Immigration & Asylum Law JELIA SANE BARRISTER, DOUGHTY STREET CHAMBERS

Transcription

1 Immigration & Asylm Law JELIA SANE BARRISTER, DOUGHTY STREET CHAMBERS

2 IMMIGRATION AND ASYLUM LAW: CORE PRACTICE AREAS Asylm/Refgee Deportation Unlawfl detention Trafficking Nationality EEA Points Based System

3 IN FOCUS: LITIGATING THE EU REFUGEE CRISIS UNHCR and IOM estimate that: 65.6 million people prooted by violence/conflict/persection inclding 22.5 million refgees- 20 people forcibly displaced every minte. Erope: +1,000,000 (2015); + 390,000 (2016); + 185,000 (2017); 12,000 (2018). Nmber of asylm applications in the EU dobled between 2014 and 2015 High nmber of naccompanied minors Barriers to asylm: lack of access to information and legal advice; misinformation/pressre exerted by smgglers; fear and mistrst of athorities; sspicion and disbelief; delays in national systems; poor material reception conditions.

4 The Calais Jngle Formally dismantled October 2016 by French athorities 7000 adlt residents lone children evacated to reception centres across France where able to claim asylm Majority of residents were Afghan and Eritrean Very poor material conditions No effective access to asylm or family renification ( in the case of children, no mechanism for identification and protection)

5 ZAT v SSHD: THE LEGAL CHALLENGE 7 applicants from Syria- 3 naccompanied minors + 1 dependent in the Jngle and 3 relatives based in the UK Right to family renification nder Article 8(1) Dblin Reglation III [w]here the applicant is an naccompanied minor, the Member State responsible shall be that where a family member or sibling of the naccompanied minor is legally present, provided that is in the best interests of the minor. French Dblin process not working effectively for naccompanied minors in Calais: particlarities of the French asylm system- linked with the care system. Only 1 sccessfl transfer of an naccompanied minor between

6 ZAT v SSHD: THE LEGAL CHALLENGE Wrote to the Secretary of State: admit nder Article 8 ECHR (family life) withot waiting for a formal take charge reqest nder Dblin. Evidence Article 17 Dblin Article 8 ECHR: admission for the prposes of refgee family renification Refsal challenged by way of jdicial review in the Upper Tribnal: Dblin not effective in France Dblin does not exclde hman rights protection (ECHR) Best interests of the child, special obligation to facilitate renion of lone children Disproportionate interference with Article 8 ECHR

7 ZAT v SSHD: THE OUTCOME Upper Tribnal [2016] UKUT 61 (IAC) Legal test nder Article 8: is the interference proportionate? Dblin Reglation is a material consideration of ndeniable potency in the proportionality exercise sch that jdges will not lightly find that, in a given context Article 8 operates in a manner which permits circmvention of the Dblin Reglation procedres. However on the facts, balance in favor of admission: yong age; vlnerable mental state; adverse impact of prolonged separation; Ordered admission

8 Cort of Appeal [[2016] EWCA Civ 810 UT had placed insfficient weight on the importance of adhering to Dblin + too great a weight on the conditions in the Jngle An application for entry by an naccompanied child, withot first invoking the relevant Dblin III Reglation in France, can "only be jstified in an especially compelling case". This is only the case if it can be shown that the system of the Member State in qestion is not capable of responding adeqately to their needs and it wold generally be necessary for minors to institte the process in the contry in which they are in order to find ot and be able to show hat the system is not working in their case Cort conclded that had the especially compelling test been made, not clear that UT wold have reached the same findings and allowed appeal on that basis. No frther order made becase SSHD did not seek retrn of the 4 appellants.

9 Where are we now Jngle demolished in October 2016 Home Office expedited process for claims by naccompanied children nder Dblin III and s.67 Immigration Act (Dbs Amendment ) R (on the application of AO & AM) v Secretary of State for the Home Department [2017] UKUT 168 Citizens UK v SSHD [2017] EWHC 2301 (Admin) Help Refgees Limited v Secretary of State for the Home Department ([2017] EWHC 2727 (Admin

10