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England and Wales Court of Appeal (Civil Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Citizens UK, R (On the Application Of) v Secretary of State for the Home Department  EWCA Civ 1812 (31 July 2018)
Cite as:  WLR(D) 497,  4 WLR 123,  1 All ER 416,  Imm AR 86,  EWCA Civ 1812,  WLR (D) 497,,  INLR 84
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ON APPEAL FROM THE HIGH COURT OF JUSTICE
Mr Justice Soole
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE SINGH
LADY JUSTICE ASPLIN
| The Queen (on the application of Citizens UK)
|- and -
|Secretary of State for the Home Department
Sir James Eadie QC, Mr David Manknell and Ms Amelia Walker (instructed by the Government Legal Department) for the Respondent
Hearing dates: 12-14 June 2018
Crown Copyright ©
Lord Justice Singh:
1. This is an appeal against the order of Soole J dated 18 September 2017 dismissing the Appellant's claim for judicial review. Soole J also granted permission to appeal to this Court.
2. The claim related to the lawfulness of what has become known as the "expedited process", which was established by the Respondent in conjunction 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" and to which I will refer as "the camp". By the expedited process the Respondent sought to assess the eligibility of unaccompanied asylum-seeking children ("UASC") to be transferred to the United Kingdom ("UK").
3. Soole J rejected the Appellant's arguments that the expedited process was unlawful on essentially three grounds:
(1) breach of European Union ("EU") law, in particular because it failed to comply with procedural protections guaranteed under Regulation 604/2013 ("Dublin III");
(2) breach of the common law requirements of fairness; and
(3) breach of the procedural protections afforded by Article 8 of the European Convention on Human Rights ("ECHR"), as set out in Sch. 1 to the Human Rights Act 1998 ("HRA").
The Judge did not separately address the argument based on Article 8 of the ECHR.
"The SSHD adopted a pragmatic, flexible and sensible approach which was both rationale [sic] and reasonable".
(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 UASC 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 law?
" lays down the criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national ('the Member State responsible')."
"A third-country national who has made an application for international protection in respect of which a final decision has not yet been taken".
"A minor who arrives on the territory of a Member State unaccompanied by an adult responsible for him or her "
"Member States shall examine any application for international protection by a third-country national who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible."
"Where the applicant is an unaccompanied minor, the Member State responsible shall be that where a family member or a sibling of the unaccompanied minor is legally present, provided that it is in the best interests of the minor. "
"Where the applicant is an unaccompanied minor who has a relative who is legally present in another Member State and where it is established, based on an individual examination, that the relative can take care of him or her, that Member State shall unite the minor with his or her relative and shall be the Member State responsible, provided that it is in the best interests of the minor."
The decision of this Court in ZT (Syria)
"An orderly process is also important in cases of unaccompanied minors. The need to examine their identity, age, and claimed relationships remains, and there is a particular need to guard against people trafficking." (para. 87)
"That means that Article 8 of the Convention cannot be invoked to bypass the processes laid down in Dublin III save in limited circumstances, such as where there are systemic deficiencies that would lead to a violation of Convention rights."
The decision of this Court in RSM
"The critical question is when is an application 'lodged' for this purpose?"
She went on to answer that question as being where an application has "actually been lodged."
"That must refer to the application itself, and not to an intention to make an application. It must follow that states may require the application to be made by an applicant who is present in the state. " (para. 118)
The first set of issues: EU law
The second issue: common law fairness
The judgment of Soole J on common law fairness
"In all the circumstances, which included the availability of the full Dublin process to those who were unsuccessful in the expedited process, I do not consider that the provision of representation or further review or remedy were necessary for the operation of a lawful system."
"The reasons for rejection were communicated only to the French authorities; and then in the very brief terms contained in the spreadsheet."
"Whilst acknowledging all these shortcomings, I consider that the expedited process must be considered as a whole; and in the context of the background of the reluctance to make asylum applications in France and of the severe and exceptional constraints of the operation. Having undertaken that assessment, my conclusion is that it was fair and reasonable and that there was no systemic failure."
