Interim relief

" Failure to transfer the first Applicant to the UK in accordance with his substantive Dublin III rights and his Article 8 rights ......

Refusal/failure to act since 16/12/16 ongoing. "

This formulation is common to all of the Applicants, each of whom pursued the mandatory order noted above. All of the Applicants also pursued, by interim relief, an order mirroring the substantive relief claimed. This gave rise to an order of the Tribunal. I refer to Appendix 1 hereto. In short, reflecting the advent of significant new evidence in all of the cases and for the other reasons given, an interim relief order was made requiring the Secretary of State to make new decisions in all cases. While, as the title indicates, the order was designed to embrace all five live cases, the parties' representatives understood the present case to be excluded as permission to apply for judicial review had already been granted. As a result the Secretary of State made no fresh decision in AM's case.

AM's Challenge

" There were limitations to the assessment due to the medium used .....

However, it became increasingly apparent that the difficulty in establishing an adequate rapport .... was not primarily due to a lack of face to face contact but his withdrawn and emotionally 'cut-off' mental state. "

Dr Fairweather opines as follows:

" My psychiatric assessment found him to be suffering from major depressive disorder ....

It also became apparent he has considerable post-traumatic stress disorder symptoms but not to the extent he meets diagnostic threshold. These symptoms are linked to the severe violence he witnessed others being subjected to whilst he was held in captivity in Libya. However, given his withdrawn state in the assessment, it is very likely he has under reported his symptoms and over time he may disclose more. He has severely struggled with the delay in being reunited with his uncle, manifesting on occasion with suicidal ideation. "

" I am in no doubt that [the Applicant's] current situation is both causative and exacerbating of his psychiatric disorders. It does not meet his developmental needs of adult support, social relationships and stable accommodation. His needs are only being met in a very basic way - make shift accommodation, some level of education .... and food .... It is clear that [the processes] have had a detrimental impact on his mental state, as seen as his increased suicidality with plan on how he would act. This shows his state of desperation and hopelessness ....

The delay is having a significant exacerbating impact on his mental state causing him increased distress and increasing his despair .... [He] is severely struggling with the delay in being reunited with his uncle ....

This relationship has particular meaning, given his orphan status .... A withdrawn state indicates a decline in his mental state .....

Existing in this dissociated state over a chronic time period is very detrimental for children. In my professional experience, it worsens prognosis over time and makes it harder to treat young people as this emotional functioning becomes their norm despite it actually being maladaptive and pathological for them .....

[He] is at risk of becoming actively suicidal if prompt reunification does not occur as his mental state will deteriorate further ....

[His] prognosis would be significantly improved with a prompt transfer to the UK so he can be with an adult he identifies as supportive and whom he trusts, ie his uncle."

[My emphasis.]

" In my psychiatric opinion, it is highly concerning that [the Applicant] has run away and is not making contact with those that know him. He is highly vulnerable to exploitation given his psychiatric disorder and symptoms and his desperation for his situation to be resolved. His risk of self harm and suicide is likely to be escalated given he will be facing further stressors such as a need to find accommodation and food. In my opinion, he requires social stability to support recovery from his mental health disorder as soon as possible."

Fortunately this recent development was shortlived and the evidence establishes that the Applicant returned to the centre shortly before the substantive hearing.

The Secretary of State's Response

" All minors who had been resident in the Calais migrant camp were transferred to specialist centres across France on Wednesday 02 November [2016] . Home Office staff assisted the French authorities during this process and accompanied the children on the buses leaving Calais. Specialist UK staff were deployed to centres across France to assess children who may be eligible to come to the UK either under the family reunion criteria of the Dublin Regulation or the criteria set out in the Guidance on Implementation of section 67 of the Immigration Act 2016 in France, published in GOV.uk .....

I can confirm that your client was assessed as part of this process. Your client was not accepted under the family reunion process because there were a number of inconsistencies between the family details provided between your client in the UK and the applicant in France ....

The SSHD was therefore unable to determine that your client met the definition of family or relative under Articles 8.1 or 8.2 of the Dublin III Regulation. "

[My emphasis.]

The letter continues:

" Any further evidence should be supplied to the French authorities. Following an asylum claim in France, the French authorities can ask the SSHD to consider a take charge request in the light of this material."

" It was initially thought that the transfer of children to the UK under section 67 could use Article 17 .... which is a discretionary clause, to provide the legal mechanism for transfer in cases where the child had no close family in the UK".

Mr Cook then refers to " work on improving" the implementation, together with steps designed to bring about " a significant improvement in our operation" of, the Dublin Regulation. This is followed by certain averments addressing specifically the Calais context:

" Prior to the operation by the French authorities to clear the Calais camp, which began on 24 October 2016, the UK Government made substantial efforts to identify children eligible for transfer to the UK and to encourage the French authorities to make the necessary request to transfer them to the UK under the Dublin Regulation. As a result of these efforts over 80 unaccompanied asylum seeking children were transferred from France to the UK from 01 January to 01 October 2016."

Mr Cook then recounts the formation and activities of a dedicated Home Office Team which liaised with the relevant French authorities concerning the camp demolition in Calais. He continues:

" .... UK Officials have been working closely with the French authorities to improve the operation of the Dublin Regulation and speed up the identification, processing and transfer to the UK of unaccompanied children in the Calais camp with close family links here ....

It was not agreed that UK officials could operate in the camp before the week commencing 17 October 2016. "

Mr Cook continues:

" In late September 2016, the estimated number of children in the Calais camp was circa 860, of whom 640 were unaccompanied ....

The UK made clear to the French authorities that the priority must be to ensure as many children as possible with close family in the UK were transferred out of the camp ahead of clearance .... [and] .... moved to safe accommodation."

" ... The UK reached agreement with the French authorities to combine the three asylum registration interviews for the unaccompanied asylum seeking children into one interview for the Dublin process. In addition, French agreement was given for Home Office officials to work alongside FTDA [a charity] to register asylum claims in the Calais camp. This work significantly reduced the processing time for assessing applications in Calais under the Dublin Regulation from around 10 days to approximately 48 hours, depending on the outcome of the checks undertaken by the Home Office. The UK secured agreement to undertake interviews in the camp from 17 October until 28 October except for 24 and 25 October when the camp clearance was underway."

Next, from 22 October 2016 the French authorities arranged for all children to be accommodated in a secure area of the camp. For the Home Office, the prevailing conditions were plainly far from perfect:

" The situation ahead of and during the French operation to clear the Calais Camp from 24 October 2016 was extremely fluid and operationally challenging. The lack of accurate data on the number of children in the camp and their profile meant that the Home Office had to be flexible and adapt its approach to circumstances ....."

The narrative continues:

" On 24 October 2016 the SSHD made a statement to Parliament in which she stated that the UK had transferred almost 200 from Calais under Dublin or section 67. Importantly, the SSHD explained that UK officials had only had access to the camp for the last 7 days and that in that time 800 children were interviewed."

Mr Cook records the UK Government's substantial concerns about the efficacy of data and information gathering facilities in the camp and explains that with effect from 28 October 2017 " ... interviewing and transfers ceased". At this stage, some 300 unaccompanied children had been transferred to the UK, while 1850 children were dispersed to reception centres. Mr Cook observes:

" This was almost double the initial estimates of both the French authorities and the NGOs operating in the camp in early October and over three times the estimates from late August."

