R S v First-Tier Tribunal Secretary of State for the Home Department (Interested Party)
| Jurisdiction | England & Wales |
| Judge | Mrs Justice Cox |
| Judgment Date | 04 July 2012 |
| Neutral Citation | [2012] EWHC 1815 (Admin) |
| Date | 04 July 2012 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/11399/2010 |
[2012] EWHC 1815 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mrs Justice Cox DBE
Case No: CO/11399/2010
Christopher Jacobs (instructed by Lawrence Lupin, Solicitors) for the Claimant
Deok Joo Rhee (instructed by Treasury Solicitors) for the Defendant
Hearing dates: 27 March 2012
The main question raised in this case is whether, in restricting the statutory right of appeal against an adverse asylum decision to individuals given discretionary leave to remain in the United Kingdom for more than twelve months, section 83 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) is incompatible with European Union law, in particular the requirement for an effective remedy contained in Article 39 of Directive 2005/85/EC.
This question falls to be determined in circumstances where an unaccompanied child sought to challenge before the First-tier Tribunal the Secretary of State's decision to refuse his application for asylum or humanitarian protection, but was held to be unable to pursue an appeal because he had been granted discretionary leave to remain for only five months. The Claimant's case is that an effective remedy for him, and one which is in his best interests as a child, is one which enables him immediately to pursue an appeal to the First-tier Tribunal against the decision to refuse him refugee status.
Permission to apply for judicial review of the decision of the First-tier Tribunal, that the Claimant had no exercisable right of appeal, was granted on the papers by John Howell QC, sitting as a Deputy High Court Judge, on the 30 March 2011.
The Factual Background and Nature of the Claim
The Claimant is a child from Sudan, who fled that country alone in January 2010 when he was, on his case, only 15 years of age. He entered the United Kingdom illegally, on 11 February 2010, and claimed asylum the following day. The basis of his claim to refugee status is that he is at risk in Sudan as a member of the Berti tribe, a non-Arabic tribe from the Darfur region. He also states that he would face persecution if he were returned to Sudan on account of imputed political opinion, his father and other members of his family being connected to the Darfuri rebel group JEM. He therefore sought recognition as a refugee under the Refugee Convention.
Following interviews conducted by an immigration officer, in February and March 2010, the Claimant's account as to both his Berti ethnicity and the political activities of his family was rejected. On the basis of statements said to be inconsistent and unsubstantiated, his claims were not regarded as credible. The Secretary of State therefore rejected his application for asylum, or alternatively for humanitarian protection, in a letter dated 10 June 2010.
As at that date, although the Claimant maintained that his date of birth was 11 May 1994, he was assessed as being 17 years old, his date of birth being taken to be 11 May 1993. Accordingly, and pursuant to the Secretary of State's policy not to remove unaccompanied asylum seeking children, whose claims for asylum have been refused and whose family members cannot be contacted, the Claimant was granted discretionary leave to remain for a period of five months until 11 November 2010 when, on the Secretary of State's assessment, he would be 17 1/2 years old. The purpose of granting leave until a child reaches the age of 17 1/2 is to enable the Secretary of State to deal with any application to extend or vary leave and any subsequent appeal prior to the child turning 18.
It is common ground that, in these circumstances, the Claimant did not have a right of appeal to the First-tier Tribunal (FTT) under the relevant provisions of the 2002 Act. A refusal of asylum does not in itself attract a right of appeal under section 82 of that Act. Further, whilst section 83 does afford a right of appeal against a refusal of asylum, that right is restricted to a particular class of persons. It can be exercised only where the person seeking asylum has been granted discretionary leave to remain for a period exceeding one year.
In FA (Iraq) v Secretary of State for the Home Department [2010] 1 WLR 2545, the Court of Appeal noted that the purpose of the "one year" requirement is to ensure that cases which the Secretary of State is, in any event, going to reconsider in the near future do not have a right of appeal which may be ongoing at the same time as the Secretary of State is reconsidering the position (see paragraphs 13 and 30).
