A (R) v Cardiff County Council and Others
| Jurisdiction | England & Wales |
| Judge | Mr Justice Blake |
| Judgment Date | 07 March 2011 |
| Neutral Citation | [2011] EWHC 1216 (Admin) |
| Date | 07 March 2011 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/7854/2010 |
[2011] EWHC 1216 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Sitting at:
Cardiff Civil Justice Centre
2 Park Street
Cardiff
CF10 1ET
The Honourable Mr Justice Blake Kt
Case No: CO/7854/2010
Miss Shu Shin Luh appeared on behalf of the Claimant.
The Defendant did not appear and was not represented.
This is a renewed application for permission to bring judicial review proceedings. The only live claim that the applicant now seeks to continue with is to bring a claim against the Secretary of State for the Home Department, who was the third defendant in these proceedings, and the relief sought is declaratory judgment and/or ancillary relief such as damages that the applicant was unlawfully detained for a period from 7 to 20 July 2010. The background to this application is as follows.
The applicant is an Afghan national, who entered the United Kingdom on 8 October 2008 and then claimed asylum as an unaccompanied minor. He claimed he was 14 years old then, which would suggest that his year of birth was approximately 1994, but he had no supporting documentation when he arrived and made that claim. He was referred to Hampshire Social Services for age assessment by the Secretary of State and on 9 October, the following day, Hampshire Social Services made an age assessment that he was over 18 That assessment was signed by one social worker, but the body of the assessment says it was conducted by two, who concurred in the result. The assessment was on a pro forma age assessment form, a form that had been designed to capture all the areas of inquiry that need to be examined in order for local authority assessments of the age of disputed asylum seekers to comply with the guidance given some years ago by Stanley Burnton J (as he then was) in the case of R (B) v London Borough of Merton [2003] EWHC 1689 (Admin).
Following that referral it appears that there was communication between the Border Agency and social services at the time, and the social services represented that their assessment had been a Merton compliant assessment. It is presently unclear whether the full assessment was made available to the Secretary of State at that time or whether it was asked for. Thereafter the applicant was assigned accommodation and told to report for interview on his case when called upon to do so. He left that accommodation and, effectively, absconded from the authorised place of residence and remained at large until he re-emerged in August 2009. The court is told he was then detained until December 2009 until, following representations, he was released again, but this time he was within the geographical locality of Cardiff County Council.
Returning to the main events in this case, on 8 November 2008 the applicant's application for asylum was rejected and it was noted that he had absconded and had not co-operated with the investigating process. It seems that when he re-emerged in 2009 an appeal was lodged against the refusal of asylum or any other form of subsidiary protection, and that appeal was heard at Newport by an immigration judge of the First Tier Tribunal in February 2010. The applicant was not legally represented at that hearing. He had, it appears, been unsuccessful in getting legal aid to fund solicitors.
It is also of note that there had been no challenge to the previous age assessment in this case from October 2008. It is a little unclear what was known to the immigration judge in respect of the age assessment, whether it was the outcome of Hampshire Social Services' assessment or whether the Immigration Judge may have had the full document that had been prepared at that time.
In the event the Immigration Judge did not find the applicant's account of why he left Afghanistan and why he feared return there to be consistent or credible and the Immigration Judge also reached his own conclusions on the material before him, saying that he was satisfied that the applicant was over 18. He noted the previous assessment of the Hampshire Social Services on 9 October and noted also what his own conclusions were from hearing the applicant give evidence before him.
Thereafter there was an unsuccessful application for permission to appeal from the decision of the First Tier Tribunal to the Upper Tribunal and that application was ultimately refused on 7 July 2010. In the meantime, in or about March or April 2010, the applicant had come to the attention of the Welsh Refugee Council, who referred him to his present solicitors, South Wales Law, who were initially concerned with the social support arrangements and they had raised doubts about the adequacy of the Hampshire age assessment. The Home Office were made aware by letter in April 2010 that the applicant's solicitors were investigating with a view to challenging that age assessment, but for one reason or another Cardiff Social Services did not reach a fresh age assessment until after the institution of these proceedings on 20 July.
On 7 July 2010, the date in which an application for permission to appeal to the Upper Tribunal was refused, the applicant was detained served with removal directions for Afghanistan, to be effected on 20 July 2010. On that date this present application was lodged with applications for urgent relief, to stay the removal and to release the applicant from detention. Those applications were granted. There then was a fresh age assessment by Cardiff Social Services. Cardiff reached a different conclusion to that reached by...
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