A Year in Review of Legal Developments in Migrant Children's Rights

Friday 7 December 2012

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(This Note has been reproduced from a talk presented at a recent judicial review conference for immigration practitioners.)


1. Last year, we saw great strides in the legal world in the field of migrant children’s rights. We had the Supreme Court affirming in ZH (Tanzania) [2011] UKSC 4 what practitioners probably always felt was the correct view, that the ‘best interests of the child’ must be a paramount consideration in any decision the Secretary of State for the Home Department (‘SSHD’) makes, whether in relation to the determination of an application for leave to remain[1], or placement in the Fast-Track[2], return of children to their home country[3]and detention of children,[4]to name a few. We saw the courts and practitioners engaging robustly with the construction of the section 55, Borders, Citizenship and Immigration Act 2009 (‘BCIA 2009’) duty which requires the SSHD to act in a manner which safeguards and promotes the welfare of the child and considers his best interests.

2. What about this year?The cynic in me would say the gloss and novelty of the ‘best interest of the child’ principles, as enshrined in s55, BCIA 2009 and as rejoiced by the Supreme Court in ZH (Tanzania) seems to have worn off a bit, and this year has seen a more mixed bag of judgments from the tribunal all the way up. In some areas there has been a real step forward in protecting the rights of migrant children (see for example, KA (Afghanistan) and MA and BT v Secretary of State (Dublin II removal of children cases). In other areas, there have been several steps back, particularly in relation to age disputes and children with families in deport / removal cases.

3. This paper will look at the way the courts have approached migrant children’s rights this year.

4. Here is the good and the bad highlights …


5. The good news first:

6. The artificial bright line of 17 years and 11 months and 29 / 30 days and 18 always seemed a bit arbitrary. The Court of Appeal in AA (Afghanistan) [2007] EWCA Civ 12 first raised concerns (at a higher court level) about the adequacy of reception and care arrangements in Afghanistan and the need for the Secretary of State to take active steps to inquire in respect of adequate reception conditions. The ‘tracing duty’, to use the shorthand, was subject to scrutiny last year following the introduction of the s55, BCIA 2009 duty in the case of DS (Afghanistan) [2011] EWCA Civ 305. The Court of Appeal held there that s55, BCIA 2009 was a positive duty enforceable by an individual child and required the SSHD to take positive steps to promote and safeguard the welfare of a child who is in the UK. Failure to trace family members or enquire about reception arrangements on return is a breach of s55, BCIA 2009: §§45-46 of the judgment. Importantly, the Court of Appeal rejected the SSHD’s argument that the appellant allegedly failed to cooperate with the Red Cross. Lack of cooperation from the child did not relieve the SSHD of her duty.

7. The dicta of DS (Afghanistan) was affirmed in HK (Afghanistan) and Others [2012] EWCA Civ 315 (Pill, Rimer, Elias LLJ).

8. In KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1014 (Vice President of the Court of Appeal, Hooper and Moore-Bick LJ), the Court of Appeal took the scope of the tracing duty a bit further to consider the correct approach to assessing the risk on return in respect of Afghan minors where they have reached the age of majority at the date of their asylum appeal. The appellants were 8 young men from Afghanistan who had arrived in the UK aged 15 / 16 and unsuccessfully claimed asylum. They were granted discretionary leave to remain until 17 ½ years of age, in line with the SSHD’s policy. At age 17, all of them made application for asylum or humanitarian protection which were refused. Their appeals to the FTT were refused before they reached age 18. Their appeals to the Upper Tribunal were heard and dismissed after they had reached 18.

9. The issue for the Court of Appeal was whether in those circumstances they should retain the advantages in immigration terms of their minority when their appeals were heard.

