Abstract
The Court clarified that
according to Article 9 Where the applicant has a family member, regardless of whether the family was previously formed in the country of origin, who has been allowed to reside as a beneficiary of international protection in a Member State, that Member State shall be responsible for examining the application for international protection, provided that the persons concerned expressed their desire in writing.
The phrase "who has been allowed to reside as a beneficiary of international protection" in Article 9 of Dublin III is in effect the same as the phrase formerly used in paragraph 352D of the Immigration Rules and following ZN (Afghanistan) [2010] UKSC 21 at [35]. Acquisition of British citizenship by a family member does not alter the fact that he was in receipt of international protection and so article 9 would still apply.
Article 17.2 of Dublin III does not set any specific criteria, but the Dublin Regulations themselves and the CFR provided the general parameters within which decisions must be taken, albeit that the general provisions set out in articles 21 and 22 do not apply. There is, we accept, a wide discretion available to the respondent under the article, but it is not untrammelled, it is for the respondent to consider an application made under article 17.2 through the lens of article 7 CFR and/or article 8 ECHR, taking account also of the best interests of a child. That approach is consistent with the normative provisions in article 16 that where there are issues of dependency within a family life context, the family should be brought together.
The decision impugned in this case was one arising from the exercise of a discretion conferred on the respondent. On that basis, and following Padfield v Ministry of Agriculture, Fisheries and Food [1968] AC 997, a court should not compel any authority to do more than consider the exercise of a power which is merely permissive and does not impose an obligation to act.
The Court also raised the issue of the family legal definition citing: There is an issue identified during the hearing which, although it does not form part of our reasoning, merits further comment. We consider that the omission of spouses from article 16 of Dublin III is problematic. It is odd that the relationship between spouses should be omitted from the list of family relationships, yet those between siblings and between adult children and a parent are included, resulting in a definition of a "family" which is somewhat at odds with how it is usually understood. Arguably, that could give rise to arguments of inequality of treatment within the meaning of article 20 of the CFR, there being no apparent justification given for distinction of treatment. While we are aware of academic arguments that article 16 should be interpreted as applying to spouses [1], such arguments would almost inevitably require a preliminary reference to the European Court of Justice.
Country of Decision
United Kingdom
Court Name
UK: Upper Tribunal - Immigration and Asylum Chamber
Case Number
UKUT 297 (IAC)
Date of Decision
19/04/2018
Keywords
Dublin procedure
Refugee Protection