2011 10 Children

Tuesday 1 November 2011

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Just after the updates were sent out two new cases relevant to migrant children:

R (AN) v Secretary of State for the Home Department; R (FA) v Secretary of State for the Home Department, extempore judgment 27/7/2011 (Mitting J): The linked representative claims challenged the SSHD's conduct of illegal entry interviews at port on unaccompanied asylum seeking children in circumstances where they are not afforded procedural and substantive safeguards under the Immigration Rules owed to children claiming asylum in the UK. In FA's case, the interview delved into the substance of his asylum claim. Other children's evidence (18 in total) were filed in these claims and the Judge agreed that they show the same pattern of questions asked which delved into the substance of the children's asylum claims. The interviews were subsequently relied upon by the SSHD to make adverse findings of credibility against the unaccompanied children and to consequentially form the basis for rejecting their asylum claim and / or further leave to remain. The Court held that in circumstances where the child claims asylum directly or intimates a claim for asylum, questioning should stop in respect of that topic on immediate effect. Interviews which went beyond the registration of an asylum claim into the substance fall within the remit of Immigration Rules 352 and 352ZA, which afford specific safeguards to children in processing their asylum claims. The children were lawfully detained under the SSHD's powers to detain as their means of arrival, concealed in the back of a refrigerated lorry constituted the most exceptional circumstances and the purpose as the SSHD explained was to allow them to recover before carrying out an interview in respect of them.

R (N) v LB of Barnet, extempore judgment 29/7/11 (HHJ Pearl): In a substantive fact-finding on age, the Court had to assess the evidence in the round irrespective of who has the burden of proof. The correct approach for the Court is to assess the evidence in the round to make a determination of the fact of age. Only if there remains uncertainty about a child's age should there be imported the concept of the burden of proof. The burden of proof usually lies with the person who asserts the validity of a fact, which in most circumstance is most likely the Claimant child.

R (O) v Hammersmith and Fulham LBC [2011] EWCA Civ 925 (Rix LJ, Lloyd Lj and Black LJ): The Court of Appeal held that the Court's duty to consider the welfare of the child under s1, Children Act 1989 does not apply in the context of judicial review.

Another age assessment case to add to the collection to give further information as to how courts generally are dealing with age dispute claims:

R (AE) v LB of Croydon (Sir Frances Patterson Q.C.), extempore judgment: Court held that although the evidence was finely balanced and the Claimant was generally credible some of his inconsistencies led the Court to find that he was not the age he claimed to be.

You may want to consider the above case alongside recent ones such as:

R (on the application of Y) v Hillingdon London Borough Council[2011] EWHC 1477 (Admin) (Keith J): Click here for judgment.

R (on the application of R) v Croydon London Borough Council[2011] EWHC 1473 (Admin) (Kenneth Parker J): This is the first case post- A v Croydon to consider the role of expert medical evidence in the assessment of age. The Judge found Dr. Birch’s statistical methodology unhelpful but found however that had she relied on her clinical judgment as an experienced consultant paediatrician, her evidence would carry a lot of weight. Click here for the judgment.

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