2010 11 Migrants

Wednesday 1 December 2010

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R (on the application of (1) Fauzia Abbassi & Ors (2) Mahubur Rahman & Ors (3) Omeanda Adams & Ors) v Secretary of State for the Home Department [2010] EWHC 2894 (Admin) (Judge Bidder Q.C.): The secretary of state's decision not to take into account policy DP 5/96, which contained a general presumption against the removal of immigrants where their children had accumulated seven years continuous residence, when considering applications for indefinite leave to remain in the United Kingdom was irrational. Whilst the policy had been withdrawn, the immigrants had been in the UK for seven years prior to the withdrawal of the policy.

Note: Although more of a pure immigration case, this may be relevant to those practitioners having to consider issues relating to eligibility for services falling within Schedule 3 of the NIAA 2002.

R (On The Application Of H) V (1) Secretary Of State For The Home Department (2) Wigan Metropolitan Borough Council [2010] EWHC 2414 (Admin)(Karon Monaghan QC): It was arguable that the policy of the United Kingdom Border Agency not to detain children other than in the most exceptional of circumstances was dependent upon it being established as a matter of objective fact that the person concerned was a child. Where the age of a putative child is disputed but not yet resolved, the Secretary of State’s decision to detain is unlawful. The local authority’s refusal to provide accommodation under s20, Children Act 1989 on the basis that he does not require accommodation because he is in detention is perverse.

R (RS) v LB of Croydon, extempore judgment (Burnett J), 05/11/10: The test for permission in an age assessment challenge by way of judicial review is whether there is a realistic prospect of success / arguable case that the child is the age he claims to be. There is an ongoing dispute over the age of the Claimant. The local authority's offer of review does not bring the proceedings to an end. The Court is the fact finder of the objective fact of age.

R (TS) v Secretary of State for the Home Department [2010] EWHC 2614 Admin (Wyn Williams J): the Court quashed a decision to remove an Afghan national child to Belgium, pursuant to Dublin II, on the ground that, in breach of duty under section 55 of the Borders, Citizenship & Immigration Act 2009, the Secretary of State had failed to (i) have regard at all to the need to safeguard and promote TS’s welfare, (ii) treat the need the need to safeguard and promote TS’s welfare as a primary consideration, in the absence of cogent reasons justifying a different approach. That failure manifested itself in (i) a failure to address medical evidence that removal would exacerbate the child’s PTSD (paragraph 44), (ii) addressing a test of whether the child’s medical condition was “so compelling as to justify a departure from the usual practice of removing” (paragraph 45), (iii) a failure to address a social worker’s representations that removal and having to live abroad would adversely impact on aspects of the child’s welfare (paragraph 46), (iv) a failure to identify any reasons that would have permitted the decision-maker to give less weight to the best interests of the child than would have been afforded had the guidance been followed (paragraph 48), (v) a failure to address specifically what would occur in relation to education and the wider aspects of the child’s welfare upon his arrival in Belgium (paragraphs 75 and 76). Consequently, the Secretary of State had failed to determine the proportionality of the child’s removal lawfully, that is, after complying with his duty under section 55 of the 2009 Act (paragraph 77).

Practical Note: Fundamental to this case were (i) an age assessment by the local social services authority, that concluded that the claimant was a child, (ii) evidence from a clinical psychologist that the process of removal was likely to significantly worsen the child’s mental health problems (albeit that no doubt satisfactory treatment would be available in Belgium), (iii) detailed, written representations by the child’s social worker, that removal to Belgium would “severely affect his likelihood of thriving” given his traumatic past, his excellent progression towards integration over the course of 9 months living in the UK (including learning English and participating in educational opportunities) (albeit that the “Children’s Champion” endorsed the decision to remove, notwithstanding these representations). The Judge emphasised that although he left it open to the Secretary of State to make a further removal decision “there are powerful features – individual to the Claimant – which militate against his removal. They are the welfare and health considerations …….. and the length of time which he spent in this country before the decision was made ……..the length of time which the Claimant has now spent in this country and the apparently beneficial consequences of his lengthy stay” (paragraph 84). In practical terms, therefore, this decision sets out a useful blue print for the type of evidence that should be sought, if a child or social services authority seeks to restrain a Dublin II removal. Click here for the transcript.

R (Medical Justice) v Secretary of State for the Home Department [2010] EWHC 1925 Admin (Silber J): the Court quashed almost all of the Secretary of State’s policy called Judicial Review and Injunctions (2010), which provided that in different types of case, including where the Secretary of State considered that it was in the best interests of children because of an absconding risk, or where service of removal directions would create a medically documented risk of suicide or self-harm, the Secretary of State could give less than the standard 72 hours’ notice of removal, providing “certain safeguards” were in place. The Court held that these safeguards were inadequate because (i) there was no minimum notice period, (ii) there were no provisions precluding removal if the person subject to removal had not been able to secure legal advice between notification and actual removal (paragraph 99). Accordingly, the policy failed to include provisions ensuring that there was access to the courts by those against whom the policy was invoked (paragraph 112). This was in breach of the constitutional right that every citizen has, of access to justice, that is, access to a court, to a legal adviser and to advice under the seal of legal professional privilege (paragraphs 32 and 44).

The Court decided that it was rational in principle to provide for shorter notice periods in the case of children at risk of absconding, providing that (i) the policy adequately safeguarded the right of access to justice, (ii) the policy was applied in the way the Secretary of State contended that it would be applied, with the best interests of the child as a primary consideration, and in the context of the procedures and guidelines described at paragraphs 126 and 127 (paragraph 131).

The Court further held that insofar as the policy embraced unaccompanied children at risk of absconding (and one other category) it had to be quashed because the Secretary of State had failed to comply with her General Equality Duties under section 49A the DDA 1995 and section 71(1) of the RRA 1971, by way of an equalities impact assessment, or otherwise (paragraphs 160 and 168). Click here for the transcript.

Practical note: This matter is currently on appeal by the Secretary of State for the Home Department.

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