R (TS) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Mr Justice Wyn Williams |
| Judgment Date | 26 October 2010 |
| Neutral Citation | [2010] EWHC 2614 (Admin) |
| Docket Number | Case No: CO/15687/2009 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 October 2010 |
[2010] EWHC 2614 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
IN BIRMINGHAM
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Justice Wyn Williams
Case No: CO/15687/2009
and
Mr Christopher Buttler (instructed by Steel & Shamash) for the Claimant
Mr Tim Eicke (instructed by Treasury Solicitors) for the Defendant
The Interested Party did not appear and was not represented
Hearing dates: 17 September 2010
The relevant facts
The Claimant is an Afghan National. He arrived in the United Kingdom on 8 December 2008. On the same day the Interested Party undertook an age assessment. At the assessment the Claimant asserted that his date of birth was 16 October 2004 and that he was 14 years old. The assessors concluded that he was probably 16 (although it is now accepted that this was an overestimate of his age and that the Claimant probably stated his age correctly). The Interested Party took the Claimant into care.
On 15 January 2009 the Claimant came to the attention of the United Kingdom Border Agency (hereinafter referred to as "UKBA"). On that date the Claimant claimed asylum. On the same date he underwent a screening interview and his fingerprints were taken. At interview he asserted that his fingerprints had not been taken in any other country and that he had not claimed asylum in any other country.
On 31 January 2009 the Claimant's fingerprints were matched against the Eurodac automated fingerprint database to a person who had previously claimed asylum in Belgium on 7 November 2008 and had been classed as an illegal entrant into Greece on 6 August 2008.
On 7 April 2009 UKBA sent a formal request to the relevant Belgian authorities asking them to accept responsibility for the consideration of the Claimant's asylum application. UKBA sent that request in reliance upon Article 16.1 of Council Regulation (EC) Number 343/2003 (hereinafter referred to as the "Dublin II Regulation"). On the same day UKBA notified the Claimant's then legal advisors of the request to Belgium. The following day the social services department of the Interested Party were notified of that proposed course of action. On 15 April 2009 the authorities in Belgium notified UKBA that they would take back the Claimant and assess his asylum claim in Belgium.
Before UKBA had made its request to Belgium the Interested Party had formulated a care plan for the Claimant; that plan anticipated that the Interested Party would care for the Claimant until his eighteenth birthday. On 2 April 2009 the Interested Party carried out a detailed review. The Claimant's social worker was Mr. Paul Pateman. A student social worker Ms Folarin Johnson was also involved.
By email dated 27 April 2009 the UKBA notified the social services department of the Interested Party that Belgium had agreed to take back the Claimant. The email continued:—
"In order to facilitate the child's smooth transfer of care to Belgium, I would like to offer you the opportunity to meet via a conference call with officials from the UKBA to discuss any concerns, and if it is deemed appropriate to continue with the transfer, to arrange the child's care plan which will be sent on to the receiving country.
Please contact me ASAP to arrange a suitable date and time."
On the same date a conversation took place between Ms Johnson and Ms Karen Nelson, a senior caseworker employed by UKBA. There is no record of what was discussed but it is clear that Ms Johnson raised concerns about the possibility of the Claimant being removed to Belgium. An exchange of emails makes it clear that these concerns would be discussed at a telephone conference call. The conference was originally scheduled for 11 June 2009. It may be that it actually took place on 17 June 2009. The date matters not. Ms Johnson expressed concerns about removing the Claimant to Belgium.
On 24 June 2009 the Defendant took the decision to certify the Claimant's asylum application on third country grounds in reliance upon the Asylum and Immigration (Treatment of Claimants etc) Act 2004 (as to which see below). That decision was intended to set in motion the process for removing the Claimant to Belgium.