"In reaching this conclusion the non-communication of adverse decisions and the sparse reasons provided to the French authorities have given me particular pause for thought. However I am satisfied that this did not vitiate the process or otherwise constitute unfairness in the particular circumstances. The non-communication was a requirement of the French authorities; and the terse spreadsheet information was a consequence of that requirement and of the pressures of the operation."
"Since the expedited process was without prejudice to Dublin III applications, I consider it must follow that no account should be taken in any such future applications of material obtained in the course of the expedited process, e.g. of inconsistencies in information received. The scope for error in the expedited process is acknowledged. In the absence of a clear commitment to that effect I would make an appropriate order."
It would appear that a suitable undertaking was then proffered by the Secretary of State to reflect para. 282 of the judgment.
The Appellant's submissions
Authorities relating to the duty of fairness at common law
"From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer."
"In my judgment where an authority lock, stock and barrel is minded to disbelieve an account given by an applicant for housing where the circumstances described in the account are critical to the issue whether the authority ought to offer accommodation in a particular area, they are bound to put to the applicant in interview, or by some appropriate means, the matters that concern them. This must now surely be elementary law in relation to the function of decision-makers in relation to subject matter of this kind. It applies in the law of immigration, and generally where public authorities have to make decisions which affect the rights of individual persons. If the authority is minded to make an adverse decision because it does not believe the account given by the applicant, it has to give the applicant an opportunity to deal with it."
"I appreciate there is also anxiety as to the administrative burden involved in giving notice of areas of concern. Administrative convenience cannot justify unfairness but I would emphasise that my remarks are limited to cases where an applicant would be in real difficulty in doing himself justice unless the area of concern is identified by notice. In many cases which are less complex than that of the Fayeds the issues may be obvious. If this is the position notice may well be superfluous because what the applicant needs to establish will be clear. If this is the position notice may well not be required. However, in the case of the Fayeds this is not the position because the extensive range of circumstances which could cause the Secretary of State concern mean that it is impractical for them to identify the target at which their representations should be aimed."
"That decision demonstrates two matters. (1) The duty to disclose the case that is adverse to an applicant for the exercise of a discretion does not depend upon the pre-existence of any right in the applicant. (2) The nature and degree of disclosure required depends upon the particular circumstances."
"It does not seem to me to necessary to find that anyone was at fault in order to arrive at this result. It is sufficient if objectively there is unfairness."
(1) It is possible to challenge a system as being unfair and not only an individual decision.
(2) Fairness may require, as it did in the circumstances of that case, that the purpose of an interview should be made clear to those who are being interviewed: see para. 83.
(3) The interviewers should be given clear instructions about what they are to do: see paras. 88-90.
(4) It is not sufficient to say that the Secretary of State is willing to reconsider her first view and will always be prepared to reconsider an adverse decision. That is "not a substitute for proper and fair primary decision-making." (para. 91).
(5) Before the decision-maker concludes that a claimant is not telling the truth, he must be given the opportunity of meeting any concerns or at least should be informed of the gist of the case against him: see paras. 99-100.
(6) It should be noted that in R (Refugee Legal Centre) v Secretary of State for the Home Department  EWCA Civ 1481;  1 WLR 2219, at para. 8, Sedley LJ (giving the judgment of the Court) said:
"the choice of an acceptable system is in the first instance a matter for the executive, and in making its choice it is entitled to take into account the perceived political and other imperatives for a speedy turn-round of asylum applications. But it is not entitled to sacrifice fairness on the altar of speed and convenience, much less of expediency; and whether it has done so is a question of law for the courts. Without reproducing the valuable discussion of the development of this branch of the law in Craig, Administrative Law, 5th ed (2003), ch 13, we adopt Professor Craig's summary of the three factors which the court will weigh: the individual interest at issue, the benefits to be derived from added procedural safeguards, and the costs to the administration of compliance. But it is necessary to recognise that these are not factors of equal weight. As Bingham LJ said in Secretary of State for the Home Department v Thirukumar  Imm AR 402, 414, asylum decisions are of such moment that only the highest standards of fairness will suffice; and as Lord Woolf CJ stressed in R v Secretary of State for the Home Department, Ex p Fayed  1 WLR 763, 777, administrative convenience cannot justify unfairness. In other words, there has to be in asylum procedures, as in many other procedures, an irreducible minimum of due process."
