The Queen (on the application of SS) v Secretary of State for the Home Department and Another
| Jurisdiction | England & Wales |
| Judge | John Howell |
| Judgment Date | 26 May 2017 |
| Neutral Citation | [2017] EWHC 1295 (Admin) |
| Docket Number | Case No: CO/5855/2015 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 26 May 2017 |
[2017] EWHC 1295 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
John Howell QC
(Sitting as a Deputy High Court Judge)
Case No: CO/5855/2015
Ms Irena Sabic (instructed by Duncan Lewis) for the Claimant
Ms Saara Idelbi (instructed by Government Legal Dept.) for the First Defendant
Mr David Bedenham (instructed by Oxfordshire CC Legal Services) for the Second Defendant
Hearing dates: 2,3 and 5 May 2017
Approved Judgment
John Howell QC:
This is a claim for judicial review of two, possibly interrelated, matters: the Claimant's detention by the Secretary of State for the Home Department and the assessments of his age conducted by Oxfordshire County Council for the purpose of ascertaining whether he might be eligible for assistance under Part III of the Children Act 1989.
The claim raises some questions of general application about detention in order to secure the transfer of an asylum claimant to another State under Regulation (EU) 604/2013 of the European Parliament and of the Council establishing criteria and mechanisms for determining the Member State responsible for examining an application for international protection lodged in one of the Member States by a third-country national or a stateless person (" Dublin III").
BACKGROUND
The Claimant is an Afghan national. On September 15 th 2015 he was detained after he had been encountered having entered the United Kingdom concealed in the back of a train. He claimed asylum and that he was aged 16. A Chief Immigration Officer considered, however, that the Claimant's appearance and demeanour strongly suggested that he was over the age of 18 and decided, therefore, as permitted by the Secretary of State's policy, that the Claimant should be treated as an adult. He was fingerprinted and photographed. A Eurodac search also revealed on September 15 th 2015 that the Claimant had claimed asylum in Bulgaria on May 29 th 2015 (where his date of birth was recorded as May 29 th 1997); that he had then entered Hungary illegally on June 4 th 2015 and claimed asylum there on the following day; and that he had again claimed asylum in Germany on July 20 th 2015 (where his date of birth was recorded as being June 18 th 1997).
Thereafter asylum screening and travel history interviews were conducted with the Claimant on September 17 th and September 19 th 2015. On September 27 th 2015 the Claimant was informed that the application of Dublin III to his case was being considered and that a formal request had been made to Bulgaria for the transfer of his asylum claim to that country. On September 30 th 2015, in response to that request, Bulgaria claimed that Hungary was the State responsible for assessing his asylum claim. The Secretary of State then, on October 15 th 2015, asked Hungary and Germany to accept his transfer. On October 16 th 2015 the Claimant's solicitors wrote to Kent Social Services asking them to undertake an assessment of the Claimant's age. It appears that request was forwarded to Oxfordshire County Council within whose area the Claimant was by then being detained at Campsfield Detention Centre. On October 27 th 2015 Germany accepted responsibility for assessing the Claimant's asylum claim. On November 1 st 2015 the Claimant's claim to asylum in the United Kingdom was refused and certified on safe Third Country Grounds under the Asylum and Immigration (Treatment of Claimants etc) Act 2004. On November 20 th 2015 two social workers employed by Oxfordshire County Council, Ms Caroline Dodd and Ms Fiona Harrod, carried out an age assessment concluding that the Claimant was "very clearly over 18 years old". On November 27 th 2015 directions for the Claimant's removal to Germany were set for November 30 th 2015. They were deferred following receipt of this claim for judicial review. The Claimant was released from detention as result of the making of that claim on December 12 th 2015.
After permission to make the claim for judicial review was refused on the papers by Lavender J on February 17 th 2016, the Claimant renewed his application for permission and his solicitors obtained an assessment of his age from two social workers, Ms Angeline Seymour and Ms Hannah Prince, (" the Seymour/Prince report"). They concluded that, as at March 23 rd 2016, the Claimant's age was between 17 and 18. In the light of that report Oxfordshire County Council arranged for two other of their social workers, Ms Katie Thrussell and Ms Lucy Johnson, to conduct a full age assessment. In their assessment completed on May 25 th 2016 (" the Thrussell/Johnson assessment"), they concluded that the Claimant was an adult and that they were confident then he was then 20 although he could possibly be older. They gave him a date of birth on January 1 st 1996. The Claimant's grounds were then amended, with the Court's permission, on September 14 th 2016 to impugn his detention by the Secretary of State and the County Council's age assessments.
