Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
MR JUSTICE LINDBLOM
Between :
TN | Claimant |
- and – |
|
SECRETARY OF STATE FOR THE HOME DEPARTMENT | Defendant |
Mr Becket Bedford for the Claimant
Mr Shakil Najib for the Defendant
Hearing dates: 14 October 2011, 20 October 2011 and 21 October 2011
Judgment
MR JUSTICE LINDBLOM:
Introduction
The claimant, an unaccompanied child, challenges the Secretary of State’s decision of 12 November 2010 refusing his claim for asylum and for humanitarian protection and granting him discretionary leave to remain in the United Kingdom for a shorter period than would enable him to appeal against that decision to the First-tier Tribunal. The principal issue is whether section 83 of the Nationality, Immigration and Asylum Act 2002 (“the 2002 Act”) unlawfully deprived the claimant of an effective remedy to which he was entitled under the European asylum system comprising Directive 2003/09/EC (“the Reception Directive”), Directive 2004/83/EC (“the Qualification Directive”) and Directive 2005/85/EC (“the Procedures Directive”). For the claimant it is contended that, as a child, he is entitled to a remedy that serves his best interests as a child, and that an effective remedy for him must involve his having an immediate right appeal to the tribunal against the Secretary of State’s decision to refuse him asylum.
Granting permission on the papers on 30 March 2011, Blake J said this:
“1. With some hesitation I have granted permission on the basis that it is arguable that the failure to generate an appeal that can examine whether the claimant is entitled to protection under the EU Qualification Directive is unlawful because:-
a. A child who is recognised as a refugee or otherwise entitled to subsidiary protection is better off in terms of the duration of the LTR to be granted in the UK and the possibility of its extension beyond the age of majority.
b. DS (Afghanistan) [2011] EWCA Civ 305 suggests that special duties may be owed children who have lost contact with their parents/carers in Afghanistan and a member of [a] social group in the absence of an ability to re-establish contact;
c. An appellate remedy cannot be effective remedy within the meaning of Article 39 of the Procedures Directive if it cannot address the factual situation giving rise to a protection claim until such time as the factual basis of the claim has disappeared with the passage of time.
...”.
Factual background
The claimant is a national of Afghanistan. His date of birth is agreed as being 1 January 1994. He will therefore reach the age of 18 on 1 January 2012. On 8 September 2010 UK Border Agency officials found him working in a car wash in Birmingham. It then emerged that, on 18 November 2009, he had been apprehended in the UK Border Agency control zone in Calais, and that he had spent about nine months in France before entering the United Kingdom clandestinely on the back of a lorry in August 2010. He was arrested on suspicion of having committed an immigration offence, and served with notice of his liability to removal. On 10 September 2010 he claimed asylum. On 12 November 2010 the Secretary of State refused his claim for asylum. However, under the Secretary of State’s policy in APU Notice 3/2007, he was granted discretionary leave to remain in the United Kingdom until 1 July 2011, when he would be 17 ½ years old.
Before leaving Afghanistan the claimant lived in Logar province with his parents and his three younger siblings: two sisters and a brother. He has paternal uncles who, he says, are members of the Taliban. He says that in about July 2009 his uncles sought to exercise what they considered to be their right to take him from his family to fight for the Taliban. He says that his father and other relatives arranged for him to flee Afghanistan to avoid being forcibly recruited to the insurgency. He left Afghanistan in October 2009, travelling first to Kabul, then by bus to Iran, then via several countries to France. In the Statement of Evidence Form which he completed on 27 October 2010 he said, in Part D, that if he was removed to Afghanistan he would be “at risk of serious harm due to the fact I am a young male”; he said the Taliban would kill him. In paragraph 6 of the statement he made on the same day, he referred to a specific threat, namely his uncles, who, he said, were members of the Taliban, threatening people in his village and forcing them to become suicide bombers. This he amplified in paragraph 8 of his statement, where he said that his uncles had asked his father if they could take him away, but his father had refused. In paragraph 13 of his statement he said that he could not go and live with his mother’s brothers in Khost province, because the Taliban would still be able to find him there. In paragraph 18 he said that he would be in “grave danger” if he returned to Afghanistan because he was a young Afghan male, that if he was sent back he would be killed by his uncles or forced by them to join the Taliban and become a suicide bomber. He said that the fact he had fled to the United Kingdom would put him at mortal risk at the hands of his uncles. If he did return to Afghanistan, he said, he would not be able to live with his family; he would not have any support and would not have anywhere to go. After he had been interviewed on 28 October 2010 his claim for asylum was considered by the Secretary of State.
In her officials’ letter of 12 November 2010, although the Secretary of State accepted that children of the claimant’s age may be at risk of forced recruitment into the Taliban and of being tricked into suicide missions, she rejected his contention that his uncles had attempted to recruit him. She noted that he had said that he stayed in his family home for about three months before leaving Afghanistan, and that this was inconsistent with his assertion that he was in fear of being recruited. The Secretary of State did not accept that the claimant’s uncles were members of the Taliban. Nor did she accept that he would be at risk of persecution on returning to the area where he had lived in Afghanistan. In any case, the Secretary of State concluded, the claimant could move to another area of Afghanistan, such as Kabul, to avoid his uncles. He could seek the protection of state security forces if he needed to. In ZH (Afghanistan) [2009] EWCA Civ 470, the Court of Appeal had found that the mere fact that the child applicant fell within the policy for unaccompanied minors was not sufficient in itself to demonstrate that he was within the category of a particular social group of Afghan minors who were orphans. The claimant was not an orphan, nor would he be forced to live alone on his return to Afghanistan. The Secretary of State did not accept that he would be at risk on his return to Afghanistan as a member of a particular social group. He claimant did not, therefore, qualify for asylum. In considering the claimant’s claim for humanitarian protection, the Secretary of State concluded that he would not be at real risk of treatment contrary to Articles 2 and 3 of the European Convention on Human Rights, nor, having regard to Article 15(c) of the Qualification Directive, would he be at risk of serious and individual threat to his life or person on his return to Afghanistan. As to the claim for discretionary leave under Articles 3 and 8 of the Human Rights Convention, the Secretary of State did not accept that he had established a family life in the United Kingdom. She did accept that he had established a “limited private life” in the United Kingdom since the beginning of September 2010 and that there would be interference with this private life if he were removed. But the claimant had strong family ties in Afghanistan, since his parents and extended family were all there, and the Secretary of State considered that his removal would be proportionate because of the need to maintain an effective system of immigration control in the United Kingdom. Explaining her decision to grant the claimant discretionary leave the Secretary of State went on to say this:
“73. However, it has been decided to exercise discretion in your favour and grant you limited leave to enter the United Kingdom in accordance with the published Home Office Asylum Policy Instruction on Discretionary Leave because you are an unaccompanied child for whom we are not satisfied that adequate reception arrangements in your own country are available.”
The claimant was told that he must apply to extend this leave before it expired if he wished to remain in the United Kingdom. In paragraphs 77 and 78 of the letter the Secretary of State said:
“77. In coming to this decision, regard has been given to the statutory guidance to the UK Border Agency on making arrangements to safeguard and promote the welfare of children, “Every Child Matters: Change for Children”, issued under section 55 of the Borders, Citizenship and Immigration Act 2009.
78. Your case has been handled in line with the requirements of the Act, and any relevant information, where appropriate, has been shared with those responsible for your care to safeguard you and promote your welfare.”
On 19 November 2010 the Secretary of State wrote to the claimant’s solicitors telling them that his asylum claim had been determined on 12 November 2010 and that, because he had been granted discretionary leave he had no right of appeal under section 82 of the Nationality, Immigration and Asylum Act 2002. On the same day the Secretary of State wrote to the claimant, explaining to him that he would be able to apply to extend his limited leave before it expired, that if he were to make such an application it would be considered “in the light of the circumstances prevailing at that time”, and that if his application were refused he would be “advised of the reasons for this and of any right of appeal against that decision”.
On 12 January 2011 the UK Border Agency sent to the claimant’s solicitors his Immigration Status Document for him to sign and return. On 14 January 2011 the claimant’s solicitors sent a letter before action to the Secretary of State contending that the decision to refuse the claimant’s asylum claim without the right of appeal was a breach of his EU law right to an effective remedy under the Procedures Directive “in respect of his right to determination of his asylum claim under the Qualification Directive”, and that the claimant was therefore entitled to damages for his loss “including any prejudice to the chances of success on appeal at any later date, for example in respect of any application to vary limited leave”. The alternative contention, also made in the letter before action, was that the denial of a right of appeal by section 83 of the 2002 Act is incompatible with the claimant’s civil right to claim asylum under Article 6 of the European Convention on Human Rights, which would justify the court in granting a declaration of incompatibility and awarding damages. The letter of 14 January 2011 was sent to the Secretary of State again on 8 February 2011 because no response to it had been received.
The claim for judicial review was lodged with the court on 14 February 2011. The decision to be judicially reviewed is described in the claim form as being “[the Secretary of State]’s decision to refuse the [claimant]’s asylum/humanitarian claim without the right of appeal to the First-tier Tribunal”. The remedies sought were:
“1. A Declaration that sections 82 and 83 of the Nationality[,] Immigration and Asylum Act 2002 are incompatible
with [the claimant]’s EU right to an effective remedy against the refusal of his asylum claim;
2. Compensation for the loss and damage and anxiety caused by reason of the aforesaid serious breach of EU law; and
3. An Order requiring [the Secretary of State] to grant [the claimant] a right of appeal to the Tribunal forthwith.”
On 21 February 2011 the Secretary of State responded to the letter before claim, declining the claimant’s request for a right of appeal. The letter explained the Secretary of State’s reasons for refusing that request. It said that section 82 of the 2002 Act did not apply. The claimant has not been refused leave to enter, been served with removal directions, nor had any of the other immigration decisions specified in section 82 been made. Section 83 of the 2002 Act did not apply as the period of leave granted is for less than the specified period of over one year. The Claimant has no statutory grounds for appeal. The Secretary of State has no power to hear an appeal that was not made under the 2002 Act. The request for a right of appeal was therefore declined. The claimant had not been refused a right to claim asylum, having done so on 10 September 2010. Those reasons were amplified in the Secretary of State’s summary grounds of defence, which were filed and served on 16 March 2011.
Blake J having granted permission on the papers, the Treasury Solicitor wrote to the claimant’s solicitors on 6 April 2011, suggesting that it was “most likely” that an appeal made by the claimant under section 82(2)(d) would be heard before he turned 18. The claimant’s solicitors responded to that letter on 5 May 2011, insisting that he ought to have been permitted to challenge the refusal of his asylum and humanitarian protection claims at the time of their refusal, while he was still a minor, rather than having to wait to exercise a right of appeal until his application to extend his discretionary leave to remain had been refused. On 6 May 2011 the Treasury Solicitor wrote again to the claimant’s solicitors, saying that the Secretary of State disagreed with the assertion that the claimant would not be able to pursue an appeal while he remained a minor. If the claimant acted “expeditiously”, an appeal under section 83A of the 2002 Act or an application for further discretionary leave – and any subsequent appeal, were the application to be refused – could be made while the claimant was a minor and still able to rely on that status in arguing his case for asylum before the tribunal. This was one reason why discretionary leave was granted up to the age of 17 ½ years. This gave applicants for asylum six months in which to apply for an extension to their discretionary leave while they could still rely on protections available only to minors. The suggestion that the claimant could appeal under section 83A was later abandoned.
On 29 June 2011 the claimant’s solicitors submitted on his behalf an application for further leave to remain beyond 1 July 2011. On 5 July 2011 the Secretary of State acknowledged having received the claimant’s application for further leave to remain, saying that it “will be considered in due course”.
On 22 July 2011 the claimant’s solicitors wrote to the Treasury Solicitor disputing the contention in the Secretary of State’s summary grounds of defence that the claimant continues to enjoy an effective remedy against refusal of his claim for protection even if Part 5 of the 2002 Act precludes an immediate appeal. The claimant’s solicitors went on to reject the Secretary of State’s proposal to settle the proceedings, saying:
“… At paragraph 12 [of the summary grounds] you suggest that our client’s route to appeal opened up for him on 2 June 2011, 28 days prior to 1 July 2011, the date of the expiry of his Discretionary Leave to Remain, because as of 2 June 2011 he was entitled to make, what is in effect, a second asylum claim by application for HPDL, refusal of which would then entitle him to a right of appeal by section 82(1)(d) of the 2002 Act. However, your client does not offer any guarantee that the decision [on] any appeal in relation to the HPDL application would be finally determined before our client turns 18.
It appears that Blake J was unimpressed by this route to appeal because in his decision of 30 March 2011 granting permission he does not mention it. …
The fact is that Afghan children have a strong claim for asylum whilst they are children, but their prospects of success diminish markedly when they turn 18. Thus any remedy loses most of its value if the appeal is not heard while the applicant is still a child. …”.
In his witness statement of 13 June 2011 the clamant said (in paragraph 4) that he did not know that he needed to bring evidence of his uncles’ activities with him when he left Afghanistan, that since arriving in the United Kingdom he had been unable to make contact with his remaining family in Afghanistan and therefore was still unable to support this part of his case with documentary evidence. He added (in paragraph 5) that since arriving in the United Kingdom he had tried, unsuccessfully, to trace members of his family with the help of the British Red Cross. He said that the Home Office had told him nothing about any attempts that had been made to trace his family.
Evidence presented to the court by the claimant’s solicitor, Ms Sandhu of Sultan Lloyd, in a witness statement dated 29 September 2011, explained that in the two year period between 1 January 2009 and 31 December 2010 her firm represented 22 unaccompanied children seeking asylum who were older than 16 ½ at the date of the decision of the Secretary of State refusing asylum, but granting less than one year’s discretionary leave. All but five of those children were over 18 by the time a decision was made on their applications by which they sought to vary their leave. Thus for a high proportion of these applicants the decisions on their section 82 appeals could not address their fear of persecution as children.
