S, R (on the application of) v First-Tier Tribunal

The main question raised in this case is whether, in restricting the statutory right of appeal against an adverse asylum decision to individuals given discretionary leave to remain in the United Kingdom for more than twelve months, section 83 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) is incompatible with European Union law, in particular the requirement for an effective remedy contained in Article 39 of Directive 2005/85/EC.

This question falls to be determined in circumstances where an unaccompanied child sought to challenge before the First-tier Tribunal the Secretary of State’s decision to refuse his application for asylum or humanitarian protection, but was held to be unable to pursue an appeal because he had been granted discretionary leave to remain for only five months. The Claimant’s case is that an effective remedy for him, and one which is in his best interests as a child, is one which enables him immediately to pursue an appeal to the First-tier Tribunal against the decision to refuse him refugee status.

Permission to apply for judicial review of the decision of the First-tier Tribunal, that the Claimant had no exercisable right of appeal, was granted on the papers by John Howell QC, sitting as a Deputy High Court Judge, on the 30 March 2011.

The Claimant is a child from Sudan, who fled that country alone in January 2010 when he was, on his case, only 15 years of age. He entered the United Kingdom illegally, on 11 February 2010, and claimed asylum the following day. The basis of his claim to refugee status is that he is at risk in Sudan as a member of the Berti tribe, a non-Arabic tribe from the Darfur region. He also states that he would face persecution if he were returned to Sudan on account of imputed political opinion, his father and other members of his family being connected to the Darfuri rebel group JEM. He therefore sought recognition as a refugee under the Refugee Convention.

Following interviews conducted by an immigration officer, in February and March 2010, the Claimant’s account as to both his Berti ethnicity and the political activities of his family was rejected. On the basis of statements said to be inconsistent and unsubstantiated, his claims were not regarded as credible. The Secretary of State therefore rejected his application for asylum, or alternatively for humanitarian protection, in a letter dated 10 June 2010.

As at that date, although the Claimant maintained that his date of birth was 11 May 1994, he was assessed as being 17 years old, his date of birth being taken to be 11 May 1993. Accordingly, and pursuant to the Secretary of State’s policy not to remove unaccompanied asylum seeking children, whose claims for asylum have been refused and whose family members cannot be contacted, the Claimant was granted discretionary leave to remain for a period of five months until 11 November 2010 when, on the Secretary of State’s assessment, he would be 17½ years old. The purpose of granting leave until a child reaches the age of 17½ is to enable the Secretary of State to deal with any application to extend or vary leave and any subsequent appeal prior to the child turning 18.

It is common ground that, in these circumstances, the Claimant did not have a right of appeal to the First-tier Tribunal (FTT) under the relevant provisions of the 2002 Act. A refusal of asylum does not in itself attract a right of appeal under section 82 of that Act. Further, whilst section 83 does afford a right of appeal against a refusal of asylum, that right is restricted to a particular class of persons. It can be exercised only where the person seeking asylum has been granted discretionary leave to remain for a period exceeding one year.

In FA (Iraq) v Secretary of State for the Home Department [2010] 1 WLR 2545, the Court of Appeal noted that the purpose of the “one year” requirement is 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 of appeal which may be ongoing at the same time as the Secretary of State is reconsidering the position (see paragraphs 13 and 30).

The Claimant nevertheless sought to appeal to the First-tier Tribunal against the Secretary of State’s decision of 10 June, relying directly on European legislation and requesting a preliminary hearing to determine the Tribunal’s jurisdiction to hear his appeal. He contended in his grounds that the Secretary of State’s decision was wrong; that he was entitled to have his status as a refugee recognised forthwith and to be granted five years refugee leave; and that the provisions of section 83, restricting his right of appeal, did not adequately reflect the terms of Directive 2004/83/EC (the “Qualification Directive”) and Directive 2005/85/EC (the “Procedures Directive”) providing for minimum standards in Member States for qualification and status as refugees or in relation to procedures for granting and withdrawing refugee status.

The Claimant’s Notice of Appeal was considered was by Immigration Judge North who, on 2 August 2010, determined as a preliminary issue that there was no relevant decision before the FTT that carried an exercisable right of appeal under the 2002 Act.

By his Claim Form lodged at this Court, on 1 November 2010, the Claimant applied for judicial review of that decision. Permission to apply was granted on 30 March 2011.

As might be expected, events moved on between the lodging of the Claim Form and the substantive hearing before me. On 10 November 2010 the Claimant applied to the Secretary of State to vary or extend the period of his discretionary leave to remain. This was refused by letter dated 2 March 2011, in which the Secretary of State also recorded her decision to remove the Claimant from the United Kingdom.

