ZS, R (On the Application Of) v Secretary of State for the Home Department

MR JUSTICE HOLMAN: Last spring, Parliament enacted section 67 of the Immigration Act 2016, which has become commonly known as the Dubs amendment. That section is short and provides as follows:

Regrettably, that beguilingly short statutory provision may raise as many questions as to its scope and construction as it seems to answer. As a result, there is already before this court a set of proceedings brought by a charity, Help Refugees Limited, under case number CO/5312/2016. Currently those proceedings are being case-managed by myself, although it seems to me improbable that I will hear it substantively.

By the decision of Collins J to grant permission to apply in that case, this court has effectively already accepted and decided that Help Refugees Limited, being a charity intensely interested in this field, has appropriate standing to bring their claim, and that is not challenged by the Secretary of State. Within those proceedings, one important question as to the construction of section 67 has already been resolved by the order which I made by consent on 8 December 2016, declaring that the specified number in section 67 of the 2016 Act must be exclusive of transfers under the Dublin III Regulation. It is strongly contended by Help Refugees Limited that a number of other important issues of construction remain, upon which they are entitled to seek, and do seek, the ruling of the court. Those proceedings are next scheduled to be before this court at a hearing before myself a week today, on 10 February 2017.

Subsequent to the issue of proceedings CO/5312/2016, the present claimant, ZS, issued a claim on 23 December 2016 under case number CO/6504/2016. For the purposes specifically of my decisions and this judgment today, I will unreservedly accept that the facts in relation to this claimant are as described in the skeleton argument prepared for today by Ms Sonali Naik and Ms Bryony Poynor, who appear today on behalf of him, and that they are evidenced by the various documents referred to in that skeleton argument and now in the present bundle or supplementary bundle.

On that basis, the facts are that this claimant is now aged 15. He is of Afghani birth and origin, and, I assume, is a national of that state and none other. He is an unaccompanied refugee child who was for an appreciable period of time residing in the camp in Calais in France that became popularly known as "the Jungle". When that camp was dispersed late last year, he moved elsewhere in France. It is said in the skeleton argument, and I unreservedly accept for the purposes of this hearing today, that he claims to have suffered traumatic experiences both in Afghanistan and on his journey to France. It is said, and I will accept for the purposes of today, that he travelled through eight countries on his journey to France, and resided in the Calais area for 13 or 14 months. He has suffered from physical abuse from the police throughout his journey. He has been hit by cars as he has attempted to travel to the United Kingdom, and suffers from kidney pain. He has been assessed by professionals as suffering from suicidal ideation and depression. He has come to the attention of a group of men who are believed to be people traffickers. He has been robbed whilst living in the containers and has had his telephone and the wristband which designated him as a minor stolen. He has indicated that he is not able to sleep because of his fear of these people traffickers.

It is said that the claimant has now made three serious suicide attempts, the most recent of them being during January 2017. He expresses a desperation to enter the United Kingdom and, as I understand it, his most recent, if not earlier, suicide attempts have been linked to an assertion that he will commit suicide if he cannot enter the United Kingdom. I stress, however, that he is not a British citizen. He has never, ever been in any part of the United Kingdom. He has, so far as I am aware, no relatives or family in the United Kingdom, although he says that he does have friends who are already here.

On that presentation, he is of course very vulnerable indeed. It is known, however, that there is a very large number of unaccompanied refugee children currently within Europe, including France, and many of them may be no less vulnerable.

The Secretary of State has not yet formally and publicly "specified" any number of children pursuant to section 67 of the 2016 Act. She has, however, already admitted a number of children, and has clearly made attempts to assess in a rational way which children she might consider admitting as part of the total number pursuant to section 67. This led the Secretary of State to publish what were described as "eligibility criteria" in relation to the several thousand children who were at that time known to be resident in the Jungle in Calais. As I understand it, these were screening criteria. The Secretary of State has never said that if a child falls within the criteria that child will be admitted to the United Kingdom; rather, the criteria are threshold criteria which must be satisfied before the Secretary of State will consider exercising a discretion to admit the child concerned. The lawfulness of these criteria is challenged in the Help Refugees case and is proposed to be challenged also in the present case.

Representatives of the Secretary of State have met and screened this particular claimant. It was determined on 27 November 2016 that he does not fall within any of the published eligibility criteria, and indeed it is not argued, and is impossible to argue, that he does fall within those criteria.

There was correspondence between a firm of solicitors, Duncan Lewis, instructed on behalf of the claimant, and officials of the Home Office by email in late December 2016. By an email dated 21 December 2016, an official, Gary Cook, said that, "The Secretary of State will consider the various evidence/submissions you have sent on behalf of your client." In other words, after the Secretary of State had already made the decision of 27 November 2016, that was a commitment on behalf of the Secretary of State that she would, in effect, reconsider on the basis of further evidence and submissions that had been supplied. She has not, in fact, yet done so.

Meantime, orders were made in this case by various judges in response to paper applications. By an order first made on 23 January 2017, and effectively repeated with some procedural additions by a further order on 27 January 2017, Mr Richard Whittam QC, sitting as a deputy High Court judge, refused the claimant's application for interim relief. He further provided that "The claimant's case be linked to the case of Help Refugees v SSHD but stayed pending the determination of that claim." By a further order dated 30 January 2017, Mr Whittam required the Secretary of State to disclose specified material to the claimant within seven days. As that order was stamped by the court and sent out on 31 January, last Tuesday, the seven days have not yet elapsed.

