CL (Vietnam) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judgment Date | 10 December 2008 |
| Neutral Citation | [2008] EWCA Civ 1551 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C5/2008/0390 |
| Date | 10 December 2008 |
[2008] EWCA Civ 1551
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Before: Lord Justice Sedley
Lord Justice Keene
and
Lady Justice Smith Dbe
Case No: C5/2008/0390
[AIT No: HX/00249/2006]
Ms J Bond (instructed by the Immigration Advisory Service) appeared on behalf of the Appellant.
Mr J Hyam (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
Lord Justice Keene:
The appellant is a citizen of Vietnam who arrived in the United Kingdom in June 2002 and claimed asylum shortly thereafter. He was at that time aged 13, having been born on 28 October 1988. He was accompanied only by his brother who was then aged 14. The appellant was therefore an unaccompanied child seeking asylum, a person in respect of whom the Secretary of State had and has specific policies.
The Secretary of State refused the asylum application by letter dated 22 July 2002, which also said that it had been decided that the removal of the appellant would not breach his rights under the European Convention on Human Rights (“the ECHR”). The appellant appealed against those decisions on 31 July 2002. For some reason which has not been identified, the Immigration Appeal Tribunal now the Asylum and Immigration Tribunal (“the AIT”) did not deal with the appeal until mid 2006.
By decision promulgated on 14 July 2006, almost four years after the Home Office decision, Immigration Judge Dineen dismissed the appeal in respect of asylum and Article 3 rights but allowed it in respect of Article 8. I shall have to look in more detail at that decision in due course. The Secretary of State applied to the AIT for reconsideration on the basis that the Immigration Judge had made an error of law. The AIT, Senior Immigration Judge Gleeson, found that that was indeed so and redetermined the appeal in the Secretary of State's favour.
The appellant now appeals to this court, permission to appeal having been granted on two grounds only by Sir Peter Gibson.
The facts about the appellant can be put briefly. His father had been killed in Vietnam in early 1997. About a year later, when the appellant was aged ten, his mother left him and his brother with their grandmother; she died in 2001. Their mother returned and made arrangements for the two boys to go to the United Kingdom. They were met at the airport in London by a friend of their mother's, with whom they then lived for a time before being placed in foster care by social services. In November 2005 they moved to semi-independent housing.
The letter of 22 July 2002 containing the Secretary of State's refusal on asylum and his human rights decision was followed by a notice that removal directions had been given, that being dated 12 August 2002. That seems to have reflected a decision within the Home Office that the appellant did not qualify for leave to enter under the Secretary of State's then policy in respect of unaccompanied children. There is a Home Office document headed “consideration” and dated 22 July 2002 which concludes by stating:
“Despite the fact that Applicant is a minor it is considered that he can be returned to Vietnam as it has been established that there are adequate care provisions for children returned to Vietnam. See attached letter from the British Embassy in Hanoi.”
The Secretary of State's policy at that time in respect of children, ie those under 18 years of age, who arrived in the United Kingdom unaccompanied and sought asylum unsuccessfully, was that they would not be removed unless adequate reception and care arrangements could be made for them in their country of origin. If such arrangements could not be made, then in the case of children under 14 exceptional leave to remain would be granted for four years on the expiry of which they would be able to apply for indefinite leave to remain.
The British Embassy letter was one dated 4 July 2001. It stated:
“The Law on Care, Protection and Education of Children of Vietnam states that all children, including orphans, shall be given appropriate care and education by the state. All children homes are run by the Ministry of Labour, Invalids and Social Affairs. Some receive additional financial assistance from foreign NGOs.
In principle, childcare ceases at the age of 18 but, in practice, continues until individuals have found a job. Vietnam is a secular society with no restriction on religious practices.”
By the time of the appeal hearing before Immigration Judge Dineen in June 2006, things had moved on in several ways. First, the appellant was by then aged 17. Secondly, the Secretary of State's policy in such cases had been modified so that unaccompanied children would be granted discretionary leave to enter or remain for three years or until their eighteenth birthday, whichever was the shorter period, unless the Secretary of State was satisfied that adequate reception and care arrangements were available in the receiving country. Thirdly, there was some recognition by the Secretary of State's representative at the 2006 hearing that the situation in Vietnam for returned children might have changed since the letter of 4 July 2001.
The Immigration Judge rejected the asylum appeal and the claim under Article 3 of the ECHR. Nothing now turns on those parts of his decision. As for Article 8, the judge found that removal of the appellant to Vietnam would amount to an interference with his private life and he then referred to the issue of the adequacy of reception facilities for the appellant in Vietnam. The Secretary of State had stated that he would not return the appellant to Vietnam unless satisfied that there were at present adequate reception arrangements there, and indeed had through his representative given an undertaking to that effect. On his behalf reliance had been placed on the decision of the Immigration Appeal Tribunal in BV (Vietnam) [2004] UKIAT 00148“in support of the proposition that the respondent should be left to assess the question of adequacy of reception arrangements after the dismissal of the present appellant's appeal”.
The Immigration Judge rejected that line of argument. He stated in his determination:
“71. The respondent has, as is accepted, embarked upon the exercise of establishing whether there are sufficient reception facilities for the appellant in Vietnam. I am satisfied that it is not open to the respondent simply to say that no return would be made unless the respondent were satisfied that there would in the future be adequate reception facilities. The facilities which have been ascertained so far must be assessed, and a decision made accordingly.
72. I am not satisfied that the letter from the Vice Consul in Hanoi, dated in 2001, establishes the existence of adequate reception facilities. Indeed, the respondent's skeleton argument goes quite a long way towards conceding as much.
73. In the absence of evidence as to specific arrangements for receiving the appellant, I am not satisfied that such a reception would be adequate. In reaching this conclusion, I have considered the objective evidence, and in particular that contained in the COI report at paragraphs 6.96–6.105. Paragraph 6.104 refers to the existence of over 21,000 street children in the country as at February 2003. These children were vulnerable to abuse and were sometimes abused or harassed by the police. Further particulars as the nature of the plight of these children are given in that paragraph. I note also from paragraph 6.100 that the orphan population of Vietnam, estimated at 124,000 in a report of June 2002, had recourse to only 214 centres, which have to provide shelter additionally to over 182,000 disabled children.
74. In all these circumstances, I am not satisfied that there are adequate reception facilities in Vietnam for the appellant. I am therefore not satisfied that the respondent can demonstrate compliance with its own policy of not returning children in the absence of such facilities. I am therefore not satisfied that the return of the appellant would be lawful.
75. In all these circumstances, I am satisfied that the return of the appellant to Vietnam would be a breach of his rights under Article 8 of the Human Rights Convention, because of its unlawfulness.
76. Additionally, bearing in mind the fact that the appellant is a minor, and taking account of the objective evidence I have referred to above linked with the unlawfulness of return, I am satisfied that the return of the appellant would not be proportionate to the maintenance of effective immigration control. In reaching this conclusion I take account of the fact, as I find, that at the time when the respondent made its decision in 2002, the letter from the Vice Consul of the previous year did not establish the existence of adequate reception faculties. The appellant should therefore have been granted exceptional leave to remain at that time which, as pointed out by his Counsel, would have afforded him the possibility of a further claim to indefinite leave to remain.”
He in consequence dismissed the asylum appeal but allowed the appeal on human rights grounds. It will be observed that the consideration of the Secretary of State's policy on unaccompanied children was dealt with in the context of the Article 8 claim. The Secretary of State sought reconsideration by the AIT on the ground of a material error in law by the Immigration Judge in that he failed to follow the decision in BV (Vietnam) and failed to provide adequate...
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