10. The Court of Appeal said this:

  • There is a general rule that tribunals dealing with asylum appeals must consider the merits of the appeal on the basis of facts / circumstances prevailing at time of the hearing. If facts change between the FTT and the UT, that should in principle be considered;
  • The duty to endeavor to trace a minor’s families is relevant to judicial consideration of an appellant’s asylum / humanitarian protection claim and relevant to a consideration of the duty under s55 BCIA 2009;
  • It is not discharged simply by referring a minor to the tracing facilities of the Red Cross during the period of time when the SSHD granted a discretionary period of leave in line with the SSHD’s policy. The policy operated in such a way that it granted leave up to and close to the expiration of the tracing duty when read together with s55, BCIA 2009 because the minors were due to turn 18;
  • Applying the Rashid [2005] EWCA Civ 744 and S v SSHD [2007] EWCA Civ 546 principles, the Court has to consider whether there were serious administrative errors causing unfairness / illegality which needed to be remedied;
  • Although the court had no power to grant leave or direct the SSHD to do so, the court could determine that a legally material factor in the SSHD’s exercise of discretion was the correction of injustice.
  • Although the duty to trace did not endure beyond age 18, it cannot be that the assessment of risk on return was subject to such a bright line rule. The risks of forced recruitment / sexual exploitation of vulnerable young males still existed after age 18.
  • This would always be fact-specific:
  • At one end of the spectrum, you may have an applicant, who is credible, cooperative in the account given of having no surviving family in Afghanistan or having lost touch with surviving family members. Even if he had reached 18 by the time the tribunal considered his appeal, he may still be able to avail himself of the Rashid / s55 principles by reference to the SSHD’s failure to trace.
  • At the other end of the spectrum is the uncooperative and incredible appellant who frustrated any attempt to trace his family. This might put him outside the remit of the protective and corrective principles, but not because he is to be punished but because he had failed to prove risk on return.

Age assessments

11. Whilst in the arena of tracing the court appears to remain protective of the best interests of minors where there is a potential risk of their returning to a situation of persecution, the approach of the court to those young people’s whose age is in flux is less promising.

12. This year really saw the Upper Tribunal fully taking charge of its new jurisdiction as a judicial review court in the realm of fact-finding age assessment trials. One only needs to look at the Children’s Commissioner’s Report on ‘The Fact of Age’ published in July 2012 of this year to get a sense of how the tide has changed yet again. There was a period post-A v Croydon [2009] UKSC 8 (which determined that the fact of age is an objective and precedent fact which admits only one right answer) where practitioners felt positive about the change in the law on age assessments.

13. There was a general feeling that the local authority age assessment process is underpinned by a culture of disbelief and that maybe the High Court with its experienced judicial review judges, would provide a level of objectivity to the process which was lacking.

14. We were off to a good start last year with the line of cases such as FZ v Croydon [2011] EWCA Civ 59, YA v Hillingdon [2011] EWHC 744 (Admin), AM v Croydon [2011] EWHC 3308 (Admin), KN v Barnet [2011] EWHC 2019 (Admin). Even in cases where the claimant was not wholly successful, the approach of the court was to take a half-way point between the claimant and the local authority’s position and call it even: see A v Camden for example.

15. This year started off rocky with one of the first Upper Tribunal age assessment determinations in AM v Solihull [2012] UKUT 00118 (IAC) where the judges spectacularly concluded that the claimant was not the age claimed, and not the age assessed by the local authority but some other age older than both.

16. In that judgment, the Tribunal made findings of principles about age trials as follows:

  • The Tribunal is not bound by either party’s view as to the claimant’s age and is to make its own decision on age on the evidence available before it.
  • Physical maturity is not determinative of age (a helpful finding) when one has regard to the varying cultural, social and economic history of the claimants.
  • But two indicators of physical maturity which can assist is evidence of growth in height / weight over time since being in the UK and the eruption of the third molar. (more about dental later).
  • As to demeanour, there may be some value to be obtained from observations of demeanour and interaction with others over a period of time particularly by those who have had the opportunity to observe an individual going about his ordinary life. But it is difficult to see how the demeanour of someone at a one-off meeting necessarily could provide any indication of age.
  • Asserted expertise of a social worker conducting an interview is not sufficient to counteract those difficulties, particularly when contrasted with other people involved in the young person’s life, such as a teacher or a family member.
  • Expert evidence of independent social workers cannot carry much weight in circumstances where they are carrying out a similar exercise to the assessing social workers of a snapshot view of age.

