BAA, R (on the application of) v The Secretary of State for the Home Department

ANNEX Dublin III Regulation Recitals “(13) In accordance with the 1989 United Nations Convention on the Rights of the Child and with the Charter of Fundamental Rights of the European Union, the best interests of the child should be a primary consideration of Member States when applying this Regulation. In assessing the best interests of the child, Member States should, in particular, take due account of the minor’s well-being and social development, safety and security considerations and the views of the minor in accordance with his or her age and maturity, including his or her background. In addition, specific procedural guarantees for unaccompanied minors should be laid down on account of their particular vulnerability. (14) In accordance with the European Convention for the Protection of Human Rights and Fundamental Freedoms and with the Charter of Fundamental Rights of the European Union, respect for family life should be a primary consideration of Member States when applying this Regulation. (15) The processing together of the applications for international protection of the members of one family by a single Member State makes it possible to ensure that the applications are examined thoroughly, the decisions taken in respect of them are consistent and the members of one family are not separated. … (17) Any Member State should be able to derogate from the responsibility criteria, in particular on humanitarian and compassionate grounds, in order to bring together family members, relatives or any other family relations and examine an application for international protection lodged with it or with another Member State, even if such examination is not its responsibility under the binding criteria laid down in this Regulation. …

39. This Regulation respects the fundamental rights and observes the principles which are acknowledged, in particular, in the Charter of Fundamental Rights of the European Union. In particular, this Regulation seeks to ensure full observance of the right to asylum guaranteed by Article 18 of the Charter as well as the rights recognised under Articles 1, 4, 7, 24 and 47 thereof. This Regulation should therefore be applied accordingly. (40) Since the objective of this Regulation, namely the establishment of criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of this Regulation, be better achieved at Union level, the Union may adopt measures in accordance with the principle of subsidiarity as set out in Article 5 of the Treaty on European Union (TEU). In accordance with the principle of proportionality, as set out in that Article, this Regulation does not go beyond what is necessary in order to achieve that objective. Article 2 - Definitions For the purposes of this Regulation - “… (g) family members’ means, insofar as the family already existed in the country of origin, the following members of the applicant’s family who are present on the territory of the Member States: - the spouse of the applicant or his or her unmarried partner in a stable relationship, where the law or practice of the Member State concerned treats unmarried couples in a way comparable to married couples under its law relating to third-country nationals, - the minor children of couples referred to in the first indent or of the applicant, on condition that they are unmarried and regardless of whether they were born in or out of wedlock or adopted as defined under national law, - when the applicant is a minor and unmarried, the father, mother or another adult responsible for the applicant, whether by law or by the practice of the Member State where the adult is present, - when the beneficiary of international protection is a minor and unmarried, the father, mother or another adult responsible for him or her whether by law or by the practice of the Member State where the beneficiary is present; (h) ‘relative’ means the applicant’s adult aunt or uncle or grandparent who is present in the territory of a Member State, regardless of whether the applicant was born in or out of wedlock or adopted as defined under national law; (i) ‘minor’ means a third-country national or a stateless person below the age of 18 years; (j) ‘unaccompanied minor’ means a minor who arrives on the territory of the Member States unaccompanied by an adult responsible for him or her, whether by law or by the practice of the Member State concerned, and for as long as he or she is not effectively taken into the care of such an adult; it includes a minor who is left unaccompanied after he or she has entered the territory of Member States; … Article 3 Access to the procedure for examining an application for international protection “1. Member States shall examine any application for international protection by a third-country national or a stateless person who applies on the territory of any one of them, including at the border or in the transit zones. The application shall be examined by a single Member State, which shall be the one which the criteria set out in Chapter III indicate is responsible.

