RSM (A Child), R. (On the Application of v The Secretary of State for the Home Department

RSM (A Child), R. (On the Application of v The Secretary of State for the Home Department

Article 17.1 of Dublin III does not require the Secretary of State to exercise discretion to admit an asylum seeker not present in the UK; discretion is only engaged when an application is lodged within the UK. Ministerial statements do not create enforceable obligations. Article 8 ECHR is not violated absent evidence of systemic failure or compelling circumstances. The Upper Tribunal's mandatory order was inappropriate and too imprecise.

Parties
Claimant/respondent: The Queen (on the application of RSM, a child by his Litigation Friend ZAM); Claimant/respondent: The Queen (on the application of ZAM); Defendant/appellant: The Secretary of State for the Home Department
Jurisdiction
England and Wales
Judgment Date
18 January 2018
Procedural Posture
Appeal / Judgment on Appeal From Upper Tribunal (immigration and Asylum Chamber)
Outcome
Appeal allowed; Upper Tribunal's order set aside.
Legal Topics
Asylum, Family Reunification, Judicial Review, Discretionary Powers, Best Interests of the Child, Dublin III Regulation, Article 8 ECHR
Immigration Law Public Law Human Rights Law European Union Law Asylum Family Reunification Judicial Review Discretionary Powers +3 more

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Parties

The Queen (on the application of RSM, a child by his Litigation Friend ZAM)

Claimant/respondent

The Queen (on the application of ZAM)

Claimant/respondent

The Secretary of State for the Home Department

Defendant/appellant

Procedural Posture

Appeal / Judgment on Appeal From Upper Tribunal (immigration and Asylum Chamber)

Legal Issues

  1. 1 Whether Article 17.1 of Dublin III requires the Secretary of State to proactively exercise discretion to admit an unaccompanied child asylum seeker not present in the UK
  2. 2 Whether ministerial statements and policies create enforceable legal obligations
  3. 3 Whether Article 8 ECHR is violated by delay or failure to admit the child

Ratio Decidendi

Article 17.1 of Dublin III does not require the Secretary of State to exercise discretion to admit an asylum seeker not present in the UK; discretion is only engaged when an application is lodged within the UK. Ministerial statements do not create enforceable obligations. Article 8 ECHR is not violated absent evidence of systemic failure or compelling circumstances. The Upper Tribunal's mandatory order was inappropriate and too imprecise.

Court Disposition

Appeal allowed; Upper Tribunal's order set aside.

Orders

  • No mandatory order for admission; matter not remitted for reconsideration as no discretion was available.
  • Declaration that Article 17.1 was not engaged as no application was lodged within the UK.