" Justice is intuitively understood to require a procedure which pays due respect to persons whose rights are significantly affected by decisions taken in the exercise of administrative or judicial functions. Respect entails that such persons ought to be able to participate in the procedure by which the decision is made, provided they have something to say which is relevant to the decision to be taken." See para. 68.
" Although planning law is a creature of statute, the proper interpretation of the statute is underpinned by general principles, properly referred to as derived from the common law. Doody itself involves such an application of the common law principle of 'fairness' in a statutory context, in which the giving of reasons was seen as essential to allow effective supervision by the courts. Fairness provided the link between the common law duty to give reasons for an administrative decision, and the right of the individual affected to bring proceedings to challenge the legality of that decision."
Application of the above principles to the facts
"Relative confirms no contact with minor since he left him in the Jungle. He first met the minor (nephew) in the Jungle and looked after him for 3 months before he left him to come to the UK (application for asylum is in progress). New family tree but didn't know [AM's] brother which would be [O's] sister's son?? I am not convinced that this relative is a true relative therefore decision made to reject case."
At the top of the pro-forma was written in manuscript:
"Rejected family link fail".
The third issue: Article 8 of the ECHR
The duty of candour and co-operation
(1) Disclosure in the sense of disclosure of documents is not automatic in judicial review proceedings. When, before the Civil Procedure Rules 1998 were brought into force in 2000, courts used to make reference to "the duty of the respondent to make full and fair disclosure" (see e.g. the seminal case of R v Lancashire County Council, ex p. Huddleston  2 All ER 941, at 945, in the judgment of Sir John Donaldson MR), that should not be misunderstood as being a reference to "disclosure" in the modern sense of disclosure of documents. This is because, before 2000, disclosure of documents used to be called "discovery".
(2) One of the reasons why the ordinary rules about disclosure of documents do not apply to judicial review proceedings is that there is a different and very important duty which is imposed on public authorities: the duty of candour and co-operation with the court. This is a "self-policing duty". A particular obligation falls upon both solicitors and barristers acting for public authorities to assist the court in ensuring that these high duties on public authorities are fulfilled.
(3) 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. As I said in Hoareau at para. 20:
" It is the function of the public authority itself to draw the Court's attention to relevant matters; as Mr Beal [leading counsel for the Secretary of State in that case] put it at the hearing before us, to identify 'the good, the bad and the ugly'. This is because the underlying principle is that public authorities are not engaged in ordinary litigation, trying to defend their own private interests. Rather, they are engaged in a common enterprise with the court to fulfil the public interest in upholding the rule of law."
(4) The 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. There can be no place in this context for "spin".
(5) The duty of candour is a duty to disclose all material facts known to a party in judicial review proceedings. 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.
