breached.

74. In considering the challenge brought by the applicants to the respondent’s Guidance, I have had regard to their criticisms of the way in which the respondent’s caseworkers reached the decisions that are challenged in these proceedings. Although, as I shall explain, I agree with the criticisms levelled at those decisions, I do not find that they are indicative of any failing in the Guidance itself.

75. For these reasons, I reject the applicants’ challenge to the Guidance.

(5) Duty of investigation; involvement of relevant local authority

76. In MS, the Upper Tribunal followed the judgment in R (MK, IK) v Secretary of State for the Home Department (Calais: Dublin III Regulation – investigative duty) (IJR) [2016] UKUT 00231, holding that an EU State considering a take-charge request under Dublin III has a duty to investigate the basis upon which the request is made and whether the requirements of Dublin III are met. I have no hesitation in endorsing that conclusion, insofar as it applies to Article 17(2). There is, in my view, no principled reason why it should not; and I did not understand Ms Masood to argue to the contrary.

77. Although Article 17(2) lacks some of the formal requirements as to verification etc, which derive from the Implementing Regulations, it would be remarkable if the respondent’s investigatory responsibilities were materially narrower in an Article 17(2) case which concerns an unaccompanied minor and his or her best interests, than they would be in respect of any other take-charge request.

78. But this is not to say that the precise nature of the investigatory obligation bears no relationship with the nature of the request to take charge made under Article 17(2), and the information supplied in connection with it. Given the breadth of Article 17(2), there may well be some cases in which what the respondent and, by extension, the relevant local authority, are expected to do would be less than in other cases. Where, however, the request in respect of an unaccompanied minor raises issues that involve an asserted family life within Article 8/Article 7, then, in the normal course of events, the respondent’s degree of engagement with the relevant local authority should be no less than in the case of any other unaccompanied minor where the take-charge request is made under Article 8 of Dublin III on the basis that the relation in the United Kingdom is a sibling or a “family member” or “relative”, as defined. Unless the respondent is satisfied that the relevant local authority’s assessment could not possibly cast any relevant light on whether the alleged family relationship exists, or upon the alleged humanitarian grounds, I consider that, in an Article 8/Article 7 case of this kind, the respondent should seek an assessment from the relevant local authority.

79. Ms Julia Farman, of the European Intake Unit, UK Visas and Immigration, has filed two statements in the current proceedings. She is the Head of the EIU, a position she has held since 2016, when the Unit was created. Ms Farman says in her first statement that a family assessment is requested from the local authority only “once the family link has been established”, since the purpose of the assessment “is to ascertain the ability of an individual in the UK to take care of a minor and, if necessary, to source appropriate accommodation should they qualify under the terms of the Dublin III Regulation”. In her supplementary witness statement, which I decided to admit, she says that, in the context of Article 17(2), the EIU will request a family assessment “only once we are satisfied that the claimed family relationship has been established and the requirements of Article 17(2) have been met (i.e. it has been decided to exercise the discretion under Article 17(2) on the basis of the humanitarian grounds and/or cultural considerations”. The purpose of the assessment is, therefore, to address whether there would be “any overarching safeguarding or security concerns that would mean the transfer would not be in the child’s best interests”.

80. As will be apparent, I do not consider these statements of the respondent’s practice to be compatible with the requirements of Dublin III, as they bear on the issue of Article 7 CFR/Article 8 ECHR, where the best interests of an unaccompanied minor are at issue. There are likely to be circumstances in which information from the relevant local authority, deriving from direct engagement with the asserted United Kingdom relation, will inform the making of the respondent’s decision, both as to the existence of the claimed relationship and as to the way in which the Article 17(2) discretion should be exercised.

81. Although I have rejected the specific challenges brought by the applicants to the respondent’s Guidance, it may be useful for the respondent to consider adding a provision to that Guidance, which reflects what I have held at paragraph 78 above.

(6) “Minded to refuse” communications

82. In MS , the Upper Tribunal held that the respondent’s public law obligation to act fairly may require that an individual knows the “gist” of what is being said against him or her, so as to be able to make representations and/or adduce evidence, before the actual decision is taken. The Upper Tribunal cited, in this regard, the judgment of Lord Phillips MR in R (Q & Others) v Secretary of State for the Home Department [2004] QB 36. The Upper Tribunal considered that this domestic obligation was not inconsistent with Dublin III. On the contrary, it was “patently focussed on enhancing or maintaining the integrity of the system in reaching lawful and correct decisions” (paragraph 124).

83. Ms Masood points out that “what fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects” (R Doody) v Secretary of State for the Home Department [1994] 1 AC 531, per Lord Mustill. Thus, Ms Masood submits, the Upper Tribunal’s decision in MS , which was that the applicant in that case should have been informed of the respondent’s concerns before the refusal decision was issued, cannot and should not bind the Upper Tribunal in this case. On the contrary, Ms Masood submits that in this Article 17(2) case, neither common law fairness nor Dublin III required the respondent to inform A1 or A2 of the reasons why she was not satisfied that there were no humanitarian grounds for exercising discretion in A1’s favour.

84. In Balajigari , Underhill LJ undertook a comprehensive review of the case law regarding procedural fairness, as it bears on the question of whether a person is entitled to some form of advance notification of the decision-maker’s adverse thinking. At paragraph 45, Underhill LJ referred to the judgment of Singh LJ in R (Citizens UK) v Secretary of State for the Home Department [2018] 4 WLR 123.

85. In that judgment, Singh LJ derived from Doody the principles that the standards of fairness are not immutable and that what fairness demands is dependent on the context. Nevertheless, fairness “will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on its own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both”. Since the person affected usually could not make worthwhile representations without knowing what factors may weigh against his interests, “fairness will very often require that he is informed of the gist of the case which he has to answer” (paragraph 69 of Citizens UK ).

