Published on 11 April 2023

FOURTH SECTION

Application no. 6481/22 F.H. and Y.H. against the United Kingdom lodged on 28 January 2022 communicated on 20 March 2023

SUBJECT MATTER OF THE CASE

The applicants, who are nationals of Eritrea, are brothers born in 1999 and 1989 respectively. Both currently live in the United Kingdom, where they have been recognised as refugees.

The second applicant, Mr Y.H., arrived in the United Kingdom in August 2015. He immediately claimed asylum and was granted refugee status in November 2016. The first applicant, Mr F.H., arrived in Calais, France in July 2016, as an unaccompanied asylum seeking minor (“UAM”). Upon arrival he did not claim asylum in France, which would have triggered the processes set out in Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 (“the Dublin III Regulation”). However, after France announced its proposal to demolish the camp in which he was living (“the Calais jungle”), the United Kingdom Government considered his case, together with the cases of the other UAMs in the Calais jungle who claimed to have family members in the United Kingdom, under an expedited bilateral process agreed with the French authorities. The first applicant was interviewed by telephone in November 2016 and in December he was told that his application had been rejected. According to information provided by the Home Office to the French authorities, the decision-makers did not believe he was related to the second applicant.

After having obtained legal assistance, the first applicant did make an asylum claim in May 2018; the French authorities subsequently made a “take charge” request under the Dublin III Regulation; and the request was accepted by the Secretary of State. On 27 July 2018 the first applicant was transferred to the United Kingdom, where he was recognised as a refugee on 16 April 2019.

The applicants complain under Article 8 of the Convention, read alone and together with Article 13, about procedural defects in the expedited process which, they claim, significantly delayed the transfer of the first applicant to the United Kingdom. The domestic courts accepted that these defects breached the common law requirements of fairness, but the Court of Appeal did not consider that they breached Article 8 of the Convention. It accepted that Article 8 was engaged, but considered itself bound by precedent to the effect that where the Dublin III procedure was available to a UAM, Article 8 would only have a role to play in very exceptional circumstances, such as where the French legal system had systemic deficiencies which rendered it incapable of providing an effective remedy.

QUESTIONS TO THE PARTIES

1. Was Article 8 of the Convention engaged, on the particular facts of the present case? At the relevant time did “family life”, within the meaning of Article 8 of the Convention, exist between the two applicants?

2. Do the applicants still have victim status, within the meaning of Article 34 of the Convention, in respect of their complaints under Articles 8 and 13 of the Convention?

3. Having regard to the Court’s decision in C.P. v. the United Kingdom ((dec.) no. 300/11, 6 September 2016), have the applicants suffered any significant disadvantage within the meaning of Article 35 § 3 (b) of the Convention?

4. If Article 8 was engaged, did the respondent State have a positive obligation to ensure that in considering whether to admit the first applicant for the purposes of family reunification its decision-making processes were attended by any particular procedural safeguards (see Tanda-Muzinga v. France , no. 2260/10, § 68, 10 July 2014, Mugenzi v. France , no. 52701/09, § 46, 10 July 2014, and Senigo Longue and Others v. France , no. 19113/09, § 63, 10 July 2014)?

5. Has there been a breach of any positive obligation arising under Article 8 of the Convention?

6. In answering questions 2 and 3, what is the relevance of the Dublin III process?

7. Were the applicants denied an effective remedy for their Article 8 complaints, within the meaning of Article 13 of the Convention?

8. Was there any other avenue through which the applicants could have claimed compensation for the acknowledged breach of the common law requirement of fairness?

9. In light of the Grand Chamber’s decision in M.N. and Others v. Belgium ((dec.) [GC], no. 3599/18, 5 May 2020), does any issue arise under Article 1 of the Convention?