The issues for the court
The main issue for the court in this case is whether the claimant has been denied an effective remedy in accordance with Article 39 of the Procedures Directive because he has had no right of appeal against the refusal of his asylum claim under sections 82 and 83 of the 2002 Act. This issue raises several subsidiary questions. These include (i) whether the deferral of the claimant’s right to appeal to the tribunal would unlawfully deprive him of advantages he would have had if he had been able to appeal the refusal of his asylum claim while still under the age of 18; (ii) whether any future appeal would offend Article 47 of the Charter of Fundamental Rights of the European Union (2010/C 83/02) because it would not take place within a reasonable time from the date of the determination of his asylum application; and (iii) whether, contrary to Article 21 of the Charter, the Secretary of State has treated the claimant in a discriminatory fashion because of his age at the time of the determination of his asylum claim in that, had he been under 16 ½ years old when his application for asylum was determined, he would have acquired an immediate right of appeal under section 83 of the 2002 Act, which, if it had succeeded, would have resulted in him being granted a longer period of leave than the limited leave he has been granted until the age of 17 ½.
The law
Domestic legislation
The 2002 Act
Part 5 of the 2002 Act provides a comprehensive statutory code for immigration and asylum appeals.
Section 82 of the 2002 Act provides that a person may appeal to the Asylum and Immigration Tribunal against an “immigration decision”. Section 82(2) lists the decisions which come within the definition of an “immigration decision” and thus carry a right of appeal under subsection (1):
“An “immigration decision” means –
(a) refusal of leave to enter the United Kingdom,
(b) refusal of entry clearance,
(c) refusal of a certificate of entitlement under section 10 of this Act,
(d) refusal to vary a person’s leave to enter or remain in the United Kingdom if the result of the refusal is that the person has no leave to enter or remain,
(e) variation of a person’s leave to enter or remain in the United Kingdom if, when the variation takes affect, the person has no leave to enter or remain,
(f) revocation under section 76 of this Act of indefinite leave to enter or remain in the United Kingdom,
(g) a decision that a person is to be removed from the United Kingdom by way of directions under section 10(1)(a), (b), (ba) or (c) of the Immigration and Asylum Act 1999 (removal of person unlawfully in United Kingdom),
(h) a decision that an illegal entrant is to be removed from the United Kingdom by way of directions under paragraphs 8 to 10 of Schedule 2 to the Immigration Act 1971 (control of entry: removal),
(ha) a decision that a person is to be removed from the United Kingdom by way of directions under section 47 of the Immigration, Asylum and Nationality Act 2006 (removal: persons with statutorily extended leave),
(i) a decision that a person is to be removed from the United Kingdom by way of directions given by virtue of paragraph 10A of that Schedule (family),
(ia) a decision that a person is to be removed from the United Kingdom by way of directions under paragraph 12(2) of Schedule 2 to the Immigration Act 1971 (seamen and aircrews),
(ib) A decision to make an order under section 2A of that Act (deprivation of right of abode),
(j) A decision to make a deportation order under section 5(1) of that Act, and
(k) refusal to revoke a deportation order under section 5(2) of that Act.”
The refusal of a claim for asylum is not an “immigration decision” within the meaning of section 82 and therefore does not carry a right of appeal under that section.
Section 83 of the 2002 Act provides a right of appeal to a person who has had his application for asylum refused but has been granted limited leave to enter or remain in the United Kingdom for a period exceeding one year:
“(1) This section applies where a person has made an asylum claim and –
(a) his claim has been rejected by the Secretary of State, but
(b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).
(2) The person may appeal to the Tribunal against the rejection of his asylum claim.”
Section 83A of the 2002 Act provides:
“(1) This section applies where –
(a) a person has made an asylum claim,
(b) he was granted limited leave to enter or remain in the United Kingdom as a refugee within the meaning of the Refugee Convention,
(c) a decision is made that he is not a refugee, and
(d) following the decision specified in paragraph (c) he has limited leave to enter or remain in the United Kingdom otherwise than as a refugee.
(2) The person may appeal to the Tribunal against the decision to curtail or to refuse to extend his limited leave.”
Section 84 provides grounds of appeal:
“(1) An appeal under section 82(1) against an immigration decision must be brought on one or more of the following grounds – …
(g) That removal of the appellant from the United Kingdom in consequence of the immigration decision would breach the United Kingdom’s obligations under the Refugee Convention or would be unlawful under section 6 of the Human Rights Act 1998 as being incompatible with the appellant’s Convention rights.”
Section 92 provides for appeals from within the United Kingdom:
“(1) A person may not appeal under section 82(1) while he is in the United Kingdom unless his appeal is of a kind to which this section applies.
(2) This section applies to an appeal against an immigration decision of a kind specified in section 82(2)(c), (d), (e), (f) and (j). …
(4) This section also applies to an appeal against an immigration decision if the appellant –
(a) has made an asylum claim, or a human rights claim, while in the United Kingdom, … …”.
In the course of the debate in Parliament on the provision which eventually became section 83 of the 2002 Act (Standing Committee E, 21 May 2002 – Hansard col 385-386), the Opposition proposed an amendment to remove the one year limit, and thus ensure that any person given discretionary leave to remain would have a right of appeal:
“Mr Malins: Amendment No.400 would ensure that applicants granted temporary leave of up to one year could appeal against the rejection of their asylum claim. Applicants who are granted temporary leave of a year or less should be able to access the appeal process to pursue their claim. If that right is denied, there is no bar to the Secretary of State granting periods of leave consecutively, thereby denying individuals the right to refugee status and consequently the right to be reunited with family members. That is particularly worrying for children, as they are frequently granted leave to enter or remain for periods of less than one year up to their 18th birthday. A respected NGO suggested this probing amendment.”
The proposed amendment was, however, withdrawn after the minister had explained the position, in this way:
“Ms Winterton: … The clause will allow a specific upgrade appeal when the asylum claim is rejected and leave is granted exceptionally, provided that the leave is for more than one year. The appeal is specifically against the rejection of the asylum claim, and other grounds cannot be put forward. In that sense, it is not a one-stop appeal. The appeal is not available for those given a year’s leave or less, because that is a deliberately limited period and a further decision will have to be taken at the end of it. If that decision is to refuse further leave or to grant more than a year’s further leave, it will attract a right of appeal … …
Amendments Nos. 400, 430 and 431 would allow failed asylum seekers who have been given a short period of exceptional leave to remain – 12 months or less – to appeal against the decision to refuse asylum. If it is decided at the end of the period that they are able to return to their own country, they would then have a further right of appeal against any decision to seek to remove them.
I should give some reassurance about how we believe that the process will work, as there has been some misunderstanding. If a person arrives from a country that is in turmoil and their claim for asylum is rejected, they may be given exceptional leave to remain because it is felt that it would be safe for them to return at the end of the 12-month period. If a decision is made at the end of that period to remove the person, he or she can appeal on the grounds of asylum. Asylum considerations will be taken into account at that point and the appeal revisited.
That is how we see the system working, and we do not believe that the system will be used year after year to grant continuous periods of exceptional leave to remain. The amendment will increase the number of likely appeals. The system that we have instituted is fair, and to introduce more appeals would, as I hope the hon. gentleman agrees, run counter to earlier statements about the need for a system that is fair and robust but which streamlines rather than increases the number of appeals. I hope that, with those reassurances, the hon. gentleman will withdraw his amendment.”
Lord Filkin explained the government’s position in the course of the debate in the House of Lords (23 July 2002 – Hansard, HL vol 638, col 328):
“… The Committee may ask why we are doing this. I hope for reasons that noble Lords will understand. Again let me take as an example the number of Kosovans. If a substantial number of people were able to return, it would clog up the appeal system before it was necessary to test their appeals. If at the end of their year we should decide that they should go back – that they should not have a right of asylum – they will then have the right of appeal, which they can exercise through the due process of which the Committee is aware.
…”.
The Borders, Citizenship and Immigration Act 2009
Section 55 of the Borders, Immigration and Immigration Act 2009 (“the 2009 Act”) provides:
“(1) The Secretary of State must make arrangements for ensuring that –
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and
promote the welfare of children who are in the United Kingdom, … …
(2) The functions referred to in subsection (1) are –
any function of the Secretary of State in relation to immigration, asylum or nationality
… …
In this section – “children” means persons who are under the age of 18; …
A reference in an enactment (other than this Act) to the Immigration Acts includes a reference to this section. …”.
EC Directives
Council directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status (“the Procedures Directive”)
Paragraph (8) of the preamble to the Procedures Directive states:
“This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter
of Fundamental Rights of the European Union.”
Paragraph (9) provides that “[with] respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination”. Paragraph (11) provides that arrangements for the processing of applications for asylum should be left to the discretion of Member States, “so that they may, in accordance with their national needs, prioritise or accelerate the processing of any application, taking into account the standards in this Directive”. Paragraph (14) provides: “In addition, specific procedural guarantees for unaccompanied minors should be laid down on account of their vulnerability. In this context, the best interests of the child should be a primary consideration of Member States.”
Paragraph (27) states:
“It reflects a basic principle of Community law that the decisions taken on an application for asylum and on the withdrawal of refugee status are subject to an effective remedy before a court or tribunal within the meaning of Article 234 of the Treaty. The effectiveness of the remedy, also with regard to the examination of the relevant facts, depends on the administrative and judicial system of each Member State seen as a whole.”
Article 17 of the Procedures Directive, “Guarantees for unaccompanied minors”, provides:
“1. With respect to all procedures provided for in this Directive and without prejudice to the provisions of Articles 12 and 14, Member States shall:
(a) as soon as possible take measures to ensure that a representative represents and/or assists the unaccompanied minor with respect to the examination of the application. …;
(b) ensure that the representative is given the opportunity to inform the unaccompanied minor about the meaning and possible consequences of the personal interview … .
Member States may require the presence of the unaccompanied minor at the personal interview, even if the representative is present.
2. Member States may refrain from appointing a representative where the unaccompanied minor:
(a) will in all likelihood reach the age of maturity before a decision at first instance is taken; or
(b) can avail himself, free of charge, of a legal adviser or other counsellor, admitted as such under national law to fulfil the tasks assigned above to the representative; or
(c) is married or has been married.
3. Member States may, in accordance with the laws and regulations in force on 1 December 2005, also refrain from appointing a representative where the unaccompanied minor is 16 years old or older, unless he/she is unable to pursue his/her application without a representative.
4. Member States shall ensure that:
(a) if an unaccompanied minor has a personal interview on his/her application for asylum as referred to in Articles 12, 13 and 14, that interview is conducted by a person who has the necessary knowledge of the special needs of minors;
(b) an official with the necessary knowledge of the special needs of minors prepares the decision by the determining authority on the application of an unaccompanied minor.
5. Member States may use medical examinations to determine the age of unaccompanied minors within the framework of the examination of an application for asylum. …
6. The best interests of the child shall be a primary consideration for Member States when implementing this Article.”
Article 23, “Examination procedure”, provides, in paragraph 1, that Member States must “process applications for asylum in an examination procedure in accordance with the basic principles and guarantees of Chapter II”, and, in paragraph 2, that Member States “shall ensure that such a procedure is concluded as soon as possible, without prejudice to an adequate and complete examination”. Member States are to ensure that, where a decision cannot be taken within six months the applicant concerned is either informed of the delay or, on request, be informed of the time within which the decision is expected to be made. Paragraph 2 also provides, however, that such information will not oblige the member state to take a decision within that time.
Article 38 provides “Procedural rules” governing procedures for the withdrawal of refugee status. Article 38(4) provides that Member States may decide that refugee status “shall lapse by law in case of cessation in accordance with Article 11(1)(a) to (d) of [the Qualification Directive] or if the refugee has unequivocally renounced his/her recognition as a refugee.
In Chapter V of the Procedures Directive, “Appeals procedures”, Article 39 provides “The right to an effective remedy”:
“1. Member States shall ensure that applicants for asylum have the right to an effective remedy before a court or tribunal, against the following:
(a) a decision taken on their application for asylum, including a decision:
(i) to consider an application inadmissible pursuant to Article 25(2),
(ii) taken at the border or in the transit zones of a Member State as described in Article 35(1),
(iii) not to conduct an examination pursuant to Article 36;
(b) a refusal to re-open the examination of an application after its discontinuation pursuant to Articles 19 and 20;
(c) a decision not to further examine the subsequent application pursuant to Articles 32 and 34;
(d) a decision refusing entry within the framework of the procedures provided for under Article 35(2);
(e) a decision to withdraw … refugee status pursuant to Article 38. …
5. Where an applicant has been granted a status which offers the same rights and benefits under national and Community law as the refugee status by virtue of Directive 2004/83/EC, the applicant may be considered as having an effective remedy where a court or tribunal decides that the remedy pursuant to paragraph 1 is inadmissible or unlikely to succeed on the basis of insufficient interest on the part of the applicant in maintaining the proceedings.
…”.
Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers (“the Reception Directive”)
Paragraph (5) of the preamble to the Reception Directive provides:
“This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter
of Fundamental Rights of the European Union. ...”.
Paragraph (6) provides that “[with] respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination”.
Article 18 of the Reception Directive relates to “Minors”. Article 18(1) provides:
“The best interests of the child shall be a primary consideration for Member States when implementing the
provisions of this Directive that involve minors.”
Article 19 relates to “Unaccompanied minors”. Article 19(3) provides:
“Member States, protecting the unaccompanied minor’s best interests, shall endeavour to trace the members of his
or her family as soon as possible. …”.
Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005 (“the 2005 Regulations”), which carries the duty in Article 19(3) of the Reception Directive into domestic legislation, provides, under the heading “Tracing family members of unaccompanied minors”:
“(1) So as to protect an unaccompanied minor’s best interests, the Secretary of State shall endeavour to trace the members of the minor’s family as soon as possible after the minor makes his claim for asylum. …”.
Council Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted (“The Qualification Directive”)
Paragraph (10) of the preamble to the Qualification Directive states:
“This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter
of Fundamental Rights of the European Union …”.
Paragraph (11) provides that “[with] respect to the treatment of persons falling within the scope of this Directive, Member States are bound by obligations under instruments of international law to which they are party and which prohibit discrimination”. Paragraph (12) of the preamble to the Qualification Directive provides:
“The ‘best interests of the child’ should be a primary consideration of Member States when implementing this Directive.”
Article 13 of the Qualification Directive, “Granting of refugee status”, provides that Member States “shall grant refugee status to a third country national or a stateless person, who qualifies as a refugee in accordance with Chapters II and III”.
