R ZS (Afghanistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Tomlinson,Lord Justice Burnett |
| Judgment Date | 06 November 2015 |
| Neutral Citation | [2015] EWCA Civ 1137 |
| Docket Number | Case No: C4/2013/1515/QBACF |
| Court | Court of Appeal (Civil Division) |
[2015] EWCA Civ 1137
Lady Justice Black
Lord Justice Tomlinson
and
Lord Justice Burnett
Case No: C4/2013/1515/QBACF
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISON, ADMINISTRATIVE COURT
ROBIN PURCHAS QC (sitting as a Deputy High Court Judge)
CO97352011
Royal Courts of Justice
Strand, London, WC2A 2LL
Stephanie Harrison QC and Greg Ó Ceallaigh (instructed by TV Edwards LLP) for the Appellant
Robin Tam QC and Zoe Leventhal (instructed by Government Legal Department) for the Respondent
Hearing dates: 15 th and 16 th July 2015
This appeal raises three issues:
i) Was the appellant unlawfully detained by the Secretary of State between 27 September and 21 October 2011 under schedule 2 paragraph 16(2) of the Immigration Act 1971 because the detention breached the relevant Home Office policy?
ii) Should the Secretary of State have regarded a letter written by the appellant's solicitors on 7 October 2011 as a fresh claim for asylum or humanitarian protection for the purposes of paragraph 353 of the Immigration Rules, as well as a renewed application for discretionary leave to remain as a failed asylum seeker who was under the age of 18?
iii) In refusing the appellant discretionary leave to remain in response to that renewed application, was the Secretary of State's decision flawed because she misunderstood the status of a finding of the First-tier Tribunal that he was 18 or over?
In an ex tempore judgment at the hearing of the application for judicial review on 15 May 2013 Robin Purchas QC, sitting as a Deputy High Court Judge, concluded each issue against the appellant, [2013] EWHC 1619 (Admin).
The Facts
The appellant arrived clandestinely in the United Kingdom through Dover on 4 February 2009. He was born in Afghanistan. He applied for asylum and claimed to be a child born on 10 March 1994 and so approaching his 15 th birthday. Kent County Council ["KCC"] and the immigration authorities ["the Home Office"] treated him as a minor when he first came to their attention, with the former providing appropriate support. An age assessment was carried out on 24 February 2009 for KCC by a social worker and support worker which took into account the observations of those who had had close contact with the appellant in the intervening 20 days. They concluded that the appellant was over 18. In consequence, for the purposes of their statutory functions KCC decided to treat him as an adult. That information was conveyed to the Home Office in a letter of the same date which also said that "the assessment was a full assessment as required by 'Merton'". That was a reference to the decision of Stanley Burnton J in R (B) v Merton London Borough Council [2003] 4 All ER 280.
A sheet was attached to the letter entitled "Unaccompanied Minor Age Assessment Results" which indicated that the appellant's physical appearance and demeanour strongly suggested he was an adult and referred to a series of factors which also had been taken into account in reaching the decision that he was over 18. They were:
i) Observation of interaction with peers;
ii) Family and social history;
iii) Education;
iv) Independent self-care skills;
v) Interaction of person during assessment;
vi) Cultural and linguistic ability; and
vii) Maturity and developmental considerations.
These factors formed part of a list of 11 provided on the document against which either a 'Y' or 'N' was typed to indicate whether it was considered. The others, against which 'N' was typed, were
viii) Self disclosure;
ix) Health or medical consideration, if any;
x) Other e.g. documents validated by IND;
xi) Medical Reports.
The assessment itself was not provided to the Home Office then, or ever. It is in the papers before the court. It provides details of the assessment made, the substance of the answers and explanations given by the appellant and the views of others who had been dealing with him since his arrival. It was not until 29 June 2010, more than 16 months after his arrival in the United Kingdom, that a decision was made on the appellant's asylum and humanitarian protection claim. The claims were rejected. The appellant's account of events said to have occurred in Afghanistan and relating to his departure from Afghanistan was considered by the Home Office to be incredible. One of the factors leading to the overall conclusion that the appellant was not credible was that the Home Office did not accept that he was, as he claimed, born in 1994. That stemmed in part from his own uncertainty about how old he was, the outcome of the age assessment conducted by KCC (which had not been challenged by the appellant) and the production of a birth certificate which was not considered to be authentic. It was the policy of the Home Office, in cases involving an unaccompanied minor who unsuccessfully claimed asylum, to grant him discretionary leave to remain until his 18 th birthday. That did not arise in the appellant's case because he was considered to be an adult.
