The Children of the Calais Jungle, One Year On from R (ZAT) V SSHD

Post by Celia Rooney. Celia is a practicing barrister at Blackstone Chambers, with a particular interest in migration, criminal justice, equality law and human rights. She holds an undergraduate degree in law (LL.B) from the University of Glasgow, a Masters in law from the University of Oxford (BCL) and was called to the Bar as a member of Lincoln’s Inn of Court in 2015. This is the fourth instalment of Border Criminologies’ themed series on Current Legal Issues on Migration organised by Ana Aliverti and Celia Rooney.

On 29 January 2016, the Upper Tribunal decided R (on the application of ZAT) v Secretary of State for the Home Department

The original decision of the Upper Tribunal

Headlines in 2016 were dominated by the migration crisis, which was brought home to Europe by two main issues: deaths in the Mediterranean and the migrant camp at Calais. Litigation concerning the latter reached the UK courts in January 2016 in the case of R (ZAT). The main applicants at that time were still in the jungle at Calais, having fled Syria. Three of them were unaccompanied minors; the fourth was a vulnerable adult with mental health issues. All four wanted to join their siblings in the UK.

France’s reception centres were facing problems. In light of significant administrative delays, and comparatively generous French laws which allow unaccompanied minors to remain on French soil without filing for an asylum claim, many children opted not to seek formal protection.

Under EU law, states determine responsibility for asylum claims under the Dublin Regulations. The general rule is that people are required to apply for asylum in the first EU member state in which they arrive, but there are recognised exceptions for unaccompanied minors with family legally residing in another state (see Dublin III Regulation, Article 8). Once a claim for international protection is lodged, a member state can request another member state to ‘take charge’ of the child (Article 21). The member state of which the ‘take charge’ request was made must decide whether to effect the transfer (Article 22). The child should then be transferred ‘as soon as practically possible at the latest within six months of acceptance…’ (Article 29).

In this case, the children had not lodged applications for asylum in France nor challenged the conduct of the French authorities. Instead, they challenged the decision of the Secretary of State for the Home Department 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. They also argued that, under Article 8 of the ECHR, the UK was under a positive obligation to reunify them with their family in the UK.

Mr Justice McCloskey held that the UK authorities had failed to protect the applicants’ right to family life under Article 8 of the ECHR. After describing the camp as a ‘bleak and desolate place… inhabited by human beings not animals’, the judge went on to hold that:

• While there was not hierarchy between the Dublin III Regulations and the ECHR, ‘they may sometimes tug in different directions’;
• It would take a strong case to essentially usurp the Dublin scheme;
• However, the Upper Tribunal was nonetheless 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.

Decision of the Court of Appeal

On 2 August 2016, the decision was reversed by the Court of Appeal. Giving judgment on behalf of the Court, Beatson LJ held that:

• An unaccompanied minor who arrived in an EU member state, but wished to claim asylum in another state, had to invoke the Dublin Regulation procedures;
• The court would only bypass the legislative scheme in an ‘especially compelling case’, where there were objective reasons to justify that decision;
• Subjective fears of the process in another member state would not suffice.

At the time of the appeal, conditions in the camp had, to a limited extent, improved. The Home Office also came prepared with evidence that indicated that ‘take charge’ requests were made by the French and accepted by the UK more often than the evidence before the Upper Tribunal suggested. Perhaps most importantly, by the time of the appeal, three of the four applicants had been granted status and all four were in the UK, meaning the appeal did not affect the particular applicants. These changes affected the balance on the facts.

However, it is in any event likely that the Court of Appeal would have overturned the decision. The decision of the Upper Tribunal is remarkable for a number of reasons. First, the Upper Tribunal essentially gave state endorsement to criticism of the asylum procedures of a European member state. While this may have been warranted, it is out of character with the usual restraint exercised by the judiciary on international relations. Second, the Upper Tribunal was willing to circumvent the legal mechanism specifically established for cases of this type under the Dublin regime, on the basis of problems in the French asylum process, despite the fact that none of the applicants had yet actually applied for asylum in France.

Faced with vulnerable applicants in an awful situation, the Upper Tribunal made a decision that is human, compassionate and pragmatic. Yet, the reasoning of the judgment reflects its sympathy with the facts of the case - namely the conditions of the camp in Calais and the applicants’ particular vulnerability – rather than a strict application of the law.

The decision of the Court of Appeal reversed much of the practical potential of the original judgment. It remains to be seen, however, whether in a case with sympathetic facts, the courts prove to be willing to apply the ‘especially compelling case’ test less restrictively than they have so far suggested.

Where are we now?

On 25 October 2016, the French authorities began dismantling the Calais jungle. Since then, there have been ugly disputes between the French and UK governments as to which is responsible for the camp’s former residents. By the end of December 2016, the Home Office reported that 750 children had been brought to the UK. It is likely, however, that some have fallen through the cracks. As Yvette Cooper, chair of the Home Affairs Select Committee has recognised, the UK efforts came ‘far too late’, and many children remained in the camp at the time it was essentially being demolished, or hedged their bets with traffickers in the interim.

It is also clear that the UK has not accepted all those unaccompanied children from Calais who sought protection here. In December 2016, for example, children from the Calais camp initiated a claim to judicially review the unreasoned decision of the Home Office that it was not in their best interests to relocate to the UK. This legal saga is clearly not yet over.

It is also clear that unaccompanied children also continue to arrive in Europe. While the Calais camp may be gone, lone children face even more precarious alternatives. There are reports, for example, of unaccompanied minors sleeping rough on the streets of Paris. The deal between the EU and Turkey, designed to limit the numbers of refugees arriving in Europe by boat, has also meant that people are increasingly taking the land route through the Balkans. There, children have been reported as ‘sleeping rough in sub-Zero Serbia’, held in camps where the conditions are ‘worse than the jungle in Calais’, and refused entry to the EU. Indeed, Medecins San Frontieres has warned that the camps are ‘a new Calais where people are stranded and stuck’.

Where next?

The conditions of the camp at Calais were deplorable. European governments left unaccompanied children to fend for themselves in squalor, with little but luck to determine whether they fell into the hands of charities or traffickers. It is, and will remain, a stain on the region’s human rights legacy.

Looking to the future, we have to examine how best to protect vulnerable migrants. The ZAT case demonstrates that litigation can provide a vital lifeline for individual claimants, particularly where the court is presented with sympathetic facts. The Upper Tribunal decision remains a victory against the odds for the specific applicants involved.  

Developments since that decision, however, also make it clear that litigation is not an answer to the wider issues. As a lawyer that cares about migrants’ rights, the Court of Appeal judgment is painful reading. It reaches an outcome I do not want, but which is, in my view, correct in law. Judges can only apply the law that exists. The problem here is not the courts, but existing legislation and a shameful lack of political will to protect the lives of migrant children.   

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How to cite this blog post (Harvard style)

Rooney, C. (2017) The Children of the Calais Jungle, One Year On from R (ZAT) V SSHD. Available at: https://www.law.ox.ac.uk/research-subject-groups/centre-criminology/centreborder-criminologies/blog/2017/01/children-calais (Accessed [date]).