In this case the Home Office repeatedly refused to accept that a child in France was related as claimed to his brother in the UK. First the Home Office failed to even contemplate taking DNA evidence, then eventually decided it would be illegal to do so in France anyway. Looking at the facts for itself, the tribunal concluded even without DNA evidence that the claimant was related as claimed. The official headnote:

(1) A Member State considering a Take Charge Request (“TCR”) made by another Member State under the Dublin III Regulation has a duty to investigate the basis upon which that TCR request is made and whether the requirements of the Dublin III Regulation are met. (R (on the application of MK, IK (a child by his litigation friend MK) and HK (a child by her litigation friend MK) v Secretary of State for the Home Department (Calais; Dublin III Regulation – investigative duty  IJR [2016] UKUT 00231 (IAC) followed).

(2) The Member State’s duty is to “act reasonably” and take “reasonable steps” in carrying out the investigative duty, including determining (where appropriate) the options of DNA testing in the requesting State and, if not, in the UK (MK, IK explained).

(3) The duty of investigation is not a ‘rolling one’. The duty does not continue beyond the second rejection, subject to the requirements of fairness (MK, IK not followed).

(4) Fairness requires that the applicant, even after a second rejection, must know the ‘gist’ of what is being said against him in respect of the application of the criteria relevant to the TCR and must have an opportunity to make representations on the issues and material being relied on if that has not previously been the case. In those circumstances, fairness requires that the respondent consider any representations and material raised (perhaps for the first time) to deal with a matter of which the individual was ‘taken by surprise’ in the second rejection decision. To that extent only, the duty continues and may require the requested State to reconsider the rejection of the TCR.

(5) In judicial review proceedings challenging a Member State’s refusal to accept a TCR, it is for the court or tribunal to decide for itself whether the criteria for determining responsibility under the Dublin III Regulation have been correctly applied. This may require the court or tribunal to reach factual findings on the evidence and it is not restricted to public law principles of challenge.

(6) The tribunal or court’s role should not be taken as an open invitation to parties to urge the court or tribunal to review and determine the facts in a Dublin case and, as a concomitant, to admit oral evidence subject to cross-examination. Often there will be no factual dispute: the issue will be a legal one on the proper application of the Dublin III Regulation. Even if there is a factual issue, the need to assess the evidence may not always mean also admitting “oral” evidence subject to cross-examination.  It will only be so if it is “necessary in order to resolve the matter fairly and accurately”.

Source: R (MS) (a child by his litigation friend MAS) v Secretary of State for the Home Department (Dublin III; duty to investigate) [2019] UKUT 9 (IAC)

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