Upper Tribunal (Immigration and asylum chamber), 2013-05-14, [2013] UKUT 256 (IAC) (R (on the application of SO) v London Borough of Barking and Dagenham (AAJR))
| Jurisdiction | UK Non-devolved |
| Judge | Mr D K Allen, Mr N Goldstein |
| Status | Reported |
| Date | 14 May 2013 |
| Published date | 24 May 2013 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Hearing Date | 09 April 2013 |
| Subject Matter | AAJR |
| Appeal Number | [2013] UKUT 256 (IAC) |
Upper Tribunal
(Immigration and Asylum Chamber)
R (on the application of SO) v London Borough of Barking and Dagenham AAJR [2013] UKUT 00256 (IAC)
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Heard at Field House |
Determination Promulgated |
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On 8 and 9 April 2013 |
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………………………………… |
Before
UPPER TRIBUNAL JUDGE ALLEN
UPPER TRIBUNAL JUDGE GOLDSTEIN
Between
THE QUEEN (ON THE application OF SO)
Applicant
and
THE LONDON BOROUGH OF BARKING AND DAGENHAM
Respondent
Representation:
For the Applicant: Mr T Buley, instructed by Fisher Meredith
For the Respondent: Mr K Rutledge, QC, instructed by London Borough of Barking and Dagenham.
JUDGMENT
1. In these proceedings the applicant (to whom we shall refer as SO) challenges the decision of the respondent to refuse to accommodate him as a former relevant child on the basis that he is the age he claims to be, having been born on 6 July 1990. The essential reason why the respondent does not accept that the applicant is the age he claims he is, is because the respondent believes him to be a person (hereinafter referred to as HH) who was born in Jeddah, Saudi Arabia, on 21 February 1987. Although this is an age assessment judicial review the essential issue is that of identity. It is common ground that if the applicant is who he says he is then his application for judicial review must succeed. Alternatively, if he is the person who the respondent says he is, then his claim must fail.
2. SO claimed asylum on 26 September 2007. A screening interview took place on the same day. The respondent carried out an age assessment on 2 October 2007 and accepted that he was the age he claimed to be. He made a statement on 19 October 2007 and his asylum interview took place on 30 October of that year. His asylum claim was refused on 20 November 2007 and removal directions were issued on 28 November 2007. An appeal was lodged on 10 December 2007. His appeal was allowed on 10 March 2008 by Immigration Judge Oliver. Subsequently reconsideration was ordered, and on 10 September 2008 Immigration Judge Charlton-Brown heard his appeal and dismissed it, and on 19 January 2009 permission to appeal to the Court of Appeal was refused by Scott Baker LJ. A fresh claim was made on 15 June 2009 with further submissions on 7 July of that year, but on 17 June 2010 the UKBA declined to accept that the fresh material taken with the previously considered material amounted to a fresh claim. An application to apply for judicial review against that decision has been stayed behind these proceedings.
3. After SO became 18, the respondent decided that it would cease to provide him with accommodation on the basis that it considered it had no obligation to do so at that time. This decision was challenged by way of an application for judicial review, and the matter proceeded to the Court of Appeal where it was resolved in the applicant’s favour in 2011 (R (SO) v Barking and Dagenham LBC [2011] 1WLR 1283).
4. It seems that it was during the course of those proceedings that the respondent became aware of the fact that Immigration Judge Charlton-Brown had agreed with the Secretary of State that SO was in fact HH. The respondent had accepted that it would need to make a new determination on this issue which the applicant would be entitled to challenge, and the matter was consequently remitted by the Court of Appeal to the Administrative Court and subsequently transferred to the Upper Tribunal for a determination of the applicant’s age. A new decision was in fact not made until 1 October 2012. It consists of the adoption in effect in a witness statement by Deborah Noel, a social worker employed by the respondent, of a report by an age assessor, Mr Kenneth Ambat.
