Case Note: The Queen (on the application of Citizens UK) and Secretary of State for the Home Department [2018] EWCA Civ 1812

This guest blog by Jessica Brennan (UCC School of Law PhD researcher) analyses the recent UK decision on the treatment of children in the so-called ‘Jungle’ camp in Calais.

Court Misled Over Treatment of Children in Calais

This matter came before the Court by way of an appeal against the order of Soole J. The claim related to the lawfulness of what is known as the ‘expedited process’ which was established by the Secretary of State for the Home Department, the Respondent, together with the French authorities in October 2016 in response to the impending demolition of the makeshift tented encampment in Calais which was commonly known as ‘the Jungle’. Using the expedited process, the Respondent sought to assess the eligibility of unaccompanied asylum-seeking children to be transferred to the United Kingdom.

The legal argument revolved around whether the expedited process was unfair and therefore unlawful on any or all of the grounds advanced by Citizens UK; under EU law, under the common law or under the Human Rights Act of 1998. The Court of Appeal had the advantage of seeing further evidence which was not before the High Court or the Upper Tribunal of the Immigration and Asylum Chamber. Citizens UK argued at appeal stage that even if the position were otherwise at first instance, the additional evidence demonstrates that there was fundamental unfairness in the expedited process. Complaint was also made that the Secretary of State breached their duty of candour and co-operation with the Courts.

Factual Background

The demolition of the Calais camp was announced on 7th October 2016. This led to discussions between the Secretary of State and the French authorities, with a view to expanding and modifying a pilot process for an ‘accelerated’ Dublin III procedure. The expedited process, which became known as ‘Operation Purnia’, ultimately consisted of two phases. The first phase was an interview, decision-making and transfer phase, which took place at the camp itself in the last two weeks of October 2016. Approximately 200 children were transferred to the UK in the first phase. On 28 October 2016 the French authorities asked the Secretary of State to cease interviewing at the camp. In early November children began to be dispersed to CAOMIs (Centres d’accueil et d’orientation pour mineurs isloes) across France. That dispersal gave rise to Phase 2 of the expedited process. The second phase of the process related to 1,872 unaccompanied children who had not been fully processed in Phase 1. In the second phase, 90 UK officials interviewed the children in 20-minute slots over a period of three weeks. Interviews with family members in the UK were conducted by telephone by UK based officials. Decisions were made by comparing the paper records of those two interviews.

Following both phases a total of approximately 550 children were identified as being eligible for transfer under Dublin III and transferred to the UK between October and December 2016. However, over 500 children claiming to have family members in the UK were not transferred at that time. Refusal decisions were communicated not directly to the children but to the French authorities by means of a spreadsheet with only a one-word explanation related to the refusal. Most of the children were then told of the decision by the French authorities. Neither family members in the UK nor the children were contacted by the Secretary of State. They were never told of the reasons for refusal nor given any opportunity to correct errors whether actual or perceived in the decisions. Although there was an opportunity to ask for a reconsideration, in the vast majority of cases there was no new information and on reconsideration, the initial decision was merely confirmed.

Issues

The following issues were considered on appeal:

First, under EU law:

  1. Was Soole J correct to conclude that applications for international protection within the meaning of Article 2(b) of Dublin III had not been made by unaccompanied minor in the expedited process?
  2. Was Soole J correct to conclude that the process fell outside Dublin III and was not governed by its criteria and procedural protections?
  3. Was it lawful for the Secretary of State to devise such a scheme under EU lthe ECHR?

Secondly, was the decision-making process fair as a matter of common law?

Thirdly, was it fair in accordance with the procedural requirements of Article 8 of the ECHR?

Decision

EU Issues

Lord Justice Singh gave the judgment in the matter with Lady Justice Asplin and Lord Justice Hickinbottom concurring. The Judge began by firstly considering the place where a person makes an international protection application and found that international protection is not the same thing as an intention to make such an application after a person has been transferred to another Member State. Furthermore, an application must usually be made in accordance with the procedures laid down in Dublin III. In the present context, that would mean that an unaccompanied minor would have to make an application in France. If it then transpired that the mandatory criteria for a transfer to the UK set out in Article 8 were satisfied, that process would be followed. However, that does not lead to the conclusion that the expedited process adopted bilaterally by France and the UK in the present context amounted to a procedure under Dublin III. The Court found that as a matter of law, the expedited process was not a process under Dublin III.

