Upper Tribunal (Immigration and asylum chamber), 2018-06-12, JR/1256/2018
| Jurisdiction | UK Non-devolved |
| Date | 12 June 2018 |
| Published date | 11 July 2019 |
| Hearing Date | 11 May 2018 |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Status | Unreported |
| Appeal Number | JR/1256/2018 |
JR/1256/2018
JR/1256/2018
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of
FTH
Applicant
v
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
Before
Upper Tribunal Judge Allen
Upper Tribunal Judge Finch
heard on 9 – 11 May 2018
Having considered all documents lodged and having heard Ms C. Kilroy and Ms M. Knorr of counsel, instructed by Bhatt Murphy Solicitors, on behalf of the Applicant, and Mr. R. Kellar of Counsel, instructed by the Government Legal Department, on behalf of the Respondent, at a hearing at Field House, London on 9 – 11 May 2018.
Decision: The application is granted
ANONYMITY ORDER
Pursuant to Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI/2008/269) I make an anonymity order. Unless the Upper Tribunal or a Court orders otherwise, no report of any proceedings or any form of publication thereof shall directly or indirectly identify that Appellant. This prohibition applies to, amongst others, both parties.
THE HISTORY OF THE APPLICATION FOR JUDICIAL REVIEW
1. The Applicant, who was born on 10 August 1999, is a national of Eritrea. He is a Pentecostal Christian, who also fears indefinite conscription in Eritrea. He is seeking family reunification with his brother, YH, who has been recognised as a refugee in the United Kingdom. The Applicant’s age is not in dispute, as on 2 January 2017 La Cour d’Appel de Rouen accepted that he was a child at that time. Helen O’Keefe, a mental health social worker, met with the Applicant on 23 January 2018 and 27 April 2018 and concluded that he was suffering from moderate to severe post-traumatic stress disorder arising from his experiences in Libya, during the sea crossing to Europe, in the Calais “jungle” and since making his application to enter the United Kingdom. She also found that his condition was exacerbated by his separation from his brother and the failure on the part of the Respondent to give reasons for refusing to grant him entry to the United Kingdom.
2. It is the Applicant’s case that he fled from Eritrea in 2015. He travelled through Sudan to Libya, where he was detained and forced to do building work before his uncle paid a ransom for his release. He then managed to cross the Mediterranean Sea and enter Italy and eventually arrived in Calais in July 2016 and took shelter in the Calais “jungle”.
3. His entitlements were not considered within the accelerated process established early in October 2016 and after the Calais “Jungle” was demolished between 24 and 26 October 2016, the Applicant was placed in the Centre D’Accueil Provisionere (“the CAP” Temporary Reception Centre) but was not interviewed whilst he was there. The CAP was closed on 27 October 2016 and the Applicant was transferred a Centre d’Accueil et d’Orientation pour Mineurs Isoles (a “CAOMI”) in Le Havre in order for a decision to be made as to whether he was eligible to be transferred to the United Kingdom. This consideration took place under a process designated as Operation Purnia Phase 2.
4. He was asked questions over the telephone in or around 24 November 2016. He was not provided an interpreter in his mother tongue, Saho. Instead, the interpreter at the other end of telephone call was speaking to him in Tigrinya and spoke very quickly. As a consequence, he found it difficult to understand some of the questions put to him.
5. YH was interviewed over the telephone without an interpreter on 30 November 2016 and on the same day a Home Office case worker decided that the Applicant did not qualify to be transferred to the United Kingdom. In a spreadsheet sent to the French authorities on 14 December 2016, they were told that his family link had not been accepted. Towards the end of December 2016 the Applicant was part of a group of children at the CAOMI in Le Havre who was simply told that their applications had been rejected. He was not given any written or detailed reasons for the decision.
5. On 30 December 2016 the Public Prosecutor at Le Havre District Court made a protection order in relation to the Applicant, as he was an unaccompanied child, and he was entrusted to the care of the Seine Maritime child and youth social care services.