" ... set up an expedited process for considering claims based on the reunion criteria of the Dublin 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 CAOMI's, the majority of which were concluded by 09 December 2016, were therefore operated on an expedited basis outside of the Dublin framework."

Continuing, Mr Cook explains that in order for a child to be transferred to the United Kingdom under the expedited process the following six conditions had to be satisfied:

" (a) The UK was satisfied that the child was under the age of 18; and

(b) They had a claim family member or relative in the UK that would qualify under Article 8(1) or 8(2) of the Dublin Regulation; and

(c) UK Visas and Immigration [UKVI] case workers were satisfied, based on the evidence available to them, including evidence collected during interviews with the minor and interviews with their claim family member, sibling or relative in the UK and any relevant supporting documentation that the relationship was as claimed; and

(d) For Article 8(2) cases, the relative stated that they were willing and able to take care of the child and that this was backed up by local authority assessments where these had been completed; and

(e) Relevant security and criminality checks on the child and receiving family member, sibling or relative were passed; and

(f) The Home Office was satisfied that it would be in the best interests of the child to be transferred to the UK. "

" Where the claimed family relationship was one that would qualify under Article 8(1) or Article 8(2) of Dublin, the family member, sibling or relative in the UK was contacted to establish that the claimed relationship was genuine and whether the person(s) in the UK would be willing to receive the child .....

Those with an Article 8(1) relationship [ie a "family member or a sibling"] were accepted for transfer to the UK whether or not the family member or sibling stated that they were able to take care of the child, whereas under Article 8(2) ["a relative"] cases were not accepted unless the relative stated that they were able to take care of the child. At the same time, checks were requested from the local authority where the relative resided to conduct an assessment of the reception conditions available to the children."

Next, Mr Cook makes clear that in some cases children were transferred to the United Kingdom and then placed in the temporary care of local authorities pending completion of the enquiries and steps noted above. The immediately following averments in Mr Cook's witness statement, in [56], make clear (as confirmed by other evidence) that the Secretary of State operated a blanket prohibition on the transfer of children in the expedited process under Article 17 of the Dublin Regulation.

(i)             In his view it would not have been possible for the Secretary of State to produce individualised written decisions in each of the cases. (No reason for this is proffered.)

(ii)          He considers that for some cases the cryptic formulae of " aged over 18" or " relationship cousin" was a sufficiently reasoned decision in any event.

(iii)        By 09 December 2016 decision-making had been completed in all cases bar 40.

(iv)        Negative decisions were reviewed provided that they entailed the provision of " new information not available at earlier interviews conducted by Home Office officials".

(v)           In cases where a review yielded a positive decision " ... 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". (While it is suggested that in some cases reviews gave rise to positive decisions, no corresponding disclosure of documentation of this kind has been made.)

Finally, Mr Cook explains that all decisions were collated by the Home Office on a spreadsheet which was provided to the French Dublin Unit and, in turn, conveyed to the Director of each reception centre: see infra.

" What training on Dublin III have [officials] .... received? Please provide details and training notes. This request refers to officials in the UK's Dublin unit and officials seconded to Calais/Northern France."

The response was:

" Please see attached training materials and templates redacted as appropriate."

One of the documents attached is entitled "Dublin III Regulation: Adult Provisions", which begins as follows:

" This note is intended for use by Home Office operational staff working in France on camp clearances ....

The aim of this note is to assist with considering cases involving adults under the Dublin Regulation ....

The following cases may be considered for transfer to the UK for consideration of their asylum claim, provided they have claimed asylum in France and a take charge request has been submitted by France. "

This is followed by certain " illustrative examples". This is clearly a Home Office document.

" Article 17 is most commonly applied by the UASC team when considering cases of applicants applying to join relatives who do not meet the definition of Article 8.1 and 8.2."

The text continues:

" For the most part decision makers are required to assess whether applicants and their claimed UK relatives are indeed related as claimed. If the relationship is accepted, the transfer is in the best interests of the child and checks reveal no issues then the formal request is accepted and arrangements are made for transfer."

Various pre-acceptance " checks" are then particularised, followed by a section entitled "Verifying relationships" which contains the following passages:

" There are numerous ways that relationships can be demonstrated depending on the relationship but the main methods are as below: .....

Applicants often provide documentation in an effort to verify the relationship .... such as family books, Taskira's and other documents .....

In cases with UK reps we tend to get sent a lot of witness statements from app and relative provided as evidence as [sic] relationship. There is also a trend of psychological reports recommending that the minor is transferred to join family in the best interests of their health. We do not accept either of these alone. We would still require documents or another form of verification least [sic] to accept relationship for transfer."

" The current phase of transfers which arose from the closure of the camp is being concluded. This is a planned process, done in conjunction with the French authorities. We have taken all reasonable steps to interview all the children who were transferred from the camp to the children's centres in France in line with the published guidance."

I have drawn attention to the highlighted words since it is not clear in any of these cases what the " published guidance" is and this issue has not been addressed in either disclosure or the Secretary of State's witness statements. The GLD lawyer next reproduces the following question:

" If these documents are not being applied to those adults and children, please disclose the current policy/policies/processes applicable to them."

This is answered thus:

" The SSHD will continue to comply with her obligations under the Dublin Regulation and will continue to transfer unaccompanied refugee children to Britain who can prove they have family members living in the UK, in line with the timescales set out in the Regulation."

Followed by:

" The SSHD is also complying with her duties under section 67 of the Immigration Act 2016 in respect of children who would not have an entitlement to come to the UK under Dublin III."

" There is no guidance specifically relating to Dublin III cases. The obligations are set out clearly within the Regulation and the SSHD considers that she fully abides by them. The SSHD has already sent you training material for HO officials which was produced as a result of the need to assess a large number of cases in a short space of time as part of the Calais camp being dismantled. In any event, in respect of the Dublin III Regulation, the only relevant aspect of your claim was your allegation that the SSHD was under an obligation to provide children in the camp in Calais with information about the Dublin III process. Your client's claim does not include any challenge to the operation of the Dublin Regulation itself."

In the ensuing section of the letter, under the rubric " Usual Dublin process", it is stated:

" We can confirm that in the week leading up to the dismantling of the Calais camp, and immediately following, there were adjustments to the way in which the take charge process under the Dublin III regulation would normally be operated. These adjustments concerned the process only and did not affect the substance or nature of the consideration of any claimed family relationship in the UK which would otherwise be accepted under the Dublin III Regulation. By adjusting the process in this manner, whilst fully respecting and adhering to her obligations under the Dublin III Regulation, the SSHD was able to support the Calais camp operation in an expedited time frame."

[Emphasis added.]

In response to the request to supply the numbers of children transferred under Articles 8.1 and 8.2 of the Dublin Regulation in October 2016 and subsequently, the letter states:

" Over 750 unaccompanied asylum seeking children have been transferred to the UK as a result of the Calais camp clearance operation, of which over 550 were transfers under the Dublin Regulation. The SSHD will publish total figures for the Calais Camp clearance operation in due course."

(i)             As of August 2016 the average time lapse in the United Kingdom from receipt of a take charge request to decision was 10 days.

(ii)          Prior to the Calais camp clearance child inhabitants wishing to make an asylum claim registered this with the French charity France Terre D'Asile ("FTDA"), evidently acting as agent of the French Governmental authorities. This was followed by submission of the claim to the appropriate authority, the Sous Prefecture in Calais and attempts to appoint an ad hoc administrator to support the child in the asylum process, with a view to a take charge request ensuing.