The evidence filed on behalf of the Secretary of State in the High Court
" In agreement with the French authorities, from 14 October 2016, the UK set up an expedited process for considering claims based on the family reunion criteria of the Dublin III Regulation, but without undertaking the procedural aspects of the Dublin procedure, namely the requirement for an asylum claim to be registered in France and a take charge request made of the UK via DubliNet. Transfers from 17 October up until the completion of the transfers made as a result of interviews conducted at the CAOMIs, the majority of which were concluded by 9 December 2016, were therefore operated on an expedited basis outside of the Dublin framework. "
"The decision to operate such a process was driven by operational considerations and came about primarily as the result of agreement between the UK and French Dublin Operational Units. I believe that such an approach was justified in order to respond to a unique humanitarian operation and support the French in delivering a safe and orderly camp clearance within a reasonable timeframe. "
"With respect to the children who remained in France who were not accepted under the expedited process, an agreement was reached with the French authorities whereby the UK Dublin Unit would review a list of cases provided by the French of children who maintained claimed family links in the UK and had new information not available at earlier interviews conducted by Home Office officials. It was agreed that the UK would look at the evidence provided and give an indication of whether this would be enough to accept a request to take charge under the Dublin Regulation, were a take charge request to be submitted. The intention of this process was to allow the French to communicate to those children who were likely to receive positive decisions that this would be the case, in order to encourage them to continue to engage with the system and prevent potential absconding from the CAOMIs. The UK was clear that a positive indication under this process did not equate to an acceptance under the Dublin Regulation, and that for any case to be accepted on that basis, a formal take charge request following the lodging of an asylum claim in France would first have to be made, with the UK reserving the right to deny the request upon formal consideration of the evidence submitted. Similarly, a negative response as part of this review process would not preclude France from making a take charge request of the UK with respect to that individual, if they thought it was appropriate. Again, the SSHD's willingness to engage in this filter process went substantially beyond the requirements imposed on her by the Dublin Regulation, and demonstrates her commitment to support the French Government. It was the responsibility of the French authorities to communicate the indications to the children, and also to inform them of the process for claiming asylum in France."
"At the same time, the UK agreed to provide the French Dublin Unit with a list of reasons for rejections of children with claimed family links in the UK under the expedited process. This was provided in spreadsheet form to the French Dublin Unit to use in the way they felt appropriate, and I understand this was subsequently shared with the directors of the CAOMIs. I would highlight again that it was for the French authorities to make decisions on how they wished to proceed with respect to children remaining on their territory with respect to whom they have a responsibility to process asylum claims, and engage Dublin where appropriate, or to otherwise accommodate them in the French system."
"The French Government had said on around 16 December 2016 that there were about 40-50 children's cases which they thought the SSHD should consider again. The SSHD agreed that the French authorities should provide us with further submissions in respect of those cases. In the end the French provided us with about 530 or so children's cases in various CAOMIs. The SSHD has considered these under an informal 'filtration process' in essence she has looked at the evidence again and has conveyed to the French authorities if she would be likely to accept a TCR [Take Charge Request] or whether more information is needed. This was so that the French could communicate this to those children and encourage them to lodge an asylum claim and continue to engage with the process. "
"From late January 2017 through to March 2017 the French officials provided three different lists of assessments that they wanted us [to] review. As I have stated above in total over 530 children were put forward. "
"We also went back to the French authorities on a further five cases to confirm that we would very likely accept Take Charge Requests made without the need for any further information to be provided. We confirmed to the French authorities that of the remaining cases we would not accept a TCR at that time on the basis of the evidence that had been submitted."
"As I have explained the SSHD was working under extreme pressure to try and process as many children as she could. In these circumstances I do not see how the Claimant [Citizens UK] could have expected the SSHD's officials to provide detailed decision letters in respect of each child. In any event I would say that in some of the cases she mentions a one word reason or phrase would suffice to explain the position. For example she criticises the refusal of cases using one word 'cousin'. As I have explained above, where a child only has a cousin or more distant relative in the UK this does not suffice under the Dublin III Regulation to determine the UK as the relevant Member State with responsibility for examining the child's asylum claim. I do not understand why any further elaboration would be needed."
"I hope the above assists the Court to understand what the SSHD did from an operational standpoint to try and process unaccompanied children who had formerly been resident at the Calais camp. "
That passage makes it clear that she was well aware that her task in filing that witness statement was to assist the Court to understand what had happened.
"The agreed process was that communications of decisions would not be made by the teams in France at any CAO. "
"Details of how notification of the outcomes were to be made were not known to us as the team on the ground, other than that they would be communicated to French Government officials first, and then to the CAOs. "
" In this context, the British authorities were requested to complete, within a period of one month following the dismantling, all interviews of minors in CAOMI in order to determine who had the right under the Dublin III Regulation or under the specific provisions applicable to the United Kingdom to go to the said country for asylum application. The United Kingdom thus examined all the situations of minors present in CAOMI and sent to France the decisions rejecting or accepting the minors present.
