R Rahim Hashemi v The Upper Tribunal immigration and Asylum Chamber) and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMr Justice Hickinbottom
Judgment Date31 July 2013
Neutral Citation[2013] EWHC 2316 (Admin)
Date31 July 2013
Docket NumberCase No: CO/9591/2012

[2013] EWHC 2316 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT IN BIRMINGHAM

Birmingham Civil Justice Centre

Priory Courts

33 Bull Street

Birmingham

Before:

Mr Justice Hickinbottom

Case No: CO/9591/2012

Between:
The Queen on the Application of Rahim Hashemi
Claimant
and
(1) The Upper Tribunal immigration and Asylum Chamber)
(2) The Secretary of State for the Home Department
Defendants

Becket Bedford (instructed by Sultan Lloyd) for theClaimant

Jim Tindal (instructed by the Treasury Solicitor) for the Defendant

Mr Justice Hickinbottom

Introduction

1

The Claimant, an Afghan national, arrived in the United Kingdom in August 2009, and claimed asylum. That claim was refused, as were his claims for leave on the grounds of humanitarian protection and human rights; but he was granted leave to remain until he was 17 1/2 years old by reference to his deemed age, under the Secretary of State's policy to grant such leave to unaccompanied child failed asylum seekers. The Claimant did not seek to appeal against the refusal of that first asylum claim; but he made a second claim, on essentially the same grounds (i.e. asylum, humanitarian protection and human rights), just before he was 18 years old. That was also refused, as was his subsequent appeal to the First-tier Tribunal and his application for permission to appeal to the Upper Tribunal. He was removed to Afghanistan on 19 November 2012.

2

In this claim, the Claimant challenges the decision of the Upper Tribunal to refuse permission to appeal. He contends that the Upper Tribunal failed properly to take into account two relevant considerations, namely that the Secretary of State had failed in her obligations to the Claimant as an unaccompanied minor asylum seeker, in (i) failing to take steps to trace his family in Afghanistan, and (ii) failing to provide him with an effective remedy under European Union law by not allowing him to appeal the refusal of his second asylum claim whilst he was still a child.

3

He also contends that his removal was in any event unlawful, as it was effected without the Secretary of State making any lawful decision to remove him.

Chronology

4

The chronology is crucial for a proper understanding of why this claim has developed as it has. Particularly important is the correlation of events and decisions that specifically affected the Claimant, and various rulings of tribunals and the courts in other cases with regard to matters of principle or otherwise general application.

5

The Claimant applied for asylum on the day he arrived in the United Kingdom, 18 August 2009. He said he was about 14 years old — his date of birth was consequently deemed to be 1 January 1995 — and he was an orphan. He had lived with his parents and two brothers. Although the evidence is not entirely consistent, both brothers appear to have been older than he. His father had been a commander in the Gulbaddin, but he never spoke about it and the Claimant was unable to give any details as to what his father did in that group. They had lived in Mizayan until about a year before he fled, when they had moved to somewhere in Kunar Province where he and his brothers were restricted to the house. His parents had been killed in an incident at his home, after which, he said, he saw them both dead on the living room floor. He did not know who the perpetrators were. His brothers had disappeared, and he did not know whether they were alive or dead. He said he had not made any attempt to find them, and he did not know how to do so. His interviewer explained that the Red Cross had some facility to trace relatives. The Claimant said that he had no one else in Afghanistan who could care for him or protect him from harm, and he could not provide any further information concerning his relatives there.

6

His application for asylum was therefore made on several bases. If he were to be returned to Afghanistan, he said he feared the people who killed his parents; he feared indiscriminate violence; and, without anyone to care for him and protect him, he feared abuse as an orphaned child.

7

In a letter of 16 February 2010, a caseworker with the UK Border Agency ("the UKBA") on behalf of the Secretary of State found the Claimant's account to be neither coherent nor plausible, and that he would not be at risk of return to Afghanistan, even as a child. The letter noted that the only information the Claimant had given about his brothers was that he last saw them in Afghanistan, and he had made no attempt to trace them: but, as he had brothers in Afghanistan, he would have support on return. The caseworker apparently thought that the Claimant would be able to trace his brothers, but was unwilling to disclose information to enable the Secretary of State to do so. In any event, he refused the Claimant's claim for asylum, and his claims for humanitarian protection and for leave on human rights grounds.