Articles 11 and 14 provide respectively for the cessation and revocation of refugee status. Article 11, which provides for “Cessation”, includes within the six defined categories of cessation, at paragraph 1(e), the situation in which a person can “no longer, because the circumstances in which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of nationality”. This is reflected in paragraph 339A of the Immigration Rules, “Withdrawal of Status”, which provides that:
“… A person’s grant of asylum under paragraph 334 will be revoked or not renewed if the Secretary of State is satisfied that: …
(v) he can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of nationality; …”.
Paragraph 2 of Article 11 requires Member States, when considering point (e) of paragraph 1, to have regard to “whether the change of circumstances is of such a significant and non-temporary nature that the refugee’s fear of persecution can no longer be regarded as well-founded”. Article 14 provides for “Revocation of, ending of or refusal to renew refugee status”. Article 14(5) provides that in the situation described in paragraph 4 of Article 14, Member States may decide not to grant status to a refugee, where such a decision has not yet been taken. The two situations referred to in Article 14(4) arise when:
“(a) there are reasonable grounds for regarding him or her as a danger to the security of the Member State in which he or she is present;
(b) he or she, having been convicted by a final judgement of a particularly serious crime, constitutes a danger to the community of that Member State”.
Articles 20 to 34 in Chapter VII of the Qualification Directive provide, for a person with refugee or subsidiary protection status, a number of rights and protections, including protection from refoulement (Article 21), residence permits (Article 24), travel documents (Article 25), access to employment (Article 27), social welfare (Article 28), health care (Article 29), access to accommodation (Article 31), and freedom of movement within the member state (Article 32). Article 30 of the Qualification Directive provides specifically for “Unaccompanied minors”. Article 30(5) provides the duty of the member state to “trace the members of the minor’s family as soon as possible.” Article 24 of the Qualification Directive, “Residence permits”, provides, in paragraph 1:
“As soon as possible after their status has been granted, Member States shall issue to beneficiaries of refugee status a residence permit which must be valid for at least three years and renewable unless compelling reasons of national security or public order otherwise require, and without prejudice to Article 21(3).”
The Charter of Fundamental Rights of the European Union
The Preamble to the Charter of the Fundamental Rights of the European Union provides: “… This Charter reaffirms, with due regard for the powers and tasks of the Union and for the principle of subsidiarity, the rights as they result, in particular, from the constitutional traditions and international obligations common to the Member States, the European Conventions for the Protection of Human Rights and Fundamental Freedoms, the Social Charters adopted by the Union and by the Council of Europe and the case-law of the Court of Justice of the European Union and of the European Court of Human Rights. In this context the Charter will be interpreted by the courts of the Union and the Member States with due regard to the explanations prepared under the authority of the Praedisium of the convention which drafted the Charter and updated under the responsibility of the Praesidium of the European Convention. …”
In Title II, “Freedoms”, Article 18 of the Charter, “Right to asylum”, provides: “The right to asylum shall be guaranteed with due respect for the rules of the Geneva Convention of 28 July 1951 and the Protocol of 31 January 1967 relating to the status of refugees and in accordance with the Treaty on European Union and the Treaty on the Functioning of the European Union (hereinafter referred to as ‘the Treaties’).”
In Title III, “Equality”, Article 21, “Non-discrimination”, provides:
“1. Any discrimination based on any grounds such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited.
2. Within the scope of application of the Treaties and without prejudice to any of their specific provisions, any discrimination on grounds of nationality shall be prohibited.”
Article 24, “The rights of the child”, provides:
“1. Children shall have the right to such protection and care as is necessary for their well-being. They may express their views freely. Such views shall be taken into consideration on matters which concern them in accordance with their age and maturity.
2. In all actions relating to children, whether taken by public authorities or private institutions, the child’s best interests must be a primary consideration.
3. Every child shall have the right to maintain on a regular basis a personal relationship and direct contact with both his or her parents, unless that is contrary to his or her interests.”
In Title VI, “Justice”, Article 47 of the Charter, “Right to an effective remedy and to a fair trial”, provides:
“Everyone whose rights and freedoms guaranteed by the law of the Union are violated has the right to an effective remedy before a tribunal in compliance with the conditions laid down in this Article. Everyone is entitled to a fair trial and public hearing within a reasonable time by an independent and impartial tribunal previously established by law…”.
Article 1 of the Protocol on the application of the Charter to Poland and the United Kingdom provides:
“The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.”
The United Nations Convention on the Rights of the Child 1989
Article 3.1 of the United Nations Convention on the Rights of the Child 1989 provides:
“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”
This is a binding obligation in international law. It has been translated into national law, in England and Wales, by section 11 of the Children Act 2004 and, as it bears on immigration decisions, by section 55 of the 2009 Act (see paragraph 23 of the judgment of Lady Hale in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 WLR 148).
Relevant jurisprudence
Refugee status
In Fornah (FC) v Secretary of State for the Home Department [2006] UKHL 46, in which (in paragraph 35 of his speech) Lord Hope of Craighead commented on the significance of refugee status and the rights attaching to it:
“The question whether or not the appellants have refugee status is not just of theoretical importance to the appellants. They have been given leave to enter the United Kingdom because article 3 of the European Convention on Human Rights forbids their return to their home countries for so long as they are at risk of torture or inhuman or degrading treatment or punishment there. So far so good, but leave to enter does not give them a right to remain in this country. If their claims for asylum are recognised, however, all the benefits of the Refugee Convention will then be available to them. The uncertainty that attaches to their present lack of status will be replaced by the status which the Contracting States have undertaken to accord to a refugee and by all the rights that attach to it. This is a very substantial additional benefit which is well worth arguing for.”
The advantages of refugee status over subsidiary protection were recognized in Adan v Secretary of State for the Home Department [1999] 1 AC 293. Lord Lloyd of Berwick noted (at page 303 A-B) that there are “certain benefits in being accorded such status, which are not available to those who have exceptional leave to remain” and that those benefits had been well described in the judgment of Simon Brown LJ (as he then was) in the Court of Appeal [1997] 1 WLR 1107. Simon Brown LJ had said (at page 1113):
“There are, however, significant advantages beyond irremovability in being recognised as a refugee. In the first place, there are advantages under the Convention [relating to the Status of Refugees]. For example, under article 28 refugees are entitled to travel documents to enable them to travel abroad, and under article 23: “The contracting states shall accord to refugees lawfully staying in their territory the same treatment with respect to public relief and assistance as is accorded to their nationals.” They may not, therefore, be deprived of benefits as, in the U.K., refused asylum seekers are.
Secondly, under national law too, there are significant advantages in recognition, albeit conferred as a matter of discretion. One advantage is that refugees obtain indefinite leave to remain after four years, whereas those granted exceptional leave must generally wait for seven years. Similarly, refugees are entitled to immediate family reunion whereas those with exceptional leave normally have to wait four years and, moreover, a special policy is applied to Somali refugees enabling them to bring in their extended families.”
At page 1116 Simon Brown LJ added:
“…non-refoulement constitutes part only of the benefits attaching to refugee status and, as indicated, the part presently least important to these applicants who cannot be removed anyway. Their concern rather is not to remain here in limbo – without benefits, without security, unable to travel, unable to bring in their families – but instead to enjoy the specific advantages to which refugees are entitled under both international and domestic law. …”
(see also Saad, Diriye and Osorio v Secretary of State for the Home Department [2001] EWCA Civ 2008).
The best interests of the child
In ZH (Tanzania), Lady Hale said (in paragraphs 23 and 24 of her judgment):
“23. For our purposes the most relevant national and international obligation of the United Kingdom is contained in article 3.1 of the UNCRC: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” This is a binding obligation in international law, and the spirit, if not the precise language, has also been translated into our national law. Section 11 of the Children Act 2004 places a duty upon a wide range of public bodies to carry out their functions having regard to the need to safeguard and promote the welfare of children. The immigration authorities were at first excused from this duty, because the United Kingdom had entered a general reservation to the UNCRC concerning immigration matters. But that reservation was lifted in 2008 and, as a result, section 55 of the Border, Citizenship and Immigration Act 2009 now provides that, in relation among other things to immigration, asylum or nationality, the Secretary of State must make arrangements for ensuring that those functions “are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom”.
24. Miss Carss-Frisk acknowledges that this duty applies, not only to how children are looked after in this country while decisions about immigration, asylum, deportation or removal are being made, but also to the decisions themselves. This means that any decision which is taken without having regard to the need to safeguard and promote the welfare of any children involved will not be “in accordance with the law” for the purpose of article 8.2. Both the Secretary of State and the tribunal will therefore have to address this in their decisions.”
In LQ (Age: Immutable Characteristics) Afghanistan [2008] UKIAT 00005 the tribunal dealt specifically with the question whether an orphan, or a child akin to an orphan would, by virtue of him being a child, be at risk of exploitation on his return to his country of origin, and therefore a member of a social group qualifying for asylum. The tribunal held, in paragraph 5:
“The sole remaining question is, therefore, whether the appellant’s ill-treatment would amount to persecution for one of the reasons mentioned in Article 1A(2) of the Refugee Convention. The only one proposed is “membership of a particular social group”. The Immigration Judge took the view that, insofar as the appellant’s claim to risk of persecution for membership of a particular social group depended on his being a child, it could not succeed, because age is not an immutable characteristic.”
In paragraph 6, the tribunal stated:
“… We think that for these purposes age is immutable. It is changing all the time but one cannot do anything to change one’s own age at any particular time. At the date when the appellant’s status has to be assessed he is a child and although, assuming he survives, he will in due course cease to be a child, he is immutably a child at the time of assessment. (That is not, of course, to say that he would be entitled indefinitely to refugee status acquired while, and because of, his majority. He would be a refugee only whilst the risk to him as a child remained.”
In paragraph 7, the tribunal said:
“But [the Immigration Judge’s] findings do establish that the appellant is an orphan and would be at risk. In the light of the expert evidence, we conclude that the risk of severe harm to the appellant, as found by the Adjudicator, would be as a result of his membership of a group sharing an immutable characteristic and constituting, for the purposes of the Refugee Convention, a particular social group. We therefore substitute a determination allowing his appeal under s83.”
In DS (Afghanistan) v The Secretary of State for the Home Department [2011] EWCA Civ 305, Pill LJ said (in paragraphs 3 and 6 of his judgment):
“3. The appellant’s claim that he was in fear of the Taliban had been rejected at the earlier hearing and his appeal was based on the principle established in LQ (age: immutable characteristics) Afghanistan [2008] UK AIT 00005 the application of which has not been challenged by the Secretary of State (“the respondent”) in this appeal. The finding in that case, at paragraph 4, was that the applicant, aged 15 at the date of the hearing on 6 October 2006, was an orphan and that “there would be no adequate reception facilities in Afghanistan and that, as an orphan, the appellant would be subject to the risks of exploitation and ill-treatment adumbrated in that evidence” [the expert evidence before the Tribunal]. …
6. … The first issue is as to the role of the Secretary of State when an unaccompanied minor claims asylum. The second issue is whether the Tribunal was entitled to infer, adopting the language of the Tribunal in LQ, that adequate reception facilities are available.”
Pill LJ went on to say:
“44. I do not accept the submission of Mr Waite that the Secretary of State was entitled to do nothing by way of tracing enquiries. Regulation 6(1) of the 2005 Regulations, following the Directive, imposes a plain duty on the Secretary of State to endeavour to trace the members of the minor’s family as soon as possible after the minor makes his claim for asylum. I reject the submission that, because the Regulations deal with the reception of asylum seekers, the duty does not arise and I fail to see how the Secretary of State can ignore her regulation 6 duty when considering the asylum application. The possibility and desirability of a safe return are factors which should be considered from the start, as stated in the policy document. …
48. I would allow the appeal and remit the case to the Tribunal for further consideration, including the hearing of evidence. …”.
Lloyd LJ acknowledged, in paragraph 54 of his judgment, that it is necessary to have a consistent basis of definition for the particular social group in question. Referring to the tribunal’s observation in LQ that such a person would be a refugee only while the risk as a child will remain, he noted “a degree of uncertainty as to the definition of the particular social group”:
“ … Does membership cease on the day of the person’s eighteenth birthday? It is not easy to see that risks of the relevant kind to a person who is a child would continue until the eve of that birthday, and cease at once the next day. However, for present purposes it is sufficient that the particular social group is recognised consisting of Afghan citizens who are under 18 years old and who are orphans, whether strictly speaking or in practical terms. It is open to the present appellant to seek to show that he is in this category, for which purpose he has to prove, to the necessary standard, that he is, in practical terms, an orphan.”
Lloyd LJ also said this:
“67. … It seems to me clear … that the obligation to endeavour to trace the family is independent of the process of the asylum claim: expressly, it is not to wait for the outcome of the asylum claim and it is therefore a quite separate process.
68. The obligation to endeavour to trace under regulation 6 applies when a child has made an asylum application, but the application is to be determined on its merits, whether or not any steps have been taken pursuant to the obligation. To that extent, I would accept the submission of Mr Waite for the respondent that the obligation to endeavour to trace is distinct from the issues that arise on an application for asylum. If steps have been taken pursuant to the obligation under regulation 6, the results, if any, may be relevant to the determination of the asylum application, depending on what the issues are on that application. In fact, no attempt to trace was made by UKBA in the present case. All that was done was to draw to the attention of the appellant or his foster-carer the facilities of the Red Cross, with a view to his attempting to trace his relatives through that agency. There is a question as to whether the use made of these facilities on or on behalf of the appellant was appropriate, but nothing was done pursuant to regulation 6. It seems to me that failure is not, by itself, relevant to the determination of the appellant’s asylum application. However, the Secretary of State is still subject to the obligation, and steps ought now to be taken to comply with that obligation.”
Lloyd LJ went on to say:
“83. I would … allow the appeal and remit the case to the Upper Tribunal for a further reconsideration hearing, in relation to which regard must be had to the factors relevant under section 55. …
84. The appellant claimed in the alternative that he was entitled to humanitarian protection. The AIT held that he was not. So far as I can see the two issues are governed by the same facts and considerations. In the light of the court’s decision in FA (Iraq) v SSHD [2010] EWCA Civ 696, I would remit the case on the basis that the reconsideration by the Upper Tribunal should address his claims both under the Refugee Convention and to humanitarian protection.”