It is common ground that those decisions did afford the Claimant an in-country right of appeal under sections 82(1) and 82(2)(d)(ha) of the 2002 Act. The Claimant exercised that right. He attended an oral hearing of his appeal before the FTT on 12 May 2011 and gave evidence with the assistance of an interpreter.

In a determination promulgated on 23 May 2011 Immigration Judge Majid decided first, accepting the evidence of the paediatric consultant Dr Birch, that the Claimant’s date of birth was 11 May 1994, as the Claimant asserted. The judge also appears to have found that the Claimant was a member of the Berti tribe from Darfur, accepting the evidence on this point from an acknowledged expert on Sudan, Peter Verney, in his report dated 9 May 2011.

However, in dismissing the Claimant’s appeal, it is agreed that the judge made a material error of law in failing correctly to apply relevant country guidance and, given his determination as to the Claimant’s age, in failing to direct that the Claimant was, in any event, entitled to further leave to remain in the United Kingdom as an unaccompanied child. The FTT’s determination was set aside by the Upper Tribunal on 19 July 2011 and the Claimant’s appeal is now to be reconsidered at a further hearing.

The issue on the Claimant’s appeal is essentially a factual one. The main question is whether he is, as he claims, a member of the Berti tribe.

The United Kingdom Border Agency Operational Guidance Note for Sudan, issued in November 2009, stated materially as follows:

“3.9.8

Sufficiency of protection. If members of non-Arab ethnic groups from the Darfur States fear ill treatment or persecution by the state they cannot seek protection from the government.

3.9.9

Internal relocation. Ordinary non-Arab Darfuris are not thought to be subject to systematic persecution outside Darfur and the courts have found that it is not unduly harsh to expect them to internally relocate to Khartoum. However, those decisions predated the developments and reports referred to......above, and restrictions on the operations of NGOs – a key source of country of origin information on Sudan – have meant we have been unable to obtain sufficient reliable information to be able to assess accurately whether there is a continuing heightened risk to non-Arab Darfuris in Khartoum. In light of the fact that we do not yet have sufficient information to allay the concerns raised in the reports referred to above, case owners should not argue that non-Arab Darfuris can relocate internally within Sudan.

3.9.10

Conclusion. All non-Arab Darfuris, regardless of their political or other affiliations, are at real risk of persecution in Darfur and internal relocation elsewhere in Sudan is not currently to be relied upon. Claimants who establish that they are non-Arab Darfuris and who do not fall within the exclusion clauses will therefore qualify for asylum.”

In AA (Non-Arab Darfuris – Relocation) Sudan CG [2009] UKAIT 00056, the Tribunal made reference to these paragraphs, and to the evidence which underpinned them, in arriving at the conclusion that all persons who are non-Arabs from Darfur are at risk of persecution in Darfur and cannot reasonably be expected to relocate elsewhere in Sudan. Claimants who establish that they are non-Arab Darfuris will therefore qualify for asylum.

It is clear from the most recent Operational Guidance Note, issued in August 2011, that this remains the position. Thus, if on appeal the Claimant can satisfy the Tribunal to “a reasonable degree of likelihood” as to his membership of the Berti tribe, he is entitled to be recognised as a refugee and therefore to a grant of five years refugee leave in accordance with the Secretary of State’s current policy or, alternatively, to subsidiary protection and to a grant of five years humanitarian protection.

In these circumstances the Claimant maintains his challenge to section 83 of the 2002 Act on the basis that, by preventing him from bringing an appeal forthwith, against the refusal of his claim for asylum on 10 June 2010, he was denied an effective remedy as required by Article 39(1) of the Procedures Directive. He submits that under Article 39 he is entitled forthwith to exercise an appeal on the merits against the Secretary of State’s refusal of his asylum claim to the specialist tribunal; and that the FTT erred in denying jurisdiction and in failing to permit his appeal to proceed.

He contends that the availability of judicial review to challenge the decision of the Secretary of State does not amount to an effective remedy in these circumstances; that recognition of his status as a refugee is a declaratory act, so that any delay in recognition is detrimental to him and deprives him of the rights conferred on refugees by the Refugee Convention; and that the provisions in section 83 restricting the right of appeal only to those individuals who have been granted discretionary leave to remain for more than one year are incompatible with directly enforceable EU law and should be disapplied.

Further, by section 55 of the Borders, Citizenship and Immigration Act 2009 the Secretary of State is under a statutory duty, in the exercise of her asylum functions, to have regard to the need to safeguard and promote the welfare of children. A decision to refuse the Claimant’s asylum claim and to grant him only a short period of discretionary leave to remain which, under domestic legislation, prevents him exercising a right of appeal on the merits of his claim, prolongs uncertainty and anxiety and is not in his best interests as an unaccompanied child seeking asylum in the United Kingdom. This is contrary to the requirements of the Procedures Directive, where the best interests of the child are established as being a primary consideration for all Member States.