17. Following from AM v Solihull, as far as I know from a search of the databases, there has yet to be a case heard in the Upper Tribunal where the claimant has succeeded in having his age determined in his favour. In ES v Hounslow, the tribunal determined that he was a few months younger than assessed but certainly not his claimed age. In W v Croydon, although not a Tribunal case, Mr. C M G Ockelton presided in his deputy High Court judge capacity and again, very much like in AM v Solihull, held that the claimant was not the age claimed, not the age assessed by the local authority but four years older than the assessed age.

18. In all three of these cases, one of the most worrying implications revealed by the age trials is the risk to the claimant age-disputed minor in respect of their immigration status.

19. In both AM v Solihull and ES v Hounslow, the claimant had obtained refugee status but was age disputed still. In AM v Solihull, the SSHD in fact revoked his refugee status. In ES v Hounslow, this did not happen and interestingly, the tribunal explicitly stated that any credibility findings relating to the claimant’s age should bear no impact on his status as a refugee or his credibility in respect of his asylum claim (he was found wholly credible on his asylum claim by the FTT). In W v Croydon, interestingly, the SSHD did not seek to curtail the claimant’s leave despite the judgment of the High Court. And even more interestingly, the local authority also did not seek to terminate support to the claimant.

20. All of these cases raise a question mark of what practitioners and the claimant children should do when their age is disputed and it is relevant to both their immigration claims and their claims for support in the UK.

21. It has already been established by the High Court in several cases, AS v Croydon [2011] EWHC 2091 (Admin) and PM v Hertfordshire [2010] EWHC 2056 (Admin) that immigration determinations of age, positive or negative, are not binding in rem and thus not binding on the local authority, although the findings are relevant considerations for the local authority to review everything in the round.

22. To stick the boot in, the Court of Appeal handed down the judgment of R (K) v Birmingham City Council and conjoined appeals [2012] EWCA Civ 1432 (Lord Dyson (MR), Sullivan, McFarlane LLJ), rejecting 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 assessments 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.

23. Also see the Court of Appeal’s judgment handed down on the same day as K v Birmingham in KA (Afghanistan) [2012] EWCA Civ 1420 (Longmore LJ, Davis LJ, Lewison LJ). There an 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.

24. Quite a serious blow to the concept we have all held dearly – the benefit of the doubt. How this sits with the Supreme Court’s judgment that there is a precedent right answer as to age in A v Croydon is not entirely obviously.

25. There is now a real cross-discipline quandary here. Do you pursue an age dispute in the judicial review jurisdiction given these risks? Or do you just chance it in the immigration tribunals? The short answer is, there is really no right answer and either way you go, there is a risk.

26. The longer answer is this:

27. If you go down the JR route and the immigration route in conjunction, if the JR succeeds, then the immigration tribunal will be bound by the declaration on age. This will undoubtedly help your client in terms of obtaining the right length of leave and may also help with the credibility side of things with the asylum claim. If you fail in the JR, that can also pose risks credibility-wise in the asylum side of things.

28. If the immigration case goes ahead first with a positive finding on age, it may help in the JR ending up in your favour, although history seems to show this is still a gamble. If the immigration case goes ahead and is negative, it will certainly have a knock-on effect on the JR.

29. But if a JR is not pursued and there is an age assessment which is unchallenged (or perhaps 2 assessments), the immigration tribunal may nevertheless draw adverse inferences against your client. Even if the tribunal does not do that, and you succeed, your client will end up in a bizarre situation of having one date of birth as accepted by the SSHD following a tribunal hearing, and another date of birth as assessed by the local authority. He might be able to get mainstream benefits via his refugee status card, but it will be difficult for him to access age-appropriate services under the Children Act 1989 from the local authority.

30. This is precisely the quagmire which the Children’s Commissioner’s report concluded was unacceptable. But currently as matters stand, things do not look set to change for age-disputed minors.

