Garden Court barristers win a reference to the CJEU in EU test case on unaccompanied asylum-seeking children.

Thursday 1 December 2011

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Stephen Knafler QC, Kathryn Cronin and Bryony Poynor have succeeded in obtaining a reference to the CJEU, from the Court of Appeal, on the question of whether unaccompanied minor asylum seekers can ever be removed under Dublin II to the Dublin State where they first claimed asylum.

Delivering the judgment of the Court, in R (MA, BT, DA) v Secretary of State for the Home Department [2011] EWCA Civ1446, Lord Justice Maurice Kay pointed out that "Mr Knafler frankly acknowledges that .... he is taking a point which is at variance with what appears to be a common understanding among Member States and which is unsupported by any previous judicial decision ..... [or] any textbook .. [and is contradicted by] R(Mosari) v Secretary of State for the Home Department [2005] EWHC 1343 ... and [a paper by] the European Council on Refugees and Exiles". However, Lord Justice Maurice Kay said, "Notwithstanding the volume of contrary argument and practice stacked against them, we tend to the view that [the appellants'] construction may well be correct" and that "the construction issue at the centre of this litigation cries out for resolution because, if the appellants are correct in their construction, there would need to be an EU-wide change of State practice". The Court of Appeal also doubted whether the Nasseri presumption applied to unaccompanied minors and whether "cogent reasons" were required, to doubt the quality of the welfare conditions likely to apply, before the Secretary of State was obliged to consider whether reception conditions in a Dublin II receiving State were such that it would safeguard and promote the welfare of a child to be removed there, pursuant to section 55 of the Borders, Citizenship and Immigration Act 2009.

Stephen Knafler QC and Kathryn Cronin were instructed by Liz Barrett of Bindmans, solicitors, on behalf of MA and BT, whilst Stephen Knafler QC and Bryony Poynor were instructed by Deirdre Sheahan of Paragon Law, solicitors, on behalf of DA. As a result of the litigation, the Secretary of State has already agreed to grant MA and BT asylum, and to consider DA's claim substantively.

Stephen Knafler QC, Kathryn Cronin and Bryony Poynor are members of Garden Court Chambers Immigration - Asylum and Human Rights Team.

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