The First-tier Tribunal, as Defendant, has filed an Acknowledgment of Service indicating that they will take no part in these proceedings. They are content to rely on the submissions of the Secretary of State.

The Secretary of State, as Interested Party, submits primarily that this claim is academic, because the Claimant has now exercised his in-country right of appeal against the later “immigration decisions” and therefore now enjoys an effective remedy, in respect of both the decision to remove him from the United Kingdom and his underlying asylum claim, under section 82(1) of the 2002 Act.

In any event, to the extent that the Claimant points to the historical position before these immigration decisions were made, it is said that the position has recently been fully and authoritatively addressed by Lindblom J in TN v Secretary of State for the Home Department [2011] EWHC 3296 (Admin) (Judgment 16 December 2011), which effectively disposes of the Claimant’s primary ground of challenge. There is therefore no proper basis upon which the Court could conclude in this case that, between 10 June 2010 and 2 March 2011, section 83 gives rise to a breach of EU law; that the Claimant’s right to an effective remedy was breached; or that the Secretary of State has acted in breach of section 55 in granting discretionary leave to remain for a period of less than one year.

Further, the Claimant has not provided any evidence, or pointed to any specific detriment or prejudice resulting from his previous, temporary inability to bring a statutory appeal against the initial refusal to grant him refugee status. He continued to have discretionary leave to remain in the United Kingdom and he has throughout been entitled to support as a “child in need” under Section 17 of the Children Act 1989, irrespective of his immigration status. As a matter of principle the availability of judicial review can properly be relied upon, where necessary, as going to the provision of an effective remedy under Article 39(1) of the Procedures Directive. In this case, however, that factor has no determinative significance, because the right to an effective remedy was satisfied by the statutory appeal available to the Claimant against the subsequent immigration decisions.

When granting permission to apply in this case (before the decision in TN) John Howell QC, acknowledging that the question as to the availability of an effective remedy may now be academic, nevertheless gave permission on the basis that he considered the claim to raise two points of law of general importance that should be authoritatively resolved, namely;

In his observations he considered it arguable that an effective remedy in respect of status decisions may require an appeal on the merits; that the Procedures Directive has not been transposed so as to give the necessary legal certainty to those who have the right to an effective remedy against an adverse asylum decision; and that the fact that an individual who is subsequently refused a variation of discretionary leave will then have an appeal against that decision is no answer, because that will be a different decision.

The relevant statutory provisions in domestic legislation were set out in full by Lindblom J in his judgment in TN at paragraphs 16 – 23, together with relevant extracts of the debate in Parliament on the provision which eventually became section 83 of the 2002 Act, which were referred to in argument before me. I gratefully incorporate those paragraphs at this point.

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 First-tier Tribunal (Immigration and Asylum Chamber) 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):

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:

Section 83A of the 2002 Act provides:

Section 84 provides grounds of appeal:

Section 92 provides for appeals from within 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:

Section 55 of the Borders, Immigration and Immigration Act 2009 (‘the 2009 Act’) provides:

The preamble to this Directive contains the following, relevant recitals:

“(3)

The Geneva Convention and Protocol provide the cornerstone of the international legal regime for the protection of refugees.

…

(6)

The main objective of this Directive is, on the one hand, to ensure that Member States apply common criteria for the identification of persons genuinely in need of international protection, and, on the other hand, to ensure that a minimum level of benefits is available for these persons in all Member States.

…

(10)

This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union. In particular this Directive seeks to ensure full respect for human dignity and the right to asylum of applicants for asylum and their accompanying family members.

…

(12)

The ‘best interests of the child’ should be a primary consideration of Member States when implementing this Directive.

…

(14)

The recognition of refugee status is a declaratory act.

…

(24)

Minimum standards for the definition and content of subsidiary protection status should also be laid down. Subsidiary protection should be complementary and additional to the refugee protection enshrined in the Geneva Convention.”

Article 13 of this Directive, dealing with the 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 18 deals with the granting of subsidiary protection status, providing that Member States “shall grant subsidiary protection status to a third country national or a stateless person eligible for subsidiary protection in accordance with Chapters II and V.

Articles 20 to 34 in Chapter VII of this Directive provide, for a person who has been granted either refugee or subsidiary protection status, a number of important rights and protections, including the protection from refoulement (Article 21), residence permits (Article 24), travel documents (Article 25), access to employment (Article 27), social welfare (Article 28), healthcare (Article 29), access to accommodation (Article 31), and freedom of movement within the Member State (Article 32). Article 30 makes specific provision for “Unaccompanied minors”. Article 30(5) provides that it is the duty of the Member State to “trace the members of the minor’s family as soon possible”. Article 24 addressing “Residence permits”, provides at 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).”

