The King (on the application of Samer Alabboud Alhasan) v The Director of Legal Aid Casework

Hearing date: 10 & 11.7.24

Written submissions: 19.7.24 & 30.7.24

Draft judgment: 2.8.24

Approved Judgment

Remote hand down. This judgment was handed down remotely at 10am on 21st August 2024 by circulation to the parties or their representatives by email and by release to The National Archives.

Introduction

This case is about legal aid for Home Office asylum interviews, where the person seeking asylum was under-18 when they claimed asylum – making a “Child-Claim” – but where they have “Turned-18” by the date of the interview. It is a case about differential treatment and bright lines rules by the Lord Chancellor, and an individualised assessment by the Director of Legal Aid Casework (“the Director”). Like all judicial review cases, it is about the limits of the primary powers of public authorities and – at the same time – the limits of the secondary powers of the judicial review court. Throughout this judgment I will use the term “Child-Claim” to mean ‘a claim for asylum made by a person who is a child at the time of making the claim’; and “Turned-18” to mean ‘has had their 18 ^th birthday’. These terms are my inventions, adopted to aid clarity and flow.

Here is a broad outline of what happened in this case. The Claimant arrived in the UK (14.6.22) and made a Child-Claim. He was a refugee, with a well-founded fear of persecution, as was later recognised by the Home Office. He had documentary proof of his date of birth (5.1.05) and became a looked-after child in the care of Bury Council. The Council subsequently referred him (22.8.22) to the Greater Manchester Immigration Aid Unit (“the Unit”). The Unit was able to accept him and allocate him a legal representative (17.11.22). After he Turned-18 (5.1.23), the Claimant's statement of evidence form (SEF) and accompanying witness statement were submitted (17.2.23), with the assistance of his legal representative. They were notified (5.4.23) of his asylum interview (12.4.23). Having Turned-18, he was now caught by a legal aid exclusion in relation to having his lawyer at the interview, an exclusion which the Unit had indicated in earlier cases (29.3.23) that it wished to challenge. Acting to promote and protect the Claimant's interests, the Unit decided not to ask for a deferral of the asylum interview and the lawyer attended ‘at risk’, having first applied to the Director for Exceptional Case Funding (ECF), which – if granted – would be back-dated. The interview went ahead, with the lawyer's assistance (12.4.23). Asylum was granted (9.6.23). ECF was refused (13.4.23), a refusal maintained on review (26.7.23). Judicial review proceedings were commenced (26.10.23) challenging the legal aid exclusion and the ECF refusal. Permission for judicial review was granted (21.12.23).

Asylum Interviews

The immigration rules are made by the Home Secretary pursuant to s.3(2) of the Immigration Act 1971. Rule 339NA (§24 below) confers a general entitlement on a person seeking asylum to “the opportunity of a personal interview” conducted by a “representative” of the Home Secretary “who is legally competent to conduct such an interview”. Rule 352 confers the same general entitlement on an unaccompanied child. The asylum interview is “an integral part of the administrative decision making process” ( R (Dirshe) v Home Secretary [2005] EWCA Civ 421 [2005] 1 WLR 2685 at §2), which “can be a critical factor in the determination of any appeal in the event of a refusal” of asylum by the Home Secretary, since “it can be relied on, on the one hand by the applicant to show consistency in [their] account, or on the other hand by the Secretary of State to throw doubt on [their] credibility by reason of either inconsistency, or … omission” ( Dirshe at §8). The Home Office Guidance: Asylum Interviews version 9.0 (28.6.22) (which I will call the “2022 Interview Guidance”) describes the asylum interview as “an important part of the asylum process because it is the main opportunity for the claimant to provide relevant evidence about why they need international protection” and for the interviewing officer “to help draw out and test that evidence” in order to “assess the credibility of the claimant's statements, give the claimant an opportunity to explain anything that appears to be implausible or inconsistent” (pp.8–9). It has been recognised that “the substantive interview is the centrepiece of the investigation of the child's asylum claim” ( AN v Home Secretary [2012] EWCA Civ 1636 at §116). Nicola Burgess, the Head of Legal Strategy at the Unit, explains that “in practice, it is at the substantive asylum interview where the Home Office really test the individual's nationality, the plausibility of their reasons for claiming asylum and will scrutinize any inconsistencies between the welfare interview or SEF and statement to the account given on the day”; and that “for the young people we represent it can be a gruelling experience, it can feel very similar to undergoing cross-examination in a court setting”.

