Aaa V. The Secretary Of State For The Home Department For Judicial Review Of A Decision Of The Upper Tribunal (immigration And Asylum Chamber)

JurisdictionScotland
JudgeLord Matthews
Neutral Citation[2013] CSOH 77
Published date23 May 2013
Date23 May 2013
Docket NumberP1326/12
CourtCourt of Session

OUTER HOUSE, COURT OF SESSION

[2013] CSOH 77

P1326/12

OPINION OF LORD MATTHEWS

in the cause

AAA

Petitioner;

against

THE SECRETARY OF STATE FOR THE HOME DEPARTMENT

Respondent:

For Judicial Review of a decision of the Upper Tribunal (Immigration and Asylum Chamber) refusing permission to appeal against a decision of the First‑tier Tribunal (Asylum and Immigration Chamber)

________________

Petitioner: Winter; Drummond Miller LLP

Respondent: MacGregor; Solicitor to the Office of the Advocate General

23 May 2013

Introduction
[1] The petitioner claims to be Iranian although in circumstances which I will hereafter narrate that claim has been disbelieved.
He claims to have been born on 7 November 1993 and I am prepared to accept that this is the case. That date of birth appears to have been accepted by Immigration Judge Montgomery, whose determination promulgated on 22 May 2012 will be referred to later. He entered the UK illegally in or around September 2008 and claimed asylum on 16 September 2008. His asylum application was refused by the UK Borders Agency on 11 November 2008 but he was awarded discretionary leave to remain until 7 May 2011 on the basis that he was an unaccompanied minor for whom no suitable reception arrangements were in place in the country of return, in accordance with the respondent's policy relating to unaccompanied minors. He appealed against the refusal of asylum, which appeal was heard by Immigration Judge Wood on 2 February 2009 and was dismissed. On 28 April 2011 he made an application for extension of leave to remain but this was refused on 19 February 2012. He appealed to the First‑tier Tribunal (Immigration and Asylum Chamber) but his appeal was refused by Immigration Judge Montgomery in the determination to which I have referred. He applied for permission to appeal to the Upper Tribunal (Asylum and Immigration Chamber). The application was broadly on the basis that Immigration Judge Montgomery had failed to give appropriate weight to certain evidence produced by the petitioner, particularly an expert report of a Dr R Fatah and a psychology report by a Rachel Morley. The purpose of Dr Fatah's report was to assess the petitioner's nationality/ethnicity. The report by Rachel Morley, a consultant clinical psychologist, narrated that the petitioner was showing symptoms consistent with a diagnosis of post-traumatic stress disorder. The application was refused in a decision dated 13 June 2012. The petitioner, relying on substantially the same grounds, applied thereafter to the Upper Tribunal for permission to appeal. That application was refused in a decision dated 1 August 2012.

[2] He now seeks reduction of that decision together with expenses and such other orders as may seem to be just and reasonable in all the circumstances of the case. The grounds upon which the petitioner relies are not those in the previous applications for permissions to appeal. His argument is based on a completely different premise. The background to it is as follows. In support of his appeal against the decision of 19 February 2012, refusing his application for extension of leave of remain, he submitted a number of documents. I have already referred to the reports by Dr Fatah and Ms Morley. There was also a statement from the petitioner, no 6/10 of process, a selection of letters in support of his application (no 6/12 and 6/13 of process) and a letter from the Red Cross dated 21 March 2012 (no 7/1 of process).

[3] In paragraph 2 of his statement he said the following:

"I was 14 years old when I first arrived in the UK. I was unaccompanied. I had an asylum on human rights appeal on 2nd February 2009. I was 15 years old at the hearing. The hearing took place when I had been in the UK only for a matter of months. I only spoke a little English. The experience was alien to me. When I heard that I had to go to court I was worried I could not understand the procedure. My asylum appeal was refused. The Immigration Judge said that he did not believe that I was Iranian. I was shocked by that decision. I have only ever lived in Iran until I was 14 years old and then my mother sent me to the UK for my own safety. I have not had contact with my family since I came to the UK and I am scared for them about what may have happened to them. I have tried to trace my family but this has not helped."