Paragraphs 3 and 5 of the “General rules” contained in Article 20 provide:

“3.

When implementing this Chapter, Member States shall take into account the specific situation of vulnerable persons such as minors, unaccompanied minors, disabled people, elderly people, pregnant women, single parents with minor children and persons who have been subjected to torture, rape or other serious forms of psychological, physical or sexual violence.

…

5.

The best interest of the child shall be a primary consideration for member States when implementing the provisions of this Chapter that involve minors.”

The Preamble to this Directive contains the following, relevant recitals:

“(5)

The main objective of this Directive is to introduce a minimum framework in the Community on procedures for granting and withdrawing refugee status.

…

(8)

This Directive respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union.

(9)

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.

…

(11)

It is in the interest of both Member States and applicants for asylum to decide as soon as possible on applications for asylum. The organisation of 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.

…

(13)

In the interests of a correct recognition of those persons in need of protection as refugees within the meaning of Article 1 of the Geneva Convention, every applicant should, subject to certain exceptions, have an effective access to procedures, the opportunity to cooperate and properly communicate with the competent authorities so as to present the relevant facts of his/her case and sufficient procedural guarantees to pursue his/her case throughout all stages of procedure. Moreover, the procedure in which an application for asylum is examined should normally provide an applicant at least with the right to stay pending a decision by the determining authority, access to the services of an interpreter for submitting his/her case if interviewed by the authorities, the opportunity to communicate with a representative of the United Nations High Commissioner for Refugees (UNHCR) or with any organisation working on its behalf, the right to appropriate notification of a decision, a motivation of that decision in fact and in law, the opportunity to consult a legal adviser or other counsellor, and the right to be informed of his/her legal position at decisive moments in the course of the procedure, in a language he/she can reasonable be supposed to understand.

(14)

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.

…

(27)

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 9, “Requirements for a decision by the determining authority”, provides:

“1.

Member States shall ensure that decisions on applications for asylum are given in writing.

2.

Member States shall also ensure that, where an application is rejected, the reasons in fact and in law are stated in the decision and information on how to challenge a negative decision is given in writing.

Member States need not state the reasons for not granting refugee status in a decision where the applicant is 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. In these cases, Member States shall ensure that the reasons for not granting refugee status are stated in the applicant’s file and that the applicant has, upon request, access to his/her file.

Moreover, Member States need not provide information on how to challenge a negative decision in writing in conjunction with a decision where the applicant has been provided with this information at an earlier stage either in writing or by electronic means accessible to the applicant. …”

Article 10, “Guarantees for applicants for asylum” makes provision for the enjoyment of a number of guarantees for all applicants for asylum in respect of the procedures provided for in Chapter III. They include the following:

Article 17 dealing with “Guarantees for unaccompanied minors”, provides so far as is relevant as follows:

“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 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 makes provision for Member States to process applications for asylum in an examination procedure which should be concluded as soon as possible. Article 38 makes provision for procedures for the withdrawal of refugee status.

In Chapter V of this Directive, dealing with “Appeals procedures”, Article 39 provides, “The right to an effective remedy”, as follows:

“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 of refugee status pursuant to Article 38.

2.

Member States shall provide for time-limits and other necessary rules for the applicant to exercise his/her right to an effective remedy pursuant to paragraph 1.

…

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.”

The relevant provisions were set out by Lindblom J at paragraphs 36 – 39 of his judgment in TN as follows:

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.’”

Lindblom J also referred in his judgment to Article 3.1 of the United Nations Convention on the Rights of the Child 1989, which 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.”

As Lindblom J held, this is a binding obligation in international law, which has been translated into national law in England and Wales by virtue of Section 11 of the Children Act 2004 and, as it relates to immigration decisions, by Section 55 of the 2009 Act.

The rights of appeal contained in sections 82, 83 and 83A of the 2002 Act constitute the measures implementing the obligations of the United Kingdom under Article 39 of the Procedures Directive. The “immigration decisions”, listed at paragraphs (a) to (k) of section 82(2), give a general right of appeal where the decision means that the person has no legal basis for remaining in the UK, or that they are to be removed or deported. Under section 83 a person whose claim for asylum has been rejected, but who has been granted leave to remain on another basis for a period exceeding one year, may appeal against the rejection of their asylum claim. Under section 83A an appeal may also be brought by a person whose asylum claim has been accepted but who is subsequently the subject of a decision that he/she is not a refugee and continues to have leave to enter or remain other than as a refugee. Section 84 makes specific provision for the grounds of any appeal.

