The document summarizes recent litigation related to refugee children in Calais, Dunkirk, and the UK's response under the "Dubs amendment". It discusses the 2016 ZAT case, which found the UK's refusal to admit vulnerable refugee children from France violated their human rights. Subsequent cases addressed family reunification and the implementation of the Dubs amendment. Litigation continues over the UK government's interpretation of its duties and the number of children to be relocated from Europe under the amendment.

1. Calais, Dunkirk and Dubs: recent litigation for
refugee children
Ubah Dirie
udirie@36civil.co.uk

2. Dublin III Regulation
Calais, Dunkirk and Dubs: recent
litigation for refugee children
• Measure of European Parliament and Council, entered into operation in 1 January
2014
• Prescribes the criteria and mechanisms for determining the Member State
responsible for examining (in this context ‘examining’ means determining) an
application for international protection lodged in one of the MS’s by a third country
national or a stateless person.
• Essentially, the process established entails an initial application by the person
concerned to the competent authority of the EU MS where the person is present,
the consideration of such an application and an ensuing decision.

3. Dublin III Regulation
Calais, Dunkirk and Dubs: recent
litigation for refugee children
• The following provisions are of particular significance;
• Article 6 – best interests of the child are a primary consideration at all stages, due account shall be
taken of, inter alia, family reunification possibilities, minor’s wellbeing and social development and
safety and security considerations.
• Article 8 – the responsible MS in the case of UASC, is the State where the family member or sibling
of the minor is legally present (subject to the best interests criterion). Where it is established that a
relative legally present in another MS can take care of the unaccompanied child, unification will be
effected.
• Article 18 – the responsible MS shall take charge of an applicant who has lodged an application in a
different MS, under the conditions specified in Articles 21,22 and 29.
• Article 20(1) – ‘Start of the Procedure’, the process of determining the responsible MS begins as
soon as application for international protection is first lodged with one of the MS’s. As per 20(2), this
act occurs as soon as the application (whether in writing or otherwise is received by the competent
authority.

4. Dublin III Regulation
Calais, Dunkirk and Dubs: recent
litigation for refugee children
• Article 21(1) – ‘‘Where a Member State with which an application for international protection
has been lodged considers that another Member State is responsible for examining the
application, it may, as quickly as possible and in any event within three months of the
date on which the application was lodged ...... request that other Member State to take
charge of the applicant."
• Article 22(1) – where a "take charge" request is made, the "requested Member State" shall
make the necessary checks and give a decision on the request " within two months of receipt”
• Article 29 – where the requested Member State agrees to take charge of the person
concerned, there shall be consultation between the Member States concerned and the ensuing
transfer shall be effected " as soon as practically possible and at the latest within six
months of acceptance of the request ...." This is accompanied by a series of procedural,
humanitarian and default provisions

5. R (on the application of ZAT and Others) v Secretary of State for the Home
Department IJR [2016] UKUT 61 (IAC)

6. R (on the application of ZAT and Others) v Secretary of State
for the Home Department IJR [2016] UKUT 61 (IAC) Calais, Dunkirk and Dubs: recent
litigation for refugee children
• Judicial review before the UT
• No application for asylum in France was made by the Applicants, nor did they
challenge the conduct of the French authorities, instead they challenged the
decision of the SSHD to refuse to admit them to the UK.
• On the applicant’s case, they were not required to pursue their claims in France
because, in light of their vulnerable position and the considerable problems in
the French asylum process, the Dublin Regulation procedures did not provide
them with effective protection.

7. R (on the application of ZAT and Others) v Secretary of State
for the Home Department IJR [2016] UKUT 61 (IAC) Calais, Dunkirk and Dubs: recent
litigation for refugee children
• Key arguments
• The Applicant’s argued that the refusal of the Secretary of State for the Home Department
(SSHD) to admit them to the UK to be reunited pending the determination of the asylum
applications of the first four applicants amounted to a disproportionate interference with
their Article 8 ECHR right to family life. That Article 8 ECHR, in conjunction with Article 7
EUCFR, gave rise to a positive obligation on the SSHD to admit the first four applicants to
UK territory, relying in particular on Tuquablo Tekle v. The Netherlands and Mayeka and
Mitunga v. Belgium.
• The SSHD argued that no legal duty was owed to the applicants as they were unlawfully
present in France and had made no application for entry clearance to the UK. In addition,
they were not asylum seekers and had chosen not to make use of Dublin procedures,
which it considered to enshrine various safeguards that struck the Article 8 proportionality
balance.