(iii)        From early October 2016 " accelerated and expedited Dublin processes" agreed with the French authorities were operated for a finite period.

(iv)        The mechanism of single appointment/single registration was devised in order to inject speed.

(v)           By this mechanism " French and UK officials would work alongside each other to record bio-data details of the child, map their family tree, ascertain contacts about the family member in the UK and note any health or medical issues".

(vi)        This would entail a single interview with an interpreter in attendance and photographing every child with a view to producing a travel document.

(vii)      Home Office officials worked in tandem with FTDA in the camp from 14 to 22 October and on 28/29 October 2016.

(viii)   As regards logistics some 200 Home Office officials were deployed during the aforementioned period, generating some 80 interviews in the span of 7 days.

(ix)         Following the dispersal of the children to the sundry reception centres in various regions of France and an interlude of some five days, the expedited process continued, involving some 90 Home Office staff together with interpreters and UK social workers.

(x)           This was following by yet another identifiable phase, occupying the period 07 - 25 November 2016 and involving 9 UK teams each with 10 - 12 members carrying out 1872 interviews at 73 reception centres in France. Any children already interviewed in Calais were interviewed again during this phase.

(xi)         At the end of every day all completed interview pro-formae and photographs were transmitted by email to the Home Office where a spreadsheet was compiled and a decision on " ... whether the child was eligible for transfer under section 67 or the Dublin criteria" was made. Where the child was considered to have Dublin Regulation eligibility " security checks and locating and checking UK based relatives" followed. By 14 December 2016 a composite list containing all acceptance and refusal decisions was provided to the French authorities. The expedited process itself was " largely completed" by 09 December 2016. There were then 42 outstanding cases which were completed subsequently.

" .... was reached following interviews with AM and OA in November 2016 pursuant to an expedited process developed by the SSHD in response to the closure by the French authorities, at short notice, of the 'jungle' .....

The expedited process was a time limited process and related to unaccompanied children who were or had been resident in the Camp and who claimed to have a qualifying family in the UK (for the purpose of Article 8 of the Dublin III Regulation) and allowed admission to the UK without all of the requirements of [Dublin] being satisfied."

The pleading continues:

" The expedited process was an exceptional short-term measure, time- limited to the Camp clearance operation. It was a reasonable and rational measure for the SSHD to adopt, but she was not legally required to have done so. The process did not and does not give rise to any continuing legal obligations beyond what is set out in the Dublin III regulation ....

The expedited process, involving an assessment of the claimed family link, was designed to enable the expedited processing and transfer of children who would otherwise be eligible to have their asylum claims transferred to the UK under Dublin III Article 8 in the exceptional circumstances pertaining to the Camp closure and the dispersal of the children to 73 CAOMIS across France. It successfully resulted in the transfer of over 550 children within a very short period of time. "

The explanation proffered for the refusal to transfer this Applicant is described pithily as " discrepancies in the accounts given by AM and his claimed relative".

" ... did not supplant, replace or subvert [the Dublin Regulation process] ...

Moreover, the whole point of the expedited process was that, in aid of the expedition given the exceptional circumstances of the Camp closure, the 'initial procedural stage' would not be required. "

" Initial procedural stage" is a phrase taken from [100] of ZAT and Others. The Secretary of State's core argument is, in brief compass, that the Applicant must demonstrate that the Dublin III process in France provides him with no effective resolution of his circumstances. The pleading continues:

" At the heart of the SSHD's case is that she was not compelled to make fresh decisions on any further material under the expedited process, that process having concluded ....

Alternatively, even if there is a general public law duty on the SSHD to consider further evidence and review all of her decisions, the process for doing this is ..... through the Applicant availing himself of the functioning Dublin III system by claiming asylum and the Member State where the child is present making a take charge request. "

This is followed by a contention that the evidence to be properly considered by this Tribunal should be limited to the evidence extant at the time of the December 2016 refusal decision.

"[5] The Secretary of State is working closely with the French authorities in Paris and in Calais to ensure that as far as possible any unaccompanied asylum seeking children who would qualify for transfer to the UK under the Dublin III Regulation on the basis of close family links (primarily under Article 8 of the Regulation, once they have claimed asylum in France and a request has been made by the French authorities) are transferred to the UK before the camp is closed ....

[7] In advance of the expected closure of the camp, and on the invitation of the French Government, Home Office Asylum Experts began working with partners from the French administration and voluntary sector in Calais to further accelerate the identification of eligible cases and fast track them through the Dublin process as an exceptional and temporary measure ....

[9] In practice the Dublin process is now being completed in as little as 48 hours and children are arriving daily in the UK."

The date of this pleading, 26 October 2016, is of some significance.

The Expedited Process in AM's Case

(i)             He was asked a total of 17 questions.

(ii)          These questions related to his identity, gender, date and place of birth, nationality, main language, telephone details and any family members in the United Kingdom.

(iii)        In this way the Applicant identified his claimed maternal uncle, his telephone contact particulars, his whereabouts (the United Kingdom), their interaction in the Calais "jungle" and their last contact, being a telephone conversation two days previously.

(iv)        Part 2 of the pro forma specifies a series of questions to be put to the interviewee under the rubric of "best interest assessment". None of these questions was put to the Applicant. The Secretary of State's explanation of this is that children being " assessed against" Article 8(1) and (2) of the Dublin Regulation did not receive best interests assessments. We observe that this is not compatible with Article 6(1), Article 8 (1) or Article 8 (2) of the Dublin Regulation.

(v)           Paragraphs 1.34 and 1.35 of the pro-forma require the interviewee to be asked whether all of the questions posed have been understood and to be invited to provide " anything you would like to add or change to your response": neither of these questions was put to the Applicant.

(vi)        Similarly, there is no answer to any of the six questions formulated under the rubric of "Family".

(vii)      Ditto the questions:

" Based on the information we have given, would you prefer to come to the UK to claim asylum other than claim asylum in France?

What are the reasons why you would like to come to the UK rather than stay in France?

If needed, probe: family/other links, language skills. "

(viii)   Ditto the questions relating to " health/special needs".

(ix)         Ditto the two questions to be answered by the interviewer under the same rubric.

(x)           Two further questions replicating those noted in (v) above were evidently not put to the Applicant (numbers 2.5 and 2.6).

(xi)         Next, the interviewer was required to answer a series of questions relating broadly to the interviewee's best interests (paragraphs 2.7 - 2.11): none of these was answered.

(xii)      Next, in paragraph 2.12, provision is made for the signature of the social worker and the date thereof: there is a blank.

(xiii)    This is followed by Part 4, a "Continuation Sheet", which evidently records information provided by the Applicant relating to his parents, grandparents and only sibling. Within this section, the following is recorded:

" Material aunts and uncles: my mother has only one brother .... Osman Ababakar Osman Ali".

This relationship is asserted by both the Applicant and the author of the witness statements noted in [11] above. In the Home Office record, the spelling of the second name is "Ababakar". In both the witness statement of OA and the exhibited UK residence permit, the spelling is "Abubakar". In all other respects, the spelling is identical.

" 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 month [sic] before he left him to come to the UK (application for asylum is in progress). Knew family tree but didn't know [the Applicant's] brother which would be [the relatives] sister's son?? I'm not convinced that this relative is a true relative therefore decision made to reject case".

