2011 01 Migrants

Tuesday 1 February 2011

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Case Law

R (CJ) v Cardiff County Council [2011] EWHC 23 (Ouseley J): Substantial fact-finding trial of an unaccompanied age dispute minor. It is the first case of its kind to consider the issue of the burden of proof at a substantive trial. Ouseley J held that normally, it is unnecessary to consider the issue of the burden of proof in an age trial. The answer will be clear following live evidence. On the facts of the case, the Judge was unable to make a decision as to the fact of the putative child's age. He stated at pargraph 126 that neither party, if the burden was specifically on them, was able to fully prove that the answer they put forward is the correct one. He held in those circumstances that the burden of proof falls on the child for 3 reasons: (i) age disputes are brought by way of judicial review. In judicial review claims, the onus is on the claimant to prove his case; (ii) he who seeks to benefit from a duty has to prove his case; and (iii) the evidence as to age is by and large in the control of the child. In so finding, Ouseley J relied on R v Secretary of State for the Home Department ex parte Khawaja [1984] AC 74 as the proposition for his finding. Click here for the full judgment.

Note: The claimant in CJ has applied for leave to appeal, it is understood, on the point as to the burden of proof among other things. The application for leave to appeal has been stayed behind the appeal in R (FZ) v LB of Croydon (C1/2010/2824) which was heard on 12th January 2011 (Sir Anthony May (President of the QBD), Smith LJ and Aikens LJ). Judgment is due out on 1st February 2011.

FZ was mentioned in last month's update as a case to watch. This case is due to become the guideline case on age dispute challenges, including on the nature and extent of the requirement of fairness in a local authority assessment of age and the correct test to be applied in age dispute judicial review claims. The Court of Appeal has also asked for submissions from the parties in FZ on the burden of proof point in CJ. It is unclear what the Court of Appeal in FZ will say about CJ and the burden of proof at a substantive stage as FZ is a permission stage judgment.

With the power now for the High Court to transfer age dispute judicial review claims to the Upper Tribunal (Immigration and Asylum Chamber), FZ will likely be a benchmark for how the courts will have to approach age dispute claims at the permission stage.

In this author's view, there are several problems with Ouseley J's analysis of the burden of proof:

(i) the effect of his judgment is to confine the outcome of the trial to one of two answers - the answer provided by the putative child and the answer provided by the local authority. This doesn't sit well with the Judge's own analysis of the evidence before him. At para 126, it is clear that Ouseley J felt that neither party's evidence was conclusive. So why not arrive at his own decision as to age? That is what was how Langstaff J approached the assessment of age in MC v Liverpool CC [2010] EWHC 2211 (Admin). (Click here for judgment). His approach was affirmed by HHJ McMullen in A v Camden LBC [2010] EWHC 2882 (Admin).

(ii) burden of proof should not be determined by the forum in which the claim is heard. That age disputes are brought by judicial review is a recent relic of the pre-A v Croydon approach where the only challenge that could be launched against a local authority assessment is by public law principles. The Supreme Court in A v Croydon clearly made a distinction between conventional JR claims under the Children Act 1989 challenging provision of services and age dispute claims where the issue is that of a precedent fact. It is therefore not helpful to consider burden of proof within the constraints of conventional judicial review onus of proof.

(iii) the evidence of age is not entirely in the hands of the child. Why else would there be evidence of age by way of expert evidence (medical, psychological, social work) and consideration of physical appearance and demeanour (even though, of course, not determinative). To say that the evidence is all in the hands of the child ignores why age disputes arise in the first place. They arise because the child has no certain proof of age and why a trial is required to discover the right answer.

(iv) Khawaja does not support the analysis in CJ. It is actually a good illustration of the inquisitorial nature of the court's role in cases where precedent facts need to be determined. See Lord Scarman at 110E-F of Khawaja. It is far easier to arrive at the right answer in a Khawaja type case because there, the answer is between two choices - either the person entered lawfully or unlawfully. Age, as courts and experts all acknowledge, is an inexact science. Whilst Khawaja is helpful to illustrate the court's inquisitorial role, it is not authority as to burden of proof in all precedent fact claims.

R (BT and Ors) v Secretary of State for the Home Department [2010] EWHC 3572 (Admin) (Davis J): At the time each of three claims is issued, each was an unaccompanied asylum-seeking minor. They were each in the care of local authority children's services. Each challenges the Defendant Secretary of State's decision that they were to be returned to the member-state where they had lodged their first asylum claims notwithstanding they were unaccompanied minors. In the case of BT, she was removed to Italy under the Dublin II regulations (Regulation 343/2003) without notice to social services despite knowledge of her vulnerabilities. It was only upon judicial review proceedings that she was brought back to the UK. In the case of AM, removal to Italy was attempted but failed. In the case of DA, removal directions were issued but they were stopped following the issuing of judicial review proceedings.

Issues raised in the claim: (i) whether as a matter of construction, unaccompanied asylum-seeking minors were liable to be removed to the member state in which they first lodged asylum claims under Article 6 of Dublin II; (ii) whether prior to transfer, the Secretary of State was required to consult the potential receiving member state in respect of transitional arrangements for an unaccompanied minor before deciding to transfer the minor.
Before the hearing, the Secretary of State accepted BT's substantive claim and she was granted refugee status. In respect of AM, the Secretary of State agreed to consider her substantive claim.
HELD: (1) Article 6 could not be read to prevent the Secretary of State from removing an unaccompanied asylum seeker without family to have their asylum seekers determined where they first lodged their claim. There was nothing in the Recital to the Dublin II regulations to suggest that unaccompanied asylum seeking minors should be treated differently from adults. Whilst the vulnerability of unaccompanied children was acknowledged, it was not a reason to diverge from the stated general principles of the Regulation. (2) The Dublin II scheme presumed cooperation between member states. (3) There was no obligation under the Dublin II regulations to require the Secretary of State to take into account transitional plans or post-reeception arrangements in the receiving member-state prior to deciding to remove a child. 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.
Stephen Knafler Q.C. (click here for profile) was counsel for the Claimants.
Note: Permission to appeal was allowed by Davis J on the construction of Article 6. Permission was refused by Davis J on the transitional planning point. An application for permission to appeal has now been lodged with the Court of Appeal on the transitional planning point.
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. Judgment due to be handed down on 1st February 2011.
Other matters:
Centre for Trauma, Asylum and Refugees has released an interesting report on the treatment of vulnerable asylum seekers in the UK. It makes for an interesting read and is based on interviews with both asylum seekers and professionals who work closely with them. Click here for the report.

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