6. In his witness statement the Applicant said that he was subsequently taken to a French government office or court where he explained that he had a brother in the United Kingdom and wished to join him. This is confirmed by an untranslated questionnaire which indicates that the Applicant was interviewed at a Centre D’Accueil et D’Orientation (“CAO”) sometime after 3 January 2017. The Applicant’s name appeared on a spread-sheet sent by the French authorities to the UK authorities on 28 February 2017 containing the names of unaccompanied children whose cases the French authorities thought should be reviewed. On 8 March 2017 the UK Authorities informed the French authorities that a take charge request could be progressed if contact details [for FH] were located. It does not appear that the French authorities took any further action.
7. The Applicant believed that he was not going to be transferred to the United Kingdom and left the CAOMI in Le Havre on 16 April 2017. He travelled to Paris where he lived on the streets and then returned to Northern France and again lived rough near a port and tried unsuccessfully to cross the Channel. On 11 August 2017 the Refugee Youth Service in Calais referred the Applicant to Safe Passage, a not for profit organisation established to help unaccompanied child refugees and vulnerable adults find safe and legal routes to protection through advocacy, community organisation and legal work. By this time, he had become 18 on 10 August 2017. On 24 October 2017 he was provided with a place at adult Centre d’Accueil et d’Exanen des Situations (a “CEAS”) in Belval. Safe Passage also arranged for him to be provided with legal advice and assistance. He was initially advised by Ashursts Solicitors on a pro bono basis and they tried unsuccessfully to obtain disclosure from the Respondent. He then instructed Bhatt Murphy Solicitors and they obtained a full legal aid certificate to represent him on 24 January 2018.
8. Meanwhile, Bhatt Murphy had sent a pre-action protocol letter to the Respondent on 22 December 2017 and had also requested disclosure of documents relating to the expedited process in which the Applicant had been involved and the decision to reject his claim. The Respondent sought more time to respond on 5 January 2018 and sent a partial reply on 24 January 2018. This dealt with procedural issues and, as the letter from Bhatt Murphy Solicitors, dated 25 January 2018, pointed out did not respond to the substance of the proposed claim or provide the necessary disclosure.
9. The Applicant lodged his claim for judicial review on 16 February 2018, challenging the on-going failure by the Respondent to make a lawful decision in relation to his application and/or to admit him to the United Kingdom. He also made an application for an urgent consideration of his application for expedition.
10. On 16 February 2018, Upper Tribunal Judge Rintoul listed the application for expedition for an oral hearing. This was listed for 23 February 2018. The day before this hearing the Respondent disclosed a copy of the Applicant’s Op Purina Phase 2 interview and some other related documents.
12. In compliance with the directions made by Upper Tribunal Judge King, the Respondent filed and served her acknowledgment of service and summary grounds of defence on 9 March 2018. The Judge had also directed that there should be full disclosure within 14 days of notification of his decision. There was some but not complete disclosure in response to this order.
13. On 26 March 2018, Upper Tribunal Judge Finch refused the Respondent’s application for a stay pending appeals set down in the Court of Appeal between 12 – 14 June 2018 and granted him permission to apply for judicial review at an oral permission hearing. On 3 May 2018 the Respondent applied for permission to appeal to the Court of Appeal against Upper Tribunal Judge Finch’s decision to refuse him a stay. No decision had been reached on this decision by the time of the full judicial review hearing.
14. Meanwhile, on or around 19 March 2018, the Applicant was transferred to another CEAS, where he was the only Eritrean, which had no wi-fi and was two or three hours walk from the nearest town. He was distressed at not being able to keep in touch with his brother and, therefore, he left the CEAS on or around 1 April 2018 and returned to Calais, where he had some friends, and resumed living rough. On 19 April 2018 he was admitted to the Centre Hospitalier de Calais after being hit on the head by a truncheon. His forehead was sutured at 34 points and it was believed that he had lost consciousness for a few minutes. He was prescribed painkillers and discharged...
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