2013 01 Children

Friday 1 February 2013

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R (KA) v Essex CC [2013] EWHC 43 Admin (Mr Robin Purchas QC): the local authority was required to continue to support a destitute Nigerian family, under section 17 of the Children Act 1989, because although their applications for LTR in the UK had been refused (without there being a right of appeal), they had made a further application for LTR, and had stated that they would appeal any removal directions to the FTT, on Convention grounds that were not manifestly hopeless or abusive. Click here for judgment.

Note: This case is significant in the manner in which it extends the ambit of Birmingham CC v Clue [2010] EWCA Civ 460 to cover those who have yet to make a claim but are intending to. Clue first established the principle that those families with outstanding claims under Article 8, ECHR that are not manifestly hopeless or abusive are eligible for support under section 17, Children Act 1989.

(1) LH (Nigeria) (2) HH (Nigeria) v Secretary of State for the Home Department [2013] EWCA Civ 26 (Pill LJ, Davis LJ, Warren J): The appellants, Nigerian nationals and father and son, appealed against deportation orders issued by the respondent. Their appeal was dismissed by the First-Tier Tribunal who found that whilst family life had been established, deportation was proportionate given the seriousness of the father's offences. The son, being a dependent, was also liable to deportatio because it would not be unreasonable / adverse to his welfare to continue his family life with his father in Nigeria. The appeal to the Upper Tribunal was unsuccessful. The Court of Appeal dismissed the appeal. An interesting point was raised in the course of the proceedings as to the circumstances in which a child should have separate legal representation so that his wishes / feelings can be propoerly expressed and conveyed. In this case, the Court of Appeal found there to be no such need given the child was a well-educated 16 year old, capable of articulating his own opinions and there was no evidence that the legal representatives had not properly ascertained his wishes and feelings. The decision as to whether a child should be separately represented to the parent had to be determined on a case by case basis. Click here for judgment.

Note: This is not the first case where the question of children being legally represented separately to their parents was considered before the court. The comments in this case should be read with the comments made by the Supreme Court (per Lady Hale) in ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4 at paragraphs 35-37. ZH (Tanzania) was a deporation case in which the children were separately represented. Whilst they were granted leave to do so, Lady Hale's observations on this matter should be considered. See also HH v Italy; PH v Italy; PK v Poland [2012] UKSC 25, an extradition case where the children were separately represented to the parents.

EU (Afghanistan) and Ors v Secretary of State for the Home Department [2013] EWCA Civ 32 (Maurice Kay, Jackson, Stanley Burnton LLJ): This is the second part of the cases in KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1014, which established that where Afghan asylum seekers arrived in the UK as unaccompanied minors, the Secretary of State's failure to discharge her duty to endeavour to trace their families was relevant to the determination of any further application for leave to remain even after they have turned 18. KA (Afghanistan) established an important principle that there was no real bright line between being 17 years and 11 months and 18 years old in respect of whether adequate reception conditions are available to receive a young person if his claim for asylum fails. In this second part of the claim, the Court of Appeal rejected the appeals for six Afghan young men and held that the grant of leave should be made in the context of the Refugee Convention only in respect of those who would be at risk or whose rights under the ECHR would be infringed if returned. It should not be granted to mark a disapleasure at the Secretary of State's conduct or as a sanction for misconduct. Click here for judgment.

Other matters:

  • In the case of MA, BT and DA v Secretary of State for the Home Department [2011] EWCA Civ 1466, in respect of the removal of unaccompanied asylum seeking children under Article 6 of the Dublin II reguluations, the Advocate General (of the CJEU) is due to give his opinion in the matter on 21 February 2013. Stay tuned.
  • In the case AA v Secretary of State for the Home Department [2012] EWCA Civ 1383, in respect of the legality of detention of age disputed minors subsequently to be in fact children, a petition to appeal has been lodged with the Supreme Court.
  • The Parliamentary Inquiry into asylumsupport for children and young people was published on 30 January 2013. Click here to read the full report. For general information about the inquiry and the transcript of the evidence given at the inquiry, click here.

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