Rimer LJ said this:
“88. … In arriving at its determination, the AIT gave no consideration to the obligation upon the Secretary of State, under section 55 of the Borders, Citizenship and Immigration Act 2009, to ensure that her functions in relation to the appellant’s asylum application were discharged ‘having regard to the need to safeguard and promote the welfare’ of the appellant whilst in the United Kingdom. It was conceded on behalf of the Secretary of State in ZH (Tanzania) that the section 55 duty extends to the disposition of an asylum application by a child such as the appellant (paragraph 24 of Lady Hale’s judgment). In this case, however, there is a real question as to whether that duty has been discharged. …”
Remedies
In Peterbroeck van Campenhout & CIE v Belgian State [1995] ECR 1-4599 (at paragraph 14) the European Court of Justice stated that in deciding whether a national rule of a member state renders the application of EU law impossible or excessively difficult, it is necessary to consider: “… the role of the provision in the procedure, its progress and its special features, viewed as a whole, before the various national instances. In the light of that analysis the basic principles of the domestic judicial system, such as protection of the rights of the defence, the principle of legal certainty and the proper conduct of procedure, must, where appropriate be taken into consideration.”
In Keenan v United Kingdom [2001] 33 EHRR 38, the European Court of Human Rights said this (in paragraph 122 of its judgment):
“The Court reiterates that Article 13 of the Convention guarantees the availability at the national level of a remedy to enforce the substance of the Convention rights and freedoms in whatever form they might happen to be secured in the domestic legal order. The effect of Article 13 is thus to require the provision of a domestic remedy to deal with the substance of an “arguable complaint” under the Convention and to grant appropriate relief, although Contracting States are afforded some discretion as to the manner in which they conform to their Convention obligations under this provision. The scope of the obligation under Article 13 varies depending on the nature of the applicant’s complaint under the Convention. Nevertheless, the remedy required by Article 13 must be “effective” in practice as well as in law. In particular its exercise must not be unjustifiably hindered by the acts or omissions of the authorities of the respondent State.
…”.
And in Jancikova v Austria (App no 56483/00) [2005] ECHR 56483/00 the court said (in paragraph 38 of its judgment): “38. The scope of the Contracting States’ obligations under art 13 varies depending on the nature of the applicant’s complaint; however, the remedy required by art 13 must be “effective” in practice as well as in law (see, for example, Ilhan v Turkey [2000] ECHR 22277/93 at para 97). The term “effective” is also considered to mean that the remedy must be adequate and accessible (see Paulino Tomas v Portugal (dec), no 58698/00, ECHR 2003-XIII). In addition, particular attention should be paid, inter alia, to the speediness of the remedial action itself, it not being excluded that the adequate nature of the remedy can be undermined by its excessive duration (see Tome Mota v Portugal (dec), no 32082/96, ECHR 1999-IX; and Paulino Tomas, cited above).”
In the joined cases of Brasserie Du Pecheur (C-46/93) and Factortame (C-48/93) [1996] 1 ECR 1029 the European Court of Justice held that the remedy of misfeasance in public office was ineffective for the purpose of compensating Spanish fisheries for primary legislation which discriminated against them on grounds on nationality because it was inconceivable that one could show an abuse of power on the part of the national legislature. In paragraph 70 of its judgment the court said this: “While the imposition of such restrictions may be consistent with the requirement that the conditions laid down should not be less favourable than those relating to similar domestic claims, it is still to be considered whether such restrictions are not such as in practice make it impossible or excessively difficult to obtain reparation.”
In HH (Somalia) v The Secretary of State for the Home Department [2010] EWCA Civ 426, Sedley LJ said (in paragraph [81] of his judgment): “It appears to us that the intention of the Qualification and Procedures Directives is to require a member state to make a decision on entitlement within a reasonable time of the application and to allow the issues raised in it to be subject to an appeal. We do not consider that the fact that an appeal from removal directions is by way of judicial review rather than statutory appeal is, of itself, an insuperable objection. But we do think that, in a case in which the applicant raises a cogent argument within his statutory appeal that there may not be a safe route of return, the Secretary of State must address that question and the issue must be considered as part of the decision on entitlement. Postponement of such consideration until the Secretary of State is in a position to set safe removal directions would effectively be to postpone the decision until the cessation provisions have come into play.”
In AA (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 12, Keene LJ said (in paragraphs 22 and 23 of his judgment):
“22. I recognize the importance to be attached to the loss of the potential right to an in-country appeal against any refusal of variation of leave to remain. It is true that the chances of such an appeal eventually meeting with success may have been slim: on this I see the force of the points made by Mr Waite about the substantive merits of such an appeal. Nonetheless, it is to be borne in mind that such an appeal process would have afforded the applicant the advantage of an independent judicial consideration of those merits as they stood at the time. This is a significant advantage when compared with the arguments which could be put forward on a judicial review of a decision by the Secretary of State that no new asylum or human rights claim had been advanced. The appellant has lost that advantage because of the errors of law by the adjudicator and the AIT.
23. He cannot, of course, now be restored to the position he would have been in, had he been granted discretionary leave to remain until his 18th birthday. Mr Waite is right to emphasise that. But the loss which the appellant has suffered is a consideration which the Secretary of State should consider in the exercise of his discretion as to whether the appellant should now be granted any further leave to remain and, if so, for how long.”
Section 83 of the 2002 Act
In FA (Iraq) v Secretary of State for the Home Department [2010] 1 WLR 2545, Longmore LJ said (in paragraphs 13 and 21 of his judgment):
“13. It is, of course, commonplace that in the great majority of cases both the Secretary of State and, on appeal, the Asylum and Immigration Tribunal will consider asylum claims, human rights claims and (to the extent that they are different) claims for humanitarian protection at one and the same time. The great majority of such appeals are conducted pursuant to section 82 of the 2002 Act in the context of an actual immigration decision as defined in that section, and the status of the appellant as a refugee who may be entitled to asylum will be considered in the course of that appeal against the relevant immigration decision. Section 83 is the only section which gives the right to appeal against refusing the applicant asylum and as such it can be legitimately categorised as a “status appeal” as opposed to an appeal against a particular immigration decision. It is nevertheless a restricted right; it is, in the first place, restricted to person who have been given leave to enter for a period of more than12 months. This is presumably to ensure that cases which the Secretary of State is, in any event, going to reconsider in the near future do not have a right to appeal which may be ongoing at the same time as the Secretary of State is reconsidering the position.” …
21. It is, of course, for the domestic legal system of each member state to lay down relevant rules governing actions intended to ensure the protection of rights conferred by Community law, but it is also well settled that such rules must comply with two conditions: (i) they must not be less favourable than the rule governing similar domestic actions (the principle of equivalence); and (ii) they must not render the exercise of Community rights virtually impossible or excessively difficult (the principle of effectiveness): see Tridimas, The General Principles of EU Law, 2nd ed (2007), p 423.”
Pill LJ said (in paragraphs 36, 37, 46 and 47 of his judgment):
“36. For the applicant Mr Husain QC submitted that, by reason of the Qualification Directive, section 83 must now be read as including a right of appeal against a refusal of “subsidiary protection status” under the Directive. Mr Husain relied on the principle of equivalence which, as defined in Tridimas, The General Principles of EU Law, 2nd ed, p 423, requires the legal system of each member state to lay down rules governing actions intended to ensure the protection of rights conferred by Community law which are not less favourable than the rules governing similar domestic actions. The principle was stated in Peterbroeck v Belgian State (Case C-312/93) [1996] All ER (EC) 242. …
37. In para 12 of its judgment the Court of Justice of the European Communities stated:
“The court has consistently held that, under the principle of co-operation laid down in article 5 of the Treaty, it is for the Member States to ensure the legal protection which individuals derive from the direct effect of Community law. In the absence of Community rules governing a matter it is for the domestic legal system of each member state to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from the direct effect of Community law. However, such rules must not be less favourable than those governing similar domestic actions nor render virtually impossible or excessively difficult the exercise of rights conferred by Community law.” …
46. It is primarily for the national court to determine what national claims may be considered to be comparable to the claim based on Community law in the proceedings: Tridimas, p 425. Mr Payne submitted that a claim under the Directive is dissimilar from the domestic claim under the Refugee Convention, and the different approach to the two which follows from the construction of section 83 of the 2002 Act is justified. Mr Husain stressed the importance to a beneficiary of protection under the Directive of the status and bundle of rights that goes with it. These are similar to the rights granted to refugees. The law of England and Wales cannot, he submitted, deprive a person who may be entitled to subsidiary international protection status of the right to have the determination of that status decided by an independent tribunal. The exercise of that right cannot be deferred compulsorily until a decision which comes within the scope of section 82 of the 2002 Act has been made.
47. The rights of a refugee, as now provided in national law, and the rights of a person with subsidiary protection status, as provided by the Directive, are in many respects similar. They are sufficiently similar, in my judgment, to require national law to provide the person seeking international protection of that kind to have the same remedy of recourse to an independent tribunal against and adverse decision of the Secretary of State as has a person seeking international protection as a refugee. That requires section 83 to be read as applying to a person who has sought subsidiary international protection under the Directive as it applies to a person who has sought asylum. I add that the similarity in status has also been recognised by the amendments to the Immigration Rules made consequent upon the Directive. I accept the above submission of Mr Husain on this issue.”
Relevant policy and guidance
“Processing asylum applications from children”
On 30 March 2007, in APU Notice 3/2007, the Secretary of State announced an amendment to the discretionary leave policy for asylum-seeking children. Under the heading “Changes to DL policy”, APU Notice 3/2007 said this:
“5. With effect from 1 April 2007 this policy is being amended. The purpose behind the change is to enable the Border and Immigration Agency to deal with any application to extend or to vary leave and any subsequent appeal prior to the young person turning 18, providing more clarity to the young person about their future.
6. For all decisions made on or after 1 April 2007 (where asylum/HP is being refused) DL must only be granted to
17.5 years (or for 3 years (or 12 months for certain countries), whichever is the shorter period of time).”
Paragraph 17.7 of the Secretary of State’s policy “Processing asylum applications from children” now states:
“The UK Border Agency has a policy commitment that no unaccompanied child will be removed from the United Kingdom unless the Secretary of State is satisfied that safe and adequate reception arrangements are in place in the country to which the child is to be removed.
Where:-
The child does not qualify for asylum or humanitarian protection or otherwise under the general
Discretionary Leave general policy; and;
The UK Border Agency is not satisfied that the child will be able to access adequate reception arrangements in the country to which they will be removed;
The child should normally be granted Discretionary Leave for three years or, with effect from April 2007, until they are 17 ½ years of age, whichever is the shorter period. This applies in all cases except where stated otherwise in country specific operational guidance notes (OGN).”
The “Policy, Guidance & Casework Instruction” on the “Cancellation, Cessation & Revocation of Refugee Status”
The UK Border Agency’s policy for the “Cancellation, Cessation & Revocation of Refugee Status”, published on 18 December 2008, states, in section 2.1:
“Withdrawing a person’s refugee status through cancellation, cessation or revocation … action is a serious matter
and should not be undertaken lightly. …”.
Paragraph 2.3.1 sets out paragraph 339A – “Withdrawal of Status” – of the Immigration Rules, which provides:
“… a person’s grant of asylum under paragraph 334 will be revoked or not renewed if the Secretary of State is satisfied that: …
(v) he can no longer, because of the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the country of nationality; …”.
The “Asylum Policy Instruction” on “Refugee Leave”
In the Secretary of State’s Asylum Policy Instruction on “Refugee Leave” (in the version issued in October 2009) caseworkers are given this advice in section 4.2, under the heading “Consideration of cases at the point of review”:
“This section should be read in conjunction with the AI on Cessation, Cancellation and Revocation of Refugee
Status
All reviews should be considered on an individual basis. Withdrawing an individual’s refugee status, curtailing their refugee leave and/or refusing their application for a further grant of leave on the basis of their refugee status are important decisions. The burden of proof is upon UKBA to show that a person is no longer eligible for refugee status and clear evidence will be required to justify that decision.
Where a refugee applies for a further period of leave towards the end of their period of limited leave, it will not normally be necessary to conduct and in-depth review to determine whether the individual is still a refugee. Nevertheless, where a person will be subject to an active review, the individual concerned must be informed in writing that their refugee status is under review, the reasons for this reconsideration and the consequences of withdrawal/cessation of refugee status on their leave. The individual should be offered the opportunity to submit reasons as to why their refugee status should not be withdrawn, as well as any other reasons why they should be permitted to remain in the UK before a decision on their refugee status is made. …”
In the same document, in section 6, “Trigger 2: Review on the basis of a significant and non-temporary change in the conditions in a particular country (cessation)”, the following passage appears:
“Paragraphs 339A (v) and (vi) provide that a third country national or stateless person shall cease to be a refugee if he or she can no longer, because of the circumstances in which he or she has been recognised as a refugee have ceased to exist, continue to refuse to avail himself or herself of the protection of the country of nationality.
This will apply, for example, where there is a significant and non-temporary change in country conditions such that a refugee from that country or part no longer has a well-founded fear of persecution. In such situations, Ministers may decide to review all grants of refugee status made to refugees while potentially affected by that change and who have been granted limited leave within the previous five years of that decision. Sometimes, the improved circumstances will be limited to a specific category of refugees in a given country or part and the review will be limited to that category.
A decision that a country or part has improved sufficiently to justify the review if the status of those refugees potentially affected by that change will be communicated upon and will be taken only after consultation with UNHCR. Country information will be the basis of such a decision being reached.
Caseworkers will then conduct reviews of refugee status and refugee leave for refugees within the scope of the ministerial statement on a case by case basis to assess whether any individual refugees fall within the cessation provisions of the Refugee Convention as a result of the change in country conditions. In particular, caseworkers will have regard to Article 1C(5) and (6) of the Refugee Convention, which provide that the Refugee Convention will cease to apply to a person if:
• He can no longer, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, continue to refuse to avail himself of the protection of the country of his nationality; or
• Being a person who has no nationality he is, because the circumstances in connection with which he has been recognised as a refugee have ceased to exist, able to return to the country of his former habitual residence.
…”.
Submissions for the claimant
For the claimant, Mr Becket Bedford made four main submissions.
Mr Bedford submitted, first, that for the purposes of EU law and, in particular, Article 39 of the Procedures Directive, an “effective remedy” for an unaccompanied minor who makes an unsuccessful application for asylum means a remedy which serves the “child’s best interests” if his or her application for asylum is refused.