2. Where no Member State responsible can be designated on the basis of the criteria listed in this Regulation, the first Member State in which the application for international protection was lodged shall be responsible for examining it. Where it is impossible to transfer an applicant to the Member State primarily designated as responsible because there are substantial grounds for believing that there are systemic flaws in the asylum procedure and in the reception conditions for applicants in that Member State, resulting in a risk of inhuman or degrading treatment within the meaning of Article 4 of the Charter of Fundamental Rights of the European Union, the determining Member State shall continue to examine the criteria set out in Chapter III in order to establish whether another Member State can be designated as responsible. Where the transfer cannot be made pursuant to this paragraph to any Member State designated on the basis of the criteria set out in Chapter III or to the first Member State with which the application was lodged, the determining Member State shall become the Member State responsible. … Article 6 Guarantees for minors

1. The best interests of the child shall be a primary consideration for Member States with respect to all procedures provided for in this Regulation.

2. Member States shall ensure that a representative represents and/or assists an unaccompanied minor with respect to all procedures provided for in this Regulation. The representative shall have the qualifications and expertise to ensure that the best interests of the minor are taken into consideration during the procedures carried out under this Regulation. Such representative shall have access to the content of the relevant documents in the applicant’s file including the specific leaflet for unaccompanied minors. This paragraph shall be without prejudice to the relevant provisions in Article 25 of Directive 2013/32/EU.

3. In assessing the best interests of the child, Member States shall closely cooperate with each other and shall, in particular, take due account of the following factors: (a) family reunification possibilities; (b) the minor’s well-being and social development; (c) safety and security considerations, in particular where there is a risk of the minor being a victim of human trafficking; (d) the views of the minor, in accordance with his or her age and maturity.

4. For the purpose of applying Article 8, the Member State where the unaccompanied minor lodged an application for international protection shall, as soon as possible, take appropriate action to identify the family members, siblings or relatives of the unaccompanied minor on the territory of Member States, whilst protecting the best interests of the child. … Article 7 Hierarchy of criteria

1. The criteria for determining the Member State responsible shall be applied in the order in which they are set out in this Chapter. … Article 8 Minors

1. Where the applicant is an unaccompanied minor, the Member State responsible shall be that where a family member or a sibling of the unaccompanied minor is legally present, provided that it is in the best interests of the minor. Where the applicant is a married minor whose spouse is not legally present on the territory of the Member States, the Member State responsible shall be the Member State where the father, mother or other adult responsible for the minor, whether by law or by the practice of that Member State, or sibling is legally present.

2. Where the applicant is an unaccompanied minor who has a relative who is legally present in another Member State and where it is established, based on an individual examination, that the relative can take care of him or her, that Member State shall unite the minor with his or her relative and shall be the Member State responsible, provided that it is in the best interests of the minor. …

4. In the absence of a family member, a sibling or a relative as referred to in paragraphs 1 and 2, the Member State responsible shall be that where the unaccompanied minor has lodged his or her application for international protection, provided that it is in the best interests of the minor. … Article 17 Discretionary clauses

1. By way of derogation from Article 3(1), each Member State may decide to examine an application for international protection lodged with it by a third-country national or a stateless person, even if such examination is not its responsibility under the criteria laid down in this Regulation. The Member State which decides to examine an application for international protection pursuant to this paragraph shall become the Member State responsible and shall assume the obligations associated with that responsibility. Where applicable, it shall inform, using the ‘DubliNet’ electronic communication network set up under Article 18 of Regulation (EC) No 1560/2003, the Member State previously responsible, the Member State conducting a procedure for determining the Member State responsible or the Member State which has been requested to take charge of, or to take back, the applicant. …

2. The Member State in which an application for international protection is made and which is carrying out the process of determining the Member State responsible, or the Member State responsible, may, at any time before a first decision regarding the substance is taken, request another Member State to take charge of an applicant in order to bring together any family relations, on humanitarian grounds based in particular on family or cultural considerations, even where that other Member State is not responsible under the criteria laid down in Articles 8 to 11 and 16. The persons concerned must express their consent in writing. The request to take charge shall contain all the material in the possession of the requesting Member State to allow the requested Member State to assess the situation. The requested Member State shall carry out any necessary checks to examine the humanitarian grounds cited, and shall reply to the requesting Member State within two months of receipt of the request using the ‘DubliNet’ electronic communication network set up under Article 18 of Regulation (EC) No 1560/2003. A reply refusing the request shall state the reasons on which the refusal is based. Where the requested Member State accepts the request, responsibility for examining the application shall be transferred to it. … Article 22 Replying to a take charge request

1. The requested Member State shall make the necessary checks, and shall give a decision on the request to take charge of an applicant within two months of receipt of the request.