The next issue considered was whether it was legally permissible for France and the UK to adopt the expedited process. Lord Justice Singh rejected that argument. The Judge found nothing to prevent a Member State from adopting a procedure in its own domestic law which requires an application for asylum to be made on its own territory and not from outside that state. Similarly, there is nothing to prevent two Member States of the EU from bilaterally agreeing that they will adopt a process which sits alongside that in Dublin III. It would be otherwise if they agreed to derogate from the procedural safeguards in Dublin III. However, that is not what the expedited process was. At all material times it was open to an unaccompanied minor in France to make an application for international protection, which would then have to be dealt with in accordance with the requirements of Dublin III. Even the fact that they were not selected for expedited transfer in anticipation of a formal consideration under Dublin III did not preclude them at any material time from making such an application in the future. Lord Justice Singh reached the conclusion that Soole J was correct in his interpretation of the Dublin III Regulation and accordingly rejected the appeal by Citizens UK insofar as it was based upon EU law.

Common law fairness

The Court considered whether the particular circumstances in which the Secretary of State was operating, sufficiently modified the duty to act fairly so as to relieve her from the usual requirements of procedural fairness. Lord Justice Singh agreed with Soole J that the most important concern was the “sparseness” of the reasons which were given for an adverse decision. The argument that it was possible for a person to proceed under Dublin III at all material times which attracted the full panoply of procedural safeguards was flawed for two reasons according to the Judge.

Firstly, it assumes that fairness is not required at an earlier decision-making stage because fairness is required at a later decision-making stage. Secondly, the pure Dublin III process could not in practice be insulated from what had gone before. Lord Justice Singh recognised that the manner in which the expedited procedure operated in practice had implications for the child applicant. For example, some children gave up and never made a formal application under Dublin III because of an adverse decision in the expedited process. The Judge suggested that if brief reasons were conveyed to the children affected at the relevant time, it might have been possible for someone to make a meaningful response, for example correcting some inaccuracy in the information. Conversely, if the reasoning was wholly accurate, it would have stopped them making a futile application for reconsideration or still less a futile application for formal consideration under the full Dublin III process. Lord Justice Singh concluded, the process which was adopted by the Secretary of State in the present context failed to comply with the requirements of procedural fairness as a matter of common law.

Article 8 of the echr

Lord Justice Singh found it unnecessary to lengthen the judgment further by addressing the procedural requirements that might arise under Article 8 of the ECHR but suggested that they could not give greater rights than the common law would in such a context.

the duty of candour and cooperation

The Judge ruled that the duty of candour and co-operation with the court is a “self-policing duty”. A particular obligation falls upon both solicitors and barristers acting for public authorities to assist the court. The duty of candour and co-operation is to assist the court with full and accurate explanations of all the facts relevant to the issues which the court must decide. The Judge warned that witness statements filed on behalf of public authorities in a case such as this must not either deliberately or unintentionally obscure areas of central relevance; and those drafting them should look carefully at the wording used to ensure that it does not contain any ambiguity or is economical with the truth. The duty not to mislead the court can occur by omission, for example by the non-disclosure of a material document or fact or by failing to identify the significance of a document or fact.

Lord Justice Singh reviewed the additional evidence available only at appeal stage and in particular the email correspondence between officials working on behalf of the Secretary of State. It came to the attention of the Court through this additional documentation that the French authorities requested more detailed reasons of refusal to be given to the minors. Such a request was refused by the British authorities on the ground that this would give rise to the risk of legal challenge. Further, it was found that the filter process had not been adequately explained in evidence, particularly the possibility of reconsideration. Lord Justice Singh concluded there was a serious breach of the duty of candour and co-operation in the present proceedings. The effect, even if it was unintentional, was that significant evidence was not brought to the attention of the High Court.

The Judge added that it was purely by chance that the Court came to learn of such important matters, including what was said in contemporaneous emails in December 2016 and January 2017. The most serious omission was the failure by those presenting evidence on behalf of the Secretary of State to explain the true reason why they refused to provide an adequate explanation to the unaccompanied minors as to why their claim had been refused. The Court found that such a decision was not based on urgency or because the French authorities demanded a greater explanation but because the British authorities did not wish to do so because of a perceived risk of legal challenge.