Mr Bedford argued that if domestic law is to secure the proper protection of rights conferred by EU law it must achieve two objects: first, the protection must be as good as that afforded under domestic law for equivalent legal rights, and secondly, it must be effective in the sense that the exercise of rights under EU law must not be virtually impossible or excessively difficult. Pointing to the provisions of Articles 21, 24(2) and 47 of the Charter of Fundamental Rights, Mr Bedford submitted that, if the common European asylum system was to be implemented correctly by the United Kingdom, the fundamental rights of unaccompanied children seeking asylum must be secured by domestic legislation. The Procedures Directive, the Reception Directive and the Qualification Directive all acknowledge their respect for the fundamental rights recognized by the Charter, and declare that the “best interests of the child” are to be a primary consideration for Member States when implementing their provisions. Mr Bedford also referred to the protection of the best interests of the child enshrined in Article 3(1) of the Convention on the Rights of the Child, and the prominence given to that protection in the decision of the Supreme Court in ZH (Tanzania). He submitted that when the limited right of asylum appeal in section 83 of the 2002 Act was enacted, the obligation under EU law to secure the best interests of the child was not heeded. Parliament had the opportunity to amend section 83 after the Procedures Directive came into force in January 2006, but did not do so.
In FA (Iraq), said Mr Bedford, the Court of Appeal had held that section 83 of the 2002 Act unlawfully deprived an unaccompanied child of an immediate right of appeal against the decision taken on his application for humanitarian protection. The same principle must apply to applications for asylum. The law must not deprive the claimant of an immediate right of appeal on his claim for asylum, and that right must not be deferred until the Secretary of State has made a decision within the scope of section 82. Section 83 of the 2002 Act had made it impossible for the claimant to challenge the decision taken by the Secretary of State on his application for asylum by way of an appeal to the tribunal. Apart from those like the claimant who are aged between 16 ½ and 17 ½ at the date of their asylum application being refused, all other unaccompanied children seeking asylum enjoy an immediate right of appeal to the tribunal. Thus, submitted Mr Bedford, section 83 fails to secure the claimant’s right under Article 39 of the Procedures Directive, and offends both the principle of effectiveness and the principle of equivalence.
Mr Bedford acknowledged that there is no direct authority in domestic jurisprudence holding that only an appeal on the merits against an asylum decision, as opposed to judicial review, qualifies as an “effective remedy”. But Pill LJ came close to accepting that this was so in his judgment in FA (Iraq). Mr Bedford also referred to what was said by Sedley LJ in paragraph 81 of his judgment in HH (Somalia), which, he submitted, implies that judicial review complements a right of statutory appeal but is not a substitute for it. He also relied on what was said by Keene LJ in AA (Afghanistan) (in paragraph 22 of his judgment), recognizing that a right of statutory appeal under section 82 on the expiry of discretionary leave was more advantageous for a child than judicial review of a decision to refuse a fresh claim. The European Court of Human Rights held in Keenan v United Kingdom (at paragraph 122) that the remedy required under Article 13 of the Convention had to be effective in practice as well as in law and that it was necessary to take account of a person’s vulnerability when considering whether judicial review is an effective remedy. In determining the effectiveness of a remedy the court must consider its adequacy, its accessibility and its speediness (see paragraph 38 of the judgment of the European Court of Human Rights in Jancikova v Austria). Judged by those three criteria, judicial review could not be seen as an effective remedy for the refusal of the claimant’s application for asylum. It is not adequate because it is merely a review of the Secretary of State’s decision on Wednesbury grounds, rather than an independent determination of the application on the facts. It is inaccessible because it denies a child pursuing an asylum claim a suitable forum in which to give his or her evidence. And it is not speedy enough, being far slower than appeals to the tribunal.
Turning to Article 39(5) of the Procedures Directive, Mr Bedford submitted that discretionary leave is not equivalent to refugee status. Under the Secretary of State’s policy, discretionary leave is generally limited until the child is aged 17 ½. For those whose applications are determined while they are between 16 ½ and 17 ½ leave will generally be granted for less than one year. By contrast, Article 24 of the Qualification Directive guarantees a refugee a minimum three years’ residence unless there are compelling reasons of national security or public order. Those granted refugee status in the United Kingdom are given five years leave to remain, under Immigration Rule 339Q(i). The other significant disadvantage of discretionary leave is the mechanism for its withdrawal. Discretionary leave lapses automatically. A right of appeal is available only if an application to extend is made before the leave expires. If the application is refused an appeal can be made, on asylum grounds, under section 82. But then the appellant bears the burden of proof. Refugee status, on the other hand, does not lapse automatically, except in a limited category of cases (see Article 38(4) of the Procedures Directive). Instead, the Secretary of State has to make a decision to withdraw refugee status, on grounds restricted by Articles 11 and 14 of the Qualification Directive. In making such a decision the Secretary of State must follow due process, in accordance with Article 38 of the Procedures Directive. Such a decision is subject to a further appeal under Article 39(1)(e). In an appeal Article 14(2) of the Qualification Directive reverses the burden of proof so that it is borne by the Secretary of State.
Mr Bedford’s second main submission was that there is no compelling reason sufficient to justify the denial of a child’s best interests being protected by an immediate right of appeal. Mr Bedford accepted that when section 83 of the 2002 Act came on to the statute-book there may have been a legitimate purpose in restricting the right of asylum appeal. But, he submitted, maintaining that purpose today by denying an immediate right of appeal in asylum cases to all those who have less than a year’s leave, irrespective of whether they are unaccompanied minors, is neither necessary nor justified. Acknowledging what had been said by Longmore LJ in paragraph 13 in his judgment in FA (Iraq), Mr Bedford said that there is no need today to deny an unaccompanied child an immediate right of appeal to the tribunal against the refusal of asylum. No evidence has been provided by the Secretary of State to show that any duplication of effort entailed in introducing such a right of appeal would make the appeals system difficult or impossible to operate.
Mr Bedford submitted, thirdly, that there is a real risk that children deprived of an immediate right of appeal under section 83 will be denied a hearing before the tribunal before they are 18, thus losing the chance to qualify for asylum as children. Even if, in principle, an appeal under section 82 might be thought an effective remedy for an unaccompanied child who had been refused asylum, Mr Bedford said this could not be so if there was a real risk that before the tribunal decided the appeal the appellant would no longer be a child. Claims for asylum alleging a risk to the appellant as a child would thus be fatally compromised. An applicant would be deprived of his right to have an assessment made of his best interests as a child, to which he is entitled under section 55 of the 2009 Act. This point had effectively been recognized by the Secretary of State in her APU Notice 3/2007. The potential difficulty facing asylum applicants in a similar position to the claimant had been explained by Ms Sandhu in her witness statement. In DS (Afghanistan) the Secretary of State acknowledged that an unaccompanied Afghan child was at real risk of persecution unless he could be received by a family member in Kabul, the likely place of return. Pill LJ accepted (in paragraph 44 of his judgment) that the Secretary of State was bound to try to trace the child’s family members and to take into account the result of her enquiry when deciding the asylum application. Lloyd LJ (in paragraph 68) and Rimer LJ (in paragraph 88) held that the tracing duty was relevant to the assessment of the best interests of the child under section 55 of the 2009 Act. Therefore, submitted Mr Bedford, child applicants for asylum from Afghanistan must have their appeals heard and decided before they are 18. In reply, he referred to several passages in the UNHCR “Guidelines on International Protection” for child asylum claims, submitting that there would have been no sense in formulating child-specific forms of persecution had it been acceptable to delay the determination of claims that raised them until the applicant was no longer a child. Mr Bedford also relied on paragraph 66 of the guidelines, which says that claims made by child applicants “should normally be processed on a priority basis, as they often will have special protection and assistance needs”.
Mr Bedford’s fourth main submission was that the claimant has a continuing interest in the outcome of these proceedings, despite having applied, on 29 June 2011 to vary his discretionary leave, an application which remains undecided but which carries the right of immediate appeal to the tribunal, on asylum grounds, under section 82. Mr Bedford said the claimant was not confident that his current application for humanitarian protection discretionary leave would be decided in time to enable any appeal to be finally determined by the tribunal before he reaches the age of 18. Ms Sandhu’s evidence suggested that an appeal may very well not be decided by then. If it is not, the Secretary of State’s breach of her duty to trace under Article 19(3) of the Reception Directive and her breach of the duty to grant the claimant an effective remedy against the refusal of his asylum application would count for nothing, unless he is able to persuade the tribunal that the Secretary of State’s failures infringed his individual rights under EU law because they were conspicuously unfair or unlawful (see the judgment of Keene LJ in AA (Afghanistan), at paragraph 23).
Submissions for the Secretary of State
For the Secretary of State Mr Shakil Najib submitted that the claimant’s claim for judicial review was academic. The claimant has made an application to extend his discretionary leave. That application would be decided shortly. If it is refused the claimant will be entitled to an immediate in-country appeal. When that appeal is heard it is likely that the claimant will be 18, and unable to rely on reasons within the scope of LQ. Even if the court concluded that the claimant has been denied an “effective remedy” in the form of an immediate appeal, this would not assist the claimant at all at the hearing of his appeal. The court should hesitate before making a declaration as to the lawfulness of primary legislation when the litigant seeking such relief will gain no practical benefit from it.
Mr Najib made these three submissions. First, the claimant has had, and does have, an effective remedy, as Article 39 of the Procedures Directive requires. Secondly, the claimant is at no real disadvantage to those granted refugee status for reasons within the scope of the principle in LQ. And thirdly, the claimant’s best interests as a child are, and will continue to be, sufficiently protected while he remains a child.
The central issue in the case concerns the obligation in Article 39 of the Procedures Directive to provide an “effective remedy”. Citing the decision of the European Court of Justice in Peterbroeck van Campenhout, Mr Najib submitted that that court applies a flexible approach when determining whether a national rule of a Member State makes the application of EU law impossible or excessively difficult. Section 83 of the 2002 Act, and its effect on a particular group of applicants, must not be viewed in isolation but in the context of the statutory immigration system as a whole. Article 39 does not specify any requirement as to the form of the remedy or the time in which it must be available for it to be “effective”. The crucial requirement is that there must be a review of the applicant’s asylum claim by a court or tribunal. It is not stipulated that this must be achieved through an immediate appeal on the merits against the refusal of asylum rather than in a subsequent appeal against a refusal to extend discretionary leave, at which stage the claim for asylum is fully reviewed.
As this claim itself demonstrates, said Mr Najib, judicial review provides a remedy before a court. Any asylum-seeking child – including a child over the age of 16 ½ – who contends that the Secretary of State’s decision on his application for asylum was flawed by an error of law or procedure, or by an unreasonable or unlawful exercise of discretion, may seek appropriate relief. For errors of that kind judicial review is an effective remedy. Judicial review is not a substitute for an appeal on the merits. Mr Najib did not suggest that it was. But, he submitted, an appeal to the tribunal on the merits of the application for asylum will always be available by the time it is needed. The requirement in section 83(1)(b) for more than a year’s leave does not mean that an applicant’s claim for asylum is never reviewed by the tribunal, or that when he has recourse to an appeal under section 82 he has lost or been denied an effective remedy. In some cases an appeal made by an asylum-seeking child might not be heard until he has reached the age of 18 and is no longer a child. But this would not matter if the basis of the claim for asylum was unrelated to the fact that the applicant was a child. In such cases it is very unlikely that the factual basis of the claim will have disappeared if an appeal was not heard until some six to 12 months later; an appeal under section 82 of the 2002 Act will obviously be an effective remedy. There will also be cases in which a child applicant’s appeal is not heard, or at least not determined, until he has reached the age of 18, where the claim for asylum has been based on considerations within the scope of the principle in LQ. In those cases, Mr Najib accepted, the appellant will not be able to rely on such considerations by the time his appeal is heard. He will not be able to rely on them because they will no longer apply to him and will therefore no longer bear on the merits of his case. But it does not follow that he will have been denied an effective remedy. Like any other case that comes before the tribunal, his will be considered on its merits as they are, and in the light of the facts and circumstances as they are, at the time when the determination is made.
Mr Najib submitted that Parliament’s purpose in including in section 83 the requirement for more than a year’s leave – to avoid a large number of appeals having to be dealt with in a short period – still holds good, and no less so than when it was enacted. In FA (Iraq) the Court of Appeal acknowledged the existence of this requirement and expressed no concern about it. If domestic law is to achieve the proper protection of rights conferred by EU law it must achieve two objects – first, that the protection must be as good as the protection under domestic law of equivalent legal rights, and secondly, that it must be effective in the sense that the exercise of EU rights must not be virtually impossible or excessively difficult. But, said Mr Najib, neither of those propositions assists the claimant here. In FA (Iraq) the issue was a narrow one: whether the EU principle of equivalence required section 83 of the 2002 Act to be read so as to allow an appeal against a refusal of a claim for subsidiary or humanitarian protection rather than merely an appeal against a refusal of a claim for asylum. The Court of Appeal considered section 83 deficient in permitting an appeal to be made from a refusal of asylum but not from a refusal of subsidiary or humanitarian protection. But the court did not suggest the requirement in section 83 for more than a year’s leave. On the contrary, both Pill LJ and Longmore LJ acknowledged and tacitly approved this requirement. In paragraphs 46 and 47 of his judgment, Pill LJ was not endorsing the proposition that it is unlawful to defer the right of appeal to the tribunal until an appeal can be made under section 82. He was simply making the point that an applicant whose claim for subsidiary or humanitarian protection had been refused should have the same rights under section 83, whatever rights those might be, as the applicant whose claim for asylum has been rejected. It was for the domestic legal system of each member state to lay down relevant rules governing actions intended to ensure the protection of rights confirmed by EC law.
Mr Najib submitted that the claimant’s reliance on DS (Afghanistan) was also misplaced. The obligation to trace the child’s family members under regulation 6 of the 2005 Regulations, which applies Article 19 of the Reception Directive, does not arise only after a child has been granted asylum, but as soon as he makes an application for asylum. It applies and continues to apply until the child reaches his 18th birthday, no matter whether his application for asylum has been refused. A failure to trace is irrelevant to the determination of the application. This was acknowledged by Lloyd LJ in paragraph 68 of his judgment in DS (Afghanistan).