France notified these decisions to young people present in CAOMI, and in the case of requests for family reunification, had been able to submit requests for re-examination to the British authorities generally based on supplementary information provided by the minors. Very few of these revisions were accepted by the British authorities."
The applications to adduce further evidence
(1) The decision to end the expedited process was a decision taken by the UK authorities. The French authorities would have preferred the expedited process to continue for the purpose of reviewing those cases.
(2) The French authorities requested reasons for decisions and indicated that there were difficulties in producing further evidence in order to seek a review of earlier decisions which were the outcome of the expedited process without knowing those reasons. It was the Secretary of State who refused to provide such reasons.
(3) The filter process continued until at least 7 April 2017, which was more than three weeks after the claims in AM and Others were lodged in the Upper Tribunal. New information was still being sought in the filter process until at least the middle of March 2017.
"During discussions with the French authorities about the expedited process, it was not envisaged that there would be a separate filtration process."
" We did agree to provide the French authorities with a list of reasons where children had been found not to meet the criteria. I understand that this spreadsheet was provided to them on or around 14 December 2016."
"It is true to say that the French expressed concern about the level of detail provided in the reasons once they had considered this. In my view, this was a change of position from earlier discussions "
"I appreciate the Court may wish to understand the rationale behind those emails and the analysis behind the SSHD's decision to provide a limited level of detail in the reasoning given to the French authorities to pass on to the children. I have read the statement of Cameron Bryson [to which I will return later in this judgment] and agree with what he says there concerning those emails. "
"An important objective for the SSHD in supporting the French-led operation to clear the Calais camp was to not undermine wider asylum policy. As set out in my first witness statement, this was a one-off operation, from which the SSHD envisaged no ongoing obligations beyond those she was already party to."
"In considering the level of detail to include in response to individuals assessed under the process, the SSHD therefore had to balance wider risks which would potentially undermine her approach to migration policy. In sending officials to assess individuals in France in such unique circumstances, the SSHD sought legal advice from her in house legal advisers."
" I can say it concerned whether there would be risks to the SSHD's wider asylum policy in giving detailed reasons to individuals who were outside the United Kingdom and who had not made an application under the Immigration Rules or UK legislation to enter the United Kingdom."
"I hope this explains in more detail why the SSHD took the decision to keep the level of detail to a minimum. Whilst the French authorities did express some concerns, this led to the SSHD agreeing to a French request that we review a list of cases which became the filtration process. The French initially proposed that we consider a further 40-50 cases when new evidence was available. In fact, the SSHD's officials reviewed around 530 cases. The decision to carry out this filtration process allayed the French authorities' concerns expressed at the end of the expedited process about the level of detail provided in the reasons."
"17. I recognise that the Court may be concerned that the SSHD did not make the above sufficiently clear in her evidence before the Administrative Court, and I apologise for any confusion as to the SSHD's position. The SSHD's officials were under very tight time constraints to prepare the SSHD's evidence in these proceedings at approximately the same time as having to deal with the complex policy challenge to her approach under section 67 of the Immigration Act 2016 ("the Dubs amendment") in the Help Refugees matter and five individual challenges in the Upper Tribunal (four of which will be heard with this appeal being AM, SASA, SS and MHA). The challenge made by Citizens UK was very wide ranging and indeed changed substantially in nature by the time they were granted permission by the Court on 28 February 2017 as compared to their original claim as issued on 14 October 2016. The SSHD officials were also at the same time still completing their work in relation to the Calais camp as well as processing the standard take charge and take back requests made to and from other Member States' Dublin Units. I do recognise however that, notwithstanding the above, the SSHD should have made the position that she had received legal advice on the issue of the level of detail to provide the French authorities clear and I do so now with apologies to the Court.