2. In the procedure for determining the Member State responsible elements of proof and circumstantial evidence shall be used. …

4. The requirement of proof should not exceed what is necessary for the proper application of this Regulation.

5. If there is no formal proof, the requested Member State shall acknowledge its responsibility if the circumstantial evidence is coherent, verifiable and sufficiently detailed to establish responsibility. … Article 27 Remedies

1. The applicant or another person as referred to in Article 18(1)(c) or (d) shall have the right to an effective remedy, in the form of an appeal or a review, in fact and in law, against a transfer decision, before a court or tribunal. …” Commission Regulation (EC (1560/2003) (T he first I mplementing Regulation) … “ Article 3 Processing requests for taking charge

1. T he arguments in law and in fact set out in the request shall be examined in the light of the provisions of Regulation (EC) No 343/2003 and the lists of proof and circumstantial evidence which are set out in Annex II to the present Regulation.

2. Whatever the criteria and provisions of Regulation (EC) No 343/2003 that are relied on, the requested Member State shall, within the time allowed by Article 18(1) and (6) of that Regulation, check exhaustively and objectively, on the basis of all information directly or indirectly available to it, whether its responsibility for examining the application for asylum is established. If the checks by the requested Member State reveal that it is responsible under at least one of the criteria of that Regulation, it shall acknowledge its responsibility. … Article 5 Negative reply

1. Where, after checks are carried out, the requested Member State considers that the evidence submitted does not establish its responsibility, the negative reply it sends to the requesting Member State shall state full and detailed reasons for its refusal.

2. Where the requesting Member State feels that such a refusal is based on a misappraisal, or where it has additional evidence to put forward, it may ask for its request to be re-examined. This option must be exercised within three weeks following receipt of the negative reply. The requested Member State shall endeavour to reply within two weeks. In any event, this additional procedure shall not extend the time limits laid down in Article 18(1) and (6) and Article 20(1)(b) of Regulation (EC) No 343/2003. … Article 12 Unaccompanied minors

1. Where the decision to entrust the care of an unaccompanied minor to a relative other than the mother, father or legal guardian is likely to cause particular difficulties, particularly where the adult concerned resides outside the jurisdiction of the Member State in which the minor has applied for asylum, cooperation between the competent authorities in the Member States, in particular the authorities or courts responsible for the protection of minors, shall be facilitated and the necessary steps taken to ensure that those authorities can decide, with full knowledge of the facts, on the ability of the adult or adults concerned to take charge of the minor in a way which serves his best interests. Options now available in the field of cooperation on judicial and civil matters shall be taken account of in this connection.

2. The fact that the duration of procedures for placing a minor may lead to a failure to observe the time limits set in Article 18(1) and (6) and Article 19(4) of Regulation (EC) No 343/2003 shall not necessarily be an obstacle to continuing the procedure for determining the Member State responsible or carrying out a transfer. Article 13 Procedures

1. The initiative of requesting another Member State to take charge of an asylum seeker on the basis of Article 15 of Regulation (EC) No. 343/2003 shall be taken either by the Member State where the application for asylum was made and which is carrying out a procedure to determine the Member State responsible, or by the Member State responsible.

2. The request to take charge shall contain all the material in the possession of the requesting Member State to allow the requested Member State to assess the situation.