The argument that the burden of proof is on the Secretary of State if she proposes to revoke refugee status, whereas it is on the applicant when making an application to extend his discretionary leave, is, said Mr Najib, artificial. In practice, if asylum has been granted on the basis of the principle in LQ, the Secretary of State would be able to revoke on the basis that the applicant was now an adult. There is no more for her to prove than that. In such a case the burden would shift to the applicant to show why, despite his now being an adult, he should still be entitled to refugee status. This is precisely the same task as would face a child over the age of 16 ½ when applying to extend his discretionary leave, or in an appeal against the refusal of such an application.
Article 39(5) of the Procedures Directive provides that an applicant may be considered as having an effective remedy if he has been granted a status offering him status equivalent to refugee status. Therefore, Mr Najib submitted, if a child is refused asylum but given a status which affords him the same benefits and protections, the court is entitled to conclude, and should conclude, that this in itself is an effective remedy. A grant of discretionary leave to a child over the age of 16 ½ confers on him rights and benefits that are not materially different from those to which a child with refugee status is entitled. Those rights and benefits subsist throughout the period of his discretionary leave, and indeed beyond that period until his appeal is heard. As the tribunal made clear in LQ, children who are granted asylum for reasons within the principle in that decision, the grant of asylum is necessarily temporary. A child in that position would not be entitled indefinitely to refugee status acquired while, and because of, his minority. If asylum is granted for reasons within the scope of the tribunal’s decision in LQ, the applicant’s entitlement to refugee status subsists only until he reaches the age of 18. At that point his refugee status as an adult is liable to be reviewed on its merits and may be revoked, as Article 14 of the Qualification Directive provides. In practice, therefore, a child under the age of 16 ½ is not better off than a child aged between 16 ½ and 17 ½, either in terms of the length of his leave to remain or in terms of the opportunity he has to extend his leave to remain beyond his 18th birthday. Such temporary advantage as there might be for a person with refugee status cannot be regarded as unlawful discrimination against a person in the position of the claimant. Sections 82 and 83 of the 2002 Act are in no way incompatible with the claimant’s directly effective rights under EU law as Mr Bedford had argued.
Mr Najib submitted that the Charter of Fundamental Rights does not have the force of law in the United Kingdom. Nor is the Charter incorporated into the Directives composing the European asylum system. The preamble to each Directive merely records that it “respects fundamental rights and observes the principles recognised in particular by the [Charter]”. The fact that the Directives respect and reserve the fundamental rights and principles recognized in the Charter does not entitle individuals to rely on Charter rights within the United Kingdom. Each of the Directives has to be applied in the United Kingdom consistently with its own provisions, and not with the objective of securing an asylum applicant’s fundamental rights under the Charter. In any event, Mr Najib argued, Article 24(2) of the Charter, which refers to the need to treat the child’s best interests as a primary consideration in all actions relating to children, is not engaged in this case. The fact that the claimant does not have an immediate right of appeal under section 82 or 83 of the 2002 Act does not arise from any action on the part of the Secretary of State. It arises through the provisions of primary legislation, applicable to all applicants for asylum, regardless of age and sex.
The requirement to ensure that the best interests of the child are a primary consideration is not of general application to all provisions of the Procedures Directive, or to all legislation enacted or policies adopted by the United Kingdom. It is limited to the specific context of procedural safeguards being provided for child applicants for asylum. Paragraph (14) of the preamble to the Procedures Directive refers to an obligation on Member States to lay down “specific procedural guarantees for unaccompanied minors” and says that “[in] this context, the best interests of the child should be a primary consideration” (emphasis added). Article 17 of the Procedures Directive sets out the procedural guarantees to which unaccompanied minors are entitled. The substance of paragraph (14) of the preamble is repeated in Article 17(6), which provides that “[the] best interests of the child shall be a primary consideration for Member States when implementing this Article” (emphasis added). Article 17 does not provide an unaccompanied minor with specific procedural safeguards in any appellate process. Paragraph (11) of the preamble to the Procedures Directive provides that the organisation of the processing of applications for asylum should be left to the discretion of Member States. There is no reason, said Mr Najib, why the same principle should not apply to the circumstances in which appeals can be made and heard. Article 39 of the Procedures Directive does not contain any obligation requiring the best interests of a child applicant for asylum to be a primary consideration in its implementation, or that an “effective remedy” must be one that serves the applicant’s best interests as a child.
Mr Najib also submitted that there is no obligation under EU law binding the United Kingdom to ensure that all legislation of general applicability, including section 83 of the 2002 Act, should secure the best interests of children, simply because some children might be affected by it. The Procedures Directive did not impose such an obligation. Nor did section 55 of the 2009 Act. Nor did Article 3.1 of the United Nations’ Convention on the Rights of the Child. Section 55 of the 2009 Act merely provides that the Secretary of State’s functions relating to immigration, asylum and nationality are to be discharged having regard to the need to safeguard and promote the welfare of children in the United Kingdom. The enactment of section 83 of the 2002 Act was not a function of the Secretary of State within the meaning of section 55(2). In ZH (Tanzania) Lady Hale confirmed that the duty to treat the best interests of the child as a “primary consideration” applies to the way in which children are looked after in the United Kingdom while decisions are being made about immigration, asylum, deportation or removal, and to the decisions themselves. It is incumbent on the Secretary of State and tribunals to address the best interests of the child in their decision-making. However, the enactment by Parliament of section 83 of the 2002 Act was not a decision relating to a child or children, within the meaning of Article 3.1 of the United Nations Convention on the Rights of the Child. Mr Najib pointed out that the effect of section 83 of the 2002 Act on unaccompanied children seeking asylum was considered in Parliament when amendments were proposed to the Immigration and Nationality Bill, and Parliament chose not to alter the provisions. The court should be cautious in interfering with what was clearly the deliberate intention of Parliament.
Discussion
Synopsis
I cannot accept Mr Bedford’s argument. In my judgment, it finds a cogent answer in Mr Najib’s submissions for the Secretary of State. Neither generally nor specifically in the case of the claimant do the provisions of sections 82 and 83 of the 2002 Act offend any relevant principle of European law or conflict with the Directives composing the European system of asylum. In particular, I reject the submission that the claimant, as an unaccompanied asylum-seeking child, either has been or is being denied an effective remedy, as Article 39 of the Procedures Directive requires. Is the claim academic?
I am prepared to assume that the claim for judicial review is not at this stage academic. Mr Najib argued that even if the court were to declare that the claimant has not had an effective remedy in his own case, such a declaration would not change his position for the better. But I recognize that, if the claim were to succeed, its outcome could influence any decision the Secretary of State might later make on an application for further discretionary leave. This much seems clear in the light of observations made by Keene LJ in the decision of the Court of Appeal in AA (Afghanistan) [2007] EWCA Civ 12. In that case the Secretary of State had argued that, the appellant having passed his 18th birthday by the time of the tribunal’s decision, his appeal under the policy for unaccompanied minors had become academic because he had enjoyed the protection afforded by his presence in this country up to and beyond his 18th birthday. However, Keene LJ acknowledged (in paragraph 22 of his judgment) that an appeal process would have given the applicant the advantage of an independent judicial consideration of the merits of his case as they stood at the time. This was a significant advantage when compared with a claim for judicial review on a decision of the Secretary of State that no new asylum or human rights claim had been advanced – and an advantage the appellant had lost because of the errors of law made by the adjudicator and the tribunal. Keene LJ noted (in paragraph 23) that the applicant could not now be restored to the position he would have been in had he been granted discretionary leave to remain until his 18th birthday, but the loss he had suffered was a consideration the Secretary of State should weigh in deciding whether the appellant should now be granted any further leave to remain and, if so, for how long.
The scope of the claimant’s challenge
Mr Bedford emphasized that he was not contending either that the policy the Secretary of State had applied when determining the claimant’s application for asylum was an unlawful policy, or even that it had been unlawfully applied in the claimant’s case. Mr Bedford accepted that the intention behind the policy was laudable. But, he submitted, it demonstrably failed as a policy because it did not overcome the prejudice suffered by some child asylum applicants in being denied an immediate right of appeal against the rejection of their claims. In the claimant’s case a decision was made in accordance with a policy the effect of which is that applicants in a particular group – those aged between 16 ½ and 17 ½ when their applications for asylum are refused – generally do not receive a grant of discretionary leave for a period long enough to bring them a right of appeal under section 83. Mr Bedford’s argument was not aimed at the Secretary of State’s policy. Had the Secretary of State’s policy been different – or had it been applied differently in this particular case – so that the claimant was granted discretionary leave for a period of more than 12 months, the grievance he pursues in these proceedings would not have arisen.
Mr Bedford’s argument cannot be confined to the claimant alone. What he was submitting, in effect, was that any child applicant for asylum without more than a year’s discretionary leave will not have an effective remedy unless he has the chance to argue his case in front of the tribunal before the time comes when he is no longer a child. This proposition is not limited to the circumstances of the claimant. The principles that apply to him will apply to others, perhaps many others, as well. Indeed, paragraph 24 of the claimant’s grounds characterizes the point raised in the claim as one of “public importance”. Mr Bedford stressed, however, that the claimant was not seeking a declaration of incompatibility in general terms. The declaration sought was in the terms set out in paragraph 3 of the claimant’s grounds, namely that in “his case” the 2002 Act is “incompatible with his directly effective rights under EU law”, as well as an order requiring the Secretary of State to grant him “an immediate right of appeal to the tribunal, and damages”. Mr Bedford referred to the decision of the European Court of Justice in Amministrazione delle finanze dello stato v Simmenthal (Case 106/77) as illustrating the court’s jurisdiction to hold domestic legislation incompatible with EU law, on the facts of a particular case. This is not controversial. There will be circumstances in which such conflict arises. But those circumstances will be rare.
Is there any tension between European and domestic law in this case? I do not believe there is. I do not accept that the statutory scheme for immigration control in the United Kingdom, and, in particular, sections 82 and 83 of the 2002 Act, conflicts with the provisions of Article 39 of the Procedures Directive. And I do not accept Mr Bedford’s basic submission that the claimant has had no effective remedy. In my judgment, he has had a remedy which is amply effective for a person in his position. Indeed, he has availed himself of that remedy. Section 83 of the 2002 Act
The likely effect of the provision which became section 83 of the 2002 Act was debated in Parliament, and it was the deliberate decision of Parliament not to amend the provision before it passed into law.
Mr Bedford sought support for his argument in the decision of the Court of Appeal in FA(Iraq). As Mr Najib submitted, however, I do not think that the decision in that case adds any force to the argument that the right to an effective remedy under Article 39(1) of the Procedures Directive is rendered virtually impossible or excessively difficult by the deferral of a statutory right of appeal until an “immigration decision” within section 82 is made, or by granting a child applicant for asylum discretionary leave to remain for a period shorter than would generate an immediate right of appeal under section 83. Although the claimant in FA(Iraq) was a child, the questions the court had to deal with were not specifically concerned with children. The principal and relatively narrow issue was whether section 83 of the 2002 Act embraced claims for subsidiary or humanitarian protection as well as claims for asylum. Applying the principle of equivalence, the court held that it did. If domestic law was to secure the proper protection of rights conferred by the law of the European Union, the protection had to be as good as that afforded by domestic law to equivalent legal rights. It must be effective in the sense that the exercise of rights under European law must not be virtually impossible or excessively difficult. Pill LJ said, in paragraph 47 of his judgment, that the rights of a refugee, as provided in national law, and the rights of a person with subsidiary protection status, under the Qualification Directive, were sufficiently similar to require national law to provide the person seeking international protection of that kind with “the same remedy of recourse to an independent tribunal against an adverse decision of the Secretary of State as has a person seeking international protection as a refugee”. However, as Longmore LJ observed in paragraph 21 of his judgment, it is for the domestic legal system of each Member State to lay down relevant rules governing actions intended to ensure the protection of rights conferred by European law. The court was not invited to hold, and did not hold, that the right of appeal itself is less than amply effective, restricted though it is to those with more than a year’s leave to enter or remain. None of the constitution questioned the adequacy of the right to appeal under section 83(1)(b). Longmore LJ, in paragraph 13 of his judgment, and Pill LJ, in paragraph 30 of his, noted the apparent aim of the restriction: to avoid concurrent applications and appeals in cases under active review by the Secretary of State. Mr Bedford submitted that the desire to avoid duplication of process could be satisfied by the Secretary of State exercising her power to certify under section 96 of the 2002 Act. This may be right, but it makes no difference to the essential reasoning of the Court of Appeal’s decision in FA(Iraq). Article 39(1) of the Procedures Directive
Every person who claims asylum in the United Kingdom, whether he or she is an adult or a child, is entitled to an effective remedy before a court or tribunal if his application for asylum is refused by the Secretary of State. This is the effect of Article 39(1) of the Procedures Directive.
What does the obligation to provide an effective remedy require? I do not accept that the existence of an effective remedy for a person seeking asylum necessarily depends on his having either an immediate right of appeal on the merits against the refusal of asylum or a status that affords him rights and benefits equivalent to those enjoyed by a refugee. Article 39(1) of the Procedures Directive requires Member States to ensure that applicants for asylum have the right to an effective remedy “before a court or tribunal”. It does not specify the form which a remedy “before a court or tribunal” must take if it is to be regarded as effective. It does not stipulate that the remedy must necessarily consist of, or include, a right of appeal on the merits to a tribunal, exercisable at the stage when the initial decision is taken to refuse a claim for asylum, whether or not discretionary leave is granted at that stage. If such a decision holds in prospect a statutory appeal to a tribunal against a refusal to extend leave, and, in that appeal, to have the merits of the claim for asylum fully appraised, I do not think this can be ignored in considering whether the person concerned has a remedy which is effective for him. No doubt, if it is to be effective, a remedy must be both adequate and available to the person who needs it within a reasonable time. But a timely remedy is not necessarily synonymous with an immediate appeal. In my judgment, the fact that a disappointed applicant for asylum does not have access to a tribunal straight away does not mean that he has no effective remedy. Nor does the fact that the merits of his claim for asylum may have changed by the time his appeal comes to be heard. His case may have weakened; it may have got stronger. This is inherent in any appeal on the merits. That the original basis of a claim for asylum has changed with the passage of time does not render the appellate process itself ineffective as a remedy, or give rise to conflict with Article 39 of the Procedures Directive.