This document requires confirmation of a " senior case worker check" and the name of such person: neither is provided. The document is dated 15 ^th November 2016.

(i)             At the outset of the conversation OA, evidently without hesitation, identified the Applicant accurately, specified his year of birth accurately, asserted the uncle/nephew relationship and confirmed the Applicant's anxiety to come to the United Kingdom.

(ii)          He stated that he was unaware of the Applicant's exact whereabouts on this unspecified date. The pro-forma aside in this part of the form clearly exhorted decision makers to make adverse inferences where a reply of this kind was made, without reference to considerations such as how the child - an unaccompanied minor from a foreign country recently dispersed from the "Jungle" in traumatic circumstances - could fairly and realistically be expected to reliably confirm such information to any family relative. Nor is any allowance made for the time factor.

(iii)        OA provided his Home Office reference number and full name.

(iv)        OA is recorded as providing an unintelligible email address.

(v)           OA was then asked a series of questions about family relationships, in response to which inter alia, he identified the Applicant's mother as "F A M (A)" and his father.

(vi)        In response to the question " How often do you speak with your relative in France", the interviewer recorded " No contact between me and him as no such communication available, first meeting and known of him when in the jungle and separated from there after three months". The evidence establishes that this question and answer formed one of the cornerstones of the Secretary of State's negative decision. The documented text confirms that this was not a verbatim response and, further, that it was not probed by the interviewer.

(vii)      Next, OA confirmed that he and the Applicant had made contact in the "jungle" prior to April 2016, following which they " remained together for three months".

(viii)   OA then identified the region of Eritrea from which the Applicant originates.

(ix)         Next OA stated that there would be " no problem" with his landlord in the Applicant joining him in his NASS accommodation, which consists of two bedrooms and is shared by two others.

(x)           OA then replied affirmatively to the enquiry concerning his willingness and availability to accommodate the Applicant, provide him with meals, ensure his access to schooling and medical care and to facilitate a property check by Social Services.

(xi)         At the end of the pro-forma was a requirement to indicate " any inconsistencies in the interview when compared to the information supplied by the minor": this box is blank.

(xii)      Furthermore, the interviewer was exhorted to " ask further questions and note the responses below": there is no entry.

" How often do you speak with your relative in France? No contact between me and him as no such communication available, first meeting and known of him when in the jungle and separated thereafter three months."

This reply was an obvious candidate for probing and elucidation: however neither occurred. Furthermore, the pro-forma questions contained no enquiry relating to any previous family life linking the Applicant with OA. One of his responses is especially striking:

" He is my relative. I would do all the possible means to accommodate him as I looked after him in the jungle."

Finally, the pro-forma makes no provision for recording any communication difficulties - linguistic, technical, environmental or otherwise.

" ... I was contacted by someone from a UK Government office, I am not sure which, on the phone. They spent about one hour on the phone with me. they asked me about my relationship with [AM] , my history and they asked for my National Insurance number, but I was not asked for any documents. They also asked me if I would be willing and able to care for him if he came to live with me and I said yes."

Subsequently he sent photographic ID, his contact details, a letter containing his National Insurance number and a letter confirming his willingness to care for the Applicant to the CAOMIE.

Legal Framework

The Dublin Regulation

"1. 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 a married minor whose spouse is not legally present on the territory of the Member States, the Member State responsible shall be the Member State where the father, mother or other adult responsible for the minor, whether by law or by the practice of that Member State, or sibling is legally present.

2. 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.

3. Where family members, siblings or relatives as referred to in paragraphs 1 and 2, stay in more than one Member State, the Member State responsible shall be decided on the basis of what is in the best interests of the unaccompanied minor.

4. In the absence of a family member, a sibling or a relative as referred to in paragraphs 1 and 2, the Member State responsible shall be that where the unaccompanied minor has lodged his or her application for international protection, provided that it is in the best interests of the minor. "

Article 2(g) defines "family members" in the following terms:

" insofar as the family already existed in the country of origin, the following members of the applicant's family who are present on the territory of the Member States:

....

-” when the applicant is a minor and unmarried, the father, mother or another adult responsible for the applicant, whether by law or by the practice of the Member State where the adult is present,

-” when the beneficiary of international protection is a minor and unmarried, the father, mother or another adult responsible for him or her whether by law or by the practice of the Member State where the beneficiary is present. "

Article 2(h) defines "relative" as -

" ... the applicant's adult aunt or uncle or grandparent who is present in the territory of a Member State, regardless of whether the applicant was born in or out of wedlock or adopted as defined under national law."

(a)           By Article 6, the best interests of the child shall be a primary consideration at all stages; due account shall be taken of, inter alia, family reunification possibilities; the minor's well being and social development and safety and security considerations; unaccompanied minors shall be provided with a representative; and following the lodgement of an unaccompanied minor's application for international protection, appropriate action shall be taken as soon as possible to identify the family members, siblings or relatives of the unaccompanied minor on the territory of other Member States, whilst protecting the child's best interests.

(b)           Article 17, the so - called "discretionary clause", empowers Member States to take charge of an applicant notwithstanding the absence of any obligation to do so via the application of the take charge criteria.

(c)            Per Article 18(1), the responsible Member State shall take charge of an applicant who has lodged an application in a different Member State, under the conditions specified in Articles 21, 22 and 29.

(d)          By Article 20(1), under the rubric "Start of the Procedure", the process of determining the responsible Member State begins as soon as an application for international protection is first lodged with one of the Member States; and, per Article 20(2), this act occurs as soon as the application, whether in writing or otherwise, is received by the competent authority.

(e)           By Article 21(1):

" Where a Member State with which an application for international protection has been lodged considers that another Member State is responsible for examining the application, it may, as quickly as possible and in any event within three months of the date on which the application was lodged ...... request that other Member State to take charge of the applicant."

[Emphasis added.]

The responsible Member State shall be the first in circumstances where it has not made a take charge request of the second within the aforementioned time limits.

(f)             Article 22(1) provides that where a "take charge" request is made, the "requested Member State" shall make the necessary checks and give a decision on the request " within two months of receipt".

(g)           By Article 29, where the requested Member State agrees to take charge of the person concerned, there shall be consultation between the Member States concerned and the ensuing transfer shall be effected " as soon as practically possible and at the latest within six months of acceptance of the request ...." This is accompanied by a series of procedural, humanitarian and default provisions.

(a)           By Article 4 there is a duty to provide every applicant with specified information, including " the criteria for determining the Member State responsible, the hierarchy of such criteria... " and the objectives of the Dublin Regulation.

(b)           There must be a personal interview of the applicant: Article 5(1).

(c)            Such interview must " allow the proper understanding of the information supplied to the applicant in accordance with Article 4": ditto.

(d)          The interview must be conducted in a language understood by the applicant, with the facility of an interpreter where required: Article 5(4).

(e)        The interviewer must be a qualified person: Article 5(5).

(f)             A written summary of the interview containing " at least the main information supplied by the applicant" must be provided to the applicant and/or his legal or other representative: Article 5(6).

(g)           " In assessing the best interests of the child, Member States shall closely co-operate with each other and shall, in particular, take due account of the following factors:

(a)   Family reunification possibilities;

(b)   The minor's wellbeing and social development;

(c)   Safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking.

(d) The views of the minor, in accordance with his or her age and maturity."