3. The requested Member State shall carry out the necessary checks to establish, where applicable, humanitarian reasons, particularly of a family or cultural nature, the level of dependency of the person concerned or the ability and commitment of the other person concerned to provide the assistance desired. …” Commission implementing Regulation (EU) No. 118/2014 (“The second I mplementing Regulation”) “… Article 1 Amendments to Regulation EC No. 1560/2003 Regulation (EC) No. 1560/2003 is amended as follows: … (7) I n Article 12, the following paragraphs are added: ‘3. With a view to facilitating the appropriate action to identify the family members, siblings or relatives of an unaccompanied minor, the Member State with which an application for international protection was lodged by an unaccompanied minor shall, after holding the personal interview pursuant to Article 5 of Regulation (EU) No 604/2013 in the presence of the representative referred to in Article 6(2) of that Regulation, search for and/or take into account any information provided by the minor or coming from any other credible source familiar with the personal situation or the route followed by the minor or a member of his or her family, sibling or relative. The authorities carrying out the process of establishing the Member State responsible for examining the application of an unaccompanied minor shall involve the representative referred to in Article 6(2) of Regulation (EU) No 604/2013 in this process to the greatest extent possible.

4. Where in the application of the obligations resulting from Article 8 of Regulation (EU) No 604/2013, the Member State carrying out the process of establishing the Member State responsible for examining the application of an unaccompanied minor is in possession of information that makes it possible to start identifying and/or locating a member of the family, sibling or relative, that Member State shall consult other Member States, as appropriate, and exchange information, in order to: (a) identify family members, siblings or relatives of the unaccompanied minor, present on the territory of the Member States; (b) establish the existence of proven family links; (c) assess the capacity of a relative to take care of the unaccompanied minor, including where family members, siblings or relatives of the unaccompanied minor stay in more than one Member State.

5. Where the exchange of information referred to in paragraph 4 indicates that more family members, siblings or relatives are present in another Member State or States, the Member State where the unaccompanied minor is present shall cooperate with the relevant Member State or States, to determine the most appropriate person to whom the minor is to be entrusted, and in particular to establish: (a) T he strength of the family links between the minor and the different persons identified on the territories of the Member States; (b) the capacity and availability of the persons concerned to take care of the minor; (c) the best interests of the minor in each case.