The right of appeal that Parliament has afforded to people whose asylum claim has been rejected is therefore not a general right of appeal, but accrues only to those who have been granted leave to enter or remain for a period of more than one year in aggregate. A person whose claim for asylum is refused, but who is granted five months discretionary leave to remain, has no right of appeal unless he is granted a further period of leave, which extends beyond the one year period, although he may bring an application for judicial review to challenge the refusal of asylum.

In the case of unaccompanied children, the reason why no removal decision is issued at the same time that their asylum claim is rejected is because of the Secretary of State’s policy not to remove unaccompanied, asylum-seeking children whose claims have been rejected until such time as they are no longer under 18 years old, unless there are adequate reception arrangements in the country of return.

In this case it is common ground that, following the “immigration decisions” made on 2 March 2011, the Claimant exercised, and is continuing to exercise his statutory right of appeal. It is also clear, in my view, that notwithstanding the rejection of his asylum claim, any decision to remove him during the period of his discretionary leave to remain would afford him a right of appeal in respect of both his removal and his underlying claims for asylum or humanitarian protection. Section 84(1)(g) specifies, as a ground of appeal under section 82(1), the fact that removal would breach the United Kingdom’s obligations under the Refugee Convention, or would be unlawful as being incompatible with the appellant’s rights under the European Convention on Human Rights. The right of appeal that the Claimant has now exercised is therefore one which is inherent in the statutory scheme, there having been a decision to refuse him an extension of leave and to remove him.

On this analysis the Claimant’s contention, as advanced by Mr Jacobs on his behalf, is effectively that, because he was precluded from exercising a statutory right of appeal against the refusal of his asylum claim immediately, and until such time as there was an appealable “immigration decision” made in his case, he has been denied an effective remedy as required by Article 39.

Since permission to apply has been granted in this case, I deal with the claim on the basis that, notwithstanding the fact that it may now be academic, the issues raised are important and merit consideration. However, since permission was granted, the issues have been fully considered and determined by Lindblom J in TN v Secretary of State for the Home Department [2011] EWHC 3296 (Admin), in which he concluded that TN (a child) was not denied an effective remedy; and that sections 82 and 83 are not inconsistent with Article 39, or with any other provisions of the Directives comprising the European asylum system. Permission to appeal to the Court of Appeal has been given in that case, but the appeal has not yet been heard or decided.

In submitting that Lindblom J was wrong Mr Jacobs contends primarily that Article 39 requires immediate access to a statutory right of appeal against the rejection of the Claimant’s asylum claim. Recognition of refugee status is a declaratory act and any delay or uncertainty, caused because a child cannot forthwith exercise an appeal on the merits of his claim, deprives him of important rights under the Refugee Convention. Such delay and its emotional impact, until such time as he can exercise an appeal against what is in any event a later, different decision, are not in his best interests as a child.

In any event, he submits, TNis to be distinguished on its facts. In that case the issue was whether a child asylum-seeker without more than a year’s discretionary leave to remain will not have an effective remedy unless he has the chance to appeal to the FTT before the time comes when he is no longer a child. In the present case, the Claimant’s entitlement to refugee status is dependent on his ethnicity and nationality, in line with Darfurian refugees of all ages. His fear of persecution will therefore subsist until conditions in Darfur change. He is therefore entitled to a remedy which affords him an immediate right of appeal on the merits against the refusal of his asylum claim.

I have considered Mr Jacobs’ submissions with care, but I cannot accept them. I find myself fully in agreement with the reasoning of Lindblom J in TN , in concluding as I do that the Claimant in the present case has not been denied an effective remedy as required by Article 39(1).

As is recognised at recital 27 to the Procedures Directive, the effectiveness of the remedy provided, 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. Drawing attention to this at paragraph 85 of his judgment in TN, Lindblom J said as follows:

“In my judgment, Mr Najib [for the Secretary of State] 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 16½ and 17½ 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 [(1995) ECR 1-4599]. 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’.”

Taking that approach, he held that the provisions of section 83 could not be said to have deprived TN, or others who are in a similar situation to his, of an effective remedy of the kind to which Article 39 (1) refers.

Concluding that TN had had an effective remedy throughout, Lindblom J held (at paragraph 84) that the existence of an effective remedy does not depend on an asylum-seeker 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) does not stipulate that the remedy “before a court or tribunal” must necessarily consist of, or include a right of appeal to a tribunal on the merits, exercisable when the initial decision to refuse asylum is made. In deciding whether there is an effective remedy, the fact that such a decision holds in prospect a statutory appeal against a refusal to extend leave and, in that appeal, to have the merits of the asylum claim fully considered, cannot be ignored. Whilst a remedy, in order to be effective, must be adequate and available to the person who needs it within a reasonable time, a timely remedy is not synonymous with an immediate appeal.

