EU Charter of Fundamental Rights creates a free standing right

The Immigration & Asylum Chamber of the Upper Tribunal (“UT”) has made a significant ruling in Abdul (section 55 – Article 24(3) Charter) [2016] UKUT 106 (IAC) in relation to EU rights.

The UT (Mr Justice McCloskey) ruled that Article 24(3) of the EU Charter of Fundamental Rights creates a “free standing right” that must be taken into account by decision makers, although his Lordship clarified that such rights were “not absolute“. McCloskey J went on to rule that where such a right is engaged, “a failure by the [Home Office] and/or the [First-Tier Tribunal hearing an appeal] to acknowledge it and to decide accordingly may constitute a material error of law“.

Mr Justice McCloskey held:

30. I am of the opinion that Article 24(3) creates a free standing right. It may, of course, be viewed as the unequivocal articulation of a concrete “best interests” right and, on this analysis, is a development, or elaboration, of Article 24(2). Furthermore, given the exception formulated in the final clause of Article 24(3), the nexus with Article 24(2) is unmistakable. However, I consider it clear that Article 24(3) was designed to create a discrete right, an analysis which is harmonious with general principles of EU law. These include the well known principle that every part of a measure of EU law is presumed to have a separate and individual effect and impact. Article 24(3) may also be viewed through the prism of the principle that where one has an amalgam of specific and general provisions, the former should normally be considered in advance of the latter. This construction is further fortified by the Commentary of the Charter of Fundamental Rights of the European Union (published by the EU Network of Independent Experts on Fundamental Rights), at p207: ” ….. Children are no longer considered as mere recipients of services or beneficiaries of protective measures but rather as rights holders and participants in actions affecting them.”

31. Notwithstanding that Article 24(3) of the Charter was canvassed in the Appellant’s written argument at first instance, the decision of the FtT is silent on this issue. This failure is reflected in the submissions of Mr Blundell which, reduced to their essential core, advanced the contention that no material error of law had been committed. The outworkings of this argument were that the FtT was clearly aware of the issue of separation of the Appellant from his children, something which is, in Mr Blundell’s words, an ” ever present” in cases of this kind.

32. The main flaw in this argument, in my view, is that it overlooks the profound nature of the flaw in the decision of the FtT. In short, the Judge failed to acknowledge the existence of a right conferred on both children by one of the constitutional measures of EU law. Ipso facto, he also failed to appreciate that this has been characterised a ” fundamental” right in the jurisprudence of the CJEU. If this error had been avoided, it is as a minimum possible, as Mr Knafler argued, that the Judge’s analysis in the passages to quoted in [13] above would have been quite different. In particular, it seems to me inconceivable that the vague “a relationship” and the limp “in some jeopardy” assessments would have featured. I conclude, accordingly, that the FtT’s error of law on this issue cannot be dismissed as immaterial.