The MLP has worked, since 2015, on developing and implementing legal solutions to the issues that arose from the European ‘refugee crisis’. This has included work to reunite separated children and young people with family in the UK through Dublin III regulations, through strategic legal work and individual casework, as well as work with Citizens UK to challenge the government’s failure to take adequate steps to ensure that unaccompanied children who spent months living in the Jungle in Calais in 2016, and have now been dispersed to centres across France, are able to access their rights to join their families in the UK.
Many thousands of asylum seekers and migrants are scattered across Europe, living in terrible conditions, with poor sanitation, no shelter, uncertain access to food, and many of them are subjected to or are witnessing police brutality. Among these are a significant number of separated children who are vulnerable to exploitation, trafficking, and violence. Due to the dire conditions in the camp, and a lack of understanding of legal rights, compounded by a severe shortage of legal advice in the camp, many persist in their attempt to enter the UK clandestinely, risking their lives, to join close family members. Family members in the UK, whether in the process of claiming asylum, or having secured protection, are often desperate to be reunited with family members from whom they have been separated during arduous journeys from their country of origin.
Working with Citizens UK, and lawyers from Bhatt Murphy, Islington Law Centre, and barristers from Doughty Street and Blackstone Chambers, we were able to identify that many of those with family members in the UK have a right to join their relatives under Dublin III, the EU regulations which govern which states have responsibility for asylum claims made in the EU; in addition, they also have rights under the French and UK governments’ human rights obligations, including the need to take into account the best interests of children.
Citizens UK is challenging the government’s failure to take steps to protect these children’s rights prior to the demolition of the Jungle, and its continuing failure to deliver and operate an effective system under the Dublin III Regulation to facilitate the transfer of unaccompanied child refugees. In the days leading up to and following the demolition of the Calais camps in October 2016, the Home Office interviewed 1000 unaccompanied children to assess whether they should be given permission to join their families in the UK under family reunion criteria in EU Regulation Dublin III. The applications of 530 children were rejected but the Home Office provided little to no explanation as to the basis of the refusal, meaning very few children were able to challenge the decision. Many then went missing from the French centres in which they were living.
Citizens UK, represented by the MLP, secured a judgment in the Court of Appeal that showed that the government had misled the High Court over this issue. The judgment states that the High Court was given an ‘incomplete picture’ of the Home Office’s reasoning for not giving full reasons for the rejection of these young people’s applications to join their families. Furthermore, contrary to what the High Court was originally told, the French government wanted to give full reasons to the young people making the application, in order to ensure that they were able to appropriately appeal any decisions. The ruling states that the Home Office process for refusing to transfer the children was ‘unfair and unlawful,’ finding the failures in the process to be prejudicial to the children, who had no realistic prospect of challenging the rejections.
Public authorities have a duty of candour to provide the court with a full and accurate explanation of all the facts but we now know there was a serious breach of the duty of candour in this case, such that when making his ruling in the government’s favour, the High Court Judge was misled. It is extremely disturbing that these emails show the Home Secretary was advised by his own lawyers to act unfairly and unlawfully, in order to avoid legal challenges by the children concerned. This is in direct contravention of a fundamental tenant of fair decision-making, where reasons are often required precisely to allow the person against whom a decision is taken to know if they have a basis on which to challenge it. The Secretary of State should now launch an investigation into how all this came about, given that an unknown number of children have been denied the opportunity to know why their cases were rejected and whether these rejections could be challenged.
The full judgment can be found here.
The case was heard together with ‘AM & others’, and that judgment is available here.
ZAT – a first step to legal routes to family reunion for children and young people in camps in Europe
The MLP, together with Bhatt Murphy, acted for 3 children and 1 vulnerable adult trapped in the “Jungle” in Calais where the Upper Tribunal of the Immigration and Asylum Chamber allowed all four young people to travel to the UK and be reunited with relatives here.