5. It is relevant to mention at this stage a preliminary issue that arose before us as to the admissibility of evidence submitted late in the day on behalf of the applicant. On 16 January 2013 Mr Ockelton, Vice President of the Upper Tribunal (Immigration and Asylum Chamber) ordered that the applicant could not seek to rely on any amended grounds or serve any additional evidence. This was a consequence of the failure on the part of the applicant to comply with a previous order of 12 October 2012. The evidence on which the applicant sought to rely consisted of a further witness statement of his dated 13 March 2013, a witness statement of Mr Abdulkadir Turkey of 19 March 2013, a witness statement of Kamal Mohammed of 25 March 2013, a witness statement of Colin Michael Ravden of 26 March 2013, a birth certificate in the name of the applicant, and an expert report concerning that and previously submitted documents, by Professor Gaim Kibreab, dated 5 April 2013.
6. We can condense quite significantly the argument that was made before us concerning this evidence. We were concerned and remain concerned at the fact that no formal application to admit this evidence in light of Mr Ockelton’s order had been made prior to oral submissions by Mr Buley on the day of the hearing. Essentially Mr Rutledge QC on behalf of the respondent took a pragmatic view, bearing in mind the inquisitorial nature of the hearing and the relevance of the evidence. He suggested that the matter had to be approached on the basis of what had been said by the Immigration Appeal Tribunal in Tanveer Ahmed [2002] IAR 318, that in assessing credibility it is necessary to take into account the late delivery of evidence. The Tribunal would have to evaluate the evidence and its timing. He also made the point with respect to paragraph 12 of Mr Ravden’s report that it was not agreed that Mr Ambat had implied that he accepted the truth of what SO had told him. Mr Rutledge emphasised the need for finalising the case, bearing in mind the period of time over which the proceedings had taken place and previous adjournments. Mr Buley argued that best efforts had been made to obtain the documents and he hoped there would not be criticism of those involved in their provision. In particular efforts had been made to obtain the birth certificate which had been given by the applicant to his immigration solicitors, some time previously and it was not possible to apply for its admission until they had seen it.
7. On consideration we accepted that the further evidence should be admitted, given its clear relevance to the proceedings, though we deprecated the late production of the evidence.
8. We turn to SO’s account. In his screening interview on 26 September 2007 he said that he had left Eritrea on 18 September 2007 and arrived in the United Kingdom on 25 September. He had travelled via Sudan and one other country (unknown). He said the Immigration Officer checked his passport and said “Welcome” and let him pass through.
9. In his statement, dated 19 October 2007, he said that he was born on 6 July 1990 and had lived in Asmara, Eritrea, all his life. He spoke Tigrinya and a little Arabic. He said that approximately two months before he came to the United Kingdom his father received a letter stating that the applicant was required to report to Sawa for military service. His father said that he would not allow him to report and said that many of his cousins and nephews had not returned from Sawa and he would not allow his only son to disappear in the same way. He said that during the two months after his father received the letter he remained in hiding in Asmara. On 18 September 2007 he was introduced to an army officer whom he had never met before. He had no identification documents with him. The officer took him by car to Tesseney where another man was waiting to take him to Kessala. He did not know this man’s name or nationality and the man spoke Arabic and the applicant could not understand him very well. A man drove him to Kessala and he spent the night there at the man’s home and the next day the man drove him to Khartoum. He said that he did not speak to any officials himself at any time during the journey from Asmara to Khartoum. At checkpoints the driver simply spoke to the official whilst the applicant remained in the car. He did not hear what was said and he was not asked any questions.
10. On arrival in Khartoum on 19 September the man handed him over to a third man whose name and nationality again he never knew, and who spoke Arabic. He remained in Khartoum for approximately a week staying at this man's home and on 25 September he boarded a flight from Khartoum to the United Kingdom in the company of the same man. The man sat apart from him during the flight and told him not to speak anyone and to follow him once he had landed. The plane stopped once on its flight to the United Kingdom but the applicant did not know where, as he did not leave the plane. He said that just before landing in the United Kingdom the man gave him a red document that looked like a passport. He did not open it and did not know what details it contained, following the man’s instructions not to open the document. He followed the man off the plane and through the airport and when he showed the document to the British officials they did not stamp it or ask him questions but simply said “Welcome”. Once he had passed through immigration the man asked him to return the passport to him and he did so. He was driven by a fourth man whom he did not know to that man’s...
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