In April 2009 the appellant had been dispersed to Cardiff and was placed in adult accommodation. The Welsh Refugee Council then asked for his status to be reconsidered. Nonetheless, he continued to reside in adult accommodation until October 2010 when TV Edwards LLP, his current solicitors, asked Cardiff to undertake a fresh age assessment. On 25 October 2010 two social workers concluded that he may be a child. However, in the light of further information obtained by Cardiff (to which I shall return) when the full age assessment was completed on 20 December 2010 its conclusion was that the appellant was over 18.
In the meantime the appellant had exercised his right of appeal to the First-tier Tribunal against the decision refusing asylum of 29 June 2010. Immigration Judge Crawshay heard the appeal on 9 August 2010 and dismissed the appeal in a determination issued on 17 August 2010. The appellant was unrepresented but had the assistance of Asylum Justice. On his behalf that organisation produced two bundles of documents and a skeleton argument. In addition the appellant produced and relied upon a statement. The second bundle of material produced by Asylum Justice was directed towards the appellant's age. There were three letters from representatives of organisations who had contact with the appellant whilst he was in Cardiff which expressed the opinion that he was under 18. We have not seen the witness statement made by the appellant for the tribunal appeal, but it is clear that he had put his age in issue. The judge noted that the Home Office Presenting Officer produced the result of the KCC age assessment at the hearing. The parties have agreed that to be a reference to the letter and attachment to which I have already referred.
The judge explored the appellant's evidence with him and took him through much of the documentary material. He was then cross-examined. The judge's approach was meticulous in seeking to enable the appellant to explain his case fully. The appellant told the judge that he was 16 years and 5 months old. The judge made a finding on the totality of the evidence before him that the appellant was over 18 when he arrived in the United Kingdom. A finding to the contrary would not have resulted in the asylum and humanitarian protection appeal being allowed. It would have led the Home Office to reconsider the question of discretionary leave to remain until the appellant reached the age of 18 in accordance with its policy. The judge found that the appellant's evidence about alleged events in Afghanistan was incredible and riddled with inconsistencies and contradictions. The judge did not link the adverse credibility findings to his determination of the appellant's age. The appeal was dismissed.
The appellant sought permission to appeal to the Upper Tribunal. As is the invariable practice, that application was considered initially by a different judge of the First-tier Tribunal. The application was refused on 1 September 2010 on the basis that the complaint was about factual findings open to the judge, rather than any error of law. The appellant renewed his application to the Upper Tribunal, but that was refused on 24 September 2010. It was at that stage that the appellant's appeal rights were exhausted. The Home Office case record sheets show that steps were taken to remove the appellant from the United Kingdom in early November 2010 but, for reasons it is unnecessary to explore, that did not happen. Removal directions were later set for 9 February 2011 and the appellant was taken into custody briefly pending removal. No complaint has been made about that period of detention. The appellant was released when his current solicitors told the Home Office that he was challenging the age assessment by Cardiff City Council concluding that he was over 18. A note to that effect for 21 January 2011 appears in the Home Office records.
By this time the appellant had been in the United Kingdom for a few weeks short of two years and, if his account was correct, was approaching his 17 th birthday.
The Cardiff assessment came to be made in unusual circumstances. We have seen that Cardiff treated the appellant as an adult, no doubt because that was the conclusion of KCC, a conclusion which the appellant had taken no steps to challenge. The request for an age assessment came from the appellant's solicitors immediately following the refusal of permission to appeal by the Upper Tribunal. They relied...
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R ZS (Afghanistan) v Secretary of State for the Home Department
...The Queen on the Application of ZS (Afghanistan) Appellant and Secretary of State for the Home Department Respondent [2015] EWCA Civ 1137 Lady Justice Black Lord Justice Tomlinson and Lord Justice Burnett Case No: C4/2013/1515/QBACF IN THE COURT OF APPEAL (CIVIL DIVISION) ON APPEAL FROM THE......