Per Article 6(3)

(h)           Per Article 6(4):

" For the purpose of applying Article 8, the Member State where the unaccompanied minor lodged an application for international protection shall, as soon as possible, take appropriate action to identify the family members, siblings or relatives of the unaccompanied minor on the territory of Member States, whilst protecting the best interests of the child".

The exchange of relevant information between Member States shall be in a specially devised form: Article 6(5).

(i)             Every child applicant must have a representative with suitable qualifications and expertise: Article 6(2).

The Commission's Implementing Regulation

" ...... must be clearly defined so as to facilitate co-operation between the authorities of the Member States .... as regards the transmission and processing of requests for the purpose of taking charge and taking back, requests for information and the carrying out of transfers."

The Dublin procedural safeguards and protections are supplemented in the following provisions in particular:

(a)           Take charge requests shall be made in the standard form provided: Article 1. They must include all appropriate evidence.

(b)           The consideration of take charge requests by the requested Member State must be undertaken "... exhaustively and objectively, on the basis of all information directly or indirectly available to it ...": Article 3.

(c)            Every decision refusing a take charge request " ... shall state full and detailed reasons": Article 5.

(d)          In certain defined situations decisions concerning children must observe the heightened standards enshrined in Article 12, including the presence of a qualified representative at the personal interview held under Article 5 of Dublin III.

(e)           Requests replies and all written correspondence between Member States shall be via the 'DubliNet' electronic communications network: Article 15.

(f)             A laissez-passer for the purposes of transfer is acceptable: Article 22.

(g)           The " elements of proof and circumstantial evidence" mentioned in Article 22(2) of Dublin, for the purpose of establishing the responsible Member State, shall be included in every take charge request, having regard to the broad range of types of "probative evidence" and "indicative evidence" specified in Annex II: Article 1(1)(a).

Article 8 ECHR: Substantive Protection

" ... has failed to strike a fair balance between the applicant's interests on the one hand and its own interest in controlling immigration on the other."

" The Court ..... reiterates that the Belgium State had positive obligations in the instant case, including an obligation to take care of the second applicant and to facilitate the applicants' reunification. By deporting the second applicant, the Court did not assist their reunification. Nor did they ensure that the second applicant would in fact be looked after in [the DRC] . In these circumstances, the Court considers that the Belgium State failed to comply with its positive obligations and interfered with the applicants' rights to respect for their family life to a disproportionate degree."

To summarise, the main features of this case were those of pre-existing family life between the separated persons concerned, an unaccompanied minor, special vulnerability and a positive obligation to facilitate family reunification.

The CRC and GC14

(i) confirms the central importance of a child's right to family unity including in situations where children are separated from family members as a result of migration [58], [59], [60] and [ 66];

(ii) states that where children are defending their interest in court proceedings confirming family reunification, the courts must provide for the best interests to be considered in all situations and decisions, whether of a procedural or substantive nature and must demonstrate that they have done so: [29];

(iii) recognises the particular vulnerability of asylum seeking children, with the attendant requirement that their particular vulnerability informs the best interests assessment: [75] - [76]. This recognition is consistent with the case-law of the Grand Chamber of the Strasbourg court which has held that " The requirement of "special protection" of asylum seekers is particularly important where the persons concerned are children, in view of their specific needs and their extreme vulnerability" and stressed the importance of ensuring that reception conditions for child asylum seekers must not " create... for them a situation of stress and anxiety, with particularly traumatic consequences": see Tarakhel at [119];

(iv) confirms that where when a "best interests determination" is made "strict procedural safeguards" apply: [46]; and

(v) emphasises that facts and information relevant to a particular case must be obtained in order to draw up all elements necessary for a best interests assessment, an exercise which could include interviewing relevant persons: [92].

" Moreover, the authorities do not suggest that, event in what Mr Eadie described as the 'initial procedural stages', there is an absolute rule that the determination of the responsible Member State must be by the operation of the Dublin Process and Procedures in the Member State in which the individual is present."

And developing this theme at [84]:

"The interview is a critical part of the procedure for determining asylum decisions. It provides the applicant with an opportunity to expand on or explain his written account and for the respondent, through the interviewing officer, to test that account and explore any apparent inconsistencies in that account. The interview could well be critical to any determination by either the respondent or appellate authorities as to the credibility of the applicant. The record of the interview is created by the interviewing officer, who is acting on behalf of the respondent. It follows that fairness requires that the procedure should give to the applicant an adequate opportunity to challenge its reliability or adequacy."

"So long as the Secretary of State continues with the practice of relying upon a written record of the interview in its present form, the applicant must have an adequate means of ensuring that the record is, as we have said, both adequate and reliable".

Next, attention is directed to the variable factors of the skills and qualifications of the interpreter and the quality of the transcription by the Interviewing Officer, together with the factor of digest, or summary. The court emphasised the vital importance of providing a tape recording of such interviews. While the context under consideration in Dirshe does not mirror precisely that of the present case the general tenor of the judgment and the procedural concerns identified apply with a degree of modification and resonate in the present litigation context.

"... There will be a wide range of relevant considerations for the decision maker to take into account: see all the factors that the UT stated where relevant to the assessment of proportionality. That subject to the effective scope of judicial review being narrower for this reason, the exercise by the Secretary of State of her discretion is subject to the ordinary public law principles of propriety of purpose, relevancy of considerations and the long stop Wednesbury unreasonableness category .... and, because of the engagement of Article 8 of the European Convention, the intensity of review which is appropriate in the assessment of the proportionality of any interference with Article 8 rights."

Even if it were appropriate to hold that the Dublin Regulation did not apply, in whole or in part, to the expedited process it is difficult to identify any principled basis for concluding that this process was in some way immune from the orthodox duty of every United Kingdom public authority to comply with the common law principles and standards considered above. The unseen companion of the Secretary of State's officials in their journey across the Channel to 73 outposts in France and thereafter was the omnipresent common law.

Specific Issues

The Contours of AM's Challenge

"All of these cases have one feature in common namely that fresh evidence has been generated. Broadly the fresh evidence takes the form of a series of witness statements and expert reports. None of this fresh evidence has been considered by the Secretary of State other than in the somewhat cursory fashion disclosed in the witness statements of Ms Farman. It is common case that these do not purport to contain or amount to a new decision, a reviewed decision or a reconsidered decision. This is based on the Secretary of State's unremitting position which is that fresh decisions will not be made voluntarily in any of these cases. This position is justified on the basis of the contention that the expedited process was of the "one off" variety and that all of the new evidence belongs exclusively to the framework of the Dublin Regulation process and, accordingly, can only be deployed within that process. Thus, it is argued, all new evidence belongs solely to a Dublin Regulation application for asylum to the French authorities."

The ruling and its underpinning reasoning are set forth in [9] - [10]:

"[9] The following analysis arises irresistibly from the nature of the challenge that is brought in each of these cases. These are individual rights challenges. They are founded fundamentally on Article 8 of the Human Rights Convention. They base themselves on the principles which were espoused by this Tribunal in ZAT And Others and approved and developed by the Court of Appeal. The decision in ZAT makes clear that in certain circumstances Article 8 provides the appropriate legal vehicle for securing admission to the United Kingdom and it does so outwith and apart from the regime of the Dublin Regulation. Whether any of these Applicants ultimately succeeds in making good their claim in this fashion does not arise at this stage.

