Background to the case
The MLP, together with Bhatt Murphy, recently 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.
There are currently several thousand people in the ‘Jungle’, 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. In 2015, it is known that 24 people died in these attempts, with many more injured. 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.
The MLP has been working to understand how to ameliorate this situation through strategic legal action. Working with Citizens UK, who have a presence in the camp, 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.
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.
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.
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.
Update: 28th February 2017
Citizens UK granted permission to bring legal action over Home Office’s failure to implement family reunification for unaccompanied refugee children in Europe
Citizens UK, represented by the MLP, was today granted permission to go to a full hearing in order 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.
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. The government’s failure has meant charities such as Citizens UK’s Safe Passage programme have been forced to do the government’s job by carrying out the necessary legal and logistical work.
The legal action points out a “longstanding failure by the defendant [Home Office] and the French authorities to identify and protect children” and claims that the “expedited” process instituted by the Government after the demolition of the Jungle camp to bring children with family members in the UK has been implemented in an arbitrary, unreasonable and unfair way. As a result over 400 children claiming to have family in the UK have received no proper decisions on their claims and are now stranded in France with minimal information about how to challenge the unfair decisions in their cases.
The grant of permission means a Court will for the first time examine the steps the UK government took to protect children in the Jungle with links to the UK, the lawfulness of the government’s expedited process and the efficacy of its implementation of the family reunification provisions of the Dublin III system in France. The court has ordered that the case be heard on an expedited basis.
A full press release can be found here.