86. At paragraph 48, Underhill LJ cited R v Secretary of State for the Home Department ex parte Fayed [1998] 1 WLR 763. That case involved applications for naturalisation by brothers settled in the United Kingdom, which were refused on the basis of concerns about their good character. Those concerns were not, however, raised with the applicants or even disclosed at the time of the decisions. Underhill LJ regarded the judgment in ex parte Fayed as instructive, in the context with which the court was concerned in Balajigari . The applicants had no legal entitlement to a favourable decision; nor any pre-existing right, which was adversely affected by a public decision. Although they had applied for a discretionary benefit to be conferred upon them, this did not prevent the Court of Appeal in ex parte Fayed from holding that, where the Secretary of State had concerns, these needed to be put to the applicant before a concluded decision was taken to refuse the application.

87. At paragraph 51, Underhill LJ noted the seriousness of the allegation made against Mr Balajigari; namely, that he had acted dishonestly in relation to financial matters. The consequences of refusal were also likely to be very serious (paragraph 53).

88. At paragraph 55, Underhill LJ concluded that, where the Secretary of State was minded to refuse indefinite leave to remain on the basis of an applicant’s dishonesty or other reprehensible conduct, the Secretary of State was required as a matter of procedural fairness to indicate clearly to the applicant that he had that suspicion; and to give the applicant an opportunity to respond, both as regards the conduct itself and as regards any other reasons relied on as regards “undesirability”. Any response had to be taken into account before drawing the conclusion that there had been such reprehensible conduct.

89. At paragraph 60, Underhill LJ held that, unless the circumstances of a particular case made it impracticable, the ability to make representations only after a decision had been taken “will usually be insufficient to satisfy the demands of common law procedural fairness”. The rationale for this result lay in the fact that it is conducive to better decision-making because it ensures the decision-maker is fully informed at the point when a decision is still at a formative stage. It also shows respect for the individual whose interests are affected. Furthermore, “human nature being what it is, a decision-maker may unconsciously and in good faith tend to be defensive over the decision to which he or she has previously come”.

90. At paragraph 61, Underhill LJ held that “more fundamentally, it is a central feature of the administrative review procedure [which applied in Mr Balajigari’s case] … that the reviewer will not consider any evidence that was not before the original decision-maker except in certain specified cases”. That meant the applicant would normally only be able to assert that he or she had been dishonest but would not be permitted to adduce evidence in support of that assertion. Underhill LJ considered that this limited type of legal review “is clearly inadequate here” (paragraph 61).

91. I do not accept Ms Masood’s submission that, in Article 17(2) cases, domestic common law fairness principles mean the respondent is never required to provide an indication or gist, to an applicant or his alleged United Kingdom relation, of matters of concern that may lead to a refusal to take charge of the applicant. No principled basis has been advanced for this proposition. Like Underhill LJ in Balajigari , I find ex parte Fayed is instructive. The power to refuse naturalisation is no less wide than the power conferred by Article 17(2). The present case also shares similarities with the position of Mr Balajigari. As we shall see, the consequences of refusal could well have profound consequences for A1.

92. Even more importantly, like Mr Balajigari, A1’s Article 8 ECHR rights are potentially at issue. In an Article 17(2) case, where the requesting State has advanced a case that raises the issue of Article 8 and, if established, the prospect of serious (and potentially disproportionate) consequences if family reunion is not effected, I find that the respondent is potentially under a duty to provide the requesting State and the applicant with an indication of the respondent’s concerns. Whilst the ability of the requesting State to seek reconsideration from the requested State of an initial adverse decision may diminish or even remove the potential obligation in respect of the initial decision, as a general matter there is likely to be an actual obligation to give the necessary indication, prior to a second refusal, where the concerns harboured by the requested State are not ones that have been ventilated by it.

93. It must be emphasised that this is an area where one cannot lay down hard and fast rules. Even in a case in which Article 8 ECHR is in play, there may be exceptions. Furthermore, the process must not become so elaborate as to defeat the aim of expeditious decision-making, particularly where the best interests of minors are concerned. I agree with Ms Masood that one is not necessarily looking for the sort of detail one might find in, for example, a “Reasons for Refusal” letter accompanying a decision of the respondent to refuse leave to remain or to refuse a human rights claim. On the other hand, it is difficult to see what legitimate purpose is served where the respondent has a specific concern that the requesting State or relevant individual may be able to address but which – because no forewarning is given – has to be addressed in judicial review proceedings, with all the expense and effort these entail.

94. I do not consider that Ms Masood can distinguish Balajigari on the basis that the reconsideration process referred to by Underhill LJ prevents additional evidence from being put forward, after the decision is made. On the contrary, the logic of this submission seems to be to favour judicial review as the forum for resolving matters, when a relatively simple administrative step could have done so.

E. THE RESPONDENT’S DECISIONS

95. I now address each of the three decisions of the respondent.

(1) Decision of 5 November 2019

96. The initial take-charge request from Greece included the United Kingdom residence permit of A2 (who lives in Glasgow), his bank statements and tenancy agreement, photographs of A1 and A2 together when A2 went to visit A1 in Greece, evidence of A2’s travel to that country and A1’s consent to the request.

97. The request described how, during an examination with A1, he said that his cousin, A2, resided in the United Kingdom as a recognised refugee. A1 said his father was dead and his mother and two siblings were in Syria. Three more siblings were in Lebanon and two more were missing. The caseworker, Ms Tsaknaki, drew attention to the findings in the best interests assessment report, that A1 had suffered from the kidnapping and death of his father and had himself been a victim of physical violence. A2 had helped him resettle in Greece and had visited him there, as well as keeping in daily contact with him. A2 was willing and able to take A1 under his care. Ms Tsaknaki drew attention to the importance of the best interests of the child, as articulated in Dublin III.

