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*Law of Aliens

Published on September 12th, 2018 | by Georgia Archonti


UK Upper Tribunal rules on authorities’ investigative duties to verify family link and right to effective remedy following rejection of take charge request

On 19 July 2018, the UK Upper Tribunal ruled on case MS (a child by his litigation friend MAS) v. Secretary of State for the Home Department, which concerned a 17-year-old Afghan who, having fled Afghanistan and reached Europe where he lived in destitution, is now in children’s accommodation in France. In June 2017, he lodged his asylum application in France and submitted evidence, including photographs and evidence of financial support, to demonstrate the family relationship with his brother, who lives in the UK. The French authorities issued a take charge request to the UK Home Office, which rejected the request and subsequent reconsideration on the basis that the evidence submitted did not suffice to establish the family relationship.

Contrary to the Home Office’s arguments, the Upper Tribunal found that the Home Office had an investigative duty upon receipt of the take charge request, in line with the Upper Tribunal’s decision in MK, IK and HK. This duty goes beyond considering the evidence sent by the authorities of the requesting State and checking the Home Office records. This would include, if necessary, the duty to take all reasonable steps to facilitate and secure DNA testing, including in determining the options of DNA testing in the requesting State and, if not, in the UK.

Relying upon the jurisprudence of the Court of Justice of the European Union, namely C‑63/15 Ghezelbash and C‑670/16 Mengesteab, the UK 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.

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