8. R (on the application of ZAT and Others) v Secretary of State
for the Home Department IJR [2016] UKUT 61 (IAC) Calais, Dunkirk and Dubs: recent
litigation for refugee children
• Findings
• ‘‘Unlike other jungles, this place is inhabited by human beings, not animals.’’ (para 3)
• ‘‘the conditions prevailing in this desolate part of the earth are about as deplorable as
any citizen of the developed nations could imagine’’ (para 5)
• While there was not hierarchy between the Dublin III Regulations and the ECHR,
‘they may sometimes tug in different directions’; (para 50)
• It would take a strong case to essentially usurp the Dublin scheme;
• Nevertheless the UT were satisfied that the refusal to admit the applicants
constituted a disproportionate interference with their Article 8 rights, in light of their
vulnerability and because ‘the negative aspects of pursuing a full blown Dublin
Regulation claim in France would detrimentally affect’ them. (para 58)

9. R (on the application of ZAT and Others) v Secretary of State
for the Home Department IJR [2016] UKUT 61 (IAC) Calais, Dunkirk and Dubs: recent
litigation for refugee children
• Outcome
• Permission granted and successful substantive challenge
• Mandatory order – requiring admittance to UK once claim for asylum
submitted in France
• Admittance to UK on 21 January 2016

10. Implications
• The judgment is affirmation that the Dublin system of allocating responsibility is
dysfunctional. Attempts at making it more human rights compliant in its recast have
proven to be futile.
• The judgment is testament to the failings in the practical application of the Dublin criteria,
especially relating to family unity, and it confirms that Dublin’s operation either in the early
stages of a claim, or even before an application for asylum has been made, gives rise to
fundamental rights breaches.
• Reinforcing the importance of Convention rights, namely family unity, and their use as a
means to rectify the detrimental impact of Dublin on those seeking asylum, or intending to
do so, the judgment implicitly recognises that Dublin has caused much of the contextual
settings that are evident in Calais and elsewhere.
Calais, Dunkirk and Dubs: recent
litigation for refugee children

11. Calais, Dunkirk and Dubs: recent
litigation for refugee children

12. Calais, Dunkirk and Dubs: recent
litigation for refugee children

13. But that’s not the end….
Calais, Dunkirk and Dubs: recent
litigation for refugee children

14. • Besides ZAT, two other cases have served to reiterate the free-standing nature of Article 8
as a right to ensure family reunification in the Dublin context:
i. The Queen on the application of MK, IK (a child by his litigation friend MK)
v HK (a child by her litigation friend MK) v SSHD JR/2471/2016, 29 April
2016
i. R on the Application of CK (Afghanistan) & Others vThe Secretary of
State for the Home Department, [2016] EWCA Civ 166, 22 March 2016
• However the ZAT case has been the first to allow Article 8 to be used to bypass in whole
the Dublin initial procedural mechanism for allocating responsibility on entry,
Calais, Dunkirk and Dubs: recent
litigation for refugee children

15. SSHD v ZAT (Syria) and Ors [2016] EWCA Civ 810 Calais, Dunkirk and Dubs: recent
litigation for refugee children
• The SSHD appealed the decision out of concern that it could set an adverse precedent
for the future.
• The Court of Appeal concluded that the Upper Tribunal had erred in its approach to the
Dublin III Regulation in relation to Article 8 ECHR.
• According to the Court, an application for entry by an unaccompanied child, without first
involving the relevant Dublin III Regulation in France, can "only be justified in an
especially compelling case".
• This is only the case where the applicants "can show that the system of the Member
State that they do not wish to use, in this case the French system, is not capable of
responding adequately to their needs".
• In the particular circumstances of this case, the evidence is unlikely to meet the required
threshold of "an especially compelling case" in order to completely bypass the initial
procedural stage of the Dublin procedure on the grounds of Article 8 ECHR
• The Court of Appeal allowed the appeal.

16. Update
• On 28th February 2017 Citizens UK were granted permission to go to a full hearing by
Mrs Justice Lang, 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 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.
Calais, Dunkirk and Dubs: recent
litigation for refugee children

17. Dubs amendment – s.67 Immigration Act 2016
Calais, Dunkirk and Dubs: recent
litigation for refugee children

18. s. 67 Unaccompanied refugee children: relocation and support
(1) The Secretary of State must, as soon as possible after the passing of
this Act, make arrangements to relocate to the United Kingdom and support
a specified number of unaccompanied refugee children from other
countries in Europe.
(2)The number of children to be resettled under subsection (1) shall be
determined by the Government in consultation with local authorities.
(3)The relocation of children under subsection (1) shall be in addition to the
resettlement of children under the Vulnerable Persons Relocation Scheme.
Calais, Dunkirk and Dubs: recent
litigation for refugee children