Unaccompanied Children

As is explained in the Equal Treatment Bench Book (July 2024) at p.33, local authorities have an overarching responsibility for safeguarding and promoting the welfare of all children and young people in their area; but everyone who comes into contact with children has a role to play; and that safeguarding and promoting the welfare of children means protecting children from maltreatment, preventing impairment of children's health or development, ensuring that children grow up in circumstances consistent with the provision of safe and effective care, and taking action to enable all children to have the best outcomes. In dealing with “the rights of young and vulnerable witnesses to effective participation”, the Benchbook reminds us (p.30):

The United Nations Convention on the Rights of the Child sets out a number of key principles, including: Article 3: The best interests of the child must be a top priority in all decisions and actions that affect children. Article 12: Every child has the right to express their views, feelings and wishes in all matters affecting them, and to have their views considered and taken seriously. This right applies at all times, for example during immigration proceedings, housing decisions or the child's day-to-day home life .

As Jason Pobjoy explains in The Child in International Refugee Law (2017) at p.59:

Article 12(2) has particular consequence in the context of the refugee status determination process, stipulating that children have a right to be heard in ‘any judicial and administrative proceedings affecting the child”. In the refugee context, the language is wide enough to cover … the original administrative decision-making process … [D]ecision-makers in … administrative proceedings have a duty not just to hear the child's views but also to afford them due weight, having regard to age and maturity …

As Lady Hale observed in AL (Serbia) v Home Secretary [2008] UKHL 42 [2008] 1 WLR at §19, by reference to the Home Office policy towards unaccompanied minors: “It is acknowledged that unaccompanied asylum seeking children need especially sensitive treatment”. Rule 351 of the immigration rules states that “particular priority and care is to be given to the handling of their cases”. The Department for Education and Home Office Safeguarding Strategy: Unaccompanied Asylum Seeking and Refugee Children (November 2017) opens with this statement:

Unaccompanied asylum seeking and refugee children can be some of the most vulnerable children in our society. They are alone and in an unfamiliar country, at the end of what could have been a long, perilous and traumatic journey. Some of these children may have experienced exploitation or persecution in their home country or on their journey to the UK. Some may have been trafficked, and many more are at risk of being trafficked, being exploited in other ways, or going missing once they arrive in the UK. We must remember that they are children. It is true that their immigration status will have an impact on their future, but they should not be defined solely by their status as an asylum seeking or refugee child. They are children who are likely to have faced many difficulties in their lives and will need to be cared for while they are in the UK. They are children who will need access to education and a range of public services to offer them the support and accommodation they need to promote their safety, health and wellbeing .

The Cliff-Edge Point

In the world of criminal sentencing, it was explained in R v Clarke [2018] EWCA Crim 185 at §5) that “reaching the age of 18 has many legal consequences, but…it does not present a cliff edge for the purposes of sentencing”; that “full maturity and all the attributes of adulthood are not magically conferred on young people on their 18th birthdays”; and that “experience of life reflected in scientific research … is that young people continue to mature, albeit at different rates, for some time beyond their 18th birthdays”. When Lord Hoffmann was considering the brightline of a biological age (of 25) in the context of welfare benefits ( R (Carson) v Work and Pensions Secretary [2005] UKHL 37 [2006] 1 AC 173 at §41), he said that “a person one day under 25” is in a “virtually identical situation to a...