Robert Kellar QC represented the Home Office successfully in Secretary of State for the Home Department v. FTH [2020] EWCA Civ 494. Judgment was handed down by the Court on 6 April 2020.
The case arose from the demolition of the Calais “jungle” in 2016 and the ‘expedited process’ put in place by the Home Office. The purpose of the process was to identify unaccompanied asylum seeking children (‘UASCs’) with relatives in the UK. Successful UASCs would be transferred to the UK to have their asylum applications processed. The issue before the Court was whether a child who had been dealt with unfairly under the process, as a matter of common law, was also entitled to obtain damages under Article 8 ECHR (family life).
The Court of Appeal held that a breach of the standards of common law fairness did not necessarily give rise to a breach of Article 8 ECHR. The Court held that the previous decision of the Court in AM v. Secretary of State for the Home Department [2018] EWCA Civ 1814 was not distinguishable. Applying that case, Article 8 would only be breached in very exceptional circumstances where it could be shown that the French legal system and the ordinary Dublin III process was incapable of providing an effective remedy to achieve family reunion. There was no basis for distinguishing the Respondent’s case from claimants in AM where the Court of Appeal held that this hurdle was not met.