The claimant urgently asked the court to renew his applications for interim relief to an oral hearing, which was fixed for today. This hearing has necessarily been a relatively short one, although as I speak nearly one-and-three-quarter hours have now elapsed. I have had the benefit of powerful submissions by Ms Naik, supported by Ms Poynor, on behalf of the claimant, and also assistance from Mr David Manknell, who appears today on behalf of the Secretary of State and is also instructed generally by her in the Help Refugees litigation.

When today's hearing was set up, I was informed that the most significant application that the claimant wished to make today was for an order that the Secretary of State should now in fact enable him to travel to the United Kingdom and admit him. That application has not been much pursued today, perhaps because Ms Naik appreciated at a very early stage that it had no prospects of success before me.

The next matter that was much discussed today was the effect of the order of Mr Whittam of 30 January 2017 with regard to disclosure. It has in fact now been established that the relevance of the date, 16 December 2016, which appears in paragraph 1 of that order, is that that is the actual date upon which the earlier decision of the Secretary of State was orally communicated to the claimant personally. There is in reality no decision of 16 December 2016. The only subsisting decision is that of 27 November 2016 to which I have referred. It has been established that the record of that decision, which consists of two short pro forma sides of paper, has already been disclosed and is indeed in the present bundle. So paragraph 1 of the disclosure order has already been completely satisfied.

It has also been established today that the "best interests assessment" referred to in paragraph 2 of the order of 30 January 2017 is a document which again has already been disclosed and indeed is the section 67(1A) form, which is now to be found at pages 37 to 45 of tab 2A of the bundle for today. It is agreed also that the claimant is in possession of all medical or other evidence that is also in the possession of the Secretary of State. It may indeed be that all or much of the medical material was supplied by him in the first place. So the whole of paragraph 2 of that disclosure order has already been satisfied.

Paragraph 3 required "Disclosure of all minutes of decision making in the claimant's case." Mr Manknell has specifically confirmed today, as indeed one would expect, that there are no "minutes" outside the documents of 27 November 2016 and the document in the section 67(1A)form to which I have already referred. It thus follows that there has in fact been complete compliance by the Secretary of State with the order of Mr Whittam already and there are no further current disclosure issues in this case.

The next matter that was the subject of discussion was a timetable for the Secretary of State to do that which Mr Cook had said in his email of 21 December 2016 that she would do. Mr Manknell initially faintly submitted that, as Mr Cook had not committed to any particular timetable, the court could not impose one. I do not accept that. If the Secretary of State says that she will consider or reconsider a matter, that very fact raises a public law duty to do that which she said she would do. If no timetable was specified, then implicitly it must be done within a reasonable time. Ms Naik stresses the pressing urgency of this case and I am sympathetic to that submission. On the other hand, the practical reality is that the Secretary of State is snowed under with immigration work, including, but not limited to, the very difficult humanitarian situation that is known currently to persist throughout Europe. I must afford to her a reasonable time, starting now, as I am imposing a time limit now. In my view, a reasonable time would be 28 days starting now, which takes us to 3 March 2017. There will therefore be an order to the effect that she must carry out the consideration as described by Mr Cook, and communicate a written decision to Duncan Lewis on behalf of the claimant, by 3 March 2017.

The next matter is that Ms Naik has very strongly urged that I should set aside the stay imposed by Mr Whittam on 27 January 2017 pending determination of the claim in Help Refugees. The essence of her submission is that this claimant has a claim in his own right; he is highly vulnerable; and he cannot properly be expected to wait while the Help Refugees case, which may require a hearing of some length, wends its weary way.

That submission, however, raises head-on, to my mind, the whole question of the standing of this claimant to bring any claim at all. He has simply no current connection whatsoever with this State other than the fact that he was assessed by a representative on behalf of the Secretary of State. He is one of an unknown, but undoubtedly very large, number of unaccompanied refugee children who are currently dispersed in many parts of Europe, and it needs to be recalled that section 67 is in no sense limited to children in France but extends to children "from other countries in Europe". Indeed, the present claim of the claimant has attached to it a schedule of a further 36 children who are described as "interested parties" and seem to be tucked in in some way behind this claimant's claim.

Section 67 refers only to "a specified number of unaccompanied refugee children". Provisionally, I cannot accept that that section gives to any given child, amongst the thousands of unaccompanied refugee children who are currently in Europe, some individual capacity such that he or she should have standing to bring a claim such as this. As I have said, the Secretary of State has, by the email of Mr Cook, made a commitment to consider or reconsider his claim. To that extent he now has a legitimate expectation that she will do so, and I am prepared to give effect to that by fixing the time limit.

The claimant has already achieved the order as to disclosure by Mr Whittam, although it is unclear whether that is of any practical effect, in that all the documents were already in his possession prior to the order being made. But beyond that, I am not prepared, for the purposes of today, to accept that he does have any standing. In any event, it seems to me that the issues as to the construction of section 67, and as to the lawfulness or otherwise of the screening criteria which the Secretary of State devised, will be fully debated and considered in the Help Refugees case. It adds nothing to start having additional individual claimants in that or parallel litigation. It would indeed risk making that litigation completely unmanageable. The very fact that 36 so-called interested parties have been added to, or included in, the present claim immediately illustrates the road down which the court might be lured if it had to start examining individual circumstances.

So I do not today rule upon the issue of standing, but I am very firmly of the view that this claim, and indeed any similar claim that any individual claimant might seek to issue, should be firmly stayed until after final determination of the Help Refugees case. Once that case has been authoritatively and finally decided, consideration can then be given in an orderly way to whether there is any substance in any individual claims; and whether, with standing, they raise any new points that the court should consider.