Court of Appeal upholds Upper Tribunal judgment that the refusal to admit a child asylum seeker to join his cousin in the UK breached Article 8 ECHR

In SSHD v BAA & Anor [2021] EWCA Civ 1428 the Court of Appeal has today upheld the Upper Tribunal’s decision that a refusal to reunite a Syrian unaccompanied asylum-seeking child (BAA) with his adult cousin in the UK was unlawful under EU Regulation Dublin III and violated his rights under Article 8 ECHR. In dismissing the Home Secretary’s argument that the Tribunal should have applied an exceptional circumstances threshold to the Article 8 ECHR claim, the Court analysed and distinguished a line of case-law beginning with R(ZT) Syria v SSHD [2016] 1 WLR 4894 and ending with R(FWF) v SSHD [2021] EWCA Civ 88. Most of the cases concerned attempts to bypass the family reunification procedure set out in Dublin III. As for FWF, the principle it espoused was limited; in that case family reunification would be achieved by operation of the automatic provisions of Dublin III so that the SSHD’s unlawful conduct was incidental to the outcome. In BAA’s case (see §95) by contrast the SSHD’s unlawful decisions had brought that Dublin III process to an end, so that family reunification could only be achieved by challenging and overturning those decisions. There was no good reason why there should be a threshold before Article 8 ECHR could be relied on in those circumstances, and it was ‘a deeply unattractive argument to submit that an unlawful decision which defeats the claimant’s rights under Dublin III should go without remedy, or at best bring declaratory relief and further delay’.

The Court of Appeal judgment is available here.

The Upper Tribunal judgment is available here.

Michelle Knorr acted for BAA in the Upper Tribunal and in the Court of Appeal, instructed by Olivia Anness at Bhatt Murphy Solicitors.