QUEEN (on The APPLICATION of G) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE MAURICE KAY,LORD JUSTICE NEUBERGER,LORD JUSTICE BUXTON |
| Judgment Date | 13 April 2005 |
| Neutral Citation | [2005] EWCA Civ 546 |
| Date | 13 April 2005 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | C4/2004/2532 (B) |
[2005] EWCA Civ 546
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT
IMMIGRATION APPEAL TRIBUNAL
Royal Courts of Justice
Strand
London, WC2
Lord Justice Buxton
Lord Justice Neuberger
Lord Justice Maurice Kay
C4/2004/2532 (B)
C4/2004/2532
MISS N ROGERS (instructed by Luqmani Thompson & Partners of London) appeared on behalf of the Appellant
MR T OTTY (instructed by Treasury Solicitor) appeared on behalf of the Respondent
This is an appeal from a judgment and order of Mr Justice Wilson, who, on 18 November 2004, dismissed an application for judicial review of a certificate of the Secretary of State for the Home Department made under Section 93 of the Nationality, Immigration & Asylum Act 2002 that the claim of the appellant G to remain in this country on human rights grounds was clearly unfounded.
The case concerns the situation which arises when a person makes an application for asylum in a Member State of the European Union and then proceeds to make a similar application in a second Member State. In the present case the first application was made in Italy, the second in this country. Arrangements for managing such cases were dealt with by the Member States in the Dublin Convention which came into force on 1 September 1997. The provisions of the Dublin Convention have now been supplemented by Council Regulation 343/2003. The authorities in Italy and the United Kingdom take the view that G's application should be considered substantively not here but in Italy.
The case for G is that it would breach her rights under Article 8 of the European Convention on Human Rights, and Fundamental Freedoms, (ECHR), and/or contravene the Regulation if she were to be removed to Italy, and the Secretary of State was therefore wrong to certify her claim under Section 93. The effect of such a certificate is to deny the applicant access to an adjudicator and the Immigration Appeal Tribunal while remaining in this country.
It is necessary to set out the factual background in a little more detail. G is from Somalia. She applied for asylum in Italy on 7 July 2003. Later she made her way here. On 8 September 2003 she applied to the Secretary of State for asylum, falsely claiming that she had left Somalia only three days earlier. She gave her date of birth as 27 January 1984, and said, untruthfully, that she had married in Somalia. Normal investigations disclosed the earlier Italian application in respect of which she had given the same date of birth.
On 26 November 2003 the Secretary of State certified, pursuant to Section 11 (2) of the Immigration and Asylum Act 1999, that Italy had accepted that it was the responsible state to deal with her claim for asylum. By Section 93 of the 2002 Act, it is provided:
"(1) A person may not appeal under section 82 (1) while he is in the United Kingdom if a certificate has been issued in relation to him under Section 11 (2) ….. of the 1999 Act.
(2) But subsection (1) does not apply to an appeal if —
(a) the appellant has made a human rights claim, and
(b) the Secretary of State has not certified that in his opinion the human rights claim is clearly unfounded."
On 6 April 2004 the Secretary of State certified that G's human rights claim, which was advanced in a letter from her solicitors dated 18 March 2004 and relied upon Article 8 of the ECHR, is, in his opinion, clearly unfounded. On 16 February 2004 G was briefly detained pending her intended removal to Italy. For the first time she then maintained that her date of birth was 10 August 1988, and she was therefore 15 rather than 20. It was said on her behalf that she had originally given an earlier and false date of birth because she had been told to do so in order to obtain work.
Her human rights claim was first advanced by an organisation known as Bail for Immigration Detainees in a letter faxed on 27 February 2004. It referred not to Article 8 of the ECHR but to Article 15 of the Regulation. The letter advanced the later date of birth and stated:
"We have been instructed by the detainee's cousin, [Mrs S], that the latter is willing to accept responsibility for the detainee's well being. The cousin also points out that the detainee also has an uncle resident in the UK who is currently on the Haj pilgrimage.