[10] Once one applies that analysis the unsustainability of the Secretary of State's position becomes clear. The decision which the Secretary of State is obliged to make must be viewed through that lens. It is based on duty. First of all it is the ordinary public law duty of a public authority invested with relevant decision making powers and discretions to make a decision when reasonably required to do so. Second, it is based on section 6 of the Human Rights Act, which applies directly to the Secretary of State in this Article 8 context. It would be manifestly incompatible with the Convention rights of the Applicants if the Secretary of State were simply to refuse to assess the merits of a human rights claim at all ."

For essentially technical reasons, the parties' representatives believed that this order did not encompass the present case, as permission had already been granted. The order did indeed expressly apply to this case also. In any event, our observation in [81] is unaffected.

The Expedited Process Considered

The Respondent's Duties of Candour and Disclosure

(a)           Transfer to the United Kingdom under the criteria of Article 8 of Dublin.

(b)           Transfer to the United Kingdom under section 67.

(c)            Non-transfer to the United Kingdom.

"Member States shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this treaty or resulting from acts taken by the institutions of the Community. They shall facilitate the achievement of the Community's tasks. "

.

" 'Application' or 'application for asylum' means an application made by a third country national or stateless person which can be understood as a request for international protection from a Member State under the Geneva convention."

By Article 6(1):

" Member States may require that applications for asylum be made in person and/or at a designated place."

The remainder of Article 6 contains certain kindred provisions envisaging the potential for national legislation of the procedural kind.

(i) By failing to give full effect to the Dublin Regulation and its sister measure, the Secretary of State acted unlawfully.

(ii) AM was in consequence unlawfully deprived of a series of procedural safeguards and protections.

(iii) AM's subsequent quest for admission to the United Kingdom under Article 8 ECHR cannot be defeated on the basis that he did not first attempt to secure the same outcome under the formal processes of the Dublin regime.

It follows that the Applicant has established the foundations for the grant of a remedy in these proceedings.

Procedural Fairness: Issues and Conclusions

" The expedited process was an exceptional short-term measure ... a reasonable and rational measure for the SSHD to adopt ...

The expedited process, involving an assessment of the claimed family link, was designed to enable the expedited processing and transfer of children who would otherwise be eligible to have their asylum claims transferred to the UK under Dublin III, Article 8 in the exceptional circumstances pertaining to the Camp closure and the dispersal of the children to 73 [reception centres] across France."

It was not disputed by the Secretary of State that the expedited process had to be procedurally fair. Furthermore, many of the procedural deficiencies asserted on behalf of this Applicant (and the others) were not challenged. We add parenthetically that they could not conceivably have been challenged, the conduct of the interviews being a paradigm illustration. The argument advanced was that the procedure was fair in the context to which it belonged. The twin pillars of this argument were inter-related, namely the prevailing humanitarian challenge and the need for quick decision making.

The Outworkings of the Above Conclusions

Remedy

(i) An Order quashing the Secretary of State's initial decision whereby the transfer of AM from France to the United Kingdom in November/December 2016 was refused.

(ii) A declaration that the aforementioned decision and the Secretary of State's continuing refusal to admit AM to the United Kingdom are unlawful being in breach of the Dublin Regulation and its sister measure and/or the procedural dimension of Article 8 ECHR and/or the common law requirements of procedural fairness.

(iii) An Order requiring the Secretary of State:

(a)    to forthwith make all necessary and immediate arrangements for the transfer of AM from France to the United Kingdom, using best endeavours at all times and not later than midnight on 22 May 2017; and

(b)    to begin forthwith a fresh decision making process in AM's case, to be completed by the same deadline.

(iv) There shall be liberty to apply.

Costs

Permission To appeal

Signed:

The Honourable Mr Justice McCloskey

President of the Upper Tribunal

Immigration and Asylum Chamber

Dated: 19 May 2017

APPENDIX 1

Upper Tribunal

Immigration and Asylum Chamber

Judicial Review

Notice of Decision/Order/Directions

The Queen on the application of AO and AM

Applicants

v

Secretary of State for the Home Department

Respondent

Before the Honourable Mr Justice McCloskey, President

Having heard Mr P Reynolds, of counsel, instructed on behalf of the Respondent, the moving party, by the Government Legal Department and Mr M Fordham QC and Miss C Kilroy and Miss M Knorr, both of counsel, instructed by Bhatt Murphy Solicitors on behalf of the Applicants

DECISION ON STAY

McCLOSKEY J

Introduction

(1)            This decision determines the applications made by the Respondent, the Secretary of State for the Home Department (the " Secretary of State"), for a stay of both sets of proceedings. The relief pursued is framed in the following terms:

" An order that this claim be stayed along with all other related proceedings behind the Administrative Court case of Citizens UK v SSHD (CO/5255/2016) as the issues in dispute are the same ...."

The following order is sought in the alternative:

" ... as an alternative that the Tribunal transfer this claim and all other claims raising the same issue to the Administrative Court so that all related claims can be case managed appropriately with reference to the overriding objective."

It may be observed that this alternative form of relief rather faded away in both the oral and written submissions of Mr Reynolds.

(2)           The background to the lodging of these stay applications included certain inter-partes correspondence which was brought to the attention of the Tribunal. This was prompted by the awareness of the Secretary of State's legal representatives that the initiation of these two claims in the Tribunal, together with others, was imminent. This correspondence became the initial vehicle for the Secretary of State's contention that all proceedings of a certain kind commenced in the Upper Tribunal should be stayed pending determination of the Citizens UK v SSHD (hereinafter "CUK") litigation in the Administrative Court.

(3)            By letter dated 17 ^th March 2017, written under my direction, the Upper Tribunal wrote to the lawyers concerned to the following effect:

(a)           UTIAC is a creature of statute and exercises no inherent jurisdiction. Its powers are contained in a combination of primary and secondary legislation. UTIAC is unaware of any power to order a stay in respect of any claim which has not been issued in this Chamber.

(b)           The parties' representatives were invited to identify the two cases most suitable for the determination of stay applications by the Secretary of State, "suitability" in this context embodying the various ingredients in the overriding objective.

(c)            A timetable was directed.

These twin applications have materialised in consequence.

Citizens UK v SSHD

(4)            This is a judicial review claim brought by a registered charity in the Administrative Court. Procedurally, these proceedings have the following landmarks:

(a)           The claim was initiated on 14 October 2016.

(b)           On 28 ^th October 2016 permission to apply for judicial review was refused by a paper decision.

(c)            The Claimant's grounds were amended on 18 January 2017.

(d)          On 28 February 2017 an oral permission hearing was held, giving rise to an order granting permission to apply for judicial review and directing that an expedited substantive hearing be held on 23/24 May 2017.

(5)            The favour and essence of this judicial review claim is captured in the following passages extracted from the amended grounds:

" 1. This anxious, urgent and compelling case arises out of the British/French partnership in dealing with asylum seekers at a notorious refugee settlement in Calais known as the 'Jungle' ....

2. The .... destruction of the jungle camp and dispersal of its inhabitants .... have very serious implications for the welfare and safety of particularly vulnerable asylum seeking children, many of them with rights of speedy facilitated passage to the United Kingdom ....

4. .... A large number of children wishing to come to the United Kingdom (the 'dispersed children') were eventually dispersed on coaches to centres (CAOMIEs) across France with the promise that their requests to enter the United Kingdom either under Section 67 of the Immigration Act .... or under ... Dublin III would be considered by the Defendant's officials ....

