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United Kingdom
Country of Decision : United Kingdom
Court Name : UK: Upper Tribunal - Immigration and Asylum Chamber
Date of decision : 19/07/2018
Type :
ECLI :
Case Number/Citation/ Document Symbol : [2017] UKUT 9682

M.S. (a child by his litigation friend MAS) vs Secretary of State for the Home Department

This case concerned a 17 year-old Afghan who was in a children’s accommodation centre in France after fleeing Afghanistan. In June 2017 he lodged his asylum application in France and submitted evidence demonstrating a family relationship with his brother living in the UK. The evidence included photographs and evidence of financial support. The French authorities issued a take charge request to the UK Home Office, which rejected the request on the basis that the evidence submitted did not establish the relationship. Contrary to the Home Office’s arguments, the Upper Tribunal found, in line with its previous jurisprudence, that the Home Office had an investigative duty upon receipt of the ‘take charge’ request. In the judgment of the Tribunal, this duty does beyond considering the evidence sent by the authorities of the requesting state, and checking the Home Office records, and includes, if necessary, taking all reasonable steps to facilitate and secure DNA testing, including in determining the options of DNA testing in the requesting state, or the UK. Relying on the jurisprudence of the CJEU, in particular Case C-63/15 Ghezelbash and Case C-670/16 Mengesteab, the Upper Tribunal found that the right of the individual to an effective remedy under the Dublin III Regulation includes judicial scrutiny of a decision refusing a take charge request. The Tribunal considered that the question of whether MS and MAS were brothers was a question of fact that had to be determined by the Tribunal as it engaged a fundamental right, namely the right to family life. Based on the evidence, including oral testimony, the Tribunal found that MS and MAS were brothers. Consequently, the Tribunal quashed the Home Office’s decisions to refuse the ‘take charge’ request.

Access to procedures; Afghanistan; Assessment of Application; Dublin procedures; Family Reunification; Unaccompanied minors;

Dublin Regulation III (Regulation (EU) No 604/2013 of the European Parliament and of the Council of 26 June 2013 establishing the criteria and mechanisms for determining the Member State responsible for examining an application for IP);

Individual Expert

United Kingdom,UK: Upper Tribunal - Immigration and Asylum Chamber , M.S. (a child by his litigation friend MAS) vs Secretary of State for the Home Department, 19/07/2018
UK Court rules on family reunification of UAM under Dublin Regulation III

https://caselaw.easo.europa.eu/pages/viewcaselaw.aspx?CaseLawID=433