18. I also recognise the Appellant has raised numerous concerns about disclosure in the past and that the late disclosure of this material may cause concern. The Appellant did write to the SSHD several times concerning disclosure but this was not then pursued by them at the hearing before the Administrative Court. In order to provide reassurance, I confirm that I have re-read my first witness statement in detail and stand by everything I have said there. I have also considered carefully if there is any other pertinent material which should be brought to the Court and Appellant's attention in keeping with the SSHD's duty of candour and confirm that there is not. I say this in light of the fact that my evidence was intended to provide a high-level explanation for events as one would expect. I explicitly stated this in my first witness statement.
19. To provide additional reassurance to the Court, I have searched my inbox for the terms 'Calais'. 'camp' and 'children'. Due to the high volume of matches (respectively, 26,000 emails, 30,000 emails and 43,000 emails) I have only re-read emails sent and received between the dates of 24 October 2016 and 16 December 2016 where the subject suggests the email relates to policy decision. I am fully content that my account of events is accurate." (Emphasis added)
"5. In light of the further disclosure the SSHD has made in these proceedings, I have carefully considered if there is anything else which the SSHD should disclosure as part of her duty of candour. For the purposes of the FTH [i.e. FH] proceedings I used specific terms to try and locate emails such as the child's name and the names of UK officials and French officials but clearly that would be substantially more challenging with regard to a wide ranging policy challenge such as these proceedings. As one might expect the expedited and filtration processes generated many emails, which were sent to and between a large number of officials, alongside the wider business work with French and other Member States colleagues as part of the overall operation of my team.
6. I have read my witness statements adduced for the purpose of the Administrative Court proceedings and also in the case of FTH JR/1256/2018 and I stand by what I have said there. I am content my account of events is accurate.
7. I do exhibit to this statement the lists generated during the filtration process to the extent they were not disclosed in the FTH proceedings. There are the first filter list sent by the French dated 20 January 2017 (JF8) and the second filter list dated 8 March 2017 (JF9). I understand the Appellant intends to make an application to adduce the documentation in FTH before the Court of Appeal and so I do not exhibit the evidence I adduced in those proceedings in these proceedings which include the third filter list and the SSHD's response.
8. I also exhibit the spreadsheet containing the list of reasons which was given to the French on 14 December 2016 (JF10)."
"In particular he asked for the reasons as to why these minors were not being accepted in the UK to enable the French authorities to explain to these minors what their next steps might be. I did so immediately. I was aware that there was concern amongst HO [Home Office] officials about how we could do this due to the operational constraints we were under but also due to concern about the implications for wider immigration policy."
"On 12th December 2016, I verbally informed French officials that, based on legal advice, the UK would not be able to share detailed reasons for refusal with the French authorities due to concerns that this could lead the Home Office vulnerable to a legal challenge in the future. On 13th December, I forwarded a list to the French authorities which detailed whether a minor had been accepted or not. In the ensuing correspondence with French officials I again explained why the UK could not give detailed reasons for refusal. The French did raise some concerns about this." (Emphasis added)
"I believe as a consequence of French concern, I was asked by French officials on 19 December 2016 if the UK could review some specific cases where further information had been obtained by the minors. Having passed this request on to officials in the UK, I was initially instructed to inform the French that any further consideration would need to be submitted by DubliNet, the official mechanism for making a transfer request under the Dublin Regulations."
"I am aware that this decision led to discussions between very senior UK and French officials which, as a result, led to the introduction of the 'filter' process for minors who had already received a negative decision. I informed French officials of our agreement to this, as well as the conditions under which it would operate, on 6th January 2017; the French and UK authorities then proceeded on this basis. "
The relevant email correspondence
" With regard to those minors that are going to remain in France, Valat said that it was important that they were able to explain to each and every minor why they were not going to the UK. He therefore asked for a list of rejections, by CAOMI with the reasons for refusal, to enable the French authorities to try to explain to the minors what their next steps might be. They did not want anything detailed and suggested something as straightforward as: age assessment (I suggest we clarify where there has been a self-declared over 18); unable to contact family in UK; family unable to receive the minor (e.g. doesn't meet the conditions); family doesn't want to receive the minor; and, no UK family. "
"To be clear, these lists are of no use to us. They only confirm that you have not accepted the young people who were not transferred. Everyone had already understood that.