The Claimant nevertheless sought to appeal to the First-tier Tribunal against the Secretary of State's decision of 10 June, relying directly on European legislation and requesting a preliminary hearing to determine the Tribunal's jurisdiction to hear his appeal. He contended in his grounds that the Secretary of State's decision was wrong; that he was entitled to have his status as a refugee recognised forthwith and to be granted five years refugee leave; and that the provisions of section 83, restricting his right of appeal, did not adequately reflect the terms of Directive 2004/83/EC (the "Qualification Directive") and Directive 2005/85/EC (the "Procedures Directive") providing for minimum standards in Member States for qualification and status as refugees or in relation to procedures for granting and withdrawing refugee status.
The Claimant's Notice of Appeal was considered was by Immigration Judge North who, on 2 August 2010, determined as a preliminary issue that there was no relevant decision before the FTT that carried an exercisable right of appeal under the 2002 Act.
By his Claim Form lodged at this Court, on 1 November 2010, the Claimant applied for judicial review of that decision. Permission to apply was granted on 30 March 2011.
As might be expected, events moved on between the lodging of the Claim Form and the substantive hearing before me. On 10 November 2010 the Claimant applied to the Secretary of State to vary or extend the period of his discretionary leave to remain. This was refused by letter dated 2 March 2011, in which the Secretary of State also recorded her decision to remove the Claimant from the United Kingdom.
It is common ground that those decisions did afford the Claimant an in-country right of appeal under sections 82(1) and 82(2)(d)(ha) of the 2002 Act. The Claimant exercised that right. He attended an oral hearing of his appeal before the FTT on 12 May 2011 and gave evidence with the assistance of an interpreter.
In a determination promulgated on 23 May 2011 Immigration Judge Majid decided first, accepting the evidence of the paediatric consultant Dr Birch, that the Claimant's date of birth was 11 May 1994, as the Claimant asserted. The judge also appears to have found that the Claimant was a member of the Berti tribe from Darfur, accepting the evidence on this point from an acknowledged expert on Sudan, Peter Verney, in his report dated 9 May 2011.
However, in dismissing the Claimant's appeal, it is agreed that the judge made a material error of law in failing correctly to apply relevant country guidance and, given his determination as to the Claimant's age, in failing to direct that the Claimant was, in any event, entitled to further leave to remain in the United Kingdom as an unaccompanied child. The FTT's determination was set aside by the Upper Tribunal on 19 July 2011 and the Claimant's appeal is now to be reconsidered at a further hearing.
The issue on the Claimant's appeal is essentially a factual one. The main question is whether he is, as he claims, a member of the Berti tribe.
The United Kingdom Border Agency Operational Guidance Note for Sudan, issued in November 2009, stated materially as follows:
"3.9.8 Sufficiency of protection. If members of non-Arab ethnic groups from the Darfur States fear ill treatment or persecution by the state they cannot seek protection from the government.
3.9.9 Internal relocation. Ordinary non-Arab Darfuris are not thought to be subject to systematic persecution outside Darfur and the courts have found that it is not unduly harsh to expect them to internally relocate to Khartoum. However, those decisions predated the developments and reports referred to……above, and restrictions on the operations of NGOs – a key source of country of origin information on Sudan – have meant we have been unable to obtain sufficient reliable information to be able to assess accurately whether there is a continuing heightened risk to non-Arab Darfuris in Khartoum. In light of the fact that we do not yet have sufficient information to allay the concerns raised in the reports referred to above, case owners should not argue that non-Arab Darfuris can relocate internally within Sudan.
3.9.10 Conclusion. All non-Arab Darfuris, regardless of their political or other affiliations, are at real risk of persecution in Darfur and internal relocation elsewhere in Sudan is not currently to be relied upon. Claimants who establish that they are non-Arab Darfuris and who do not fall within the exclusion clauses will therefore qualify for asylum."
In AA (Non-Arab Darfuris – Relocation) Sudan CG [2009] UKAIT 00056, the Tribunal made reference to these paragraphs, and to the evidence which underpinned them, in arriving at the conclusion that all persons who are non-Arabs from Darfur are at risk of persecution in Darfur and cannot reasonably be...
To continue reading
Request your trial
-
Upper Tribunal (Immigration and asylum chamber), 2014-01-23, AA/03866/2013
...39 of Directive 2005/85/EC. This issues was considered by the High Court in R (on the application of S) v First-tier Tribunal [2012] EWHC 1815 (Admin), decided in July 2012. This is a judicial review claim which failed. In delivering judgment Mrs Justice Cox Discussion and Conclusions The r......