On 2 July 2009 the Claimant instructed Refugee and Migrant Justice (hereinafter referred to as "RMJ") to represent him. By letter dated 9 July 2009 RMJ requested sight of the evidence that the Claimant had claimed asylum in Belgium and had been fingerprinted there. There was an exchange of correspondence between UKBA and RMJ which ended with a letter from UKBA on 2 September 200That letter provided the evidence which had been sought relating to the fingerprinting of the Claimant and concluded by affirming that the Claimant was liable to be removed to Belgium.
On 8 September 2009 Mr Paul Pateman wrote a letter "To whom it may concern". In that letter he expressed strongly felt views to the effect that the Claimant should not be removed to Belgium. Whether or not that letter was provided to the Defendant immediately after it was written is unclear but I do not understand it to be disputed that it was brought to the attention of UKBA within a short time of being written.
On 15 September 2009 RMJ wrote to UKBA raising a fresh reason why removal would not be lawful. I need not detail the point since on 16 September UKBA responded demonstrating that the point raised had no substance.
On 17 September 2009 Mr Pateman wrote directly to UKBA. He did so after telephoning UKBA to inform them that he did not believe that it was in the Claimant's best interests to remove him to Belgium. In the letter Mr Pateman summarised his views thus:—
"TS has been living in the UK for over 9 months, in this time he has made exceptional progress in his integration into British society. Since moving to Northampton his spoken English has improved enormously, he did speak some English on arrival and that has been a solid foundation for the progress made. If TS is allowed to stay in the UK it is likely that with his positive attitude to education and his proven ability that he will continue to a wider based curriculum and further education. His spoken English is his key to accessing economically useful education and assisting him to a sustainable lifestyle and making a positive contribution to the UK economy.
For TS to be removed then his access to education will be severely hampered and the likelihood of financial independence also restricted severely.
Were TS to be removed to Belgium in my professional view it would severely affect his likelihood of thriving. It may also be negative psychologically as he is currently still overcoming the trauma of his journey where he was witness 2 violent murders and also suffered beatings to his body and feet on an almost daily basis.
His personal progression towards being a fully integrated member of British society has been exceptional; he has shown an enthusiasm and an ability which is really unusual and a pleasure to witness. I am sure that to remove him from his current place of residence would be against four of the five outcomes of the Government's Every Child Matters Programme to
• be healthy
• enjoy and achieve
• make a positive contribution
• achieve economic well-being.
As such I feel his human rights under the European Convention of the Child would be compromised."
On the day following, 18 September 2009, UKBA referred the Claimant's case to the Children's Champion. The email by which the referral was constituted informed the Children's Champion that UKBA intended to remove the Claimant to Belgium and explained the process by which the removal would be undertaken. The email continued:—
"Please find attached to document from TS's social worker, Paul Pateman, giving us an update on his personal circumstances. I have attached the document for two reasons. Firstly, it is a clear and concise assessment of the subject's circumstances and secondly because I wanted to read for yourselves the stance that his Social Worker has taken on the situation. Subject has at present a firm of solicitors making representations on his behalf.
At the end of the day we consider subject to be a young healthy male with no compassionate circumstances to take into account before removal. He did claim asylum in another EU country before arriving in the UK, and he failed to inform the officer who screened him for his asylum claim that he had spent some time in another country.
We would therefore like to request your agreement to proceed with this third country removal of a young person."
The Children's Champion applied on or around 18 September in an email. In short, the Children's Champion made a number of suggestions about what should occur in relation to removal but did not object to the principle of removal to Belgium.
It was also on 18 September 2009 that the Interested Party carried out a further review of the Claimant's care needs. In advance of that review RMJ had asked that the Claimant should undergo a psychological assessment related to "possible trauma suffered both during his journey to the United Kingdom and prior to that period". As a consequence of the request Mr Pateman referred the Claimant for assessment.
On 25 September 2009 Mr Geoffrey Keats, a nurse with specialist qualifications in mental health, carried out an assessment upon the Claimant. He concluded that the Claimant was likely to be experiencing a "decreased mood" but not at a level that would be classed as clinical depression. The nurse did feel, however, that symptoms described by the Claimant were consistent with post traumatic stress disorder. Mr Keats expressed those views in a letter to...
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