2010 12 Migrants

Saturday 1 January 2011

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Case Law

R (on the application of BT) v SECRETARY OF STATE FOR THE HOME DEPARTMENT : R (on the application of MA) v SECRETARY OF STATE FOR THE HOME DEPARTMENT : R (on the application of DA) v SECRETARY OF STATE FOR THE HOME DEPARTMENT (2010) QBD (Admin) Extempore (Davis J) 21/12/2010
Facts: The claimant asylum seekers in three conjoined cases (T, X and Y) applied for judicial review of the defendant secretary of state's decision that they were each to be returned to the member state where they had lodged their first asylum claims notwithstanding that they were unaccompanied minors. T and X were nationals of Eritrea who, although they had entered the United Kingdom to claim asylum, had previously sought asylum in Italy. Y was an Iraqi national who had sought asylum in the Netherlands prior to his entry and asylum claim in the UK. In each case, the secretary of state had considered that Regulation 343/2003 applied so as to govern the determination of the member state responsible for examining their asylum claims, notwithstanding the claimants' status as unaccompanied minors with no family members. Pursuant to the Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 Sch.3, their claims were certified and removal directions were made for the return of T, X and Y to the country in which they had lodged their most recent asylum application. In the case of T and X, the secretary of state subsequently agreed to consider their substantive asylum claims and T was granted leave to remain in the UK. X's claim remained to be determined whilst Y's case was to proceed on the footing that he had attained his majority. It fell to be determined whether (i) unaccompanied minors were liable to be removed to the member state in which they had first lodged their asylum claims under art.6 of the Regulation; (ii) prior to transfer under the Regulation, the secretary of state was required to consult the potential receiving member state in respect of the transitional plans and arrangements and to take those into account before deciding to transfer an unaccompanied minor
HELD: (1) There was nothing in the recitals to the Regulation to give rise to the notion that serial applicants who were unaccompanied minors without family were to have their asylum claims in the UK determined in a profoundly different way to that of adults, R (on the application of Mosari) v Secretary of State for the Home Department (2005) EWHC 1343 (Admin) applied. Under the Regulation, an asylum application was to be examined by a single member state, and that examination started as soon as the asylum application was first lodged. Whilst the vulnerability of unaccompanied children was acknowledged, it was not a reason to diverge from the stated general principles of the Regulation. There was a general presumption of cooperation between member states but that could be derogated from where the secretary of state considered it appropriate to do so in an appropriate case. Accordingly, under the Regulation unaccompanied minors were liable to be removed to the member state where their asylum applications had first been made. (2) In the context of removal under the Regulation in the case of unaccompanied minors, the secretary of state was not invariably required to take into account transitional plans or post-reception arrangements in the receiving member state prior to making the decision to transfer. Were it otherwise, the UK would be required to police or distrust the standards of arrangements in other member states. There was a presumption that the receiving state would comply with European law and international treaties in respect of the unaccompanied minor's best interests. The requirement for prior consultation would only arise in cases where cogent grounds existed for consultation before removal could be effected.
Cases to watch:
R(FZ) v LB of Croydon (C1/2010/2824): Appeal from refusal of permission to proceed with an age dispute challenge (Mr. Dingesmans Q.C. sitting as a deputy High Court Judge). Leave to appeal was granted by the President of the QBD, Sir Antony May on 21st December 2010 with a substantive hearing listed for 12th January 2011. This will be the first opportunity for the Court of Appeal to give guidance to social workers as to how initial assessments of age should be carried out, including consideration of the nature and scope of principles of procedural fairness; role of appropriate adult; entitlement to have an opportunity to rebut adverse impressions, etc. The Appellate Court will also be considering the correct approach the reviewing court ought to take in considering permission in age dispute challenges post-A v Croydon.

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