BV (Unaccompanied Minor – Timing of Decision)
| Jurisdiction | England & Wales |
| Judge | Andrew Jordan |
| Judgment Date | 03 June 2004 |
| Neutral Citation | [2004] UKIAT 148 |
| Date | 03 June 2004 |
| Court | Immigration Appeals Tribunal |
[2004] UKIAT 148
IMMIGRATION APPEAL TRIBUNAL
Mr Andrew Jordan
Mrs L.H.S. Verity
Mrs L.R.S. Schmitt
For the appellant/Secretary of State: Mr G. Saunders, Home Office Presenting Officer
For the respondent/claimant: Ms S. Naik, counsel
BV (Unaccompanied Minor — Timing of Decision) Vietnam
The Secretary of State appeals against the determination of an adjudicator, Mr Timothy Thorne, promulgated on 2 September 2003, allowing the claimant's appeal against the decision of the Secretary of State to refuse the claimant's asylum and human rights appeals.
The claimant is a citizen of Vietnam and was born on 13 August 1991. He is now still only 12 years old. He left Vietnam in September or October 2002, when he was just 11 years old, and flew to the United Kingdom. After the intervention of Social Services, an application was made on his behalf for asylum on 23 December 2002.
The circumstances in which the claimant came to the United Kingdom are clearly set out in the application made on 21 January 2003. In or about 2001, the claimant's parents went to work in Cambodia. In their absence, the claimant stayed with his grandmother. After his parents returned from Cambodia, they were arrested. The appellant said at A5:
“I asked the police why they were taking my parents away but there was no answer. I asked my parents why they had been arrested, they did not answer but they said I should be a good boy and take care of my grandmother. There were two police officers. I heard one of the officers ask my parents some questions when I was outside. He said that he wanted to know the truth, whether they went there to work or to supply illegal goods from Vietnam to Cambodia. They did not say what. After the police took my parents my gran said that she was too old to take care [of me] and could not provide the money to continue with my education.”
An arrangement was made for the appellant to be taken to a lady, whom he called “Aunty”, with whom he stayed for five or ten days until they went together to the airport to travel to the United Kingdom. On arrival, the claimant stayed with her for a few weeks until he was taken to the house of the gentleman but the aunt he did not return. About a week later, the man said that he could no longer look after the claimant and took him to see two English ladies whom we take it must have been members of the social services department. Subsequently, the claimant was placed with foster parents. We understand the foster parents are an Eritrean family. It was accepted by the Secretary of State that they are likely to have some right to remain in the United Kingdom. At the hearing of the appeal, the claimant's foster father was called. The adjudicator refers to him in paragraph 24 of the determination:
“He said that the appellant got on well at school and was very much a part of his family. He got on well with the other children in his family. He spoke good English. The witness looked upon the appellant as his son. “We would be devastated if he were returned.” It would be difficult for him and his family (who were Eritrean refugees) to visit the appellant in Vietnam.”
We were referred to the Home Office policy set out in an Information Note entitled “Unaccompanied Asylum Seeking Children”. An unaccompanied asylum seeking child is a person who, at the time of making the asylum application has no adult relative or guardian to turn to in this country. The Home Office does not consider a child to be unaccompanied if he or she is being cared for by an adult prepared to take responsibility for him. IND staff will involve social services in any case where there is concern about the child's relationship with the “responsible” adult. Mr Saunders submitted that by the time the application was made on 23 December 2002, the claimant was being looked after by social services and was in a placement with a foster parent who signed the application on 21 January 2003 as the claimant's guardian. Accordingly, the claimant did not fall within the definition of an unaccompanied asylum seeking child. Although it is a matter for the Secretary of State to determine the ambit of his own policy, and to construe it as restrictively as he chooses, we do not consider it likely that such a restrictive interpretation as Mr Saunders put forward is tenable. There may be cases where the child has been so effectively placed under the care and control of a local authority or some other person as to cease to qualify under the policy at the time the application for asylum is made. In the present case, however, we do not regard the person referred to by the claimant as “Auntie” as an adult relative or guardian to whom the appellant could turn in this country. Nor do we regard the gentleman who looked after him for a few days as such a person. Thereafter, the local authority took charge of him just because he was an unaccompanied asylum seeking child. Inevitably, once the local authority took responsibility for the claimant, it required his immigration status to be regularised by making an application under either or both Conventions. By so acting, we consider that it would lead to a manifestly absurd result if the claimant then lost the protection afforded by the policy directed to children who have no adult relative or guardian to turn to in the United Kingdom. Accordingly, whilst the local authority had assumed responsibility for his care, we do not consider that this was an assumption of responsibility automatically rendering outside the definition of an unaccompanied asylum seeking child.
In paragraph 8.3 of the Information Note, it is said:
“8.3 We will consider for refusal unaccompanied asylum seeking children who have no asylum or human rights claim. At this stage caseworkers will consider the safety of return. The Home Office Ministers have said that no unaccompanied child will be removed from the United Kingdom unless we are satisfied that adequate reception and arrangements are in place in the country to which he/she is to be removed. If no satisfactory reception and arrangements can be made then IND will grant a period of exceptional leave to remain…”
The period of exceptional leave to remain, as applied until April 2003, was four years in the case the child under 14 years of age. At the end of this period the child was then permitted to apply for indefinite leave to remain in the same way as those granted four years ELR for humanitarian reasons.
In April 2003 the circumstances in which leave to remain was to be granted to unaccompanied asylum seeking children was left largely unaltered, although the phraseology changed:
“Discretionary Leave may be granted to an applicant who:
Is an unaccompanied asylum seeking child for whom adequate reception arrangements in the country are not available
Is able to demonstrate particularly compelling reasons why removal would not be appropriate.”
Whilst the conditions for a grant of discretionary leave remained similar to those under the former policy, the grant itself was substantially altered. The current regime is that an individual grant of discretionary leave should not be made for more than three years (or less where specific instructions have been issued). Unaccompanied asylum seeking children should normally be granted three years or until their 18 th birthday, whichever is earlier, although there may be some exceptions. Notable by its absence is the suggestion that at the end of the period the child may apply for indefinite leave to remain.
The Secretary of State did not grant the claimant exceptional leave to remain. He was, of course, entitled to have made a grant, with or without his policy. By making no decision prior to April 2003, the claimant did not have the benefit of the applicable regime. In effect, he was not granted four years exceptional leave to remain and lost the prospect of “converting” his limited leave to indefinite leave. Furthermore, the Secretary of State has not granted him three years discretionary leave under the April 2003 “policy”. His only status, if status it be, is the status of irremovability pending a decision of what to do to him.
The Secretary of State's chosen course of action is to await the outcome of the asylum appeal and any associated human rights appeals before deciding what to do. If the asylum appeal is successful, an appellant is granted leave to remain and any enquiry as to adequate/satisfactory reception and care arrangements in the receiving state is rendered unnecessary. Given the substantial period of time that may elapse before his asylum appeal is finally disposed of either before the adjudicator or on appeal to the Tribunal, reception and care arrangements that may have been both adequate and available at the time of deciding the asylum and associated human rights claims may well be neither adequate nor available at the end of the appeal process.
The claimant's principal complaint is levelled at the Secretary of State's “wait and see” policy. Ms Naik, who appeared on behalf of the appellant, asserts that the Secretary of State should make a decision and that his failure to...
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