8

However, under the discretionary leave policy set out in APU Notice 3/2007 (30 March 2007) ("the Unaccompanied Asylum Seeker Child Policy"), issued by the Secretary of State, where (a) an unaccompanied minor failed with claims for asylum and humanitarian protection, and (b) the Secretary of State was not satisfied that adequate reception and accommodation arrangements were in place in the proposed country of return, discretionary leave would be granted for three years or until the applicant was 17 1/2 years old whichever was the sooner. The Claimant was duly granted leave to remain until 1 July 2012, when, on the basis of his deemed birth date of 1 January 1995, he would turn that age.

9

The Claimant, who was legally represented at the time, had a right of appeal against that decision to refuse his asylum claim. Section 83 of the Nationality, Immigration and Asylum Act 2002 ("the 2002 Act") provides that:

"(1) This section applies where a person has made an asylum claim and (a) his claim has been rejected by the Secretary of State, but (b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).

(2) The person may appeal to the [First-tier] Tribunal against the rejection of his asylum claim."

However, the Claimant did not exercise that right.

10

On 26 January 2011, Solihull Metropolitan Borough Council, which had responsibility for the Claimant as a child, reassessed his date of birth as 1 November 1993, making him 17 years of age and putting the date on which he would attain the age of 17 1/2 as 1 May 2011, rather than 1 July 2012 which had been based on the earlier assessment.

11

That age reassessment decision meant that, under the Unaccompanied Asylum Seeker Child Policy, the Claimant's discretionary leave to remain would expire on 1 May 2011. Unfortunately, due to delays by both the local authority and the Secretary of State, the Claimant was not informed of that until a letter dated 8 August 2011. That letter said:

"The re-assessment of your age took place on 26 January 2011. This was prior to the expiry of your leave on 1 May 2011. However, there has been a delay in (a) receiving the age assessment from Solihull Council, and (b) [on] the part of the [UKBA] in implementing the outcome of your new age and in reviewing the amount of Discretionary Leave you qualify for. In order to avoid any potential disadvantage to you it has been decided that, if you submit the necessary form to apply to extend your leave within the next two weeks, your case will be dealt with as being an in-time application. If you do not submit the necessary form to apply to extend your leave within the next two weeks your case will be dealt with as being out of time. In the event of you failing to apply for an extension of your leave you will be expected to leave the UK as soon as possible.

Subject to you applying for an extension of your leave within the next two weeks, your case is being treated as if you had a period of leave remaining. Therefore there is no statutory right of appeal, there being an in-country right of appeal only where all [emphasis in the original] existing leave is being taken away.

A revised immigration status document will be issued to you shortly. You should submit this document with any application for further leave."

12

That letter requires some explanation.

i) A person may be given leave to enter the United Kingdom (or, if already here, leave to remain) for an indefinite or limited period (section 3(1) of the Immigration Act 1971 ("the 1971 Act")). The Claimant was given leave for a limited period, i.e. until 1 July 2012.

ii) When leave is granted for a limited period, it may be varied by extension (section 3(3)(a)).

iii) Section 4(1) provides:

"… [T]he power to give leave to remain in the United Kingdom, or to vary any leave under section 3(3)(a)…, shall be exercised by the Secretary of State; and, unless otherwise allowed by or under this Act, those powers shall be exercised by notice in writing given to the person affected…".

Further, regulation 4(1) of the Immigration (Notices) Regulations 2003 (SI 2003 No 658) provides (so far as relevant to this claim):

"… [T]he decision-maker must give written notice to a person of any immigration decision… taken in respect of which is appealable."

iv) Where an application to extend the period is made and not determined before the leave expires, then the period of leave is automatically extended until the application is determined or withdrawn (section 3C(1) and (2)(a)), including for the period in which an appeal against a refusal to vary might be brought (section 3C(2)(b)) and, if an appeal is...

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