The expedited process which was implemented by the Defendant in accordance with that promise has drawn to a close and yet hundreds of dispersed children remain in the CAOMIEs, many of whom have outstanding family reunification claims which have not been properly considered by the Defendant. "

(6)            Continuing, the grounds draw particular attention to a joint United Kingdom/French policy, namely "Managing Migratory Flows in Calais: joint declaration on UK/French co-operation", dated 20 August 2016 (the " Joint Declaration"). The Claimant's case is that arising out of the Joint Declaration the Secretary of State is subject to a series of legal obligations ("the Obligations"), namely:

(i)             To identify all children in the camp, in particular unaccompanied children and to assess their eligibility for transfer to the United Kingdom;

(ii)          To provide the children with full and accurate information about the Dublin III regime, including the family reunification provisions and the associated available arrangements.

(iii)        To ensure that the children have safe accommodation allowing easy access to the arrangements.

(iv)        To ensure that safe accommodation does not remove the children further away from the support network of those agencies and representatives who have been facilitating family reunification.

The grounds canvass also the duty of investigation and the duty of providing adequate and intelligible reasons for decisions. It is contended that these duties fall to be calibrated and discharged in the context of Dublin III, the EU Charter of Fundamental Rights, the Human Rights Act 1998 and the Convention on the Rights of the Child 1989. There is also a discernible orthodox public law overlay.

(7)            CUK contends that there is powerful evidence demonstrating a failure by the Secretary of State to discharge the aforementioned duties. In this context I highlight certain further passages in the grounds:

"25. The Claimant's position is that any act of disregard and default of the Obligations would not only be unlawful but a matter of grave concern. Judicial review is a last resort. But it serves to secure accountability for relevant acts and omissions of the Defendant having had the Obligations squarely brought to her attention ...

These obligations, which arise in the context of a long standing failure by the Defendant and the French authorities to identify and protect children in the Jungle in Calais, provide them with information about their rights and set up a functioning system to allow them to access rights to family reunification in the United Kingdom

...

The dispersed children now face a further disruption and dispersal from CAOMIEs due to close their doors, in some cases before the expedited process has concluded and in all cases before the dispersed children have completed Dublin III family reunification procedures. Having established the expedited process on French soil with the support and co-operation of the French authorities, the Defendant has an additional obligation arising out of common law principles concerning access to justice ..... and rights to procedure fairness under Article 8 ECHR ..... to take all steps open to her to ensure that further dispersal from the CAOMIEs does not interrupt access to that process and in particular to any remedies available to dispersed children in respect of the operation of that process. Access to legal remedies includes access to NGOs and other representatives who may be able to facilitate the provision of UK based legal advice to dispersed children and their families .... "

CUK is, therefore, challenging a series of acts and omissions on the part of the Secretary of State. This is reflected in the formulation of the "decision to be judicially reviewed" in the Claim Form:

"The failure and refusal to recognise and comply with the legal obligations identified in the letter before claim .... ( which required a response by 11 October 2016)".

Finally, I draw attention to the remedies claimed: these are purely declaratory, seeking confirmation that the Secretary of State was subject to the "Obligations" and that there has been an unlawful failure to discharge same.

These Two Claims

(8)            These two claims, together with five others, were lodged in the Upper Tribunal during week commencing 13 March 2017. Factually they are of course quite different. However, in substance they share much common ground. The Applicant AO challenges the following:

" Failure to transfer [him] to the UK in accordance with his substantive Dublin III rights and his Article 8 rights .... refusal/failure to act since 16 December 2016 and ongoing and including decision of 09 March 2017."

The relief pursued is:

(i)             A mandatory order requiring the Secretary of State to admit the Applicant to the UK forthwith.

(ii)          An Order quashing the Secretary of State's decision to refuse to transfer the Applicant to the UK under her expedited Dublin III process.

(iii)        A declaration that the Secretary of State has failed in her duties to properly investigate the Applicants' claim and has acted unlawfully.

Both the focus of the legal challenge and the remedies pursued are the same in the two cases. Furthermore, both Applicants have applied for anonymity, interim relief and expedition.

(9)            Based on what is pleaded, the Applicant AO was an unaccompanied minor during the greater part of the events forming the background to his claim. His 18 ^th birthday occurred on 08 March 2017. He is of Eritrean nationality, fled his country of origin some two years ago and has been seeking to join his brother, AMO, who has refugee status and resides in the United Kingdom. His case is described as " very compelling and extremely urgent". Evidentially, it is supported by, inter alia, the report of a consultant psychiatrist which diagnoses post-traumatic stress disorder, contains the assessment that the Applicant is " ... close to the limit of what he could bear in terms of flashbacks, anxiety, feeling unsafe and sleep deprivation" and advises that:

" .... further delay due to legal processes is therefore not at all in [the Applicant's] best interests and may lead to further re-traumatisation and irreversible damage to his mental health."

Within this expert testimony one also finds the phrases "extremely distressing" and " detrimentally affecting his mental state".

(10)        It is averred that this Applicant was identified as a child eligible for consideration under the Secretary of State's expedited Dublin III Process, was interviewed accordingly and provided evidence about his brother in the United Kingdom, culminating in the notification to him from French officials that, in common with the other children remaining in the CAOMI in question, the Secretary of State had refused transfer to the United Kingdom, without adequate particulars, elaboration or reasons. This appears to have been followed by an unsuccessful review application.

(11)             Most recently, a response to the pre-action letter dated 09 March 2017 indicates the following: the Applicant was assessed in the expedited Dublin process; he was not accepted initially because further investigations regard his brother were necessary; this issue has now been resolved; the Secretary of State has asked the French authorities to submit a take charge request under Dublin III; and any further evidence supporting the Applicant's asserted relationship with his brother should be provided to the French authorities. The most recent evidence indicates that a stalemate continues.

(12)             The case of the other Applicant, AM, has certain similarities. AM is an unaccompanied and orphaned national of Eritrea, aged 16 years, who aspires to join his uncle, a recognised refugee living in the United Kingdom. He has been diagnosed as suffering from a major depressive disorder and post-traumatic stress disorder symptoms. The expert in his case advises that he -

"... is severely struggling with the delay in being reunited with his uncle ....

He is suffering from psychiatric disorder, which is being exacerbated by his current situation where he feels subjectively unsafe ...

I do no believe that psychiatric or psychological treatment in France will improve his state, in fact I would not recommend this at all as it would be likely to destabilise him further. He is at risk of becoming increasingly suicidal if prompt reunification does no occur as his mental state will deteriorate further."

In common with the other Applicant, AM was admitted to the expedited Dublin Regulation process, he was escorted from the now demolished "jungle" in Calais to a "CAOMIE" and was interviewed, following which he was informed that he had been refused transfer to the United Kingdom on the ground of "family link not accepted". This phrase is, evidently, a pro-forma or ("boilerplate") belonging to a spreadsheet mechanism.

The Stay Applications

(13)        The kernel of these stay applications is ascertainable from the witness statement of the GLD senior lawyer grounding these applications. This contains the following material averments:

" 4. The SSHD considers it would be appropriate for these claims to be stayed behind the Citizen's UK Claim as the issues raised in both these claims (and indeed the various other related claims issued in the Upper Tribunal) are in essence identical ....