31. To temper that, one could look at another recent judgment of the Court of Appeal in AE v Croydon [2012] EWCA Civ 547 where the Court of Appeal overturned the first instance high court judge’s finding that the claimant is not the age claimed and accordingly made its own declaration, accepting the claimant’s claimed age. Now for the caveat to this case. It was unique on the facts of the case, At trial, the trial judge had accepted that the claimant was credible but then found that she could not accept his evidence as to his date of birth as remembered from his birth certificate. There was an inherent error in logic in the judge’s analysis and that was why the appeal succeeded on those particular and unique facts.

32. Although allowing the appeal, the Court of Appeal fired a warning shot that this case was not to be taken as opening a door to appeals from age trials. The Court of Appeal explicitly stated that the scope for interference by an appellate court with a judge's findings of primary fact and other evidence was limited: generally, the more the first instance judge's assessment was dependent on oral evidence, or the overall assessment of a number of factors, the less willing the appellate court was likely to be to interfere with the judge's conclusions.

33. The Joint Committee on Human Rights is looking at the treatment of migrant children, including those who are age-disputed at the moment. That is good news, but less so when one notes that neither the Home Office nor the Department for Education bothered to turn up to give evidence before the JCHR.

Detention of age-disputed minors

34. As if there was not already enough doom and gloom, the next area where there have been major developments in law in respect of migrant children is in the arena of detention.

35. In the arena of detention of adults, one has already seen the worrying judgments of Muqtaar and the like and the Court of Appeal’s attempt to withdraw from its role as a court reviewing the facts for itself instead of as a Wednesbury review court.

36. In the arena of detention of age-dispute minors, that is those detained as adults but turned out to be children, the picture continued to be grim, following the cases last year of Hossein v SSHD [2011] EWHC 1924 (Admin) and AA v SSHD [2011] EWHC 2146 (Admin) mixed in with the positive analysis of Coulson J in J v SSHD [2011] EWHC 3073 (Admin).

37. This year, there are two important cases of note, one following the other in quite rapid succession, one in the High Court and one in the Court of Appeal.

38. The essential question in both of these cases is whether the SSHD should be held responsible for detaining a person who they wrongly treated as an adult when in fact he was a child and this was subsequently confirmed.

39. The two cases, AAM v SSHD [2012] EWHC 2567 (Admin) and AA v SSHD [2012] EWCA Civ 1383 approached this question in different ways but both claimants were essentially arguing for the same answer, that is yes, the SSHD should be held liable for falsely imprisoning a person wrongly treated as an adult when in fact he was a child all along.

40. In AAM v SSHD, the main challenge was to the age assessment relied upon by the SSHD to detain the claimant child. The decision-maker for the SSHD admitted at trial (rather worryingly) that (i) she knew of Merton but did not know what the principles were; (ii) she felt the expertise of assessing age should be with the local authority and there was nothing she could do other than to accept it; (iii) it was that age assessment that led her to believe that the claimant was an adult and therefore liable to be detained because he was all appeal rights exhausted. The SSHD’s own policy at paragraph required an immigration officer to evaluate the evidence and form a judgment. The immigration officer had to satisfy herself, in accordance with the EIG that there was reliable evidence that the person was 18 or over and should be treated as an adult. On the evidence, the immigration officer had not asked herself the right questions, acquainted herself with the information needed to make the decision or follow relevant guidance, thus rendering the decision to detain unlawful.

41. Lang J in handing down judgment in that case, also commented on the scope of s55, BCIA 2009 and Article 5, ECHR although it was not required of her in respect of that specific case. She said:

  • at paragraphs 66 and 67, she held that the power of an immigration officer to detain was not exercisable on the basis of a reasonable suspicion, or an appearance, that grounds for detention existed, but only when grounds for detention actually existed,
  • at paragraph 84, applying Lumbaand Kambadzi(paragraphs 68 to 82) she held that the EIG at paragraph 55.9.3 narrowed the broad statutory power to detain under the 1971 Act, in the case of children. At paragraphs 118 to 121, she held that, in the light of section 55 of the 2009 Act, the effect of the EIG at paragraph 55.9.3 was that it was not lawful for immigration officers to detain children on the basis of a reasonable belief that they were adults, but only when, as a matter of fact, they were adults;
  • at paragraphs 126 to 130, she held that the detention of a child in the mistaken belief that he was not a child breached the immigration officer’s duty to discharge functions in accordance with section 55 of the 2009 Act,
  • at paragraphs 131 to 143, she held that the detention of a child in the mistaken belief that he was an adult was a breach of Article 5 ECHR, insofar as the detaining authority failed to have regard to the child’s best interests (by failing to appreciate that he was a child). She held that the CRC/ECHR “places the onus on the State to ensure that the Convention rights are effectively secured” (paragraph 141)

