Tribunal finds Secretary of State acted unlawfully and orders admission of 5 unaccompanied children from the Calais “Jungle” to join family members in the UK


In a series of judgments handed down between 24 May 2017 and 6 June 2017 the Upper Tribunal has ordered the Secretary of State for the Home Department to admit 5 children to the UK, where the children have sought to reunite with their family members. The children were formerly living in the Calais “Jungle" and were in the group of approximately 2000 unaccompanied children, many of whom had family in the UK, who were assessed for transfer to the UK to join UK-based family members following the Jungle’s demolition in October 2016. The Tribunal finds that the “expedited process", in which UK officials travelled to France to assess the family reunification cases of these unaccompanied children was in law a Dublin III process. Since the decisions taken in respect of these children  lacked essential procedural safeguards provided for under the Dublin III Regulation, the European Convention on Human Rights and the common law, designed to protect the rights and interests of the children, and failed to consider key criteria, including the rights of children to join wider family members than siblings,parents, aunts or uncles, they were unlawful. 


In the lead judgment in the case of R (AM & OA) v SSHD the President of the Upper Tribunal, Mr Justice McCloskey, and Upper Tribunal Judge Allen, said as follows:

 

"The expedited process in the group of five cases to which this challenge belongs was beset with procedural deficiencies and shortcomings and egregious unfairness….  The acid question is whether these procedural irregularities can be excused on the basis of the humanitarian challenge and the need for expedition. These are the two factors on which the Secretary of State relies. These must be recognised as important considerations and we readily acknowledge the major challenge the two Governments concerned faced. However, we consider that the exercise of balancing them with all the other factors summarised below results in a resounding negative answer to the question posed.  Fundamentally, there was far too much at stake for these isolated and vulnerable children to warrant any other answer.”

 

The Tribunal also held, that contrary to the submissions of the SSHD, the children should not be denied a remedy in view of the fact that they could start again in the formal Dublin family reunion process. 

 

The implications of the judgments are that hundreds of vulnerable unaccompanied asylum seeking children who were assessed in that process may have unlawfully been denied the right to family reunion.

 

The 5 cases are: R(AM & OA) v SSHD; R(SASA) v SSHD; R(MHA & SHA) v SSHD; R (KIA & RAMM) v SSHD; R(SS) v SSHD. Read the lead judgment AM 

 

Please click here for a Safe Passage UK Press Release on this and other challenges to the post-Jungle demolition “expedited process”: 

 

Charlotte Kilroy and Michelle Knorr were instructed by Sonal Ghelani at The Migrants’ Law Project at Islington Law Centre and Mark Scott of Bhatt Murphy Solicitors in the cases of AM, SASA, MHA & SHA and KIA & RAMM. 

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