Lord Ordinary rules part of Home Secretary’s policy on requests to take charge of asylum seekers with family in UK unlawful

About this case:

• Citation:
  [2022] CSOH 86
• Judgment:
  External link
• Court:
  Court of Session Outer House
• Judge:
  Lord Ericht

Petitioners A and B, twins born in 2003, were informed that they could not join their uncle in the UK as they would be unable to be accommodated with him. They challenged the Home Secretary’s policy on the basis that it should allow for the possibility that they would not live with their sponsor.

The petition was heard by Lord Ericht in the Outer House of the Court of Session. Winter, advocate, appeared for the petitioners and MacIver, advocate, for the respondent.

Meaning of ‘take care’

The petitioners had previously sought asylum in Greece as unaccompanied minors when they were aged under 18. It was their wish to join their uncle, who resided in the UK in temporary accommodation for those seeking homelessness assistance under a sublet. The Greek authorities formally requested that the UK take charge of the petitioners under Article 17(2) of EU Regulation No 604/2013, known as the Dublin III Regulation, to which the UK was still subject at the time.

In a letter to each petitioner dated 10 December 2021, the respondent wrote to the Greek authorities rejecting the request. It was explained that the uncle’s temporary accommodation was solely for use of the tenant and persons who were part of his application for homelessness assistance, and while the principal landlord had granted permission for the two boys to move in, the sub-landlord organisation advised that it would be unable to house them due to health and safety regulations.

Counsel for the petitioners submitted that the respondent’s policy guidance on requests made under the Dublin III Regulation was unlawful in that it did not permit any discretion in terms of the applicants having to live in the same accommodation as their sponsor. They did not require to live with their uncle for him to “take care” of them per the Regulation, which in its wording did not mention accommodation. Further, as the petitioners were now over 18, any distinction relied upon by the respondent was now artificial.

For the respondent it was submitted that the ordinary reading of “take care” entailed accommodating a child. One could not take care of a child by leaving it to someone else to make sure that the child was not homeless. The references to “live with” and “stay together” in the Leaflet to be given to minors under the relevant Implementing Regulation made it clear that the relative in question was to accommodate the minor.

Family unity

In his decision, Lord Ericht began by observing: “The task for this court is to ascertain the correct meaning of the words ‘take care’ in Article 8(2) of the Dublin III Regulation. That task requires a consideration of the context and purpose of the Dublin III Regulation, as EU law requires to be given a teleological interpretation. The substantive provisions of an EU instrument are to be interpreted in the light of its objectives, which are most readily available in the recitals. That task also requires a consideration of the words of the Regulation as a whole.”

He continued: “The importance of family unity within the same country is stressed in the recitals to the Dublin III Regulation. Accordingly, the principle of family unity is to be given effect to when applying a teleological interpretation. Against that background I turn to the wording of the Dublin III Regulation. The concept of ‘taking care’ of an unaccompanied minor is referred to in various places in the Dublin III Regulation. In none of these places does it specify that living in the same residential property is an essential component of ‘taking care’.”

Considering whether such a principle should be read into the Regulation, Lord Ericht said: “If the intention of the Dublin III Regulation had been to impose a requirement that the relative and minor must live in the same residential property, it would have been a simple matter of drafting for the Dublin III Regulation to expressly impose that requirement. That was not done, and the respondent asks me instead to give a wide interpretation to ‘take care’ so that it includes such a requirement.”

He went on to say: “For older minors, there may be less necessity to live in at the same residential address in order to preserve family unity. The Dublin III Regulation recognises that ‘minors’ covers persons from birth to age 18 and what is appropriate for one minor will not be appropriate for another with a greater age or maturity.”

Lord Ericht concluded: “The sole ground for finding that it is not in their best interests to be transferred is that they could not be accommodated with their uncle. The respondent does not address the question of best interests separately from the question of accommodation, and does not explain why it would not be in the best interests of the petitioners to be reunited in the same country as their uncle but living in separate accommodation. In these circumstances the error is material to the decision on the proviso to Article 8(2), as well as the main part of that article.”

For these reasons, the decision letters of December 2021 were reduced, and Lord Ericht granted declarator that the Home Office policy was unlawful insofar as it proceeded on the basis that it was necessary for a UK-based relative to be able to accommodate the minor(s) involved in a take charge request.