42. Although obiter, what Lang J observed in respect of s55, BCIA 2009 and Article 5 were clearly helpful to any claim in damages for false imprisonment in respect of an age disputed minor.

43. That said, what is important to note that when Lang J considered the nature and scope of s55, BCIA 2009, she was not asked to consider how s55, BCIA 2009 fit in with the SSHD’s wide power to detain under paragraph 16, Schedule 2 to the Immigration Act 1971. The approach of Lang J was very much based on looking at the EIG and not at a statutory construction of the two provisions. That was not the case for the claimant in that case.

44. That was however the point for consideration by the Court of Appeal in R (AA) v Secretary of State for the Home Department [2012] EWCA Civ 1383 (Arden, Davis LLJ, Baron J). There, an unaccompanied minor was arrested on arrival and age disputed by Hampshire social services. He subsequently absconded after his screening interview and his asylum claim was refused in his absence. He was treated as an adult by the SSHD. He resurfaced about 18 months later, was provided with asylum support via NASS and dispersed to Cardiff. With the assistance of a refugee charity organisation, he appealed the asylum refusal to the FTT but was not legally represented, sadly, as does sometimes happen although we would all hope it does not happen. The FTT found him to be an adult. He appealed to the UT but that was refused. In the meantime the Welsh Refugee Council got involved, wrote to Hampshire to complain about the age assessment. He also got solicitors who wrote to Cardiff, where he was living to ask for a re-assessment of his age, his still claiming to be a child, aged 17 at the time. Cardiff agreed to re-assess. UKBA were notified. However on the UT refusing permission to appeal, the appellant was nevertheless detained and removal directions were set. JR proceedings were issued to stop the removal and seek his release, on reliance on the fact that Cardiff had started a re-assessment two days before the detention. The interim order was granted; Cardiff subsequently completed the re-assessment and found him to be a child, age 17. The SSHD accepted the age but said she was not wrong to have detained him when she did because she reasonably believed that he was an adult at the time.

45. The appellant’s argument was that age is a precedent objective fact which admits only one right answer, relying on Baroness Hale’s speech in A v Croydon. The power, albeit wide, must be subject to consideration of s55, BCIA 2009. S55 BCIA 2009 applies to all persons who are objectively children: see s55(6) which defines a child as anyone under 18. The SSHD therefore must apply s55 considerations to all those who are objectively children, not just those who she reasonably believes to be children. In effect, s55, the appellant argues, acts as a statutory restraint to the exercise of the power to detain under paragraph 16, Schedule 2, Immigration Act 1971. This is consistent also with the SSHD’s own EIG which states that it will not detain children save for in exceptional circumstances. The SSHD accepted in this case that had the appellant been a child there would have been no exceptional circumstances for detaining him. The appellant argued that the SSHD’s own EIG also applied, similar to s55, BCIA 2009, to those who are objectively children, not those who the SSHD reasonably believed to be children. Applying Lumba and Kambadzi, the EIG operated as a ‘rule’ / ‘law’ which must be followed. The SSHD, in wrongly treating the appellant as an adult, failed to follow the ‘law’ in the EIG or wrongly discharged her duty under s55, BCIA 2009 on a misunderstanding that it did not apply to the appellant. There were also arguments under Article 5, ECHR and Hardial Singh reasonableness which requires the court to look at everything in the round and not just the material available at the time of the decision to detain.