Further, Lindblom J held that, under Article 39, the concept of an effective remedy is not limited to a right of recourse to a court or tribunal. In the circumstances contemplated in Article 39(5) an effective remedy is deemed to exist on the basis of status alone. Where, during the period of his discretionary leave, a person claiming asylum 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]”, his status is itself, for him, an effective remedy.

Acknowledging the significance of refugee status to the person who has it, and for as long as he has it, and the valuable benefits which accompany it, he held that the phrase “the same rights and benefits” in Article 39(5) does not mean rights and benefits identical in every respect, but those that are in substance the same. In practical terms, in his day to day life, he considered that a 17 year old child with discretionary leave to remain 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 someone with refugee status can remain for 5 years, while a child can remain with discretionary leave only until he is 17½, does not materially affect the quality of the protection they each enjoy while in the United Kingdom.

Considering that it was unnecessary to go as far as deciding that the grant of discretionary leave to a child asylum-seeker confers on him rights and protections tantamount to those enjoyed by a refugee, and which are not such as to fall outside the ambit of Article 39(5), he held that:

“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 respect 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).”

I agree with these conclusions and with the reasoning which underpins them. The remedies that Lindblom J found to be available to someone in TN’s position, and to be effective remedies under Article 39, were (a) the statutory appeals that he would be able to bring against subsequent “immigration decisions”, on an application to extend his leave or against subsequent removal directions following an unsuccessful appeal; and (b) an application for judicial review of the Secretary of State’s decision to reject his asylum claim and grant him discretionary leave for a shorter period than that which would enable him to pursue a statutory appeal.

In this context, as is clear from paragraph 92 of his judgment, Lindblom J considered that judicial review, whilst not an appeal on the merits, was nevertheless a remedy with considerable range which was available to a disappointed applicant for asylum.

I respectfully agree with that conclusion. In principle, and notwithstanding its limitations, as submitted by Mr Jacobs, I consider that the availability of judicial review can be relied upon as going to the provision of an effective remedy. The statutory right of appeal cannot be said to be the only means of giving effect to the right under Article 39. There is certainly nothing in the text of Article 39 to exclude the possibility of challenging the refusal of asylum by way of judicial review. Consistent with recital 27 and the need to consider the administrative and judicial system as a whole, the Report of the Commission to the European Parliament and the Council on the application of Directive 2005/85/EC (COM (2010) 465 final) refers in this respect, in the case of the United Kingdom, to the role of both specialist tribunals and courts of general competence, the latter by reference expressly to “decisions which can only be subject to judicial review” (see paragraph 5.3.1).

Further, whilst his observations to this effect were obiter, Sedley LJ said as follows on this point in HH (Somalia) v SSHDEWCA Civ 426:

“It appears to us that the intention of the Qualifications 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 direction is by way of judicial review rather than statutory appeal is, of itself, an insuperable objection.”

As Lindblom J pointed out at paragraph 92, judicial review is a remedy before a court; and it is one which enables the court to grant relief where the process of decision-making is flawed by an error of law or procedure, or where the decision to refuse asylum has unreasonably or unlawfully denied the claimant that which he is entitled to by law. A claimant may argue that there has been a failure to act in accordance with the requirements of statute or legal principle, or that the policy for handling asylum claims has been misconstrued or applied arbitrarily. Whilst it is not, as Lindblom J rightly acknowledges, an appeal on the merits, its range is nevertheless considerable. As Ms Rhee points out, it was conceded on behalf of the claimants in FA (Iraq) that judicial review was an effective remedy in the context of a challenge to a decision to refuse subsidiary protection status (see paragraph 13 of the judgment of the Supreme Court [2011] UKSC 22).

In the present case, in my view, nothing turns on the fact that the Secretary of State made no reference in her decision letter to judicial review as a route by which to challenge her decision to refuse asylum. I do not consider that there is any breach of Articles 9 and 10. The question in the present case is not whether the Claimant is ever able to challenge the adverse asylum decision and, if so, how. Rather, it is whether, in circumstances where he is unable to exercise a statutory right of appeal until there has been an appealable “immigration decision”, he can challenge any resulting prejudice which may be caused to him in the intervening period, including a challenge by way of judicial review. It seems to me that such a challenge would have been available to this Claimant if he had been denied a material benefit to which he was entitled during that period, for example under section 20 of the Children Act 2009.

In general terms, as recital 11 recognises, and in accordance with the EU principle of national procedural autonomy, whilst asylum claims should be decided as soon as possible, the organisation of the processing of such claims should be left to the discretion of each Member State, so that they may prioritise that processing in accordance with national needs, taking into account the standards laid down in the Directive.

In accordance with that approach I accept Ms Rhee’s submission that Article 39 does not reflect an immediate and unqualified right to challenge an adverse asylum decision. In particular, whilst Article 39(2) requires Member States to make provision for time limits within which applicants must exercise their right to an effective remedy, there is no requirement that the court or tribunal must examine the asylum decision within a particular period. Article 39(4) provides only that Member States may lay down time limits for the court or tribunal to examine the decision.