98. Greece supplied the following further information. Before the loss of A1’s father, the family was living in a place in Syria and A1’s uncle had a house next door. After the death of A1’s father, the family moved to another place. The whole family of A1 was taken care of by his paternal uncle, the father of A2.

99. A1 himself described being conscripted into what he described as the army. After going on leave, he burnt his military clothes and he and his family left for the home of his maternal uncle. He then left Syria. A1 described escaping from the army many times and being beaten, after his family had been threatened and beaten to reveal where A1 was. The assessor noted that life was extremely difficult for A1 as a child. He seemed to have suffered a lot in the past. After the loss of his father, his maternal uncle initially took the role of a father figure, followed by A2.

100. Asked about his relationship with A2 while in Syria, A1 was recorded as saying that:

“our relationship in Syria was very good, although he [A2] left when I was about 2 years old. It was a long time ago but we were family, and we were talking on the phone with every chance. After my compulsory military conscription, we lost contact, I had no way to communicate with him. When I got to Turkey we talked again. He advised me through my travel and was expecting me to come to Greece to visit me”.

101. A1 described that when he arrived in Athens he called A2 and after ten days A2 appeared in front of him. A2 stayed in Athens for fourteen days. He found A1 an apartment and paid for everything. He also organised meetings with a lawyer and a social worker and bought A1 clothes and shoes. With A2’s help, A1 got an asylum card.

102. Asked about his current relationship with A2, A1 said “he is the person who protects me and he helps me with everything I need … He is like a father to me”. A2 repeated that last phrase in section 4 of the form.

103. A2 was recorded in the form as saying that A1:

“is like a son for me. Since he left Syria I am trying to help. I promised to his mother that I will protect him and do everything to keep him safe. From the first moment he reached Greece, I was here to help him, find a house for him and do everything to make him happy”.

104. A2 said that coming with him to the United Kingdom “would be the best thing for him, he is a young boy without family, how is it possible for him to live without his family?”.

105. The form included an assessment by Othon Christophilis, a psychologist. He described in detail the problems faced by A1 whilst in Syria. Although A1 had witnessed death and other traumatic events, he was not able to talk openly about these yet. The psychologist said that A1 was “focussed on his education” in Greece. However, A1 had shown “signs of cognitive and memory difficulties”. These had not yet been assessed. Overall, the psychologist deemed it necessary and in A1’s best interests “to live in a safe, secure, loving and caring environment that would help him fully reintegrate into society, develop the skills that would help him cope with the traumatic events that he had experienced and acquire all the necessary knowledge he did not have an opportunity to learn”. The recommendation was that A1 be reunited with A2 in the United Kingdom, since A2 “seems to be the only person that can provide [A1] with such an environment”.

106. The Greek assessor concurred. The assessor described the cousin as being extremely cooperative in having responded to anything that A1 requested. A1 “refers to his cousin by defining him as his family now, and emphasising how important the family is to any human being”. The assessor considered that staying in a home with a family member, A2, who had been a role model for A1 would be “the appropriate environment for the child, to deal with the traumatic stress he is suffering from and will also help him to evolve his social skills”. In summary, it was considered that it would be in A1’s best interests to move to the United Kingdom with his relative who would provide him “with the most appropriate environment to begin his life as an [adolescent]”.

107. The EIU notified Glasgow City Council of the “transfer notification” from Greece. Glasgow City Council Social Work Department replied on 29 October 2019 to ask if the EIU would:

“process via the referral process by going to Social Care direct”. The same day, the EIU responded to say that “the case has not been allocated to a caseworker yet, however, we have forwarded an initial notification to yourself for your information only. Therefore the actual referral process will be dealt at another time when the family link has been established. If you feel that we should contact the Social Care direct, I will be grateful if you would forward their contact email and telephone number for further communication”.

108. The EIU documents sent to Glasgow City Council stated:-

“ The Home Office is NOT requesting completion of a Family Assessment at this time.

However should you hold any evidence to assist in verifying the claimed family link or possess any other information that you believe should be considered when assessing this application, please do forward this within 14 days. …

The European Intake Unit will contact you further should it be satisfied that the claimed family link has been demonstrated. At this point we will request completion of a Family Assessment on the UK relative which will assist with the best interests consideration and the decision on this application.”

109. Also on 28 October, A2 was sent a letter by the EIU, stating that a request had been made by Greece for A1 to join A2 in the United Kingdom. A2 was sent with the letter a questionnaire, in which he was asked to provide as much detail as possible, and return it to the EIU no later than 11 November 2019.

110. It is common ground that A2 completed and returned the questionnaire. It is dated 29 October 2019. It appears to have been received by the EIU no later than 11 November 2019. In it, A2 set out a family tree showing that A2’s father was the brother of A1’s father. A2 gave an undertaking, as requested, to care for A1. He gave details of communications between them. He also gave details of the name, address and telephone number of A1’s mother. A2 described his income (derived from state benefits).

111. Disclosed in connection with the present proceedings is an email of 4 November 2019 from the EIU caseworker to the senior caseworker. The caseworker described how the Home Office interview record for A2 had been viewed “and there was no mention of either applicant’s parents as the sibling [sic] to claimed cousins. Therefore relationship not established. Furthermore, the family tree anagram provided with BIA from Greece does not mention his claimed UK relative to be a paternal or maternal relative”.

