R (on the application of RA (and by his litigation friend) v Home Secretary

This application for judicial review raises the issue of when, on removal by the Secretary of State for the Home Department (“the Secretary of State”) of a dependent child, born in the United Kingdom along with his adult parent, there needs to be an independent review of the merits of the child's distinct asylum and human rights claims. In this case the Secretary of State removed the mother, BF, who was unlawfully in the country, to Nigeria, along with her son, RA, aged 5, who was born in the United Kingdom when she had no leave to remain here. It is said that the Secretary of State acted unlawfully in removing mother and son, not considering RA's own position as a claimant in his own right or properly as a dependant within a fresh claim made by him and/or his mother, and without in his best interests planning for their reception and protective integration on return to Nigeria. RA, it is contended, has an in country right of appeal against the decision to remove him.

The application was expedited for a rolled up hearing. On 17 March 2015 UT Judge Storey and UT Judge Rintoul refused interim relief in the form of the immediate return of BF and RA from Nigeria. Specifically, the application challenges the Secretary of State's decisions of 22 and 23 January 2015 to refuse to treat further submissions as a first claim by RA or as a fresh claim under the Immigration Rules. RA's litigation friend is Mrs KH, his foster carer in 2013 as we describe later in the judgment. The Children's Commissioner as Intervener has provided written and oral submissions as to what are said to be the general principles to be applied. During the course of the hearing we granted permission to apply for judicial review.

BF is a citizen of Nigeria, presently 45 years old. She is of Yoruba ethnicity and has said that she last lived in Nigeria in Abeokuta, Ogun state. In various statements she has said that she worked as a prostitute in Nigeria, and later in the United Kingdom. She was encountered working illegally in a shop in London, using a false Dutch passport.

On 30 April 2007 BF made a claim for leave to remain in the United Kingdom on the basis of long residence: she said that she had entered the United Kingdom and had resided here since 1991. That was rejected and her appeal came before Immigration Judge McWilliam in January 2008, who found that she had not been continuously present since 1991. BF had not attended the hearing since at the time she was in prison for using the false Dutch passport, having been sentenced to 9 months imprisonment in October 2008.

RA was born on 28 August 2009. BF has stated that RA's father disappeared when she was two months pregnant and there has been no contact since.

On the 6 April 2010, BF made an application for asylum and humanitarian protection on the basis that she feared persecution and ill-treatment on return to Nigeria. On her account she lost her parents and siblings in a car accident and her father's relatives tried to get her to marry someone she did not love and who was older than she was. She had an uncle and aunt but they would not accept her with an illegitimate child. On one interpretation of what she said she had been educated up to her late teens. RA was named in the asylum application as BF's dependant.

The application was refused, the refusal letter containing a fleeting reference to BF having a son. The Secretary of State's section 10 notices of removal were served on both BF and RA, RA being said to have an out of country right of appeal.

The grounds of appeal were three: that she was a Nigerian national who had been outside her country for twenty years, that she had a valid fear to return to Nigeria and the Secretary of State had failed to take account of the objective information and the availability of protection or relocation, and that she had Article 8 rights with her length of residence in the United Kingdom (her long residence). There was no reference made to any claim made on behalf of RA.

BF appealed unsuccessfully. No separate appeal was brought by RA, who was at that time only a year old and the determination records that BF had not made any separate statement of additional grounds under section 120. BF was present at the hearing, she gave oral evidence and was represented. In the determination of 18 August 2010 Immigration Judge Cope confirmed the earlier finding of Immigration Judge McWilliam and rejected BF's claim to having been in this country since 1991: the documents supporting the claim were in the main fabricated. Coupled with other matters (for example, clearly conflicting accounts of how she came to Britain and the length of time taken before making her claim for asylum) the judge said that BF could not be accepted as a witness of truth. Indeed he did not accept anything BF said about events in Nigeria. He considered the case advanced on Article 8 grounds and after conducting a proportionality assessment reached the conclusion that it was not a case where the interests of BF and her son outweighed the interests of society as a whole. As a result of the determination, BF became appeal rights exhausted.

On 24 August 2012 the solicitors who acted for BF until she and RA were removed earlier this year made further representations to the Secretary of State as a fresh claim under the Immigration Rules. These made reference to the existence of RA and his wellbeing should they be removed. He was at a crucial stage of his development and the difficulties his mother would find in reintegrating into Nigerian society would have adverse implications for him. The Secretary of State refused to treat the further representations as giving rise to a fresh claim.

BF was now living in Gateshead with RA in accommodation arranged through the Secretary of State and in receipt of some £96.90 weekly (the rate at the point of departure). She was in the country unlawfully and liable to be removed. As such the Secretary of State had a continuing interest in her and she was obliged to report periodically. On 1 March 2013 the Secretary of State contacted the local authority's social services department in Gateshead to inquire if BF and RA were known to them. She was told that there had been two referrals to social services, one due to there being no answer when a health visitor called, the other from a nurse when RA was ill and taken to hospital. No further action had been taken in either case. Three days later, on 4 March, when reporting, BF stated that RA had speech and language problems and a sugar allergy. BF was advised to speak to RA to explain that he may not be able to remain in Britain and to inform RA's nursery. Barnardos leaflets about available assistance relevant for RA were given to BF.

On the 15 March 2013 the Secretary of State set removal directions for BF and RA. Appeal forms were served on both BF and RA, the one for RA stating that his right of appeal was out of country.

On 18 March 2013 BF's solicitors made what they asserted was “a fresh asylum and human rights application under the Refugee Convention, European Convention on Human Rights and the EU Qualification Regulations 2006”. BF, they said, would be a lone woman returning to Nigeria without any family or support and destitution would be the result. To place a child into that situation would be contrary to his welfare. It was against his best interests to remove him when he was three and at a vital time in his development. He had a private life here.

As part of the representations there was an expert report of Professor Mario Aguilar dealing with BF and another Nigerian woman. He could not grasp how the two women or the children could reintegrate in Nigerian society when they had no welfare support there. He stated that single women on their own in Nigeria faced the risk of trafficking and being regarded as witches. Their children faced the same risks. The police were ineffective. We note that the expert Aguilar report also stated that their children faced these risks.

The Secretary of State replied on 23 April 2013. The letter referred to the solicitors' representations raising Article 8ECHR issues for BF and that it would be in RA's best interests to remain here. The letter stated that there was no evidence that BF did not have extended family in Nigeria. RA was only young and could easily adapt to Nigeria. The representations were refused as a fresh claim.

When reporting on 27 March 2013 BF stated that RA was fine and at school. When BF became upset, she was advised to consider applying for Assisted Voluntary Return, to prepare her son for return and not to scare him. Early the following month, the Secretary of State received medical records from BF's GP. On 5 April 2013 BF telephoned that RA was in hospital on a drip with constant vomiting. When reporting five days later, BF brought RA. On inquiry, BF said that RA had been discharged from hospital, was drinking only water and eating little, but there were no further problems and his return to nursery on the Monday was expected....