In addition, in the absence of any EU rules of procedure governing the matter it is for each Member State to decide which courts or tribunals are to have jurisdiction to establish detailed procedural rules governing actions for ensuring the judicial protection of individual rights under EU law, subject to the EU law requirements of equivalence and effectiveness (see Case C-312/93 Peterbroeck van Campenhout & CIE [1995] ECR 1-4599).

The question is therefore whether this Claimant has suffered any prejudice, or has been prevented from enjoying any substantive right protected under EU law as a result of being unable immediately to exercise a statutory right of appeal against the rejection of his asylum claim on 10 June 2010.

In submitting that he has, Mr Jacobs argues that the Claimant is entitled to refugee status if he is able to prove to the requisite standard that he is a member of the Berti tribe. The denial of a right of appeal on the merits, during the nine month period before the decision of 2 March 2011, prevented him from being able to establish his right to recognition as a refugee under the Convention. It is unnecessary for him to show any particular prejudice in the intervening period because this denial is in itself sufficient to demonstrate prejudice and to constitute an impermissible impediment to the enjoyment of a substantive right under both EU and international law. The effect of reliance on a subsequent decision as a means of providing a merits appeal amounts to a fundamental breach of his right to an effective remedy under Article 39, because any subsequent decision is by its very nature a different decision, which takes different factors into account. The United Kingdom is, he submits, under an obligation to give effect to the Refugee Convention in a manner which, absent compelling policy considerations, treats all asylum applicants equally. No such policy considerations exist in this case.

The question whether someone has refugee status is, I accept, a matter of real importance. Once that status is recognised, all the benefits of the Refugee Convention are immediately available to them. The uncertainty attaching to lack of status will then be replaced by all the rights and benefits which attach to refugee status. That, as Lord Hope observed in Fornah (FC) v Secretary of State for the Home Department [2006] UKHL 46, is “…a very substantial benefit which is well worth arguing for.” Mr Jacobs drew attention in addition to similar observations in Adan v SSHD[1997] 1 WLR 1107(Simon Brown LJ) and Saad, Diriye and Osorio v SSHD[2001] EWCA Civ 2008, [2002] INLR 34(Lord Philips MR).

However, like Lindblom J before me, albeit on different facts, I am not persuaded that this Claimant’s inability to appeal immediately against the refusal of his asylum claim, until he was issued with a decision to remove him, can be said in itself to amount to a breach of his right to an effective remedy. Whilst I acknowledge the importance of his right to recognition as a refugee, on the evidence before me in this case his inability to appeal against the rejection of his claim in June 2010 was not causative of any prejudice in terms of any alleged impediment to him in not being able to avail himself of any of the benefits of refugee status.

Having been allowed to remain in the United Kingdom until 11 November 2010 when, on the Secretary of State’s assessment, he would be 17½ years old, he was able to apply to extend his leave, and he did so apply. The decision on that application was an “immigration decision” affording him a statutory right of appeal on the merits, which he has exercised. The Tribunal hearing that appeal considered the substance of his claims for asylum or humanitarian protection and will do so again when re-considering them following his successful appeal to the Upper Tribunal. As Lindblom J observed at paragraph 93:

“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.”

In my judgment, it is therefore necessary for this Claimant to show that he has suffered some particular form of prejudice in being denied the right to exercise a statutory right of appeal against the earlier refusal of his claim for asylum.

In this respect I accept that, in cases involving a child, the need to have regard to his best interests means that careful consideration must be given to all matters relevant to his care and welfare. In ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 WLR 148 (Supreme Court) Lady Hale said as follows in relation to section 55 of the 2009 Act:

“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 Borders, 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.

25 Further, it is clear from the recent jurisprudence that the Strasbourg court will expect national authorities to apply article 3.1 of UNCRC and treat the best interests of a child as ‘a primary consideration’. Of course, despite the looseness with which these terms are sometimes used, ‘a primary consideration’ is not the same as ‘the primary consideration’, still less as ‘paramount consideration’.”

I accept that the Court should acknowledge, even where it may not be articulated, some degree of anxiety on the part of a child of the Claimant’s age, as a result of the rejection of his asylum claim and his inability to pursue an appeal on the merits where he has leave to remain for less than one year. In general terms delay prolongs uncertainty and is likely to increase anxiety.