112. The decision of 5 November 2019 stated that A2 was not considered to fall under the category of “relative” as described in Article 8 of Dublin III. Reference was then made to Article 17(2). Although it was noted that Greece had said the best interests of A1 would be to join A2, the decision said: “However no evidence has been provided which would support the assertion that their relationship would have the strength to compare to that of a sibling relationship”. The letter ended by saying that “additionally, the applicant’s claim and evidence provided do not have merit to warrant discretion of the criteria needed in the exceptional case of a 17.2 application”. Accordingly, the request was refused.

Discussion

113. I have no hesitation in finding that the decision of 5 November 2019 is legally flawed. The alleged requirement to show that the family relationship for the purposes of Article 17(2) should be of a strength to compare with that of siblings finds no support in Dublin III, or any published Guidance to which my attention has been drawn. On examination, the reasoning of the decision letter is simply incoherent. If what was meant was that the relationship of cousins is not the same as the relationship between siblings, that is plainly obvious. The relationships are different. If, however, what was meant was that cousins cannot have a bond that is as strong as the bond between siblings then that is, again, wrong. Many siblings have strained or, indeed, non-existent bonds. By contrast, it is far from inconceivable that cousins who have, for instance, grown up together might have a relationship of real strength.

114. The final part of the letter, referring to the claim and evidence not having merit to warrant discretion, takes the respondent no further.

115. The respondent cannot rely on the GCID email of 4 November. On the contrary, this makes the mistake that one of the applicant’s parents should be the sibling of A2. It was, of course, A2’s father who was the sibling of A1’s father, making them first cousins.

116. The grounds contend that the decision of 5 November 2019 is unlawful because it was made without the benefit of a local authority assessment. As I have found, in Article 17(2) cases there may be circumstances in which a lawful decision might be reached without calling for such an assessment.

117. That is not, however, the position here. Leaving aside the respondent’s apparent confusion about what familial relationship was, in fact, in issue, the materials from Greece that accompanied the initial take-charge request, although somewhat sparse, nevertheless raised the issue of there being an Article 8 family life between A1 and A2, as cousins, by reference to the emotional and material dependency of A1 upon A2. Given that there is no question but that A1 is an unaccompanied minor, there was no reason for the respondent to depart from her normal policy, as set out in the Guidance, of requesting an assessment. As I have already held, I consider that the practice of the respondent in Article 17(2) cases, as disclosed in Ms Farman’s statements, is incompatible with the respondent’s obligations under Dublin III, the ECHR and the CFR. Such an assessment could have shed light on the relevant issues in this case.

118. The decision is irrational, takes account of irrelevant matters, fails to take account of relevant ones, was reached without proper investigation and was contrary to the respondent’s policy.

119. I quash the decision of 5 November 2019.

(2) Decision of 16 January 2020

120. Following the communication to Greece of the respondent’s decision of 5 November 2019, Greece supplied two further reports, respectively dated 15 and 18 November 2019 from, respectively, Ms Makrynioti, a social worker, and Mr Christofilis, the psychologist who had opined in the earlier submissions.

121. Ms Makrynioti’s report noted that A1 had been forced to join the PKK Party of Kurdistan. He had tried to escape and disobey their orders but had been ill-treated, as had his family. Initially homeless after his arrival in Greece, A2 had arrived and supported him as much as possible. Ms Makrynioti described A2’s interest as “pure and real and I can vouch that he care as deeply about his nephew (sic) because I have met him in person”. A1 was said to need support “in all the factors of his life”. His experiences had left him “an irresolute and weak person. He is very frightened and isolated. He is unable to take care of himself and it is not easy for him to trust anyone apart from members of his family”.

122. Ms Makrynioti described A1 as being “calm and peaceful around his cousin and this is something I witnessed with my own eyes”. Overall, she strongly recommended their unification as the best option for A1’s well-being and prosperity.

123. Mr Christofilis’s report described A1’s clinical presentation as being “very preoccupying for the psychosocial team”. A1 had “absolutely no interaction with other beneficiaries of the shelter”. He showed “serious cognitive difficulties and memory issues”. Specifically, A1 was “unable to process and retain new information”. Mr Christofilis said that it was not possible to tell if these problems pre-existed or were the result of his three-year captivity in the Kurdish military camp. Whenever they touch on the sensitive issue during sessions, A1 became “overwhelmed by his emotions and presents a physical stress response”.

124. Mr Christofilis deemed it necessary that A1 “lives in a safe, secure, loving and caring environment which will help him fully reintegrate into society, develop skills that will help him cope with the traumatic events he has experienced and acquire all the necessary knowledge he did not the opportunity to learn”. According to Mr Christofilis, this necessitated reunification with A2 “who seems to be the only person that can provide [A1] with such an environment”.

125. The GCID notes contain a note of 8 January 2020 from an EIU caseworker to the senior caseworker. Having noted that Greece had requested a re-examination of A1’s case, the caseworker said that it “falls outside the family relationships as defined in the Regulation”. The senior caseworker replied by email to say: “This is approved”.

126. The decision of 16 January 2020 noted the reports of the social worker and the psychologist, stating that these had been taken into consideration. The letter then said:-

“• We have considered the social worker’s and psychologist’s report but we note they do not comment on the health situation of the applicant from their arrival in Greece, to show that he was not entitled to healthcare or it was not available.

• Although the report states that [A1] is exhibiting serious cognitive difficulties and memory issues that cannot be attributed only to the lack of knowledge and skills acquired at a young age, it also states that it is not possible to establish if this is a pre-existing condition. Even with the psychological report itself, this does not amount to an exceptional case or humanitarian grounds to apply discretion and accept your Take Charge re-examination. Also as previously stated, the UK relative is a cousin. A cousin does not meet the relatives’ definition of the Regulation.

• It is noted the psychologist report does not evidence why a change of Member State will improve the current situation for the applicant.

• It is our position that electing to be transferred to another Member State is in itself not a humanitarian ground.”