19. Help Refugees litigation – currently penciled in for substantive hearing on 2-4 May 2017
• At hearing at the end of last year, Help Refugees argued successfully and obtained a declaration
that the Government was wrong to treat it’s new s.67 duties as principally met by compliance with
its pre-existing obligations under Dublin III Regulation.
• Help Refugees case is that the SSHD failed to properly interpret or implement her duties towards
unaccompanied refugee children under Dubs Amendment.
• It is of note that until Help Refugees, issued legal proceedings on 18 October 2016, not one child
had been relocated to the UK under the Dubs Amendment.
• The children who the Home Secretary and her Ministers said she was bringing to the United
Kingdom under the Dubs Amendment were in fact children to whom the Home Secretary already
owed separate duties under European Union law (the Dublin III Regulation) for family reunion
purposes rather than new children brought under the Dubs Amendment.
Calais, Dunkirk and Dubs: recent
litigation for refugee children

20. • Mr Justice Holman at a preliminary hearing in February
2017 said;
“there is a huge political dimension to this. It is extremely
important to establish as soon as reasonably practical
whether the number specified is or is not lawful,”
Calais, Dunkirk and Dubs: recent
litigation for refugee children

21. • In a separate challenge, the Dunkirk Legal Support Team (DLST)claims the government’s
decision to restrict the Dubs scheme to children previously residing in the Calais jungle is
unlawful.
• The charity say there are at least 100 unaccompanied children living in extremely
dangerous conditions in ‘Camp de la Linière’, in Dunkirk, where they are at risk of physical
and sexual violence and exploitation by networks of traffickers and smugglers.
• The DLST are asking the High Court to declare the exclusion of the children to be unlawful
as it undermines the purpose of the Dubs amendment, which was to provide a route to the
most vulnerable children all over Europe to come to the UK, rather than just a very small
number of children in one part of France.
• The group also argues that the SSHD is not permitted in law to have a blanket policy to
apply the scheme only to children in Calais.
Calais, Dunkirk and Dubs: recent
litigation for refugee children

22. ZS, R (On the Application Of) v Secretary of State for the Home Department [2017]
EWHC 255 (Admin)
• Stayed behind Help Refugees’ litigation
• Question over standing of the claimant– see para 19 & 20
19. …He has simply no current connection whatsoever with this State other than the fact
that he was assessed by a representative on behalf of the Secretary of State. He is one of
an unknown, but undoubtedly very large, number of unaccompanied refugee children who
are currently dispersed in many parts of Europe, and it needs to be recalled that section
67 is in no sense limited to children in France but extends to children "from other countries
in Europe". Indeed, the present claim of the claimant has attached to it a schedule of a
further 36 children who are described as "interested parties" and seem to be tucked in in
some way behind this claimant's claim.
20. Section 67 refers only to "a specified number of unaccompanied refugee children".
Provisionally, I cannot accept that that section gives to any given child, amongst the
thousands of unaccompanied refugee children who are currently in Europe, some
individual capacity such that he or she should have standing to bring a claim such as this.
Calais, Dunkirk and Dubs: recent
litigation for refugee children

23. Where are we now?
• As of 8 February 2017 - winding up of the scheme announced to be completed by April
• Figures capped to 350 and new criteria published detailing the allocation of the last 150
places
• It was claimed by the Government that Local Authorities simply had no space to
accommodate unaccompanied children
• However, freedom of information responses collated by the Observer from dozens of UK
councils painted a very different picture. There were at least 368 more spaces available for
unaccompanied minors in the UK.
• House of Commons MPs voted against Heidi Allen’s amendment to the Children and Social
Work Bill by just 20 votes (287-267). The bill would have forced the government to assess
local councils’ capacity to take in more child refugees from Europe. It was hoped that this
would restart the Dubs Scheme beyond the remaining 150 places
• Government have faced obvious heavy criticism – esp with regards to the cut off date, only
children who arrived in Europe before 20 March 2016 will be eligible. Allegedly this is to
dissuade people from sending the children and exploiting the scheme.
Calais, Dunkirk and Dubs: recent
litigation for refugee children

24. • Article 50 triggered – where are we
now???

25. The 36 Group (formerly 36 Bedford Row)
36 Bedford Row, London WC1R 4JH
DX 360 LDE
T 020 7421 8000
F 020 7421 8035
E clerks@36civil.co.uk
W 36civil.co.uk
TWITTER 36bedfordrow