Permission to make this claim was granted by Turner J at a renewed oral permission hearing on December 6 th 2016.
THE CLAIM THAT THE CLAIMANT WAS DETAINED UNLAWFULLY
(i) introduction
The Claimant contends that his detention was unlawful and claims damages in respect of it. Since no amount had been claimed as damages, I directed that the hearing would be limited to determining whether the Secretary of State is liable in principle.
Under article 8.4 of Dublin III, in the absence of a family member, a sibling or relative in another Member State, the State responsible for determining an application for international protection by an unaccompanied minor, who has made such an application in more than one Member State, is the Member State in which that minor is present. Against that background the Claimant contended in his Amended Grounds that "as an age disputed child, [his] detention was unlawful" and that "whether a person is a minor is, in domestic law, a matter for judicial assessment rather than being solely a matter of opinion of the Secretary of State subject to review on public law grounds."
As these contentions appeared to me to raise a question of the power or powers under which the Claimant had been detained, I indicated before the hearing began that I wished to know whether or not the parties contended that the Claimant was detained under article 28 of Dublin III (which allows for detention in order to secure transfer procedures under that Regulation) and, if so, on what basis its legality fell to be reviewed. On the first day of the hearing, having canvassed the issue with counsel, I asked the parties to submit skeleton arguments to address the question whether the Claimant fell within article 28 and, if so, what the consequences of that were in this case. Both Ms Sabic, who appeared on behalf of the Claimant, and Ms Idelbi, subsequently submitted skeleton arguments and I also heard argument on the issues. In the event Ms Sabic applied to amend her grounds to contend in addition to her pleaded grounds that the Claimant's detention was unlawful as it was contrary to article 28 of Dublin III. Ms Idelbi opposed that application. She submitted that it would be unfair if the Claimant could now rely on a case based on article 28 having only raised the point at a very late stage and that, had such a case been raised, the Secretary of State might have submitted further evidence or argument to address it. Having heard argument on the legal issues in any event, I reserved judgment on whether to permit that amendment.
After the hearing had finished, Ms Idelbi applied by email for the issue to be stayed behind the case of Khaled v Secretary of State for the Home Department [2016] EWHC 1394 (Admin), [2016] 1 WLR 4243 (" Khaled"), in which there is an outstanding application to the Court of Appeal for permission to appeal or alternatively for "three to four months" to enable the Secretary of State to provide further written submissions once she has "refined her approach to this question" in the light of the decision of the Court of Justice in C-528/15 Policie CR v Salah Al Chodor (2017) March 15 th, EU:C:2017:213, (" Al Chodor"). Ms Idelbi had already addressed both of these cases in her submissions to me. Ms Sabic opposed any such delay.
In considering the application for permission to amend and Ms Idelbi's request for the issue to be stayed I have borne in mind the overriding objective of dealing with cases justly and at a proportionate cost and that this involves (among other matters) ensuring that any case is dealt with expeditiously and fairly.
Ms Sabic pointed out that, when renewing the Claimant's application for permission to claim judicial review, the Claimant had placed reliance on article 28 of Dublin III but, so she informed me, that had not been replicated in the Amended Grounds in the light of the decision in Khaled. That decision needs to be viewed now, however, in the light of Al Chodor. While this may explain why a case based on article 28 was not pursued in the Amended Grounds, it does not alter the fact that such a case was raised, and permission sought, only at a very late stage. But the mere fact that permission is sought to amend at a late stage does not necessarily mean that it should be refused.
Ms Idelbi submitted, however, that it would be unfair to the Secretary of State for permission to be given.
In my judgment the Claimant's case can be put on the basis of the facts put forward by the Secretary of State. It appears to me to be plain on that basis that the Claimant was detained as from September 15 th 2015 in order to secure transfer procedures under Dublin III. On September...
To continue reading
Request your trial
-
Hemmati v The Secretary of State for the Home Department
...1394 (Admin) The Hon. Mr Justice Irwin: [2016] EWHC 1504 (Admin) Mr John Howell QC (sitting as a Deputy Judge of the High Court): [2017] EWHC 1295 (Admin) Royal Courts of Justice Strand, London, WC2A 2LL David Chirico, Mark Symes and Raza Halim (instructed by BHD Solicitors and Fadiga and C......
-
Hemmati v The Secretary of State for the Home Department
...his detention was contrary to articles 28(2) and 2(n) of the Dublin III Regulation. The deputy judge gave judgment on 26 May 2017 ( [2017] EWHC 1295 (Admin); [2017] 1 WLR 3641). He found that that the fifth respondent was not a child when he was detained. However, he also found that the f......