Discussion

127. As with the previous decision, Ms Masood did her formidable best to defend the decision of 16 January. I nevertheless find myself in agreement with Ms Knorr that the letter of 16 January is profoundly problematic.

128. The question of whether A1 was entitled to healthcare in Greece is entirely beside the point. The clear thrust of the reports was that A1’s cognitive and behavioural problems made it particularly important for him to enjoy the supportive relationship which his cousin, A2, could offer on more than the intermittent basis that was possible whilst A1 remained in Greece.

129. I t is, I find, difficult to understand what is meant by the bullet point that refers to it not being possible to establish if A1’s difficulties are the result of a pre-existing condition. The focus of attention should have been on A1’s best interests, taking account of his documented difficulties, whether they were “pre-existing” or not.

130. So far as the reference to a cousin is concerned, I do not accept that this can be explained by reference to the caseworker’s attempt to deal, not only with Article 17(2) but also Article 8(2). Either the maker of the 16 January 2020 decision was of the view that a relationship of cousins was not a family relationship that came within Article 17(2), or she failed to turn her mind to whether such a relationship was within the scope of that provision. Either way, the resulting decision is legally flawed. The email exchange of 8 January 2020 leaves both possibilities open. Once again, the exchange does not assist the respondent.

131. The penultimate bullet point suffers from the defect, just described, wherein the respondent takes no proper account of what the authors of the reports were actually saying. The final bullet point is true, so far as it goes, but that is not far enough to save the decision.

132. The decision is irrational, takes account of irrelevant matters and fails to consider those that were relevant.

133. I quash the decision of 16 January 2020.

(3) Decision of 20 April 2020

134. As I have previously mentioned, this decision was made after the commencement of the judicial review proceedings challenging the two earlier decisions. The respondent, rightly in my view, chose to engage with the submissions from Greece, which led to this third decision, rather than treating those submissions as invalid. Such a course would, in the circumstances, merely have resulted in Greece making a new Article 17(2) request. The respondent, in effect, makes her main stand in these proceedings on the basis of the 20 April decision.

135. A significant amount of further evidence was supplied to the respondent, following the second refusal. There was a report by a child psychiatrist, Dr Vasiliki, dated 17 January 2020. This confirmed the psychologist’s assessment of A1’s problems. Dr Vasiliki identified depressed mood, anxiousness and avoidance of discussing specific matters in A1’s past. A1 also had difficulties recalling details and a generally low level of mental capacity, together with memory difficulties and a low level of learning capacity. Her conclusion was that it was “necessary for [A1’s] well-being to be taken care [of] by a family member due to serious medical care [sic]”.

136. In addition, A2 had sent, by email to A1’s shelter in Greece, a copy of A1’s grandfather’s family book, which showed the grandfather’s first child was A2’s father and the second child was A1’s father. Also sent was A2’s father’s passport and ID, pointing out his name; and also extracts from the family book of A1’s father, along with the father’s ID and copy of military service book.

137. Both A2 and A2’s brother, IAA, provided witness statements. A2’s witness statement gave details of how A1 was related to A2. It described their family history, including that the families of A1 and A2 grew up together and that both families were supported by A2’s father, after A1’s father died. A2 had taken IAA to live with him in Glasgow when IAA arrived in the United Kingdom in 2016. IAA lived with A2 until IAA turned 19, when he moved to a flat of his own, one minute away from A2. A2’s other brothers live in Glasgow, about ten to fifteen minutes away. The statement continued:-

“We are a very tight family unit and I love my brothers dearly. They all very much want [A1] to join us in the UK. [IAA] is particularly close to [A1] and they call each other via WhatsApp. I think they have a kinship because they are quite close in age and lived next door to each other for so many years.”

138. A2 described visiting A1 in Athens in June 2019 and the arrangements he made for A1’s welfare whilst A2 was there:-

“It was very difficult to leave [A1] and he cried when I left him. He told me that he felt like a stranger in a country he doesn’t know. I have always thought of [A1] as vulnerable because of his traumatic experiences in the army and because of his difficulties with reading and writing; however in that moment when I left him in Athens he seemed particularly vulnerable. He is only a child and can’t look after himself.”

139. A2 described A1’s reaction to the respondent’s second refusal decision. It came to A1 as a tremendous shock and he “was devastated”. He “cried and said something like ‘I am lost I am done it’s over’”.

140. A2 said that he feels “a huge responsibility towards” [A1]. He had promised A1’s mother that he would look after him and felt it is his duty to do so. A1 was in poor health and was quite a naïve child. A2 wants to keep him safe. A2 considered that his brothers and he could provide A1 with the family that he desperately needs. A2 has a spare bedroom in his flat that A1 could use. Social Services in Glasgow had already confirmed that A2 was capable of looking after his brother, IAA.

141. IAA’s statement describes how, when they were all young, his family and that of A1 lived close to each other in Syria. A1 and IAA were of similar ages and grew up together. They would play together everyday and do everything together. A1 was like “a brother to me. The family had to separate in later years due to the conflict in Syria. [A1] was forced to join the army and suffered terribly. [A1] and I did not see or speak to each other very much during those years”.

142. IAA described in his statement the family situation in Glasgow, in terms similar to those employed by A2. IAA is studying at college and hopes to go to university to study engineering. IAA and his brothers “are all here waiting for [A1] and want to offer him safety and security. In my view [A1] needs this very much … I think I could help him and think it is important that we, as a family, support each other”.

143. Ms Olivia Anness of Bhatt Murphy Solicitors provided a statement in which she described her telephone conversation with A1, regarding the respondent’s second refusal. A1 told Ms Anness that he had been “so worried that he had not eaten anything since he heard the news. He said it was the worst news he had ever received”. The prospect of living his life alone without A2 felt meaningless to him.