In my judgment, Mr Najib was right to submit that the effectiveness of the remedies afforded under sections 82 and 83 of the 2002 Act, both generally and for a particular group of applicants – in this instance, failed asylum seekers aged between 16 ½ and 17 ½ with a grant of no more than a year’s discretionary leave – must be considered not in isolation but in the context of the domestic system of immigration control as a whole. This approach is consistent with the jurisprudence of the European Court of Justice, seen for example in Peterbroeck Van Campenhout. In that case, in paragraph 14 of its judgment, the court held that the exercise of determining whether a national role of a Member State renders an EU law impossible or excessively difficult requires the procedure to be viewed as a whole, taking into consideration “the basic principles of the domestic legislation”. When that approach is taken in this case I do not think one can conclude that the provisions of section 83 of the 2002 Act have denied the claimant – or others in a similar situation to his – an effective remedy of the kind to which paragraph 1 of Article 39 refers. In my judgment, the claimant has had an effective remedy throughout. Article 39(5)
Under Article 39 of the Procedures Directive the concept of an effective remedy is not limited simply to a right of recourse to a court or tribunal. In the circumstances contemplated in paragraph 5 of Article 39 an effective remedy is deemed to exist on the basis of status alone. Where an applicant for asylum has been granted a status offering him “the same rights and benefits under national and Community law” as refugee status under the Qualification Directive, he may be considered as having an effective remedy “where a court or tribunal decides that the remedy pursuant to paragraph 1 is inadmissible or unlikely to succeed on the basis of insufficient interest on the part of the applicant in maintaining the proceedings”. The main issue in this claim concerns a person aged between 16 ½ and 17 ½ at the time of his application for asylum, who is granted discretionary leave to remain in the United Kingdom, but whose application for asylum was made, at least in part, on grounds no longer available to him by the time his appeal to the tribunal is determined because by then he has reached the age of 18. It is therefore necessary to consider whether such a person, during the period of his discretionary leave, enjoys a status which “offers the same rights and benefits under national and Community law as the refugee status by virtue of [the Qualification Directive]”. If he does, his status itself is, for him, an effective remedy.
As Mr Najib submitted, the Directives recognize the principle that the period for which a person can enjoy the rights and benefits of his status as a refugee may be curtailed. Under Article 24 of the Qualification Directive a beneficiary of refugee status is entitled to a residence permit, which must be valid for at least “three years” and “renewable unless reasons of national security or public order require…”. In practice, because of the requirement in Article 14 of the Qualification Directive that Member States “shall revoke, end or refuse to renew the refugee status of a third country national … if he or she has ceased to be a refugee in accordance with Article 11”, a child granted asylum for reasons within the scope of the principle in LQ will be entitled to remain in the United Kingdom until he reaches the age of 18, after which his status can and will be reconsidered in the light of current circumstances, including the fact that he is now no longer a child. When that moment comes, his status will not be materially stronger than that of a person of the same age who has discretionary leave.
However, the significance of refugee status to the person who has it, and for as long as he has it, is not in doubt. As Lord Hope of Craighead observed in paragraph 35 of his speech in Fornah, such status, for those who have it, is not of mere theoretical significance, but brings with it all the benefits of the Refugee Convention, a “very substantial benefit which is well worth arguing for” (see also the speech of Lord Lloyd of Berwick in Adan, at page 303 A-B). Mr Bedford pointed to several differences between refugee status and the status of a person granted discretionary leave. He referred to the normal entitlement under national law to five years’ refugee status. He also drew attention to the difference in arrangements for travel abroad for refugees and for those with discretionary leave. A Convention travel document, to which a refugee is normally entitled, enables one to travel to all European countries, whereas a certificate of travel, to which a person with discretionary leave may be entitled, is not accepted by some of the Member States of the European Community. Another difference is that, under paragraph 319D of the Immigration Rules, a refugee or beneficiary or humanitarian protection may apply for family members to join him or her in the United Kingdom. No such right exists for those with discretionary leave. Mr Bedford mentioned the opportunities to move from one category of leave to remain, to another, for example under paragraph 284 of the Immigration Rules, which relates to extensions of stay for the spouse or civil partner of a person present and settled in the United Kingdom. A person with discretionary leave, granted outside the rules, does not enjoy that benefit. Mr Bedford also highlighted the legal distinction between the two forms of status. Under Article 13 of the Qualification Directive, refugee status is the legal entitlement of a third country national or stateless person who qualifies as a refugee in accordance with Chapters II and III of the Directive. Chapter VII of the Qualification Directive sets out the content of international protection accorded to refugees and persons eligible for subsidiary protection. Articles 20 to 34 in Chapter VII confer on those with refugee or subsidiary protection status a number of important rights and protections. But a person with discretionary leave has, by definition, a merely discretionary status. Legally, therefore, his status is inferior to that of a refugee.
All of that I acknowledge. However, I can see the force in Mr Najib’s submission that the concept of “the same rights and benefits” in Article 39(5) is not to be understood as meaning rights and benefits identical in every respect, rather those that are in substance the same. In his day-to-day life, a 17 year-old child with discretionary leave to remain in the United Kingdom is at no real disadvantage to a child of the same age with refugee status. The length of a person’s stay is not material in itself. That a person with discretionary leave to remain in the United Kingdom has been given such leave only until he is 17 ½, while a person who has been granted asylum has been allowed to remain for up to five years, does not, in itself, materially affect the quality of protection they each enjoy while in the United Kingdom. Why, for example, should the fact that a person with discretionary leave does not have the same kind of travel document as a refugee preclude the operation of Article 39(5)? As Mr Najib submitted, both a Convention travel document, to which a refugee is normally entitled, and a certificate of travel, which a person with discretionary leave may be given, allow one to travel outside the United Kingdom and to return, without having to seek further leave.
Mr Najib therefore urged me to accept that the granting of discretionary leave to a child asylum-seeker confers on him rights and protections tantamount to those enjoyed by a refugee. If I had to decide this question I would hold that the protections enjoyed by a child with discretionary leave are not such as to fall outside the ambit of Article 39(5). But I do not think it is necessary to go that far. In my view it is necessarily implicit in the provisions of Article 39 that, in gauging the effectiveness of a remedy before a court or tribunal, one can and should consider the degree to which the person to whom that remedy is available has a status with rights and benefits matching those of a refugee. Although the rights and benefits of a child with discretionary leave and those of a child refugee are not in all respects exactly alike, I think the practical similarities between them serve to reinforce my conclusion that in both cases there is an effective remedy sufficient to satisfy paragraph 1 of Article 39. I should make it plain, however, that even if I were wrong about this I would still conclude that the claimant has an effective remedy complying with Article 39(1). Remedies
What then are the remedies available to someone in the claimant’s situation?
In the first place, as these proceedings themselves have shown, an unsuccessful applicant for asylum such as the claimant can seek judicial review of the Secretary of State’s decision refusing him asylum and granting discretionary leave for a period shorter than he would need to qualify for a right of appeal under section 83. Judicial review is a remedy before a court. It enables the court to grant relief in cases where the process of decision-making is flawed by an error of law or procedure. It offers a disappointed applicant for asylum the opportunity to argue that in the particular circumstances of his case the Secretary of State’s decision has unreasonably or otherwise unlawfully denied him that to which he was entitled by law. For example, it allows a claimant to argue that the Secretary of State has in his case failed to act in accordance with the requirements of statute or legal principle, or that she has misconstrued her policy for the handling of claims for asylum, or applied that policy in an arbitrary way. It is not an appeal on the merits, but its range is considerable.
Secondly, having been allowed to remain in the United Kingdom until 1 July 2011, when he was 17 ½, the claimant was able by then to apply to extend his leave. On 29 June 2011 he did so. The decision on that application will be an “immigration decision” by virtue of section 82(2)(d). If the application fails, the claimant will have a right of appeal under section 82. By virtue of section 92(4) of the 2002 Act this will be an in-country appeal. It will be an appeal on the merits. The tribunal will consider the substance of the claimant’s claims for asylum and humanitarian protection. A remedy in this form is entirely effective for someone whose claim for asylum has been turned away by the Secretary of State. It is no less effective a remedy for the fact that the applicant’s right of appeal lies only against a further decision of the Secretary of State.
Thirdly, if the claimant were refused further leave to remain and his subsequent appeal to the tribunal dismissed, the Secretary of State would have the power to set directions for his removal from the United Kingdom. This would be an “immigration decision” within section 82(2)(g), and would therefore attract a right of appeal under section 82. Again, on appeal, the claimant would be able to put forward argument and evidence on his claims for asylum and humanitarian protection. This too is an effective remedy.
The timing of the appeal to the tribunal
I do not accept that someone in the claimant’s situation – an unaccompanied asylum-seeking child – would only have an effective remedy if he had the guarantee of his asylum appeal being heard and determined by the tribunal while he is still a child.
It is true that, as an unaccompanied child applying for asylum, the claimant enjoys certain advantages not available to an adult asylum-seeker, which are conferred on him for example by Article 19(3) of the Reception Directive and regulation 6 of the 2005 Regulations. However, it does not follow from this that the effectiveness of his remedy depends on him having an appeal on the merits of his claim decided before he reached the age of 18. The Secretary of State gave him leave to remain in the United Kingdom until he was 17 ½. This was consistent with her policy. The object of the policy is to grant discretionary leave up to that age to allow enough time for any application for further leave to be determined before the applicant turns 18. Paragraph 17.7 of the Secretary of State’s policy “Processing asylum applications from children” expresses the “policy commitment” that “no unaccompanied child will be removed from the United Kingdom unless the Secretary of State is satisfied that safe and adequate reception arrangements are in place in the country to which the child is to be removed”. In the claimant’s case it has never been suggested that the Secretary of State has any intention of attempting to remove him before he is 18, whatever decision she might make on his application for an extension of his discretionary leave.
I do not believe that in these circumstances the claimant can say that he is left without an effective remedy. His claim for judicial review has been built on the proposition that if he has an asylum appeal determined while he is still a child he will have had an effective remedy, because he will have been able to rely on his being child as an important and perhaps decisive consideration in that appeal. But the corollary is this. If the claimant succeeded in his appeal because, or largely because, he was a child at the time, his status as a refugee would, for that reason, be liable to review and revocation after he had ceased to be a child.
I think the distinction drawn by Mr Najib, between cases within the scope of the principle in LQ and those outside it, is useful here. It is not, as Mr Bedford described it in argument, a “false dichotomy”; it is a valid distinction. It does not overlook the importance of a child asylum seeker being protected, by a grant of asylum, against persecution he would be likely to face as a child. And in this case I think it helps in two ways: first, in testing the effectiveness of the remedy available to a child asylum-seeker who is between 16 ½ and 17 ½ at the time of his application being rejected by the Secretary of State, is granted no more than a year’s discretionary leave, and does not have an appeal determined until after he is 18; and secondly, in comparing that person’s remedy with the remedy of the unsuccessful asylum applicant under the age of 16 ½, who is given more than a year’s discretionary leave, appeals straight away, has his appeal decided before he is 18, in that appeal succeeds in his claim for asylum, and thus gains refugee status while still a child.
Each of those hypothetical applicants can expect to have the merits of his claim for asylum considered, or considered afresh, on all the relevant facts, at or about the time he reaches the age of 18. A successful applicant for asylum will normally be given five years’ leave to remain. However, in the case of a person who has acquired five years’ leave as a child, the Secretary of State may consider revoking his leave when he reaches the age of 18, under her “Cancellation, Cessation & Revocation of Refugee Status” instructions. Even if his leave is not revoked at that stage he will still have to apply for indefinite leave to remain when the five year period expires. If by then he is over 18 his case will be considered in the light of the facts and circumstances as they are at the time, including the fact that he is no longer a child. A child over 16 ½ who, under paragraph 17.7 of the Secretary of State’s policy, is given discretionary leave to remain in the United Kingdom until he is 17 ½, may apply, before he reaches that age, to extend his leave. If he does so his application will be considered by the Secretary of State under section 6 of her instructions for the “Active Review of Unaccompanied Asylum Seeking Children … Discretionary Leave …”. This too will require the facts and circumstances to be considered as they are, no matter whether the applicant is still a child or has by then reached the age of 18. If there is a potential advantage for an applicant who was under 16 ½ when he gained refugee status – in that his case might not be reviewed by the Secretary of State until he is about 21 – this does not mean that the applicant who was over 16 ½ when refused asylum was thus deprived of a remedy that was effective for him.
A child who seeks the protection afforded by refugee status can expect to be granted such status if the Secretary of State, or, on appeal, the tribunal is satisfied that he requires it. The decision of the tribunal in LQ does not, as I understand it, establish the principle that unaccompanied children from Afghanistan seeking asylum in the United Kingdom necessarily qualify for asylum during their minority because of the dangers they would face, as children, if returned to their country of origin. What the tribunal held in LQ was that the age of a child applicant may be treated as immutable at the time when his claim for asylum is determined, so that he qualifies as a member of a particular social group under the Refugee Convention. The tribunal recognized, however, that when a person reaches the age of 18 he will not necessarily continue to be entitled to the protection of refugee status, because the underlying factual basis for his having being granted asylum will no longer be there. The position of a child who comes to the United Kingdom and says he is the victim of persecution is different. If the contention that he is victim of persecution is true it may well remain so beyond his 18th birthday. In DS (Afghanistan) the Court of Appeal effectively acknowledged the difference between a case in which asylum had been granted on the grounds of persecution and one in which asylum was granted not on such grounds but because, in the absence of adequate facilities for a child going back to his country of origin, he would be left exposed to the risk of exploitation and ill-treatment. The risk of exploitation and ill-treatment is, in effect, deemed to cease when the person reaches the age of 18. As Lloyd LJ acknowledged (in paragraph 54 of his judgment) it is necessary to have a consistent basis of definition for the particular social group in question.
In cases outside the scope of the principle in LQ, as Mr Najib submitted, the fact that a disappointed applicant’s rights of appeal are not immediate but deferred does not deny him the opportunity to have his appeal heard and determined while the underlying factual basis of it remains unchanged. And if an appeal is made within six to 12 months of the initial decision to refuse asylum but to grant discretionary leave, the passage of time is unlikely to make any material difference to the factual basis of the claim. If the factual basis of the claim has changed there will be no unfairness, because the tribunal will be considering the facts as they are, not the facts as they were.