Conversely, we have been instructed that the detainee has no relatives residing in Italy, and so would be separated from any family life if removal were carried out. When the detainee was originally smuggled into Italy she slept in [a] bus shelter in Rome. There is no one to care for her there."
Enclosed with the letter was a statutory declaration by the cousin, Mrs S, which stated:
"I ….. do solemnly declare that [G] ….. is a Somalian citizen born in Janallah, Somalia on 10.8.88 and confirm that she is the daughter of my auntie Mrs Y."
G's solicitors then came on the scene. In a letter dated 18 March 2004 the case was put by reference to both Article 8 of the ECHR and Article 15 of the Regulation. They enclosed a report dated 15 March 2004 from a consultant paediatrician, Dr Michie, who had examined G on that day and concluded that what was revealed was consistent with a chronological age of 16 plus or minus two years, and that his findings were consistent with a date of birth in August 1988. In other words, the doctor considered a likely age range of up to 18 plus, but not as high as 20, which would have been G's chronological age if she had been born on the date she had first given to the Italian and British authorities.
All this led to the Secretary of State's letter of 6 April 2004 in which he rejected the claim that to remove G to Italy would infringe her rights under Article 8. He did not consider that the letter from the doctor conclusively established that she was a minor. Moreover he concluded that any interference with G's family and private life resulting from her removal to Italy would be proportionate and justified by reference to Article 8.2 of the ECHR. He issued directions for her removal but they have been on hold since the application for permission to apply for judical reivew was issued on 22 April 2004. Such permission was eventually obtained on a renewed application on 14 July 2004, but the substantive application was dismissed by Mr Justice Wilson on 18 November 2004.
The factual basis upon which G's case was sought to be put before Mr Justice Wilson was set out in paragraph 16 of his judgment in this way:
"(a) that she was born on 10 August 1988 so was and is a minor;
(b) that she has never been married;
(c) that since 6 April she has been living with her first cousin, Mrs S; has been cared for by her and has been dependent upon her; and
(d) that the circumstances set out at (c) give rise to her enjoyment of family life with Mrs S within the meaning of meaning of Article 8 of the human rights Convention."
The structure of Mr Justice Wilson's judgment was that he first considered the provisions of the Regulation—Articles 6, 7 and 15—which, it was submitted, demonstrated that G's application should be considered here rather than in Italy. Mr Justice Wilson rejected that submission. He then returned to the factual basis of the application and came to these conclusions in paragraphs 39 and 40 of his judgment:
"39 ….. On balance I agree ….. that, in the absence of any different professional opinion, the defendant cannot rationally proceed on the basis that the claimant was, as she had initially alleged, born on 27 January 1984. But, after careful thought, I consider that the defendant is entitled to approach the question, as he now does, more broadly: namely that the claimant initially alleged that she was an adult; that Dr Michie does not exclude the possibility of her being an adult; and that accordingly it is open to him, the defendant, not to accept her subsequent application that she was a minor. In my view the context in which the subsequent allegation was made, namely the spectre of her imminent removal to Italy, and the inconsistent explanations subsequently offered on her behalf for the alleged falsity of the initial allegation, confirm his entitlement to adopt that approach. In relation to the less important issue of whether she is married, the claimant has offered no logical explanation as to why it was purportedly necessary to lie about being married as well as about her age; and in my view it is open to the defendant to decline to accept that such was a lie.
40 Was it open to the defendant to decline to accept that the claimant was living with Mrs S, was cared for by her and was dependent upon her, in circumstances giving rise to family life? The case presented to him in that regard was flimsy in the extreme. In her statutory declaration, made on 24 February 2004, Mrs S said that she lived at one address and that the claimant lived at another address. In the letter on the claimant's behalf faxed on 27 February it was stated only that Mrs S was 'willing' to accept responsibility for the claimant's well-being, not that she had done so. But in a letter sent on the claimant's behalf less than three weeks later it was said that she and Mrs S were living together, but at a third address; and, at around the same time, Dr Michie recorded that, in giving him her history, the claimant alleged that she was currently being cared for by a relative. Such was...
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