15. .... As the Tribunal is aware, seven [individual] claims have been issued ....

21. While .... the Citizens UK claim is a systematic [systemic?] challenge and these proceedings in the Upper Tribunal and related matters are all brought in respect of individuals .....

all of the points they raise in this claim are also in issue in the Citizens UK Claim ....

24. I acknowledge and appreciate that the Applicant in this claim and indeed all the other claims will point to the fact that the Applicants are unaccompanied asylum seeking minors who wish to be reunited with their family after a difficult and traumatic journey to Europe. I also recognise that the Applicants have adduced psychiatric evidence as to their condition. The SSHD does appreciate that it is important that the Applicants' position is resolved quickly, however she would suggest that this factor while important cannot outweigh other equally as pressing consideration such as the need for appropriate case management. Further while the legal claims may be stayed this does not mean of course that the Applicants cannot proceed with claiming asylum in France and pressing for a take charge request to be made.

25. Further these individuals have recourse to assistance in France if they are willing to accept it including presumably to medical care ..... AM is being supported by the French authorities .... and he is being assisted to register an asylum claim in France .....

26. In the case of AO, he has elected not to claim asylum in France which is why he may become homeless. The SSHD has made clear that she will very likely accept a take charge request ....

The Applicants contend that the children put through the expedited process were selected precisely because they were considered to require expedition. This is not correct ..... They were selected simply because they had been formerly resident in Calais and the camp had now closed and the SSHD was trying to process large numbers of children quickly. "

Continuing, the deponent advances " two important reasons which militate very heavily in favour of a stay" namely:

(a)                the need for judicial certainty; and

(b)               the conservation of limited judicial resources.

It is further suggested that a stay is " the most sensible way of proceeding". Finally, the witness statement ends with the following plea:

" 36. The SSHD is complying with the procedural timetable in both these claims. She is due to file her detailed grounds and any evidence by 12 April 2017 in the Help Refugees claim. In addition she faces these claims in the Tribunal and also will likely be commencing appeal proceedings in the Court of Appeal in the RSM case with which the Tribunal is very familiar".

39. The SSHD recognises that for these claims to be properly considered the Tribunal requires her to fully particularise her defence and to submit evidence substantiating her case. It will however simply be impossible for the SSHD to provide the Tribunal with this level of assistance in this case and other related Upper Tribunal matters at the same time as defending the Help Refugees and Citizens UK claims. "

(14)        The submissions of Mr Reynolds on behalf of the Secretary of State developed the main passages in the solicitor's witness statement. They had, inevitably, a heavy focus on the CUK litigation and entailed drawing to my attention the nine "case studies" which formed part of the evidence in those proceedings. One of these (No. 9) relates to the Applicant AM. The thrust of Mr Reynolds' argument was that these two cases "raise fundamentally the same points of law" as CUK "in the same material factual circumstances". Mr Reynolds also questioned the asserted urgency of these cases. Finally, in response to a question from the Bench, he confirmed that in the CUK litigation the Secretary of State is on schedule to comply with the requirement to file all evidence by 04 April 2017 and, further, that this is expected to include witness statements from the officials who interacted directly with some of the "case study" children.

The Applicants' Riposte

(15)        The interlocking elements of the arguments canvassed on behalf of the Applicants included the following in particular: the submissions on behalf of the Secretary of State acknowledged that the CUK challenge will not delve into the facts of individual cases; whereas CUK is a systemic challenge, these two challenges are individualised; there is nothing unprecedented about parallel human rights cases proceeding; reliance on the ZS decision provides no reliable guide to the proper determination of these applications; and, ultimately, the challenges of these two Applicants will be determined by reference to the various touchstones identified in ZAT and Others, in particular the implications of the Applicants having pursued unsuccessfully the expedited process in France, the consequential inapplicability of the "exceptional circumstances" test, the factor of intense review and reliance on many of the proportionality factors endorsed in [37] of the Court of Appeal's judgment. Mr Fordham QC also reminded the Tribunal of the decisions in MK at [26] and [36] (duty of enquiry) and RSM, at [43] (the interaction between Articles 8 and 17 of the Dublin Regulation).

(16)        I have also considered in full the informal "pleading" on behalf of the Applicants which was compiled and provided to the Tribunal during the pre-litigation phase outlined in [2] - [3] above. This emphasises, inter alia, the Tribunal's duty under Section 6 of the Human Rights Act 1998, the need to treat the best interests of the younger Applicant as a primary consideration, the impact of Article 8 ECHR on the factual frameworks advanced and the compelling necessity for swift judicial adjudication. In this context Mr Fordham drew attention to the irony that a stay order precipitated by a generic claim brought by a charity seeking clarification of the law in this sphere could stimulate substantial delays in determining these two claims and the others belonging to the cohort.

(17)        Finally, my attention was drawn to United Nations General Comment No, 14 (2013), paragraphs 25-29 especially, which contain the following salient passage:

"The courts must provide for the best interests of the child to be considered in all such situations and decisions, whether of a procedural or substantive nature, and must demonstrate that they have effectively done so."

In this context I was invited to consider the interesting analysis in "Using International Law In Domestic Courts (Fatima), paragraph 11.12:

"The exercise of discretion by courts is characterised by a consistent recognition of, and respect for, upholding the United Kingdom's treaty obligations, including those that are incorporated as a matter of domestic law. This is seen particularly clearly where judicial discretion is exercised regarding the grant or maintenance of injunctions and interim injunctions."

The Governing Principles

(18)       I begin with two propositions which I consider uncontroversial. First, the decision whether to stay proceedings in any forum and, if so, on what terms involves the exercise of a relatively broad - though not of course unfettered - judicial discretion. Second, the most important factors influencing the exercise of this discretion will normally - though not invariably - be found in the multi-faceted overriding objective.

(19)       The issue of jurisdiction is uncomplicated. Section 49(3) of the Supreme Court Act 1981 provides:

" Nothing in this Act shall affect the power of the Court of Appeal or the High Court to stay any proceedings before it, where it thinks fit to do so, either of its own motion or on the application of any person, whether or not a party to the proceedings."

[My emphasis.]

By section 25(1)(a) of the Tribunals, Courts and Enforcement Act 2007:

" In relation to the matters mentioned in (2), the Upper Tribunal .... has .... the same powers, rights, privileges and authority as the High Court .

The matters are:

(a)   The attendance and examination of witnesses,

(b)   The production and inspection of documents and

(c)   All other matters incidental to the Upper Tribunal's functions. "

Section 25(3) provides:

" Subsection (1) shall not be taken -

(a)   To limit any power to make Tribunal procedure rules,

(b)   To be limited by anything in Tribunal procedure rules other than an express limitation. "

Rule 5 of the Tribunal Procedure (Upper Tribunal) Rules 2008, under the rubric "Case Management Powers", provides:

" Subject to the provisions of the 2007 Act and any other enactment, the Upper Tribunal may regular its own procedure."

By Rule 5(2):

" The Upper Tribunal may give a direction in relation to the conduct or disposal of proceedings at any time, including a direction amending, suspending or setting aside an earlier direction."

This is followed by Rule 5(3):

" In particular, and without restricting the general powers in paragraphs (1) and (2), the Upper Tribunal may .....

(j) Stay ..... proceedings ..... "

[My emphasis]

By the route charted above, the power of the Upper Tribunal to order a stay of proceedings is not in doubt.