BAA & Anor, R (on the application of) v Secretary of State for the Home Department [2021] EWCA Civ 1428 (08 October 2021)

BAA & Anor, R (on the application of) v Secretary of State for the Home Department [2021] EWCA Civ 1428 (08 October 2021)

The SSHD's refusals of the TCR were unlawful on public law grounds, including breach of its own policy requiring referral to a local authority for assessment, and failure to properly investigate the best interests of the child. The relevant facts should have been known to the SSHD had it complied with its policy. The Upper Tribunal was correct to admit fresh evidence to determine the substantive human rights issues. Article 8 ECHR/Article 7 CFR cannot be used to supplement Dublin III rights except in very exceptional circumstances, but in this case, the SSHD's breaches were sufficient to justify the relief granted. The appeal was dismissed on all grounds.

Citation
[2021] EWCA Civ 1428
Parties
Claimants/respondents: THE QUEEN ON THE APPLICATION OF BAA & ANOR; Defendant/appellant: SECRETARY OF STATE FOR THE HOME DEPARTMENT
Jurisdiction
England and Wales
Judgment Date
08 October 2021
Procedural Posture
Appeal From Upper Tribunal (immigration and Asylum Chamber) Judicial Review / Court of Appeal Judgment
Outcome
Appeal dismissed
Legal Topics
Dublin III Regulation, Article 8 ECHR, Article 7 CFR, Judicial Review, Unaccompanied Asylum Seeking Minors, Family Reunion, Procedural Fairness, Public Law Breach
Immigration Law Human Rights Law European Union Law Administrative Law Dublin III Regulation Article 8 ECHR Article 7 CFR Judicial Review +4 more

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Parties

THE QUEEN ON THE APPLICATION OF BAA & ANOR

Claimants/respondents

SECRETARY OF STATE FOR THE HOME DEPARTMENT

Defendant/appellant

Procedural Posture

Appeal From Upper Tribunal (immigration and Asylum Chamber) Judicial Review / Court of Appeal Judgment

Legal Issues

  1. 1 Whether the SSHD's refusal of the take charge request (TCR) breached BAA's rights under Article 8 ECHR and Article 7 CFR
  2. 2 Whether the Upper Tribunal erred in relying on evidence not before the SSHD at the time of decision
  3. 3 Whether a higher threshold applies for Article 8/Article 7 breaches in Dublin III cases

Ratio Decidendi

The SSHD's refusals of the TCR were unlawful on public law grounds, including breach of its own policy requiring referral to a local authority for assessment, and failure to properly investigate the best interests of the child. The relevant facts should have been known to the SSHD had it complied with its policy. The Upper Tribunal was correct to admit fresh evidence to determine the substantive human rights issues. Article 8 ECHR/Article 7 CFR cannot be used to supplement Dublin III rights except in very exceptional circumstances, but in this case, the SSHD's breaches were sufficient to justify the relief granted. The appeal was dismissed on all grounds.

Court Disposition

Appeal dismissed

Orders

  • Declaration that SSHD's decisions breached Respondents' rights under Dublin III, Article 8 ECHR, and Article 7 CFR
  • Order quashing SSHD's decisions