The ‘Calais refugee’ judgment
On 29 January 2016 the Upper Tribunal (Immigration and Asylum Chamber) (UT) handed down judgment in ZAT and others v Secretary of State for the Home Department UKUT 61 (IAC), allowing the judicial review of seven applicants who had challenged the Secretary of State’s (SS) refusal to admit four of them to the UK in order to claim asylum. The four applicants (A1-4) were three unaccompanied children from Syria and the vulnerable adult brother of one of them, all of whom had been living in Calais, in the tented encampment known as the ‘Jungle’, for at least three months. The remaining applicants were their adult siblings, all of whom had refugee status in the UK. The judgment followed an order made at the conclusion of the hearing on 20 January 2016 by which the SS was required to admit the four applicants to the UK. By the time the judgment was handed down the applicants had thus all been admitted to the UK.
The claim was based on the fact that A1-3 were unaccompanied minors in France. This, combined with the legal presence of their adult siblings in the UK, meant that under Art 8 of EU Regulation 604/2013 (Dublin III) the UK had a substantive obligation to determine their asylum claims as long as it was in A1-3’s best interests to do so. The applicants adduced evidence to show that procedure established by Dublin III for allocating responsibility under Art 8 of Dublin III to other member states was not working in France within a reasonable time or at all, and that as a consequence the applicants could not properly exercise their right to be reunited with their family members under this procedure.
They also adduced extensive evidence proving their relationships with their siblings, psychiatric evidence showing the trauma they had suffered in Syria, during their flight from Syria and in the Jungle, their need to be reunited with adult siblings who would care for them, and evidence about the highly dangerous and unsuitable conditions to which they were exposed in the Jungle. The applicants argued that in these circumstances the SS had a duty under Art 8 of the European Convention on Human Rights (ECHR) to admit them to the UK in order to join their family members. The SS refused to do so; although she accepted that this decision interfered with the applicants’ rights under Art 8 of ECHR (judgment, para ), she argued that this interference was proportionate and that any other approach would impermissibly circumvent the Dublin III process.
In its judgment, the UT accepted the applicants’ evidence. It also considered that ‘the Dublin Regulation, with its rationale and overarching aims and principles, has the status of a material consideration of undeniable potency in the proportionality exercise’ and that as a consequence ‘judges will not lightly find that, in a given context, Art 8 operates in a manner which permits circumvention of the Dublin Regulation procedures and mechanisms, whether in whole or in part’ (para ). The detrimental impact on the applicants of being required to undergo the lengthy Dublin III process in France (para ) was such, however, that it was disproportionate to insist on ‘strict and full adherence’ to that regime (para ). Instead the UT made an order which preserved ‘the general structure of the Common European Asylum System and the Dublin Regulation principles’ while ensuring that the administration of that process would not interfere disproportionately with the Art 8 ECHR rights of the applicants (para ): upon A1-4 sending a letter to the French authorities claiming asylum and notifying the SS of that fact, she was required to admit them to the UK.
The UT granted the SS permission to appeal.
Contributor Charlotte Kilroy
Lawyers Refugee Initiative
By September 2015, the global refugee crisis had become impossible to ignore and there was an unprecedented level of public concern. But there seemed to be a need for cogent, realisable demands around which civil society groups and activists could coalesce. Retired judges, lawyers and policy specialists in the refugee field developed a set of fundamental criteria for a ‘just and humane refugee policy’, accompanied by policy proposals for their implementation.
On 12 October 2015, over 350 retired members of the judiciary and lawyers launched the ‘four refugee principles’ in an open letter to the prime minister:
- The UK should take a fair and proportionate share of refugees, both those already within the EU and those still outside it.
- Safe and legal routes to the UK, as well as to the EU, need to be established.
- Safe and legal routes within the EU, including the UK, should be established.
- There should be access to fair and thorough procedures to determine eligibility for international protection wherever it is sought.
The ‘call from the legal community for urgent action’, published in The Times and The Guardian, condemned the Government’s offer of 20,000 resettlement places spread over five years, limited to Syrians, to the most vulnerable and to those still outside the EU as ‘too low, too slow and too narrow’. The judges and lawyers made specific proposals including the adoption of humane family reunion policies as a safe, legal route into the UK for refugees; and the suspension (save for the purposes of family reunification) of the dysfunctional Dublin system under which asylum seekers are compelled to apply to the first member state in which they land.
Signatories included Lord Phillips, former President of the UK Supreme Court; three other retired law Lords; five retired Court of Appeal judges; Sir Nicholas Bratza, the former President of the European Court of Human Rights; the former Director of Public Prosecutions; the former Head of the Government Legal Service; the former Independent Reviewer of Terrorism Legislation and over 100 Queen’s Counsel. The full list of signatories and text of the letter can be seen here.
The Lawyers Refugee Initiative (LRI) is now active in lobbying for policy change; and working with other civil society actors on a campaign of rolling endorsements for the four refugee principles to bring concerted pressure on the Government and try to shape public debate. The four refugee principles were endorsed in January in an open letter by 27 non-governmental organisations including Oxfam, Amnesty International, Action Aid, Christian Aid, Islamic Relief, the Refugee Council; and separately by the British Red Cross and the Immigration Law Practitioners’ Association.
