MA & Ors, R (on the application of) v SSHD

MA & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 1446 (01 December 2011

Facts

This is an interesting case that could ultimately  have implications for EU wide state practice with regards to unaccompanied asylum seeking children. The case concerned three unconnected, unaccompained minors who had sought asylum in the UK having previously claimed asylum in another Member State in the European Union.

None of the appellants had a relevant family member legally present in any part of the European Union. Whilst the specific cases of the appellants had actually been resolved (save for one potential claim for damages based on the outcome of the appeal) the appeal continued on the basis of the importance of the legal issues at hand.

The questions the Court of Appeal was concerned with were: (i) whether an unaccompanied minor (without family) is liable to be removed under the Dublin II to the Member state in which they first lodged their application, and (ii) if so, whether SSHD is under an obligation under s.55 of the BCIA 2009 to consult the receiving Member State about the individual post hand-over reception arrangements in order to take account  of the best interests of the unaccompanied minor as a primary consideration before deciding upon return to a Member State

Held

1. On  question (i) i.e. whether an unaccompanied minor is liable to removal under Dublin II, the Court made a reference to the European Court of Justice in the following terms

In Regulation 343/2003/EC establishing the criteria and mechanisms for determining the Member State responsible for examining an asylum application lodged in one of the Member States by a third-country national (OJ L50 25 February 2003, pl), where an applicant for asylum who is an unaccompanied minor with no member of his or her family legally present in another Member State has lodged claims for asylum in more than one Member State, which Member State does the second paragraph of Article 6 make responsible for determining the application for asylum?

2. On the obligation to consult about post reception handover arrangments in such circumstances,  the Court declined to make an order given: both its reduced significance in the event of a ruling from the ECJ on point (i), and in the absence of established relevant facts in the appeals at hand.

Discussion

This appeal centred around the construction of Article 6 of Council Regulation EC343/2003. Article 6 reads:

Article 6

When the applicant for asylum is an unaccompanied minor, the Member State responsible for examining the application shall be that where a member of his or her family is legally present, provided that this is in the best interests of the minor.

In the absence of a family member, the Member State responsible for examining the application shall be that where the minor has lodged his or her application for asylum.

In relation to the first issue, Stephen Knafler QC for the appellants argued that Article 6 should be read as meaning ‘most recently lodged’ (with the effect that the individual in the above circumstances would not be liable to removal to the original Member state).

In support of the above  he asserted that (i) Article 6 did not use the language used in other parts of the Regulation. In contrast for example Articles 5.2 and 4.1 expressly used the words ‘first lodged’, (ii) although such a construction would result in wholly different treatment of unaccompanied minors, there were good reasons for this – unaccompanied minors were a particularly vulnerable group, (iii) the reference to wording ‘the basis of the situation obtaining when the asylum seeker first lodged their applicatopn’ in Article 5.2 did not diminish the argument as this was arguablytemporal and not geographical, (iv) there were parts of Dublin II that are distinguishable from Article 6 – in the case of those with their family members Article 4 makes it clear that removal is contemplated. This was not the case with unaccompanied minors, (v) anti-abuse measures should not be assumed to resonate with unaccompanied minors without family members -most or many are not abusing the situation.

The principal argument by SSHD was that the appellants were reading words into the text of Dublin II through importing the words ‘recently lodged. Article 6 should, it was argued instead be read in conjunction with the rest of the text – in particular Article 5.2, and the general principles in Article 4.  Any departure from this, should instead be by derogation under Article 3.2. It was also asserted that an alternative approach would be inconsistent with NS and MSS v Belgium and Greece.

In making the reference to the ECJ, the Court noted the significance of the case – if the appeallants were correct, this would necessitate EU wide changes to state practice. It noted that the construction point has not been subject to argument (in Mosari), and the cases of NS and MSS were distinguishable from the present cases as they dealt with adults.

Additionally the Court observed the difference in language in Articles 5.2 and 6 (referred to above), considered that Article 5.2 appeared as though it’s purpose was ‘temporal,’ and highlighted the small nubers involved in the UK- in the six years up to 2009 minors removed under Article 6 numbered between 25-80.

On point (ii) the Court commented:

It is difficult to read ZH (Tanzania) other than as meaning that a statutory duty to have regard to “the need to safeguard and promote the welfare” of a child requires the decision-maker to treat the best interests of a child as “a primary consideration”, albeit not as “the primary consideration”, still less as “the paramount consideration” (per Baroness Hale, at paragraph 25).

 It seems to us that this gives some support to the approach to a Dublin II removal of a child contended for by Mr Knafler. It makes it more difficult to limit the active duty under section 55 to EU cases in which “cogent grounds” are placed before the Secretary of State so as to prompt the need to consider conditions in the receiving State (Davis J, at paragraph 82). However, like Davis J (at paragraph 83), we suspect that, in practice, it will often make no difference which is the correct approach. If there is cause for concern, the competently represented child should have the opportunity to prompt consideration on the basis of identified grounds

About jcwi

Joint Council for the Welfare of Immigrants is a key campaigning voice in the field of immigration, asylum and nationality law and policy. It is completely independent from government funding, remaining entirely free from government influence. View all posts by jcwi

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