What we need is the precise reason for the rejections, in particular for those who indicated that they could be transferred to the UK under Dublin.
We made this request last week, and it seems to me that we had agreed on that basis.
If there are grounds for these refusals, we have a collective interest in reporting them to the young people without delay. That will prevent futile requests for re-examination.
Otherwise, the young people especially will not understand, we will not be able to explain it to them and the situation will quickly become unmanageable for you as well as for us.
Therefore, I insist, we really need the complete lists by tomorrow morning."
"To see the latest email from Florian [Valat] on the subject of the list we have provided. He is saying that what we have provided is of no use at all, all it does is to tell the minors they haven't been accepted, which they knew anyway. They need the basic reasons for refusal to explain why those applying under Dublin have been refused in order to prevent a pointless request for a reconsideration.
He makes the point that they had asked for the full list last week and thought we had agreed on one. In my reply I have said that our legal department had advised against full disclosure because of the risk of challenge, "
A reply was sent to that email at 7.28 a.m. by a Lucy Coutinho; amongst those copied in were Mr Cook and Ms Farman. That is important because it indicates that they were privy to this email correspondence at the time but did not mention any of this when they made their witness statements in the High Court proceedings or at any time in these proceedings until May 2018.
"We are working on more detailed data but as per Lucy's email last night:
Given what the lawyers have said, we are unlikely to be able to say more than the following: Dublin 'the case of X was not accepted because we were unable to verify the claimed family connection.'
Anything more could open us up to legal challenge. " (Emphasis added)
"I am afraid that the French are going to be disappointed. We need to protect our legal position and I don't think we can or should go beyond the sort of language Karyn has set out. "
"I've just had a very lengthy conversation with Florian [Valat] and as things stand at the moment they have postponed their communication campaign until this evening in the hope that we will be able to give them more information (there is a video conference with the prιfectures taking place at 16h00 French time when they will be instructing them what to do).
I said that based on the legal advice that we have received, it is unlikely that we would be able to share any further details. Florian said that if this were the case, it was unacceptable, and that following on from the press release on Friday we were making matters very difficult for them to manage. He said that all they would be able to do now would be to tell them that they had been refused and that they should reapply through the formal Dublin process when they had hoped to be able to convince some of them that their best option was to remain in the French system. He does not understand our legal position as in his view anyone refused under the Dublin Regulation is entitled to be told the reasons for their refusal. Perhaps a fuller explanation could be shared with him (I haven't actually seen the legal advice so was unable to do so).
Florian also stated that they had warned the prιfecture of Pas-de-Calais to expect large numbers of arrivals from the CAOMI in the coming days and told me that large numbers had already left over the weekend.
Florian thought a call to PAM might be useful, but did say that this would now be raised at a political level. I've already spoken to David given his meeting this evening and we also wondered whether it would be helpful to give a script to the French to assist them, for example 'you have been subjected to a rigorous age assessment process whereby the benefit of the doubt is given to a claimed minor and we will not reconsider', and, in the case of Dublin, expand on Karyn's script to say that they have the right to ask for a reconsideration but unless further information is provided that there will be no change to our original decision." (Emphasis added)
"I have spoken to Cameron and Julia to get some further clarification. To confirm, the minors would still go through the standard Dublin process ie. have to claim asylum in France. Currently, very low numbers of minors have applied for asylum in France. The French have proposed an initial filtering process to try to keep the minors engaged, and to show them that the French are trying to help them. The idea would be that for a month or so, the minors would be able to provide the relevant Dublin documentation to the prefectures who do an initial sift and then pass on cases to DGEF to do a further sift. Therefore only those the French think are highly likely to be eligible under Dublin are then told to apply for asylum in France and that they will be referred to the UK Dublin process. The French would then explain to the remaining minors that they are unlikely to be accepted under Dublin and should therefore claim asylum in France as that will be the best alternative. There is still a high risk that minors may abscond but that exists either way.