144. The respondent’s decision letter of 20 April 2020 is considerably longer and more detailed than its predecessors. It makes it clear that the decision is concerned only with Article 17(2).

145. The letter states that “some documentary evidence has been provided to evidence the claimed link of first cousins”. The letter then, however, goes on to note that the name of the father of A1, described in the statement of A2, does not appear from the translated information in the family book and ID documents. Accordingly “it has not been possible to verify the familial relationship between [A1] and [A2]”. The letter states that the respondent would request “that further translations of all the documents be provided in order for us to fully consider this evidence”. As matters stood, however, “[this] time it has not been possible to verify the claimed family link from the evidence provided”.

146. Because the family link was not established to the satisfaction of the respondent, the accompanying reports did not, according to her, take matters any further.

147. The letter continued, however, that “regardless of the above position” the respondent had, in fact, considered the evidence and information submitted but concluded that “even if it was in fact corroborated that the two parties were related as claimed as first cousins, discretion would not be exercised in the applicant’s favour given the specific facts of the case”.

148. The first reason for reaching that conclusion was that the psychological conditions of A1 were “historic. The evidence has not established a clear causal link between the applicant’s conditions and his separation from the UK sponsor”.

149. The pedopsychiatric report, which did not make “a confirmed diagnosis of PTSD or epilepsy”, concluded that A1 needed to transfer to the United Kingdom; but the reports did not elaborate on how the sponsor, A2, would be able to respond to the serious needs or indeed what the needs were.

150. The letter noted that it was not explained how A2 would be in a better position than professionals in Greece to provide for the care needs of A1.

151. Even if the respondent were to accept that A1 and A2 were first cousins, the letter stated that it was not accepted they shared family life within the meaning of Article 8. In order for such family life to exist, there needed to be “elements of dependency involving more than the ‘normal emotional ties’ as outlined in Kugathas ”.

152. On the issue of dependency and, hence, whether Article 8(1) family life exists between A1 and A2, the letter had this to say:-

“ Whilst it is accepted that there may be some degree of emotional ties, a natural concern and affection between a minor and his adult cousin, it is not accepted that there is evidence in this case of elements of dependency involving more than the normal emotional ties.

The UK sponsor has been residing in the UK since 2013. The best interests assessment submitted in support of a take charge request detailed that the UK sponsor left Syria when the above applicant was aged just 2. The ties built in this period are not likely to have been significant given the age of the applicant.

The best interests assessment suggests that after the UK based sponsor left Syria, the applicant and UK based sponsor spoke on the phone. But there is no evidence of dependency on the UK based sponsor during this period involving more than the normal emotional ties between family members.

After the applicant left Syria, and arrived in Turkey, and later Greece, again they have maintained contact by phone. We note that the UK based sponsor visited the applicant in Athens in June 2019, helped him find accommodation and provided him with material assistance, including money. It is not accepted that this establishes dependency involving more than normal emotional ties, even when considered in the context of the issues described in the pedopsychiatric report and psychological report.

Given it is not accepted that there is family life between the two parties the rejection of the take charge request does not result in a breach of the applicant’s Article 7 CFR and Article 8 ECHR rights.”

153. Before examining the legality of the decision of 20 April 2020, it is convenient to describe further evidential material, adduced after that decision. WAA made a witness statement. He is the brother of A2 and IAA. He lives in Glasgow, having been granted refugee status, and works as a self-employed delivery driver. As well as confirming the family relationship, WAA describes his family as living with and helping A1’s family. This included sharing their crops and money. IAA was close to A1 and they would play together. When the family heard that A1 was in Athens, they raised money to pay for A2 to visit him. WAA described how he and his brothers feel that A1 “is our responsibility, so we were all very upset and worried for [A1] after the refusals”. The brothers would “all support [A1] as much as we can if he were able to come to the UK. We would help him to develop skills so that he can study and find a job and build a life here. We would look after him just like we looked him in Syria after his father died – we would do exactly the same. We are family”.

154. A similar witness statement was filed by RAA, another brother of A2.

155. Ms Anness provided a further statement dated 28 April 2020, in which she explained that translations of the family books could have been provided, so as to satisfy the respondent of the first cousin relationship between A1 and A2, had the applicants known that they were required by the respondent.

156. Finally, there is a report from Peter Horrocks, an independent social worker, produced on 9 May 2020. He conducted interviews by remote video means with A1, A2, RAA, WAA and IAA, as well as with Mr Christofilis.

157. Mr Horrocks’s interview with A2 is significant, in that it touches upon the issue of whether A1 was only 2 years old when A2 left Syria. According to Mr Horrocks’s report, A2 said that A1 would have been aged about 9 or 10 when A2 left Syria: “In the best interests assessment [A1] states he was aged about 2 years old when [A2] left and that is clearly incorrect”. A1 would play with IAA all the time and they would spend most of their time playing together. A2 would see A1 every day during this period and sometimes A1 would sleep over in their house or vice versa. The houses of the two families were isolated from the rest of the village by about a kilometre. A2 said that, because of their family background, the Kurds saw the families as Arabs, whilst the Arabs saw them as Kurds. The result of this was that their interactions were with “extended families as opposed to other local residents and this was relevant in terms of the children’s playmates as well”.

158. Mr Horrocks’s interview with A1 was problematic. A1 was in tears and very distressed. A1 told Mr Horrocks that he could not live where he was. The other young people swore at him and beat him up. A1 emphasised that he wanted to be with his family.