The reference to trying to trace his family could only be to certain contact he had had with the Red Cross, which is in turn set out in the letter from that organisation to which I have referred. The relevant parts of that letter read as follows:

"I am writing to confirm that AAA has been in contact with our Tracing and Message Service in regard to obtaining news about the welfare and wellbeing of his father, AA.

A initially contacted the British Red Cross at the end of February 2012 and attended an appointment at our Glasgow office on 05/Mar/2012 in order to initiate a Tracing Enquiry. Due to A's fear of placing his family in danger, he was unwilling to initiate a full Tracing Enquiry within Iran, but requested that we check the records of the International Committee of the Red Cross (ICRC) in order to ascertain whether his father's location and wellbeing has been recorded by them at any time since he last had contact in May 2008."

In dealing with the letter from the Red Cross, Immigration Judge Montgomery made the following comments at paragraph 14 of her determination:

"14. The letter from the British Red Cross does not assist the appellant's claim. He did not make contact with the British Red Cross until the end of February 2012, very soon after the decision was issued refusing him further leave to remain in the UK. He argues that he was fearful of placing his family in danger, but, if that were so, it begs the question of why he was willing to make contact in February 2012. The approach to the British Red Cross has to date produced no further information regarding his father's location or wellbeing. The British Red Cross letter takes matters no further. The timing of his first contact with that organisation gives rise to the suspicion that I was made with these proceedings in mind."

Article 19.3 of Council Directive 2003/9/EC of 27 January 2003 (the Reception Directive) provides as follows:

"Member States, protecting the unaccompanied minor's best interests, shall endeavour to trace the members of his or her family as soon as possible. In cases where there may be a threat to the life or integrity of the minor or his or her close relatives, particularly if they have remained in the country of origin, care must be taken to ensure that the collection, processing and circulation of information concerning those persons is undertaken on a confidential basis, so as to avoid jeopardising their safety.

In order to implement that directive the Asylum Seekers (Reception Conditions) Regulations 2005 were promulgated. Regulation 6 provides as follows:

"(1) So as to protect an unaccompanied minors best interests, the Secretary of State shall endeavour to trace the members of a minor's family as soon as possible after the minor makes his claim for asylum.

(2) In cases where there may be a threat to the life or integrity of the minor or the minor's close family, the Secretary of State shall take care to ensure that the collection, processing and circulation of information concerning the minor or his close family is undertaken on a confidential basis so as not to jeopardise his or their safety.

(3) For the purposes of this regulation -

(a) an unaccompanied minor means a person below the age of eighteen who arrives in the United Kingdom unaccompanied by an adult responsible for him whether by law or custom and makes a claim for asylum;

(b) a person shall be an unaccompanied minor until he is taken into the care of such an adult or until he reaches the age of 18 whichever is the earlier;

(c) an unaccompanied minor also includes a minor who is left unaccompanied after he arrives and or enters the United Kingdom but before he makes his claim for asylum."

[4] It is conceded on behalf of the Secretary of State that the duty set out in the regulation, which could be characterised as "a duty to endeavour to trace" was not carried out in this case. It is not a matter which has hitherto been canvassed before any of the tribunals or in any of the applications made by the petitioner.

[5] The issue is, however, now raised in paragraph 8 of the Petition. It is averred that the immigration judge erred in paragraph 14 of the determination, which I have already quoted. The onus is not on the petitioner to trace his family but it is on the respondent. The issue had not been raised on the grounds for permission to appeal but had now been raised and was an obvious point. The First‑tier Tribunal and the Upper Tribunal were under a duty to act fairly and to exercise anxious scrutiny. There was no evidence that the respondent endeavoured to trace the petitioner's family and the respondent had failed to discharge the duty to endeavour to trace them. Such a failure was relevant to consideration of an asylum or humanitarian protection claim and might also be relevant to a consideration of the duty under section 55 of the Borders, Citizenship and Immigration Act 2009. The immigration judge ought to have found that the respondent had failed to discharge that duty because she adopted the policy of granted him leave to remain until he reached the age of 17 and a half. By that time the duty was close to expiration because of the imminence of his reaching the age of majority. That amounted to a systematic breach of the duty. The duty to trace did not endure beyond the age of 18 but the assessment of risk on return was not subject to such a bright‑line rule. He ought to have had a successful appear by availing himself of the Rashid (RS) principle and/or section 55. He was a member of the social group identified by the tribunal in LQ...

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