46. The appeal was dismissed with a judgment from Arden LJ for the court stating that:

  • The s55 BCIA 2009 duty does not restrain paragraph 16(2), Schedule 2, Immigration Act 1971. The first part of paragraph 16 states that if the SSHD ‘reasonably suspects’ that an individual can be detained, the power to detain can be justified. This, the Court of Appeal says, imports a test of ‘reasonable belief’ and essentially it is permissible for the SSHD to simply do her best even if she gets it wrong.
  • S55 BCIA 2009 does not apply to someone believed to be an adult subsequently found to be a child because the SSHD can only determine discharge of the duty by reference to what she knew / reasonably believed at the time.
  • The same analysis, according to Arden LJ, applied to the EIG.
  • It followed that neither Article 5, ECHR or Hardial Singh helps the appellant because the court cannot do more than look at the material that was available to the SSHD at the time of the decision to detain, and no more. In any event there is no Strasbourg case law to suggest a different approach.
  • Arden LJ cites a Strasbourg case which purports to support the Court of Appeal's view that age assessments, even if wrong, can be relied upon by the state to remove or detain minors. This was a case not relied on by either party and on researching the case, it in fact has nothing to do with age assessments and is not on point. Do take note of that.

47. There are obvious problems with the analysis of the Court of Appeal in AA v SSHD, not least because of the way the Court of Appeal dealt with the court’s remit under Article 5 and Hardial Singh, which is worryingly not dissimilar to the approach taken by the Court of Appeal (different composition of judges) in the case of Muqtaar which is on appeal to the Supreme Court.

48. The good news, if one can find comfort in this, is that AA v SSHD is certainly being appealed to the Supreme Court.

49. Where does that leave unlawful detention cases for age-disputed minors?

50. The Court of Appeal in AA v SSHD did preserve the route that in the main led to the claimant’s success in AAM v SSHD and the success in J v SSHD last year. The failure of the immigration officer to ask herself the right questions about the age assessment and apply the policy correctly on detaining age disputed minors still could render the detention unlawful. Cases which rely on this route will still be able to succeed, and I understand several, even post-AA v SSHD have done once this point is pointed out to TSols who had tried to suggest that post-AA v SSHD there was no prospect of an age disputed minor wrongly detained as an adult succeeding in a claim for damages in false imprisonment.

Grant of leave and s55, BCIA 2009

51. The developments in this area are mixed this year at least on the High Court and appellate court level. Practitioners will have their own experiences in the tribunals to report.

52. Three cases to highlight:

53. R (ABC) (A Minor) v Secretary of State for the Home Department[2011] EWHC 2937 (Admin) (HHJ Jeremy Richardson Q.C.). This application for judicial review raises important issues about how the SSHD should deal with young persons who arrive in the United Kingdom and claim asylum when it is asserted they have committed a serious crime abroad. The claimant is a citizen of Afghanistan. He is aged 16 and arrived in the United Kingdom on 16thMay 2010 when he was aged 14. He applies for judicial review of the decision of the SSHD to: (1) exclude him from asylum and humanitarian protection, and; (2) refuse to grant him discretionary leave to remain in the United Kingdom. The basis of the decision is that he is alleged to have committed a serious crime whilst in Afghanistan. The Court held that the SSHD had erred in refusing humanitarian protection to the claimant by ignoring the broad tapestry of factors which had to be examined, including the welfare of the child under the Borders, Citizenship and Immigration Act 2009 s.55.

54. Contrast this with:

55. R (on the application of OA (Nigeria)) v Secretary of State for the Home Department[2012] EWHC 3128 (Admin) (Silber J) Following refusal of leave to remain in the UK, a claimant challenges a decision of the SSHD 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 SSHD 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 SSHD had arrived at the correct decision in the circumstances. S55, BCIA 2009 required the SSHD 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.