Ms Rhee is right, however, to point to the fact that, by virtue of this Claimant’s status as a child with discretionary leave to remain, he has throughout been entitled to receive care and welfare support from the local authority, as a child in need and irrespective of his status, under the relevant provisions of the Children Act 1989. Further, he was able to take employment, or set up in business or undertake any professional activity, with or without the help of Job Centre Plus, as well as apply for a place on a government-sponsored training scheme. He could, throughout his period of leave, use the NHS, social services and other local authority assistance, as necessary; and he could travel within the Common Travel Area. As Lindblom J observed, both a Convention travel document, to which a refugee is entitled, and a certificate of travel, which a person with discretionary leave may be given, allow the recipients to travel outside the United Kingdom and to return, without having to seek further leave.

The decision letter of 10 June 2010 highlighted the various benefits to which the Claimant would be entitled whilst he had leave to remain in the United Kingdom. It is not legitimate, in these circumstances, to refer to him as being “in limbo” during this period, as Mr Jacobs suggested, and there is no evidence showing that there was in fact any adverse impact on his emotional state or well-being as a result of his inability to appeal to the FTT until there was a decision to refuse an extension of his leave and to remove him.

Indeed, Mr Jacobs frankly acknowledges that there is no evidence that this Claimant was in any way prejudiced in relation to any of these entitlements, or indeed in any other way, enabling him to point to specific benefits attaching to refugee status which were denied to him in the intervening period. On the contrary, it is clear that the Claimant has been receiving appropriate support from the relevant local authority throughout.

Mr Jacobs also accepts that, once he was able to appeal, this Claimant was then able to establish his ethnicity before the Tribunal. He does not seek to distinguish TN on the basis of any particular prejudice said to have been suffered by this Claimant.

As Ms Rhee points out, the position in relation to unaccompanied minors is distinguishable from that which governs adult asylum-seekers. Children are carefully excluded from the ambit of the provisions in Schedule 3 to the 2002 Act, removing various asylum seekers or failed asylum seekers from eligibility for support under section 17. This, I agree, is a clear legislative indication that even children of failed asylum seekers should be entitled to have access to section 17 support (see VC v Newcastle City Council [2011] EWHC 2673 (Admin). The cases of Fornah and others, referred to above, and all of which were carefully considered in TN, are therefore distinguishable. I do not accept the submission that the failure to afford this Claimant a right of appeal in June 2010 meant that there was a failure to act in his best interests.

Referring to the extracts from Hansard relating to the passage of section 83, as set out above, Mr Jacobs submits that the justification for the exemption in that section, as identified by Pill LJ in FA (Iraq) v SSHD[2010] 1 WLR 2545,namely that it was “…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 of appeal which may be ongoing at the same time as the Secretary of State is reconsidering the position” did not apply in the Claimant’s case.

He submits that the Secretary of State has consistently maintained that the Claimant is not a member of the Berti tribe and is therefore not entitled to any international protection, as demonstrated by her refusal to extend leave in March 2011. Thus, there is no policy based justification for withholding this Claimant’s appeal rights in the present case. The effect of sections 82 and 83 is that the Claimant has been treated differently from any other de facto refugee from Darfur solely on account of being aged between 16½ and 17½ years old on applying for asylum. The failure of the Secretary of State to provide the same access to a merits based appeal as any other refugee is disproportionate.

I cannot accept this submission. This Claimant was granted discretionary leave to remain for a period of five months until he was due to turn 17½, as it was then believed. It was therefore highly likely that, as in fact transpired, he would apply to extend his leave and his case would be reconsidered, or he would be issued with a removal decision, at which point he would in any event be afforded a right of appeal. The rationale underlying section 83 does therefore apply in his case and the attack on the justification for, and proportionality of, any discriminatory treatment in his case must fail. In any event section 83 does not, in my view, give rise to any allegation of discrimination, whether on grounds of age or any other ground.

Mr Jacobs no longer pursues the submission originally made that section 83(1) breaches the EU principle of equivalence. Rather, he submits that the fact that the Claimant’s only remedy in that intervening period, before there was an appealable immigration decision, was to apply for judicial review rendered the exercise of his rights under EU law excessively difficult. That, however, is not the right question. The correct question is whether his enjoyment of his underlying EU rights has been rendered excessively difficult by the relevant statutory provisions. For all the reasons set out above the answer to that question is in the negative.

In my judgment the FTT was entitled to conclude that there was no exercisable appeal before it on 2 August 2010. The Claimant has not been denied an effective remedy but has, on the contrary, availed himself of his effective remedy in exercising his right to appeal against the immigration decision of 2 March 2011. The provisions of sections 82 and 83 of the 2002 Act are not inconsistent with Article 39, as informed by the Charter of Fundamental Rights; and there is no basis upon which the statutory provisions could be said to have operated in a way which failed to safeguard the best interests of the Claimant as a child seeking asylum. This Claimant has in no way been discriminated against or unlawfully disadvantaged as a result of the relevant statutory provisions. His claim for judicial review therefore fails.