6. In order to carry out the exchange of information referred to in paragraph 4, the standard form set out in Annex VIII to this Regulation shall be used. The requested Member State shall endeavour to reply within four weeks from the receipt of the request. Where compelling evidence indicates that further investigations would lead to more relevant information, the requested Member State will inform the requesting Member State that two additional weeks are needed. … Home Office: Dublin III Regulation Version 2.0: Transferring asylum applicants into and out of the UK where responsibility for examining an asylum claim lies with the UK or with another EU Member State or A ssociated S tate (18 April 2019) “Background … The Dublin III Regulation is consistent with the principle of family unity in accordance with the European Convention for the Protection of Human Rights, the Charter of Fundamental Rights and the best interests of the child. The provisions on family unity and the best interests of the child are primary considerations which may result in the State responsible for examining the asylum claim being the State where an asylum claimant’s family members or relatives, as defined in the Dublin III Regulation, are legally present or resident (depending on the circumstances of the case). The determination of responsibility for examining an asylum claim based on family links does not anticipate the outcome of the examination of the claim, only that the merits of that claim will be examined by the responsible Dublin State. The criteria determining responsibility also reflect the basic principle that the State which played the greatest part in the applicant’s presence in the area to which the Dublin III Regulation applies should normally be responsible for examining his or her asylum claim. The Dublin III Regulation gives Dublin States discretion to derogate from the responsibility criteria. It does so through the ‘discretionary clauses’, which permit a Dublin State to examine an asylum claim lodged with it, or when asked to do so by another Dublin State, even if such examination is not its responsibility under the Regulation’s responsibility criteria. A Dublin State may ask another Dublin State to accept responsibility for an asylum claim to bring together family relations on humanitarian grounds based in particular on family or cultural considerations in cases where the strict application of the Regulation would keep them apart. … Policy intention The policy intention is to deliver a fair and effective Dublin III Regulation transfer process both into and out of the UK, which supports the principles enshrined within the Dublin III Regulation by: • applying its criteria and mechanisms so that an asylum claim is examined by a single responsible State • reinforcing the principle that asylum seekers should claim in the first safe country and as soon as they enter the territory of the Dublin States • ensuring fair, objective criteria are applied in the determination of responsibility for examining asylum claims • ensuring consideration of the principles of family unity in respect of determining the Dublin State responsible for examining an asylum claim • ensuring respect for family life and the best interest of a child are a primary consideration when applying the Dublin III Regulation … • allowing for derogation from the responsibility criteria, on humanitarian grounds, in order to bring together family relations and examine a claim for international protection, even if such examination is not the responsibility under the binding criteria laid down in the Dublin III Regulation • ensuring that the fundamental human rights of those who are subject to the Dublin III Regulation procedures are not breached • ensuring cases are dealt with as expeditiously as possible, particularly in cases involving unaccompanied children Application in respect of children Section 55 of the Borders, Citizenship and Immigration Act 2009 requires the Secretary of State to make arrangements for ensuring that immigration, asylum and nationality functions are discharged having regard to the need to safeguard and promote the welfare of children who are in the UK. Although section 55 does not apply to children outside the UK the statutory guidance, Every Child Matters: Change for Children , clarifies the approach to be taken by requiring staff to take into account the spirit of the duty and to abide by any international or local agreements that are in place. The application of the spirit of the duty means that when a claim or request has been received that requires a response you must be alert to any indications that the child may be in need of assistance, support or protection from harm that may be best provided by the authorities in the country where the child is present. If this is the case and wherever possible the normal providers of relevant services to children in that country should be informed where there are safeguarding or welfare needs that require attention. The requirement to abide by any international or local agreements in place means just that. When considering a ‘take charge’ request under the Dublin III Regulation, the presumption must be that those making the request are doing so having taken into account the safety and welfare needs, and well-being in the form of best interests of the child who is the subject of the request. However, acting in a way that takes account of these interests is a shared responsibility at this point and you must carefully consider all of the information and evidence provided as to how a child will be affected by a decision and this must be addressed when assessing whether an applicant meets the criteria in the Dublin III Regulation. In addition, you must demonstrate that all relevant information and evidence provided about the best interests of a child, such as a sibling or other relative, in the UK have been considered. This is required as a particular obligation under section 55 as well as by the more general provisions of the Dublin III Regulation. You must carefully assess the quality of any evidence provided. Original documentary evidence from official or independent sources must be given more weight in the decision-making process than unsubstantiated statements about a child’s best interests. … Charter of Fundamental Rights of the European Union Article 24 of the Charter concerns children. It reads: ‘Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity. In all actions relating to children, whether taken by public authorities or private institutions, the child's best interests must be a primary consideration. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.’ European Convention on Human Rights Not all Dublin State human rights obligations are explicitly covered by the responsibility criteria set out in the Dublin III Regulation, but these broader human rights obligations must still be taken into account when applying the Dublin III Regulation. The European Convention on Human Rights (ECHR) provides the framework for ensuring the rights and fundamental freedoms of individuals in European signatory states. … Article 17 – Discretionary clauses Article 17(1) is known as the ‘sovereignty clause’. It permits a Dublin State to decide to examine a claim for international protection lodged with it even if it is not responsible for any other reason laid down in the Dublin III Regulation. In other words, this provision concerns a situation where, for example, a claimant is in the UK and has lodged a claim here and, although another Dublin State is responsible for examining the claim, there are exceptional compassionate circumstances, such as individual human rights considerations, that justify the exercise of discretion to examine the asylum claim in the UK. … Article 17(2) also concerns the exercise of discretion, but in different circumstances. It makes specific reference to the situation where either a Dublin State carrying out the procedure to determine responsibility or the responsible Dublin State itself may, at any time before a first decision on the substance of the protection claim is made, request another Dublin State to bring together any family relations on humanitarian grounds based in particular on family or cultural considerations. For this reason this provision is sometimes known as the ‘humanitarian clause’ (compared to the ‘sovereignty clause’, above). Unlike the terms ‘family member’ and ‘relative’, the term ‘relations’ is not defined in the Dublin III Regulation. The reference to family and cultural considerations in Article 17(2) allows Dublin States to exercise their discretion to bring together individuals who are part of an extended family group recognised in other cultures. The persons concerned must consent in writing. In all Article 17 cases – either the sovereignty clause in 17(1) or the humanitarian clause in 17(2) - the evidence submitted with the request to exercise discretion must be coherent, verifiable and detailed. Situations in which it would be appropriate to exercise discretion to examine the claim(s) in the UK when the UK is not otherwise responsible will be rare and on an exceptional basis. Any decisions to exercise discretion must be agreed by a manager (minimum SEO). … Unaccompanied children Unaccompanied children may lodge an asylum claim in one Dublin State when they have family in another Dublin State. In such cases the Dublin III Regulation provides that the State responsible for examining the asylum claim will be that where the family member, sibling or relative (as defined in the Dublin III Regulation) is legally present, provided this is in the best interests of the child (and that in cases involving relatives, that the relative is able to take care of the child). The purpose of the transfer is for the asylum claim to be examined on its merits and does not anticipate the outcome of the consideration of the asylum claim or permission to remain in that State. In 2013 the Court of Justice of the European Union (CJEU) ruled in MA and others v Secretary of State for the Home Department C-648/11 that where an unaccompanied child with no family members legally present in the territory of a Dublin State has lodged an asylum claim in more than one Dublin State, the Dublin III Regulation should be interpreted so that responsible State is the State in which the most recent claim for asylum is lodged and this is in the best interests of the child. Although there is provision for the transfer of unaccompanied children this is only appropriate in family related circumstances where the bringing together of the child with his or her family member, sibling or relative is considered to be in the best interests of the child. Any case where there is evidence that it may be in the best interests of an unaccompanied asylum-seeking child to request that another Dublin State accept responsibility for examining his or her asylum claim on family grounds must be discussed with a senior caseworker in TCU, who may then wish to seek further advice from Asylum Policy. … Family tracing: special provisions for unaccompanied children Article 6 of the Dublin III Regulation concerning guarantees for minors (children) provides that for the purposes of applying the provisions relating to responsibility for examining an asylum claim the Member State where the unaccompanied child has lodged his or her claim shall take appropriate action to identify family members, siblings or relatives on the territory of the Dublin States. The Commission Implementing Regulation includes a specific form for this purpose. The aim of the standardised information exchange related to unaccompanied children is, in line with the child’s best interest as a primary consideration, to identify the child’s family members, siblings or relatives present on the territory of the Dublin States, establish the existence of proven family links between them, to assess the capacity of a relative to take care of the child and where relevant, determine the most appropriate person to whom the child is to be entrusted. … Rejected requests In the