159. Mr Horrocks concluded that A1 and A2 were paternal cousins. He further concluded that there “is a big difference in the importance and meaning of the family between the UK and Syria and they have a very different concept whereby in Syria, the extended family has a much greater importance”. Asked to comment on the strength of the relationship/level of dependency between A1 and A2, Mr Horrocks stated that the evidence he had gathered “underpins the important nature of [A1’s] relationship and level of dependency on his extended family members”. A1 was “desperate to be reunited with his family members in the UK. He considers [A2] to be like a father and his other cousins to be his brothers and they see him in the same way”. A1 had grown up alongside his cousins “almost in a large family unit and from a historical, social, cultural and family perspective they are his brothers”.

160. Mr Horrocks considered that the experiences of IAA, when he came to live with A2, were “a first-hand account of [A2’s] abilities to meet all aspects of [A1’s] practical and emotional care needs. In Mr Horrocks’s professional opinion, A2 “has both the experience and knowledge to care for [A1] and to meet all aspects of his practical and emotional care needs”. A1 will be treated by his cousins in the United Kingdom as his brothers.

161. So far as best interests were concerned, Mr Horrocks found that A1 “is a very vulnerable and damaged young person, whose current situation is contributing to a deterioration in his mental health, because of the refusal of his application for unification with his family in the UK”. A contributing factor was A1’s “fixation on the outcome of reunification and his refusal to make any efforts to integrate and interact with other residents and staff in the hostel”. Mr Horrocks considered that this fixation had some form of cognitive/emotional element, whereby A1 was unable to accept any alternative outcome. This meant that further refusal would lead to a deterioration of A1’s emotional situation and would compound his mental health difficulties. Overall, Mr Horrocks shared the findings of the reports from the Greek professional that it was “strongly in [A1’s] best interests to be reunited with [A2]”. A1 faced “most certainly the likelihood of suffering harm to his emotional, his physical, his social and his educational development and a very high risk that this harm will be long term and permanent”.

162. I have referred to the third witness statement of A2, filed at the hearing, which I have decided to admit into evidence. In this, A2 clarifies what is indicated in Mr Horrocks’s report; namely, that A1 was not 2 when A2 left Syria, but, rather, around 9 or 10 years old.

Discussion

163. I find the letter of 20 April 2020 suffers from the defect that it raises, for the first time in the respondent’s decisions, the issue that Greece has not shown that A1 and A2 are first cousins. The 20 April decision does so on a narrow basis, which could readily have been addressed, had the respondent seen fit to raise it with Greece and/or the applicants. This is demonstrated by the fact that it was satisfactorily dealt with by the subsequent material, as Ms Masood very properly acknowledged. Indeed, she told me on instruction that the familial relationship was now accepted by the respondent.

164. I consider that this is a paradigm example of a situation where procedural fairness required the respondent to alert the applicants and/or Greece to her concerns, before proceeding to make a decision. In so finding, I am aware of the fact that the respondent is entitled to expect evidence accompanying an Article 17(2) request to be “coherent, verifiable and detailed”, as described in the Guidance. I am further aware that it is not for the respondent to assume general responsibility for the translation of documents. Nevertheless, particularly in the light of the history of this matter and the narrowness of the point in issue, it was plainly necessary for the respondent to give an advance indication of her thinking. This is particularly so, given that this thinking had markedly changed so that, for the first time, the existence of the cousin relationship was being called into question.

165. This error will not, however, be material if there is nothing legally wrong with the alternative finding in the letter of 20 April, on the basis that A1 and A2 are related as claimed.

166. The respondent’s treatment of the pedopsychiatric report is, I consider, legally flawed. It suffers from similar deficiencies to those contained in the earlier decisions, in that it adopts the wrong focus, thereby leading the respondent to consider what is irrelevant and ignore what is relevant. The question is not whether or how A2 would clinically address the psychiatric and cognitive conditions, from which A1 suffers. Rather, given those conditions, the question is whether it would be in A1’s best interests to be living with a person, A2, whom he trusts and regards as a father figure, alongside the other cousins, who regard him as members of their family. Although the evidence in that regard has further developed since the date of the decision, even on the evidence available to the decision-maker in April 2020, the treatment of the reports is so deficient as to be legally flawed.

167. This brings me to the final element of the 20 April decision; namely, the conclusion that Article 8(1) family life does not exist between A1 and A2. As we have seen, the writer of the decision alights on the statement in the original material submitted by Greece, that A1 said he was 2 years old when A2 left Syria. If that were right, there might be legitimate cause for questioning the existence of family life, in terms of Article 8(1)/Article 7, as between the cousins. In particular, it would be hard in such a scenario to see how A1 could legitimately regard A2 as a father figure, and equally hard to see how A2 could legitimately see himself in that role. If, on the other hand, A2 had left A1’s orbit when the latter was 9 or 10 years old, the position is likely to be very different. In particular, there would be a ready explanation for A2’s high level of communications with A1 and, especially, for A2’s decision to go to Athens and spend his own time and the family’s money helping A1.

168. The problem for the respondent is that the issue regarding A1’s age has been raised by her in a decision that was generated only after the commencement of judicial review proceedings. This matter could and should have been raised by her much earlier. In all likelihood it would have been, but for the serious errors of approach contained in the two earlier decisions. In particular, in the light of what I have found regarding the failure of the respondent to ask for a local authority assessment before taking the 5 November 2019 decision, it is a matter which is highly likely to have been dealt with in such an assessment. The respondent’s alternative finding is, therefore, itself legally erroneous.