In cases within the scope of the principle in LQ, including those where there are other factors in play as well, the applicant’s status as a child will not necessarily override all other considerations. The weight to be given to the fact that he is a child will depend on his actual age and circumstances. Not all cases involving children are alike. Inherent in the appeal process is an exercise sensitive to the particular facts. There is no place in that process for the notion that cases involving children are to be treated as if they were all the same. In some cases concerning a child who is over 16, the evidence may be that, if he is returned to the country from which he originally came, he will face different or more serious risks than would a child of 10. In some cases, the opposite might be so. A 10 year-old child seeking asylum is likely to be treated differently from one who is already 17 by the time his application is dealt with. A person who is 17 may not have a much stronger case, if stronger at all, than someone who is already 18. The tribunal may often be entitled to hold that a person who is 17 ½ should be treated as if he were already an adult. And if a person is no longer a child when his appeal comes to be decided, he may nevertheless be able to persuade the tribunal that he should succeed on other grounds. This analysis withstands Mr Bedford’s submission that child-specific forms of persecution need not have been identified in the UNHCR guidelines if claims based on such persecution could simply be deferred until the applicant was no longer a child. If, in any particular case, the risk of persecution is real, whatever form it is expected to take and no matter whether the person claiming asylum is a child or an adult, the claim will probably succeed.
The claimant’s claim for asylum
The essential question for the court to decide in this case, Mr Bedford emphasized, is whether the claimant himself has been denied an effective remedy. It is necessary, therefore, to consider what the basis of the claimant’s claim for asylum actually is, and whether he will have had the opportunity to present an appeal on that basis if and when it is necessary for him to do so.
The factual basis of the claimant’s claim for asylum does not rest entirely, or even principally, on his age, or on the fact that he is a child. His application was, and is, put on grounds that go well beyond the scope of the principle in LQ. According to him, it is founded mainly on the dangers posed by members of his family who are members of the Taliban, and by the Taliban itself. It seems unlikely that he will abandon his account once he reaches the age of 18. If an appeal is necessary, it is likely to be heard late in 2011 or early in 2012. It will be an in-country appeal. Until it has been determined the Secretary of State will not seek to remove the claimant from the United Kingdom. The claimant will thus have had the benefit of being protected from the kind of risks contemplated in LQ. If the appeal is heard before the claimant is 18, the tribunal will obviously have regard to his age, but will probably focus, in particular, on his evidence about the harm to which he may come at the hands of his uncles and the spectre of his recruitment to the Taliban as a suicide bomber. If his appeal is determined after his 18th birthday, the claimant will still have had the rights and protections due to him as a child throughout the time he has remained in the United Kingdom up to the age of
The element of his claim that is within the scope of the principle in LQ will no longer need to be determined. But the other elements of it will still be live. Whenever his appeal is heard the claimant will have the opportunity to tell the tribunal what happened to him in Afghanistan and what he believes would be done to him if he went back. He will be able to contend that he ought to be allowed to remain in the United Kingdom because he has a well-founded fear of persecution in Afghanistan. He will have the chance to contest the Secretary of State’s findings of fact in the UK Border Agency’s letter of 12 November 2010. The tribunal will reach findings of its own. It will judge the credibility of the claimant’s account. And it will draw conclusions on the whole of the evidence and submissions presented to it, in the light of the circumstances as they are at the time. Changes in circumstances that have occurred since the clamant originally made his claim for asylum will not be ignored. This is the situation in which any appellant – adult or child – will find himself when his appeal comes to be heard by the tribunal.
I do not, therefore, accept Mr Bedford’s submission that the claimant will have been denied a decision of the tribunal on the merits of his case by the time he needs to have it. Although the claimant was not entitled under the 2002 Act to an immediate appeal to the tribunal against the Secretary of State’s decision to refuse him asylum and grant him discretionary leave, he did not lack an effective remedy. Though his remedy is not the same remedy as would have been available to him had his leave been for a period of more than a year, it is, nonetheless, effective. The best interests of the child
As Mr Najib submitted, it would be wrong to suppose that just because an applicant for asylum is a child, his status as a child will necessarily dictate the way in which his application, or his appeal, is dealt with. The decision on his application will have both legal and factual ingredients. The basic question to be decided will be whether or not the child qualifies for asylum, having regard to his best interests as a child as a primary consideration. But he is not automatically entitled to asylum simply because he is a child.
It is important to distinguish between the protection due to a child claiming asylum and the decision on the merits of the child’s asylum application itself. Paragraph (14) of the preamble to the Procedures Directive refers to the obligation of Member States to lay down “specific procedural guarantees for unaccompanied minors … on account of their vulnerability” and provides that “[in] this context” the best interests of the child should be “a primary consideration”. However, paragraph (14) does not require the provision of specific procedural guarantees for unaccompanied minors throughout a Member State’s statutory system of immigration control. The particular procedural guarantees to which unaccompanied minors are entitled are provided in Article 17 of the Procedures Directive (“Guarantees for unaccompanied minors”). Article 17(6) provides that the best interests of the child are to be a primary consideration for Member States “when implementing this Article”. Article 17 does not provide procedural safeguards relating to the remedies available to unaccompanied asylum-seeking minors. No mention of the best interests of the child is to be seen in Article 39 of the Procedures Directive. This is not to say, of course, that if a child applicant for asylum pursues his remedy before a court or tribunal he cannot rely on his best interests as a child being addressed as a primary consideration while he remains a child. Article 3.1 of the United Nations Convention on the Rights of the Child requires that in all actions concerning children the best interests of the child shall be a primary consideration. Section 55 of the 2009 Act provides that any function of the Secretary of State is to be discharged having regard to the need to safeguard and promote the welfare of children in the United Kingdom. This was done in the claimant’s case, as paragraphs 77 and 78 of the UK Border Agency’s letter of 12 November 2010 explain; I am satisfied that the claimant’s best interests as a child were taken into account by the Secretary of State as a primary consideration in her decision.
In ZH (Tanzania) the Supreme Court confirmed that the duty to treat the best interests of the child as a primary consideration applies not only to the way in which children are looked after in the United Kingdom while decisions are being made about immigration, asylum, deportation or removal but also to the decisions themselves, and that the Secretary of State and tribunals must therefore address this in their decisions. But this principle, important though it is, does not make it necessary to recast primary legislation governing asylum applications and appeals so that it refers to the need for decision-makers to address the best interests of the child in their decisions. I do not read the Supreme Court’s decision in ZH (Tanzania) as authority for the proposition that every provision of statute under which an immigration decision is made must explicitly acknowledge the best interests of the child to be a primary consideration where the relevant decision concerns a child.
The burden of proof
Mr Bedford argued that the claimant would be at a significant disadvantage to someone who had been granted refugee status as a child because in his appeal he would bear the burden of proof and would therefore have to convince the tribunal that it would not be safe for him to go back to Afghanistan. I do not accept that submission. Neither discretionary leave nor refugee status is permanent. Both will at some point need to be renewed. I accept that the onus is on an applicant for an extension to his discretionary leave to show why his leave should be extended. I accept too that where the Secretary of State seeks to revoke a person’s refugee status once has he reached the age of 18, the burden of proof will be on the Secretary of State to show why that status ought now to be revoked. However, in a case where the Secretary of State does not propose revocation but the period for which asylum was granted is coming to an end and the refugee makes an application seeking to extend that period, the burden will rest on him to make good the case for that extension. As Mr Najib submitted, in a case within the scope of the principle in LQ, although the Secretary of State would bear the burden of proof and would therefore need to show a sound basis for revocation, there would be nothing for her to prove apart from the age of the person concerned. Once this had been done, the burden would immediately shift to the applicant; he would then have to show why he should be allowed to remain in the United Kingdom. In any case in which the person’s status had originally been established on LQ grounds, he would bear the real burden of proof after he has turned 18. In truth, the task of persuasion facing the claimant in his appeal would not be materially different from that of the refugee who is no longer a child. So Mr Bedford’s argument on the burden of proof does not persuade me that a person in the position of the claimant is denied an effective remedy, or even that his remedy is less effective than that available to a person of the same age to whom asylum had been granted.
The tracing duty
Nor do I accept Mr Bedford’s submission that a child applicant for asylum who has his asylum appeal determined while still a child thus gains a significant advantage because he is able to rely on the Secretary of State’s tracing duty under Article 19(3) of the Reception Directive and regulation 6 of the 2005 Regulations. This, I think, is a fallacy. Regulation 6(1) of the 2005 Regulations, under the heading “Tracing family members of unaccompanied minors”, obliges the Secretary of State to endeavour to trace the members of the minor’s family “as soon as possible after the minor makes his claim for asylum”. Regulation 6(2)(b) provides that “a person shall be an unaccompanied minor until he is taken into the care of [an adult responsible for him whether by law or custom] or until he reaches the age of 18 whichever is the earlier”. As Lloyd LJ remarked in DS (Afghanistan) (in paragraph 68 of his judgment), a failure to trace is not, by itself, relevant to the determination of an asylum application, though the Secretary of State remains subject to the obligation and ought to comply with it. The duty to trace will continue until the claimant is 18. Neither the duty itself nor the degree to which the Secretary of State has complied with it goes to the question whether the claimant has had an effective remedy.
The Charter of Fundamental Rights of the European Union
I do not believe that Mr Bedford’s argument on remedy gathers any strength from Articles 21, 24 and 47 of the Charter of Fundamental Rights. As is effectively acknowledged in Article 1 of the Protocol on the application of the Charter to Poland and the United Kingdom, the Charter does not have the force of law in the United Kingdom. But, in any case, I see no reason to hold the provisions of the 2002 Act with which this claim is concerned inconsistent with any of the rights reaffirmed in Articles 21, 24 and 47 of the Charter. In its Preamble the Charter reaffirms the rights it sets out “with due regard to the powers and tasks of the Union and for the principle of subsidiarity”. The Procedures Directive, the Qualification Directive and the Reception Directive belong to a comprehensive scheme for asylum. Although the preamble in each of those three Directives announces that the Directive respects the fundamental rights and observes the principles recognized by the Charter, the Charter itself is not incorporated into the Directives, and it does not increase the obligations of the United Kingdom beyond those imposed by the Directives themselves. Each Directive must be applied through its own specific provisions. Where the Directives concern the rights and treatment of asylum seekers, Member States are bound by the corresponding obligations under instruments of international law to which they are party and which prohibit discrimination (see paragraph (9) of the preamble to the Procedures Directive, paragraph (6) of the preamble to the Reception Directive, and paragraph (11) of the preamble to the Qualification Directive).
As to Article 21 of the Charter, I do not accept that the relevant provisions of the 2002 Act discriminate either generally against children seeking asylum in the United Kingdom, or specifically against child asylum-seekers aged between 16 ½ and 17 ½. Neither the claimant nor anyone else in a similar position to his suffers any material disadvantage through the statutory regime for appeals in sections 82 and 83 of the 2002 Act. An applicant for asylum who believes he has been discriminated against may invoke Article 14 of the European Convention on Human Rights, provided he can demonstrate a breach of another Convention right. Decisions made on appeals under sections 82 and 83 of the 2002 Act may be impugned on such grounds. But the idea that the statutory provisions themselves are discriminatory is misconceived. As Mr Najib submitted, section 83(1)(b) does not distinguish between adults and children in conferring a right of appeal on those with more than a year’s discretionary leave. The qualification applies to adults and children alike. It does not discriminate against anybody, or against any particular group.
The provisions of sections 82 and 83 of the 2002 Act are not, in my view, incompatible with the principle reaffirmed in Article 24(2) of the Charter, namely that in all actions relating to children the child’s best interests must be a primary consideration. Even if, contrary to Mr Najib’s submission, the enactment by Parliament of those provisions could itself be regarded as an action relating to children within the meaning of Article 24(2), I do not see how this could be said to be at odds with the imperative of treating the best interests of the child as a primary consideration. There is no reason to infer such conflict. Decisions made under sections 82 and 83, where they apply to a child, must be always be made taking account of that child’s best interests as a primary consideration – though, as Mr Bedford acknowledged, not necessarily the paramount consideration.
As to Article 47 of the Charter, the rights to an “effective remedy before a tribunal” and to “a fair trial and public hearing within a reasonable time by an independent and impartial tribunal previously established by law” are, in my judgment, adequately reflected in the provisions of sections 82 and 83.
Article 23 of the Procedures Directive
In the grounds pleaded in claimant’s claim form it was suggested, though not clearly asserted, that the Secretary of State had breached Article 23 of the Procedures Directive in not determining the claimant’s asylum application as soon as possible after it had been made. However, this point did not feature either in Mr Bedford’s skeleton argument or in his oral submissions. I think he was right not to pursue it. Article 23 obliges Member States to process applications for asylum in accordance with specified principles and to ensure that the process is concluded as soon as it can be, so long as an adequate and complete examination is not compromised. The aim should be to make decisions within six months. But Article 23 regulates only the actions of the relevant immigration authorities in the Member States when making decisions on applications submitted to them. It does not apply to the appellate processes by which those disappointed by decisions made on their immigration claims may seek redress in a court or tribunal. In this case the claimant has not identified any default by the Secretary of State under Article 23 in her handling of his claim for asylum. His real complaint is that he has no effective remedy against the outcome of that process, not that the process itself was flawed by a defective procedure. As I have explained, I reject that argument. But in any event I see nothing in the contention that the Secretary of State fell into error in the procedure she adopted in the claimant’s case.
Conclusion
For the reasons I have given, I conclude that the Secretary of State’s decision of 12 November 2010 was not unlawful as has been alleged on the claimant’s behalf. The claimant has not been denied the effective remedy that Article 39 of the Procedures Directive requires. The provisions of sections 82 and 83 of the 2002 Act, as they apply or may apply in his case, are not inconsistent with Article 39, or with any other relevant provisions of the Directives comprising the European asylum system, or with any of the rights reaffirmed in the Charter of Fundamental Rights of the European Union. Nor do those provisions offend the principle that in decisions relating to unaccompanied asylum-seeking minors the best interests of the child must be treated as a primary consideration. In short, the claimant has not in any way been unlawfully prejudiced or discriminated against by the domestic immigration legislation.
This claim for judicial review therefore fails.