event of a negative reply to a take charge or take back request, it is open to the requesting State to challenge the refusal if it feels that the refusal was based on a misappraisal, or when it has additional evidence to put forward, by asking that its formal request be re-examined. This must be done within 3 weeks of the receipt of the negative reply. The requested Dublin State shall strive to reply to a re-examination request within 2 weeks. However, a lack of an answer within 2 weeks is not the same as accepting the request as acceptance by default is not possible at this stage in the procedure. Further information on this can be found in Article 5(2) of the I mplementing Regulation 1560/2003 as amended by I mplementing Regulation 118/2014 . … Dublin process: requests for transfer into the UK … Both Articles 8(1) and 8(2) require the transfer to be in the best interests of the child. The best interests of the child must always be a primary consideration when applying the Regulation in family unity cases. When assessing a child’s best interests, Dublin States should cooperate with each other taking due account of factors such as family reunification possibilities, the child’s well-being and social development, safety and security considerations and the views of the child in accordance with their age and maturity, and background. The European Intake Unit (EIU) will work with the local authority in which the family member, sibling or relative of the child is residing. Local authorities will be requested to undertake an assessment with the family or relative(s) once the family link has been established, in addition to the checks undertaken by EIU, which will inform a recommendation to EIU as to whether the request should be accepted or rejected. The checks and assessment to be undertaken by the local authority will be outlined in the Department for Education’s forthcoming Friends and Family Guidance. All decisions on whether to accept a request to take charge of a child’s asylum application (and so accept the transfer of a child to the UK) will be the responsibility of the Home Office; however, these decisions will be informed by the assessment and recommendation provided by local authorities. … Unaccompanied children: notifying local authorities and or social services You must ensure that both local authority children’s social care services at the child’s point of entry and where the child’s family member, sibling or relative reside are notified of the transfer request under the Dublin III Regulation. This must be done as soon as possible after the formal request to take charge is received from the requesting State. You must engage local authorities’ children’s social care teams throughout the process, seeking their advice in every case. You must keep accurate records of what information is relayed, who is spoken to, when and by whom. Article 12 of the Im plementing Regulation 1560/2003 , as amended by Im plementing Regulation 118/2014 refers to the role of authorities responsible for the protection of children having full knowledge of the facts to consider the ability of the adult or adults concerned to take charge of the child in a way which serves their best interests. Article 12 also acknowledges that there may be cases where family members, siblings, or relatives stay in more than one Dublin State, in which case the State in which the child is present must cooperate with the State(s) concerned to determine: • the strength of the family links between the child and the different persons identified across the Dublin States • the capacity and availability of the persons concerned to take case of the child • the best interests of the child in each case … When considering a request to transfer an unaccompanied child to the UK under the Dublin III Regulation, you must adhere to the spirit of the section 55 duty and careful consideration must be given to their safeguarding and welfare needs in assessing their best interests. You must work with local statutory child safeguarding agencies in the UK in order to develop arrangements that protect children and reduce the risk of trafficking and exploitation. The re-establishment of family links would normally be regarded as being in accordance with the section 55 duty, but this may not always be the case. Whilst a non-exhaustive list, the re-establishment of family links would not be in accordance with section 55 , for example, if it is identified that: • the safety of the child or their family will be jeopardised • the child has a well founded fear of relevant family members • the relevant family members are the alleged actors of persecution within the claim for asylum which has not yet been finally determined • the child is a recognised or potential victim of trafficking in which the family were knowingly complicit • the child has shown to have been previously exploited or abused or neglected by their family, or claims to have been previously exploited or abused or neglected by their family and this has not been conclusively discounted … Sponsorship undertaking in cases involving unaccompanied children (Article 8 of the Dublin III Regulation) A sponsorship undertaking form must be sent to their family member or relative in the UK and representative (where notification is given) as soon as a transfer request is received. Five working days must be given to complete and return the form. If it is not returned within this time limit you must pursue return by telephone, if a number is available, or by sending a further letter requesting a response. Whilst not a legal requirement of the Dublin III Regulation or Implementing Regulation, the sponsorship undertaking form will require the family to state clearly whether they are willing and able to receive the child. It will bring to the attention of the UK family member or relative, their obligations and responsibilities, and it will provide them the opportunity to raise any issues or questions about their obligations or responsibilities prior to a child’s arrival. Confirming the status