A busy month for migrant children, and not necessarily in a positive direction:
R (on the application of OA (Nigeria)) v Secretary of State for the Home Department  EWHC 3128 (Admin) (Silber J): Following refusal of leave to remain in the UK, a claimant challenges a decision of the Secretary of State to certify his human rights claim as ‘clearly unfounded’. The Claimant and his wife came from Nigeria on visitor’s visa with their 4 year old son. They subsequently had two daughters. They overstayed. Removal directions were issued in 2010. The Claimant challenged the removal decision on the basis of his children’s rights under the ECHR Article 8. This was rejected. The Secretary of State subsequently reviewed the decision to take account of the best interests of the children, applying ZH (Tanzania) but refused his representations, finding that removal of him and his son was appropriate. By then his wife and daughter were returning to Nigeria. The Court held that the Secretary of State had arrived at the correct decision in the circumstances. Section 55 BCIA 2009 required the Secretary of State to carry out detailed investigations where there was insufficient evidence about a factor, such as life-threatening illness, that prevented an informed decision from being made. That was not the case here as the Secretary of State had carried out proper and helpful inquiries relating to the educational system in Nigeria. Absent the suggestion that further information could reasonably have been required, the removal directions were correctly issued. Click here for judgment.
R (on the application of AA) v Secretary of State for the Home Department CA (Civ Div) (Laws LJ, Sullivan LJ, McCombe LJ) extempore judgment 06/11/2012: Whilst a judge had been entitled to find that the Home Department's policy on dealing with unaccompanied asylum-seeking children contained a lacuna in respect of the duty to have regard to children's welfare under the Borders, Citizenship and Immigration Act 2009 s.55, he had been wrong to grant a failed asylum seeker who had a corrected age assessment three year's discretionary leave to remain. The appropriate remedy was to direct the Secretary of State for the Home Department to deal with the asylum claim on the basis she would have if the asylum seeker had been correctly assessed as under 18. Citation for High Court decision is  EWHC 3820 (Admin).
KA (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1420 (Longmore LJ, Davis LJ, Lewison LJ): The appellant asylum seeker appealed against a decision of an Upper Tribunal judge that there was not a reasonable degree of likelihood that K was under the age of 18 at the time a decision to remove him from the United Kingdom was made. He arrived in the UK and applied for asylum on the basis that his father, a member of the Taliban, wanted him to be a suicide bomber and that if he were returned to Afghanistan, his life would be in danger. He claimed to be 15 ½ when he claimed asylum. He was age disputed and an age assessment produced. The Secretary of State refused his asylum claim and refused to accept his age in the light of the age assessment. When he appealed to the Upper Tribunal, whilst the Upper Tribunal found flaws in the age assessment, it also did not accept the expert report and, left only with the appellant’s evidence, found him not credible. The appellant challenged this on the basis that given the finding that the age assessment was flawed, the Secretary of State should not have been entitled to rely on it to refuse his claim. The benefit of doubt principle should be applied in his favour. The Court of Appeal rejected this finding that under the Secretary of State’s policy, ‘Assessing Age’, the principle of the benefit of the doubt is only applicable to an asylum seeking young person claiming to be a child is only to be afforded at an initial stage pending a decision in relation to an asylum seeker’s age. It does not apply once a decision has been made. Click here for judgment.
Note: Query how this case sits with the concept of age being a precedent fact per A v Croydon in the Supreme Court?
R (K) v Birmingham City Council and conjoined appeals  EWCA Civ 1432 (Lord Dyson (MR), Sullivan LJ, McFarlane LJ): The Court of Appeal rejected the submission that a local authority undertaking age assessments for the purpose of the Children Act 1989 would be bound by age assessment conducted by the Secretary of State for the purpose of exercising immigration functions. The Court also rejected the submission that age assessment done by the First Tier Immigration Tribunal bind the local authority in rem. There was nothing the Joint IND-ADSS Age Assessment policy that can be read to bind the local authority. Click here for judgment.
R (AA) v Secretary of State for the Home Department  EWCA Civ 1383 (Arden LJ, Davis LJ, Baron J): The Secretary of State's power of detention under the Immigration Act 1971 Sch.2 part I para.16(2) was wide enough to permit the detention of a person not established to be a child, notwithstanding that that person subsequently turned out to be a child. Her duty under the Borders, Citizenship and Immigration Act 2009 s.55 to treat the best interests of a child as a primary consideration did not apply. The Court’s assessment of the detention had to consider the material available to the decision-maker at the time of the detention. This judgment is being appealed to the Supreme Court. Click here for judgment.
AAM (A Child) (By his litigation friend Francesco Jeff) v Secretary of State for the Home Department  EWHC 2567 (Lang J): The Secretary of State’s decision to detain an asylum seeker subsequently found to be a child was unlawful because the decision relied on an age assessment concluding he was 18 which was not a lawful assessment. The Secretary of State failed to engage with the Merton guidelines when accepting the conclusion of the age assessment blindly. Click here for judgment.
Note: This judgment dealt with aspects of s55, BCIA 2009 but must now be read in the context of the Court of Appeal’s judgment in AA v Secretary of State (referred to above)  EWCA 1383.
- There is an ongoing cross-party Parliamentary Inquiry into the Asylum Support System's effect on children. Deadline for written evidence is on 7 December 2012. Click here for more information.