From October 2015, we worked to identify children in the camps who have a right to be with family members in the UK, and liaise with those family members as well as developing our legal arguments. We worked to find out all possible routes for these children to make a claim to join their families in the UK, including what routes available in France. What we found was that, although, under the law, there is a clear right for this group to be reunited with family and removed from the atrocious conditions in the ‘Jungle’, there was no clear and accessible process to enable them to do so, and neither the French nor UK governments were willing to put one in place. This was a very considerable piece of work, involving working with French lawyers and a range of NGOs, coordinating the legal work in the UK, as well as building and maintaining trust with a number of very vulnerable young people in the camp.
The case was heard on 18th and 20th January 2016 with four Applicants; two represented by the MLP and two represented by Bhatt Murphy. Due to the urgent nature of the matter, a Mandatory Order was made on 20th January. The Order was that once the 4 Applicants in Calais or their lawyers had written to the French authorities that those Applicants were claiming asylum in France and provided confirmation of this to the Home Office then the Home Office had to allow the 4 Applicants to travel to the UK for the UK Home Office to decide their application that their asylum claims should be considered by the UK. While this judgment relates specifically to these cases, it may have significant repercussions for very many families in the UK with members trapped in terrible situations in camps across Europe.
MLP staff travelled to Calais immediately after the Order was handed down, and, on the 21st of January the young people were reunited with their families in London.
There has been significant coverage of this case, including anonymised interviews with the young people and their family members about what the judgment means to them; for more information, please see our press coverage page here.
ZAT Upper Tribunal judgment: 29th January 2016
The full judgment in the Calais case, concerning the right of 4 vulnerable, unaccompanied young people living in dire conditions in the Calais ‘jungle’ was handed down today and can be found here.
The judgment found that the terrible conditions in the ‘jungle’ had exacerbated the young people’s poor psychological conditions, which had already suffered as a result of their experiences in their country of origin. The likely delay of almost a year in current processes for family reunification under the Dublin Regulations would further increase the strain experienced by these young people. The court found that refusal to permit the swift entry of these four young people would interfere disproportionately with their right to family life.
The court also praised the work of volunteers in Calais, and of the lawyers in their work to find a way to enable these young people to be reunited with their families and to leave the appalling and dangerous conditions in which they had found themselves.
The four young people were represented by the MLP and Bhatt Murphy, together with counsel from Doughty Street and Blackstone Chambers, and were supported by Citizens UK volunteers and staff. The young people and their families have described their joy and gratitude at the ruling; coverage of their reactions, and other news related to the case, can be found here
The Home Office has been granted permission to appeal this judgment, and we will be looking carefully at next steps in this case, and in wider work around this issue.
ZAT Update: 2nd August 2016 – Court of Appeal judgment
The judgment in the Home Office’s appeal of ZAT in the Court of Appeal was handed down today. The appeal concerned the legal approach the Upper Tribunal took when deciding to order the admission of three Syrian children and one vulnerable adult to the UK to join family members on 21 January 2016, when they had not first applied for asylum in France and had not used the family reunion process in the Dublin III Regulation. In its Judgment the Court of Appeal did not accept the Secretary of State’s fresh evidence that there were no obstacles to children claiming asylum and family reunion in France. The Court also considered that in the light of the evidence submitted by the four individuals and their families about those obstacles and in the light of their psychiatric conditions it was understandable that the Tribunal had concluded that refusing to admit them until they had applied for asylum in France was a disproportionate interference with their Article 8 ECHR rights.
The Court of Appeal has upheld the Home Office’s appeal. However, the Court has not accepted the Secretary of State’s argument that the Tribunal’s decision was wrong on the facts before it. It has also rejected the suggestion that it will never be justified for individuals to bypass the Dublin III process in order to apply to the Secretary of State directly to join family members in the United Kingdom. It has, however, made clear that a high hurdle must be crossed before a court would conclude such an application would be justified. Lawyers representing individuals who wish to make such an application must show the system in the relevant Member State is not capable of responding adequately to their needs. They must also provide the Secretary of State with all the information she would have had if the Dublin III process or entry clearance process had been used.
The full approved judgment can be found here.