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Court of Appeal hold that Home Secretary is not required to put a different deemed date of birth on identity document provided to a refugee despite risk to life

Friday 15 January 2021

Stephen Simblet QC has been acting for Mind, the Mental Health Charity, as Intervenor in R (WA (Palestinian Territories) v Secretary of State for the Home Department [2021] EWCA Civ 12. Stephen was instructed by Rheian Davies, Head of Legal for Mind.

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Court of Appeal hold that Home Secretary is not required to put in a different deemed date of birth on the identity document provided to a refugee despite the risk to his life from his refusal of food and nutrition in reaction to her decision. 

WA is a refugee from Palestine. He had been tortured in Gaza. He arrived in the UK without identity documents and the Secretary of State issued him with a biometric residence permit. Prior to that happening, there had been a number of age assessments carried out by local authorities and age assessment proceedings. WA says that he is younger than the Secretary of State alleges and firmly and genuinely believes that his date of birth is different from the one administratively determined by proceedings in the UK. He suffers serious mental health problems including post traumatic stress disorder, and the imposition by the Secretary of State of this date of birth on his biometric residence permit had caused him such damage to his sense of self and identity that he had refused food and nutrition and has become dangerously ill, such that his life is in imminent danger, and he is in hospital.

There have been proceedings in the Court of Protection (Avon v WA [2020] EWCOP 37) in which the court found WA’s belief to be genuine and had authorised some measures short of forcible nutrition to keep WA alive.

The case before the Court of Appeal challenged the Secretary of State’s refusal to furnish a biometric residence permit containing the date of birth that WA says is correct rather than the date that the Secretary of State says is correct. The issues particularly in focus were, bearing in mind the risk to WA’s life in this very unusual situation, the extent to which Article 2 and Article 8 ECHR required the Secretary of State to take a different course. It was particularly upon those ECHR issues that Mind wished to intervene, and the Court of Appeal had given permission for Mind to intervene by way of written submissions.

The appeal failed. Concerningly, although the judgments hold that although there is a real and immediate risk to WA’s life (see e.g. paragraph 52), the Court of Appeal judges all held that there was no responsibility on the Secretary of State and that the positive operational duty where someone makes a “serious and sustained attempt to take their own life” is confined to “appropriate agencies” such as the police, social services or NHS: see Phillips LJ at paragraph 60 and 62. A similar decision was reached in relation to Article 8 duties (see 78- 79). 

Permission to appeal to the Supreme Court has been refused. The situation for WA is critical and it remains to be seen whether he will choose to, or be able, to appeal further.

The problem with the Court of Appeal’s decision is not just that it artificially confines those emanations of state that fall under the positive operational duty, but further that the judgments did not deal with arguments that this is  not just about contended omissions on the state’s part, but the consequences of action that is taken by the state. The provision of a biometric residence permit recording a person’s name and date of birth is a step that is legislatively required. Accordingly, it could be said that the state has created the danger to WA and the situation in which his refusal to accept food has arisen. On that analysis, the case would concern the obligation not to create a risk to life or to interfere with private life,  rather than being a case about positive duties and which emanations of state owe those. 

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