of the family member, sibling or relative Under Article 8 of the Dublin III Regulation you must be satisfied when considering a transfer request that the parties are related as claimed and that the claimant’s family member, sibling or relative is legally present in the UK. Where the subject of the request is an unaccompanied child in addition to the family member, sibling or relative’s legal status in the UK having been confirmed, the transfer must also be in the child’s best interests. … Dependency and discretionary provisions … Article 17 is a discretionary clause which sits outside of Chapter III of the hierarchy criteria. It allows a Dublin State to exercise discretion and examine an asylum claim even if it is not its responsibility under the criteria laid out in the Dublin III Regulation. Article 17(2) is relevant to family unity cases where an applicant for asylum is in another Dublin State (a formal asylum claim must have been lodged) and there are family relations in the UK. Article 17(2) can only be applied if all persons give their consent and a formal request by the Dublin State in which the applicant is present/the responsible State, must be made before a first decision on the claim for asylum is taken. Article 17(2) provides that a Dublin State may (at any time before a first decision regarding the substance is taken) request another to take charge of an applicant in order to bring together any family relations on humanitarian grounds. Written consent is required from the persons concerned in Article 17(2) as part of the request. Where an Article 17(2) request is received from another Dublin State, caseworkers should consider whether there are any exceptional circumstances or compassionate factors which may justify the UK exercising discretion and accepting responsibility for the claim, notwithstanding that the UK is not bound to do so under the Dublin III Regulation. There may be exceptional circumstances raised by the evidence submitted with the request from the other Dublin State which would result in unjustifiably harsh consequences for the applicant or their family relations. It is for the requesting Dublin State to demonstrate what the exceptional circumstances or compassionate factors are in their case: the evidence submitted with the request to exercise discretion must be coherent, verifiable and detailed in line with the Dublin III Regulation’s general provisions on evidence. Each request must be decided on its individual merits . However, situations in which it would be appropriate to exercise discretion will be rare and on an exceptional basis. In considering whether or not to exercise discretion caseworkers should act consistently with the Immigration Rules and policies on family members, for example the Immigration Rules Appendix FM – Family Members. Caseworkers must discuss with a senior caseworker any case where the exercise of discretion under Article 17(2) may be appropriate before accepting a request. Confirming the relationship … The onus is on the applicant and their qualifying family member, sibling, relative or relations in line with the relevant provisions in the Dublin III Regulation (Articles 8-11, 16 and 17(2) Dublin Regulation (EU) No. 604/2013) in the UK to prove their relationship and satisfy you that they are related as claimed. … In addition to elements of proof, circumstantial evidence or indicative evidence may also be submitted with a transfer request, such as: • verifiable information from the applicant: O any documents an applicant wishes to rely upon should be provided in English, or accompanied by English translations O the onus is on the requesting Dublin State to provide the translation, however you have the discretion to arrange for an untranslated document to be translated at Home Office expense where this is justifiable in the individual circumstances of the case – the expectation is that this will be justified only in rare, exceptional cases and only after consultation with a senior caseworker • statements from the family members concerned • statements or information from the authorities with responsibility for the child in the requesting Dublin State • reports or confirmation of the information by an international organisation such as UNHCR, International Committee of the Red Cross or Save the Children … As above, you must be satisfied that the applicant and family member, sibling, relative or relations in the UK are related as claimed if the UK is to accept a request to acknowledge responsibility for examining an asylum claim lodged in another State. The applicant and their UK-based qualifying family member, sibling or relation should provide sufficient evidence to prove their relationship and satisfy you that they are related as claimed. You must consider whether, on the ‘balance of probabilities’(the civil law standard), there is sufficient information to accept that the parties are related as claimed. In other words, you must decide whether, after looking at all the evidence, it is more likely than not that the applicant and the person in the UK are related as claimed. … You must, having considered the evidence submitted by the requesting State (proof or circumstantial evidence, as above, including information provided on standard forms which aim to establish the proven family link and the dependency link between the applicant and his or her child, sibling or parent, as well as to establish the capacity of the person concerned to take care of the dependent person), information contained in Home Office records and evidence submitted by the person in the UK, be satisfied that the parties are related as claimed. You must be mindful of the difficulties that people may face in providing documentary evidence of their relationship. Those fleeing conflict zones or dangerous situations may not have time to collect supporting documents and may not realise they may be required. However, depending on the circumstances and country of origin it may well be possible for documents to be sent by post, faxed or emailed. …”