169. For these reasons, I quash the decision of 20 April 2020.

(4) Ground 2

170. Irrespective of the public law errors I have identified in the three decisions of the respondent, I need to consider whether, on the totality of the evidence before me in these proceedings, including the witness statements that post-date the third decision and the report of Mr Horrocks, (i) whether Article 8(1) ECHR/Article 7 CFR family life has been shown to exist, on the balance of probabilities, between A1 and A2; and, if so, (ii) whether the decisions represent a disproportionate interference with Article 8 rights. For the reasons I have given, Ground 2 is not dependent upon my having found independent legal errors in the decisions, of a “conventional” public law nature, which led me to quash those decisions. As the Upper Tribunal concluded in MS , in deciding Ground 2 I am not confined to looking at the evidence which was before the respondent when she made the decisions that are under challenge.

171. I see no reason to give Mr Horrocks’s report only limited weight. The fact that he undertook his interviews by remote video means is not, in the circumstances, a reason to discount or diminish his findings. Mr Horrocks is well-versed in the advantages and disadvantages of conducting interviews by these means. There is nothing in his report that suggests he was materially impaired in reaching his conclusions by speaking with A1 and the others only by video link.

172. Mr Horrocks, in his interview with A2, explained the age at which A1 would have been when A2 left Syria. A2 also told Mr Horrocks details about the situation of the families in Syria which strongly supports the earlier evidence. The fact that the families were regarded as neither Kurdish nor Arab by the local community, and so drew in on themselves in what might be described as a small compound comprising their two houses, isolated from the rest of the village, has much to say about the claimed relationship between A1 and A2 and the latter’s brothers. It provides a clear rationale for A1’s current view of, and relationship with, A2 and his brothers; and vice versa.

173. I find, on the totality of the evidence, that family life exists between A1 and A2, for the purposes of Article 8(1)/Article 7.

174. Each of the decisions is, therefore, legally flawed, being based on the incorrect factual assumption that such protected family life does not exist.

175. As I have earlier explained, although the existence of family life is conceptually separate from whether there has been a disproportionate interference with the right to respect for it, on the facts of the present case the two are closely intertwined. The extreme emotional dependency that A1 has on A2 is not only a factor that helps establish the existence of family life between them. It also goes to the question of whether the respondent’s decisions, refusing to exercise discretion under Article 17(2), represent a disproportionate interference with that family life.

176. I find that each of the decisions, including that of 20 April 2020, constitutes such a disproportionate interference. The first two decisions do not begin to address the balancing exercise inherent in a proportionality exercise. The third decision likewise fails in this regard, because it wrongly assumes that no protected family life exists. The totality of the evidence shows, on balance, that A1 and A2 have a very close bond; that A2 occupies the position of father-figure for A1; and that A1 needs the support of A2 and the latter’s siblings. To deny reunion in those circumstances would amount to an unjustified interference with the Article 8/Article 7 rights of A1 and A2. I so find, having full regard to the provisions of the immigration rules on which the respondent relies and, more generally, to the importance of maintaining the system of immigration controls.

177. I have assessed the proportionality of the interference on the basis that A1’s admission to the United Kingdom pursuant to Dublin III is not for the purpose of settlement, or even as a possible precursor to settlement, but for the purpose of having A1’s asylum claim examined and decided by the respondent. Each of the parties alights on that point as an argument in their favour. I consider that the applicants’ argument is to be preferred. It is a commonplace of human experience that a person’s need for the support of their family is likely to be greatest at times of challenge for that person. Being in a supportive environment, of the kind that A2 and his siblings would provide, while A1 undergoes the application process is, on the facts of this case, of extreme importance to A1’s wellbeing. To deny him this is disproportionate.

178. Each of the decisions, accordingly, falls to be quashed on Ground 2.

F. REMEDY

179. The final matter to address is the issue of remedy. Ms Knorr submits that mandatory relief is appropriate, since the only rational way in which the respondent could react to the evidence now before her, is to exercise her discretion under Article 17(2) in favour of A1’s admission to this country in order to be united with A2. This is, in other words, a case where human rights considerations turn the respondent’s discretionary power into a duty.

180. I note that, at paragraph 84 of its judgment, the Tribunal in HA & Others cited Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997 as authority for the proposition that “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”. Padfield was, however, a case decided well before the enactment of the Human Rights Act 1998. In the field of human rights, there may be circumstances in which a court or tribunal will be fully satisfied that an administrative discretion cannot be lawfully exercised otherwise than in a particular way. I do not, therefore, consider the Padfield doctrine to stand in the way of Ms Knorr’s submission.

181. It is, however, necessary for me to consider whether, despite the findings I have made on the evidence before me, it would be appropriate to deprive the respondent of the ability, acting in the public interest, to check whether there is, as matters now stand, any circumstance that may affect the exercise of Article 17(2) in A1’s favour. I remind myself, in particular, of the need to give effect to the best interests of A1. I am also aware, of course, that the local authority has not had the opportunity of confirming, from its expert standpoint, A2’s ability to take charge of and care for A1. The fact that we are without such an assessment is due to the fault of the respondent is nothing to the point, save that it means there is now a pressing need to act with extreme expedition, given A1’s circumstances in Greece.

182. Accordingly, I decline to make a mandatory order. However, as well as quashing the decisions, I consider it appropriate to make a declaration that each of the decisions was unlawful as it breached A1’s Article 8 ECHR/Article 7 CFR rights.

183. I will hear counsel on the form of the order, if the same cannot be agreed.

184. Likewise, I invite submissions on the issue of damages.

Direction Regarding Anonymity – rule 14 of the Tribunal Procedure (Upper Tribunal) rules 2008

Unless and until a tribunal or court directs otherwise, the applicants are granted anonymity. No report of these proceedings shall directly or indirectly identify them or any member of their family. This direction applies both to the applicants and to the respondent. Failure to comply with this direction could lead to contempt of court proceedings.

Signed: Mr Justice Lane Date: 23 June 2020

The Hon. Mr Justice Lane

President of the Upper Tribunal

Immigration and Asylum Chamber