Jo Moore has been successful in a case before the Court of Appeal concerning the relationship between EU law and Article 8 of the ECHR in international protection determinations.
The Respondents lodged asylum claims in France, following which, and pursuant to the Dublin III Regulation in force at the time, a ‘take charge request’ was made to the UK, where the Respondents wished to join their older brother. The UK did not respond within the two-month time limit, however the Respondents were transferred to the UK within 7 months of the initial requests.
The Appellant, the SSHD, appealed against the decision of the Upper Tribunal which had found that the UK’s failure to take charge within 2 months and a number of other errors amounted to a breach of Article 8 and of the Dublin III Regulation, giving rise to damages.
The Court of Appeal unanimously allowed the appeal. It held that the only sanction for failure to respond to a request within two months was that provided by Dublin III, the automatic transfer of responsibility to the receiving state. Transfer took place within the overall 8 month period, therefore there was no breach of Dublin III.
The Court held that as Dublin III does not mirror the obligations imposed by Article 8, it could not be said that a breach of the former, even if established, would ipso facto amount to a breach of the latter. Where a family reunion claim is made to which Dublin III applies, an unaccompanied minor can only rely on Article 8 to supplement or increase their rights against the receiving state in very exceptional circumstances. Further, in such cases, Article 8 can impose at most a positive obligation on the receiving state, and not one engaging the ‘in accordance with the law’ requirement of Article 8(2). Any positive obligation, if established, had been complied with on the facts.
Jo Moore was led by Rory Dunlop QC in this matter and a link to the judgment can be found here.