The Judge found that:

  1. there was a serious breach of the duty of candour and co-operation by the Secretary of State; and
  2. the evidence before the Court supported the submission made by Citizens UK that the process adopted was unfair and unlawful as a matter of common law.

Conclusion

A declaration was granted that there was a breach of the duty of fairness under the common law. As this was a generic challenge by a non-governmental organisation and given that the expedited process is now long in the past, no other remedy was deemed necessary or appropriate. This case highlights the responsibility placed on persons such as the Secretary of State to carry out their duties in a fair and lawful manner at all times and further reiterates the fact that children are entitled to the same fair procedures and processes as adults.

Universal Children’s Day

This blog post was contributed by PhD Candidate, Liam Thornton

November 20th marked the occasion of Universal Children’s Day.

Some 3,000 children in Ireland are being deprived of basic necessities such as over the counter medicines because their parents cannot afford them as they do not qualify for Child Benefit under the Habitual Residence Condition, a group of organisations working for children’s rights in Ireland have stated.

FLAC (Free Legal Advice Centres), the Children’s Rights Alliance, the Vincentian Refugee Centre, Barnardos, the Migrant Rights Centre of Ireland (MRCI), OPEN and the Immigrant Council of Ireland (ICI) on the occasion of Universal Children’s Day, are highlighting the fact that children are going without basic necessities like medicine, food and adequate clothing as a result of the imposition of the Habitual Residence Condition by the Department of Family and Social Affairs

“The majority are the children of asylum seekers or others seeking protection or humanitarian leave to remain in Ireland, many of whom have to wait years for a decision. Child Benefit has been always seen by the State as a plank to remove children from poverty” according to Noeline Blackwell, Director General of FLAC. “The refusal of Child Benefit means that the State is turning its back on its own policies and commitments, including its commitments under Social Partnership and the UN Convention on the Rights of the Child.”

According to the group of organisations, the number of children affected is relatively small and is estimated by FLAC through its research at less than 3,000 children. According to Sr. Breege Keenan of the Vincentian Refugee Centre, the effects of denying Child Benefit to these children are very visible and immediate. “We see children all the time whose parents cannot give them the most basic requirements. These include suitable food and dietary supplements. Over the counter medicines like Calpol and even simple playthings are often way beyond the means of these parents”

“The difficulty is that migration policy overrides everything else, including children’s rights and poverty reduction and in effect, children have little or no influence at the Cabinet table or in the wider political system” according to Ms. Blackwell. According to the group the cost of paying child benefit to all the children affected would be less than €6 million per annum. The group statement concluded that “In today’s Ireland it is shameful that children are being driven into such poverty by a migration led policy which takes no account of the rights and needs of children.”

For more information on this campaign, people may contact Noeline Blackwell, Director General of FLAC, www.flac.ie

Models of Guardianship: Protecting Migrant Children

On 28th November the Irish Refugee Council (whose director, Dr Siobhan Mullally, is also co-director of the CCJHR) will hold a one-day seminar in Cork entitled Models of Guardianship: Protecting Migrant Children. The objectives of the seminar are to:

  • Raise awareness about relevant national and international obligations regarding the role and responsibilities of guardians for separated children
  • Highlight research and showcase good practice from other countries
  • Compare Irish practice with international standards and good practice models
  • Solicit recommendations for improving Irish practice in the future
Speakers will include Thomas Hammarberg, COE Commissioner for Human Rights, Céline Dermine (Belgian Legal Expert), Manuel Jordão UNHCR Representative in Ireland, Freda McKittrick , Beacon Guardian ad Litem Service, Barnardos; Lea Nykänen, Finnish Guardian; Nadine Finch Barrister at Law, Garden Court Chambers, U.K.; Save the Children U.K.; Geoffrey Shannon Special Rapporteur for Child Protection; and Dilly O’Brien of the Office of the Minister for Children.

Completed registration forms should be returned asap to emilia[at]irishrefugeecouncil.ie or faxed to 01 873 00 88.

Full details – including how to book – are available here.