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The Calais Case

The landmark and ground breaking case of R (on the application of ZAT and others v Secretary of State for the Home Department (Article 8 ECHR – Dublin Regulations – interface – proportionality) IJR [2016] UKUT 61 (IAC) was recently reported.

All Applicants in this case were granted anonymity due to their ages and vulnerabilities. The first four Applicants were all present in France in the makeshift camp often referred to informally and colloquially as the “jungle” and they wanted to claim the status of asylum under the United Nations Convention Relating to the Status of Refugees. The other three Applicants were already present in the United Kingdom and had been recognised as refugees. They were the siblings of one or two of the first four Applicants. It was clear that there was a significant sense of urgency to these proceedings given the factual matrix. The Tribunal commented that the “swift reunification is the central aim and object of these proceedings”; paragraph 17.

The Tribunal referred to the “jungle” as a “bleak and desolate place adjacent to Calais on the coast of northern France. It attracts this appellation not without good reason. Unlike other jungles this place is inhabited by human beings, not animals”; paragraph 3.

Three of the Applicants were unaccompanied minors, each aged 16 years old when the proceedings commenced and the fourth Applicant, aged 26, suffers from serious mental health issues. All four had fled Syria, having suffered extreme treatment there. In summary it was argued in the “rolled up” hearing that the refusal of the Secretary of State to admit the first four Applicants to the United Kingdom was unlawful.

The Tribunal identified and considered the following issues:

(i) The conditions in the “jungle”;
(ii) The vulnerabilities of the Applicants and the prospects of the first four Applicants reunifying with their siblings on entry to the United Kingdom;
(iii) Laws, practices and arrangements in France in terms of determining the applications for asylum;
iv) The conditions in France in respect of the reception and treatment of asylum applicants;

The Tribunal considered varying evidence relating to the four key areas above. Concerning the situation in the “jungle” the Tribunal noted “the appalling and dangerous living conditions continue. The dangers of trafficking, violence, exploitation of unaccompanied children and the abuse, including rape, of women. Other sources of danger to human health include toxic white asbestos giving risk of carcinogenic disease”; paragraph 16.

The Tribunal heard evidence about the particular vulnerabilities of the individual Applicants.

The Tribunal considered evidence from a French lawyer who stated: “In practice, it is very rare for children to make asylum claims in France. Under French law, a foreign unaccompanied minor is entitled to stay on the territory without any kind of authorisation or residence permit. As a result, child protection services/FTDA do not particularly encourage children to make applications. The view is that there is no need, because once they enter the care system, they are adequately protected until their 18th birthday in any event. Upon turning 18, those who entered the care system before their 15th birthday, receive a French residence permit and those who did not must apply for asylum”; paragraph 22.

“In our review of the evidential matrix we make reference finally, to the Anglo-French accord executed at Calais on 20 August 2015. Within this instrument one finds a heavy emphasis on the primacy of security, public order, policing and breaches of the law. The analysis that these are its main themes seem uncontroversial. The plight and predicament of the human beings involved qualifies for secondary consideration. ………….. The evidence viewed as a whole suggests that any measures of any kind implemented subsequently have been acutely inadequate”, paragraph 25.

The Secretary of State relied on the procedures and mechanism of the Dublin Regulation and argued that there was not any “present legal duty to any of the Applicants”; paragraph 27. The Applicants had argued that they did not wish to pursue the Dublin Regulation procedures in France, as it did not provide them “with an adequate and efficacious solution to their predicament. More specifically, they contend that, in their special circumstances, the Dublin Regulations fails to vindicate their rights under Article 8 of the ECHR”; paragraph 32.

The Tribunal concluded that the Dublin Regulations exists and operated next to the Dublin Regulation; no regime has precedence over the other.

At paragraph 52 the Tribunal concluded: “What is the correct approach to the Dublin Regulations in a case of this kind? We consider that the Dublin Regulations, with its rationale and overarching aims and principles, has the status of a material consideration of undeniable potency in the proportionality balancing exercise. It follows that vindication of an Article 8 human rights challenge will require a strong and persuasive case on its merits. Judges will not lightly find that, in a given context, Article 8 operate in a manner which permits circumvention of the Dublin Regulation procedures and mechanisms, whether in whole or part. We consider that cases are likely to be rare”.

The Tribunal further concluded at paragraph 58: “We are satisfied that the Secretary of State’s refusal to permit the swift admission to the United Kingdom of the first four Applicants would interfere disproportionately with the right to respect to family life under Article 8 ECHR enjoyed by all seven Applicants if the first four Applicants could properly be seen as claimants to refugee status who, because of the operation of the Dublin Regulation, to be able to have their claims determined in the United Kingdom where their siblings are. In their cases, the negative aspects of pursuing a full blown Dublin Regulation claim in France would detrimentally affect all seven Applicants in the manner set forth in [55] above. The sole difficulty then is that having as yet made no claim, the first four Applicants’ present status is not that of persons seeking asylum. Rather, they are family members simpliciter. Having prepared the scales in the manner outlined above, our conclusion is that the balance tips in favour of the Applicants provided that they are prepared to set in motion their asylum claims processes in France. The Order we make achieves an accommodation between the two legal regimes in play. It strikes an appropriate balance by preserving the general structure of the CEAS and the Dublin Regulation principles in particular, while simultaneously ensuring that once a claim by any of the first four Applicants has been made the administration of the CEAS will not be permitted to interfere disproportionately with the Article 8 rights of that Applicant or his family member”.

Despite the normal processes and procedures the Applicants in these proceedings were immediately admitted to the United Kingdom and this case could have wide reaching implications for many others, despite the Tribunal noting that such situations are “likely to be rare”.

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