In February, 126 economists published their endorsement of the four refugee principles. They included a former Deputy Secretary-General at the United Nations and Government Minister; the former Director General of GATT; the former Chief Economist to the Cabinet Office; the President of Queens’ College, Cambridge and founder of the Institute for Public Policy Research; the former Master of Darwin College and member of the Low Pay Commission; and 64 Professors and Professors Emeritus of Economics.
The LRI needs people with campaigning, communications and fundraising skills to donate substantial time. To volunteer, please contact me at Doughty Street Chambers.
Contributor Laura Dubinsky
Realities of life in the ‘Jungles’
A two-year-old girl peered out of her family’s flimsy tent. She had resorted to playing a game with her wellies, unable to move in the thick mud and stagnant water contaminated with human excrement. It was impossible to walk in the mud, without the risk of falling flat in the stinking swamp. This is life in a second ‘Jungle’, in Dunkirk.
I first visited the Calais site, known as ‘the Jungle’, in November, and on my return began a fundraising campaign to build shelters for the winter. On 8 January, I went back; this time with journalists and my local MP Keir Starmer. Calais had improved. The shelters had made a huge difference to those lucky enough to be allocated one. But the conditions were still appalling and well below UNHCR standards. The refugees we spoke to were obviously genuine, fleeing ISIS, leaving good jobs and nice homes. Many had family here in the UK and therefore, under Dublin III, legitimate reason to claim asylum here.
In Dunkirk the conditions, where 3,000 people including 300 children were camped at the time I visited, are inhumane and distressing. Tents are pitched in a filthy quagmire, with no basic sanitation, nowhere to wash, and rats roaming freely. Chest infections and scabies are rife and tuberculosis common. The only help comes from volunteers. Not only are conditions awful, and seemingly kept deliberately so by the French border authorities in a pointless attempt to deter people, but there is no processing of applications and people are being kept in limbo. What we can do:
Contributor Katy Thorne
Palpable sense of community
I visited the refugee camp in Calais in October 2015 with friends from university to help deliver supplies that had been donated.
The camp itself is a former rubbish dump, adjacent to a busy motorway right on the edge of town. There was no mistaking the ‘Jungle’ with its sea of tents, piles of rubbish and distinctive stench. I recall the sense of trepidation as we approached the site, not due to a fear of the refugees themselves, but of what we were about to witness.
As expected, the living conditions were poor. The majority resided in tents, clothed in t-shirts, shorts and sandals and carrying their worldly possessions in plastic carrier bags. Due to the mild winter this was not so much an issue at the time, but the recent bitter winds and relentless rain will have made the conditions more unbearable. We did see some clean running water and a limited power supply, but this had been provided by a local businessman, we were told, and not the French Government. We also heard that the site on which the Jungle sits is contaminated with asbestos, which must be a long-term health concern.
Despite these squalid conditions, the sense of community was palpable. People who had lost so much and who had so little were still willing to put the needs of others before their own. I recall two gentlemen in particular, who refused to leave my side as I distributed ‘care packages’ from the back of our van. Without greed or agenda, they kept the crowd of desperate individuals that had surrounded the van calm, ensuring my safety. They brought those most in need to my attention so they could be given additional supplies. Such a gesture, against the backdrop of their inhumane and degrading treatment, triggered feelings of both humility and shame.
As our time on the camp was nearing an end, I witnessed brutal treatment by the French police. My understanding was that a few individuals had created a (peaceful) blockade on the nearby motorway in protest at their treatment. The French police responded by surrounding the camp, effectively ‘kettling’ the campers. CS gas was then launched into the paths of men, women and children. Such an unnecessary and disproportionate act by the authorities is indicative that the current approach and attitude towards this refugee crisis desperately needs addressing.
Contributor Danielle Manson
Law’s role in times of crisis
In Calais, just over an hour away from our coast, exists one of the gravest humanitarian catastrophes of our times. In labelling this area the ‘Jungle’ we are saying a number of things. The inhabitants are not human. There is no system. No rules. No rights and therefore no corresponding responsibility. Human standards do not apply. This process of dehumanisation has created a state of exception where there is no law, justice or accountability; a legal black hole.
Here you will find children like Hossam, who I met during a solidarity demonstration in Calais last year. I was moved by his fearlessness, his strength and his smile. Twelve years old, from Egypt, he arrived to the Jungle alone. I did not know where his family was, nor did I have the courage to ask. He was carried on the shoulders of different men throughout the demonstration because he was little, and only looked about 9 or 10. But despite this, he stood alone. Above and beyond everyone. His chants resonated across the thousands and his message was clear: ‘No jungle, no jungle. Hurriyah’ (‘freedom’ in Arabic).
I have since read about Hossam. He lives in his tent alone and is considered ‘house proud’ despite the conditions. From my short time in Calais, what really moved me was how warm, welcoming and strong these people were despite their adversity. I invite people to guard against media stereotypes designed to vilify persecuted people, who have genuine legal entitlement to protection.
There are many ‘Jungles’ and there will be many more, where the protection of fundamental rights is somehow suspended within a vacuum. These states of exception must not be legitimised through acquiescence. The role of the law ought not be suppressed in times of crises, but must emerge as a weapon for the weak and an instrument for good. Our role as lawyers must be to facilitate this.
Contributor Zeenat Islam