The benefits of agreeing to Florian's proposal would be to:
- help our ongoing relationship with France to show that we are being flexible where possible (as some of you will be aware the French Foreign Sec lobbied Hermione on the issue of minors this morn and flagged that it was likely to move back up the political agenda).
- Potentially reduce the number of Dublin cases referred to us that are unlikely to be eligible because they have already been filtered.
From other discussions, I know there was a concern about creating a new process, but I don't think this process is particularly different. If we agree to Florian's suggestion we can reiterate our view that we did a good job of interviewing the children and that if we agree to this process, we do not want to see all the children we previously identified as ineligible under Dublin being referred to us again. Whilst this will be essentially delaying the issue, the French believe this delay will give them a better chance of convincing minors to claim asylum in France"
" We do not want to see all the children we previously identified as ineligible being referred to us again."
As Ms Kilroy submits, that is a good example of how the outcome of the earlier expedited process continued to have an impact on what happened later.
"No we won't be involved in the initial filtering process. I think the only thing to add is that once DGEF have done their filter they would pass to us for an initial view of the likelihood of success based on the information provided (which is the crux of Florian's proposal as this is where we deviate from the established Dublin process), and, if that is likely, they would then tell the minor to apply for asylum and go through the normal Dublin process (if they refuse then that will be the end of it for them). If the application is unlikely to be successful they will try to persuade the minor to apply for asylum in France. That way we don't have to do a formal rejection."
"As we discussed and confirmed before Christmas, our original decision on Dublin cases stands. If a minor previously resident in Calais and assessed under Dublin now has new information, they will need to be 're-presented' under the standard Dublin process ie. the minor must claim asylum in France and you should identify which Member State is responsible for processing the asylum claim. If the UK is identified, you must formally submit a transfer request and the required documentation through DubliNet.
We understand that this process will continue to be adhered to but that you have proposed to implement a filtering process to identify minors that could be accepted for transfer to the UK under the Dublin Regulation (Article 8.1 and 8.2). The first stage will be undertaken by prefectures, and the second stage undertaken by DGEF. You would then like the UK to undertake an initial review too. We acknowledge that this process may help to persuade minors to remain in the CAOMIs and to claim asylum in France. We understand the challenges you face in this regard and obviously want to assist you as much as we can; therefore we are happy to agree to this filtering process under the following conditions:
1) For minors in the CAOMIs that we have already assessed under Dublin, we will consider only new information in relation to their family links in the UK until 17 February 2017. After this date, we do not expect to continue to provide an 'initial filter' of Dublin cases.
2) The full Dublin process still needs to be adhered to.
3) The UK reserves the right to reject a request even where the initial filter suggests the child may qualify.
We may revisit our agreement to the process if we do not think it is effective.
Outside of this filtering process for the Calais cohort, we will, of course, adhere to our Dublin obligations and consider any transfer requests in line with the Regulation.
I hope this is satisfactory and covers the points we discussed at our meeting. We can perhaps discuss the practicalities on Monday? If you have any questions, please do not hesitate to contact me."
(1) there was a serious breach of the duty of candour and co-operation by the Secretary of State in this case; and
(2) the evidence now before this Court supports the fundamental submission made by Citizens UK that the process adopted in this case was unfair and unlawful as a matter of common law.
Lady Justice Asplin:
Lord Justice Hickinbottom:
"[T]here is a very high duty on public authority respondents, not least central government, to assist the court with full and accurate explanations of all the facts relevant to the issue the court must decide."
Note 1 At the material time the Secretary of State was female, so I will use the words she or her, even though the office is now held by a man. [Back] Note 2 Centres daccueil et dorientation pour mineurs isoles.
[Back] Note 3 Council Directive 2005/85/EC. [Back]
Note 1 At the material time the Secretary of State was female, so I will use the words she or her, even though the office is now held by a man. [Back]
Note 2 Centres daccueil et dorientation pour mineurs isoles. [Back]
Note 3 Council Directive 2005/85/EC. [Back]