56. R (on the application of AA) v Secretary of State for the Home DepartmentCA (Civ Div) (Laws, Sullivan, McCombe LLJ) extempore judgment 06/11/2012. This is a case regarding the same appellant, AA in the unlawful detention case, but on a different point. What happened after the SSHD accepted Cardiff’s re-assessment was that she dragged her feet in making a fresh decision on the appellant’s leave. Obviously, applying AA (Afghanistan) because the SSHD originally wrongly treated the appellant as an adult, he was precluded from benefiting, at least, from the ‘DL until 17 ½ years old’ policy for minors whose asylum claim was unsuccessful. A request was made for leave to be granted in line with that and / or in the alternative refugee status. There was also a very interesting argument at the lower court calling into question this ‘17 ½ year’ policy because when the leave expired, the child is still a child and s55, BCIA 2009 would still apply. Because the SSHD dragged her feet in granting any leave to AA, he turned 18 and the SSHD, instead of trying to remedy a past wrong, detained him again and sought to remove him on the basis that he still was all appeal rights exhausted. Needless to say, further JR proceedings were issued.

57. The first instance judge allowed the claim, finding that the SSHD’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 s55, BCIA 2009. He granted AA 3 years’ discretionary leave to remain on the back of that.

58. The appellant appealed, I understand, on the basis that the judge should not have only granted 3 years but refugee status. The SSHD cross-appealed arguing that the judge had no power to grant leave or direct the SSHD to do so. The Court of Appeal agreed with the SSHD and dismissed the appeal, allowing the cross appeal and directed the SSHD to deal with the asylum claim on the basis she would have if the asylum seeker had been correctly assessed as under 18. I understand that AA is taking this case to the Supreme Court as well although not clear on what grounds.

Social welfare and migrant children

59. To end on a more positive note, in the social welfare realm, there have been some more attention paid to the treatment of migrant children and care leavers who came to the UK unaccompanied and placed in the care of the local authority.

60. In R (Sabiri) v LB of Croydon, an Iranian young adult who arrived in the UK as an unaccompanied child was placed in the care of the LB of Croydon. They supported him as a child until the age of 18. They continued to support and accommodate him post-18 until he turned 21 and then the support stopped. He wanted to remain in education and under s23CA, Children Act 1989, the local authority must consider whether, and how a care leaver post-21 could be supported to do so. LB of Croydon tried to argue that they were precluded from doing so because he did not have an outstanding asylum or human rights claim (his original claims having been unsuccessful). LB of Croydon also said that their policy was not to support those with no recourse to public funds with further full-time education even though this was permitted under the Children Act 1989 provisions and the claimant could have some part-time education but he would have to support himself through work and no accommodation would be provided to him. In the alternative, he could just make his own way back to Iran, an argument which is not unheard of from the local authority. The urgency of the JR claim was because the claimant had become homeless as a result of the local authority washing its hands of him.

61. By the time the case came to the High Court, the claimant had made a further fresh claim.

62. The Court looked at the leaving care provisions and determined that the relevant Children Act provisions under s23C(4)(b) and s24B, Children Act 1989 should be given a wide interpretation and local authorities had the scope to pay expenses connected with education and training and that included monies for the course as well as associated expense such as for accommodation.

63. There were residual arguments about the lawfulness of the LB of Croydon’s policy in respect of migrant care leavers with no recourse to public funds but the substantive case later settled. It will have to be determined on another day, but what this case does importantly establish is the rights and entitlements of care leavers do extend beyond 21 in circumstances where they wish to be in education and the local authority cannot simply evade their duty to consider these wishes by relying on someone’s immigration status. A fundamental cornerstone of the Children Act 1989 is the best interests of the child, and this extends to young adults who have been ‘looked after’ by the local authority as children as it is accepted that the local authority acts, in these circumstances as a corporate parent.

64. Another positive development is the current cross-parliamentary inquiry into asylum support levels and the impact on migrant children. Good questions are being asked about why asylum support is set at a level significantly lower than mainstream benefits (income support and the like) and what does this say about how we see migrant children in the UK.

[1]R (Tinizaray) v Secretary of State for the Home Department [2011] EWHC 1850 (Admin)

[2]SH (Afghanistan) [2011] EWCA Civ 1284

[3]DS (Afghanistan) [2011] EWCA Civ 305

[4]Suppiah v SSHD [2011] EWHC 2 (Admin); J v Secretary of State for the Home Department [2011] EWHC 3073 (Admin)

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