Upper Tribunal (Immigration and asylum chamber), 2019-10-08, JR/01642/2019
| Jurisdiction | UK Non-devolved |
| Date | 08 October 2019 |
| Published date | 30 October 2019 |
| Hearing Date | 09 September 2019 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/01642/2019 |
UTIJR6
JR/1642/2019
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of KF
(a child by his litigation friend MN)
Applicant
v
Secretary of State for the Home Department
Respondent
Upper Tribunal Judge Blum
Application for judicial review: substantive decision
Having considered all documents lodged and having heard the parties’ respective representatives, Ms C Kilroy QC and Mr J Kirk, of Counsel, instructed by Simpson Millar Solicitors, on behalf of the applicant and Mr G Lewis, of Counsel, instructed by the Government Legal Department, on behalf of the respondent, at a hearing at Field House, London on 9 September 2019.
Decision: the application for judicial review is granted
Background
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The applicant is a male national of Afghanistan born in August 2002. He is the nephew of MN, a British citizen of Afghan origin who arrived in the UK in September 2001 and made an asylum claim. MN visited Afghanistan around 2010 and spent time with the applicant who was, at that time, receiving medical treatment in respect of a heart condition.
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According to a ‘Best Interests Assessment’ (BIA) prepared by the Greek authorities the applicant left Afghanistan and travelled to Pakistan where he remained for 3 to 4 weeks before moving to Iran and then Turkey. He claims he was kidnapped by smugglers at the border between Iran and Turkey, held for 3 months and beaten every day (in a psychiatric assessment dated 6 August 2019 the applicant described a period of “detention” in Turkey when he was held by “agents”). He managed to escape and made his way to Istanbul. Following his arrival in Turkey the applicant’s mother contacted MN asking him to help the applicant. MN contacted the applicant and met him in Turkey in 2017 and maintained regular contact thereafter. The applicant remained in Turkey for one year and three months working in a bakery shop. The BIA referred to the applicant’s “vulnerability (because of his health issues - the applicant had a heart condition and successfully underwent surgery 8 years previously) and lack of any supportive environment in Greece.” The general lack of a well-developed support system for unaccompanied minors in Greece would, according to the BIA, “have a very negative effect on the child’s health and future.” In its conclusions the BIA referred to conversations the assessor had with MN and with the applicant’s parents, who expressed their trust in MN and were supportive of the applicant’s reunification with him.
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On or around 20 July 2018 the applicant registered his asylum claim in Greece. On 11 October 2018 Greece made a Take Charge Request (TCR) to the UK pursuant to Council Regulation (EU) No 604/2013 (Dublin III). The TCR asserted that the applicant was MN’s nephew. It was accompanied by the BIA, untranslated Afghan ID documents relating to the applicant, his father, his mother and MN, and the untranslated marriage certificate of the applicant’s parents.
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The TCR was logged by the European Intake Unit (EIU) on 19 October 2018. On the same day the respondent informed MN in writing of the applicant’s application and directed him to complete and return an enclosed form entitled “Consent to care for a child wishing to enter the United Kingdom.” The EIU received MN’s Home Office file on 23 October 2018 and MN’s completed form was received on 1 November 2018.
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On 3 December 2018 an EIU caseworker noted that, during his asylum application, MN did not identify the applicant’s mother as his sibling. According to a General Case Information Database (GCID) note “the MS [Member State] has not provided any further evidence to show the link between the claimed uncle and the minors [sic] mother.” A ‘rejection letter’ and ‘hold letter’ were sent to a Senior Case Worker for approval.
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On 6 December 2018 a Senior Caseworker advised that a new version of the EIU ‘consent’ form be sent to MN before rejecting the TCR. MN never received this second ‘consent’ form. In a witness statement dated 19 July 2019 Ahmed Ibrahim, the Dublin III Operational Lead of the EIU, stated that there was no available evidence that it was sent to MN.
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On 12 December 2018 (although the letter was dated 3 December 2018) the respondent sent a ‘holding letter’ to Greece indicating that the UK was
… currently investigating the requested take charge request. Once the UK has arrived at a decision it shall inform yourselves. The UK wishes to remind you that in the best interest of the children, we request that you do not transfer the minor.
The refusal of the TCR
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The respondent purportedly refused the TCR on 24 December 2018. The decision read, in material part,
The UK has attempted to substantiate the family link and has consulted the minor’s uncle’s Home Office submissions. Having examined the information provided within the Home Office records the UK has not been able to identify any evidence supporting a familial link. In his previous submissions the claimed uncle mentions his siblings and gives their names. However on that occasion he did not give the name of the minor [sic] mother as one of his siblings.
The UK has also considered all the information within the Take Charge Request, including; a supporting letter from the UK-based Uncle and his written consent, and copies of supporting documents including,
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BIA for the Minor
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mothers ID card (NOT Translated)
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Uncle Id [sic] card (NOT Translated)
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Father Id [sic] card (NOT Translated)
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Minors ID (NOT Translated)
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Medical Documents
However, we have been unable to find any evidence to support the claim that the above named minor is related to his claimed Uncle.
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On 11 January 2019 Greece requested that the UK re-examine the TCR and provided further evidence in support of the relationship including photographs of the applicant with MN and English translations of the identity documents. The applicant’s previous solicitors sent chase-up letters inquiring about the progress of the reconsideration application.
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A Pre-Action-Protocol Letter was issued by the applicant’s current solicitors on 1 March 2019. This challenged the lawfulness of the decision of 24 December 2018 and the respondent’s ongoing refusal to accept the TCR. The solicitors arranged for a DNA test and the results received on 20 March 2019 indicated that it was ”125.08 times more likely” that MN was the applicant’s biological uncle as opposed to being unrelated. This was not however served on the respondent prior to the issue of proceedings on 22 March 2019.
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On 25 March 2019 a caseworker concluded that the applicant and MN were related as claimed, and a senior caseworker agreed. An email was then sent to MN’s Local Authority to undertake a “family assessment”. On either 8 or 10 April 2019 the local authority issued a positive family assessment and, on 10 April 2019 the respondent carried out security checks and informed the Greek authorities that it was now satisfied that the claimed family link was established and that the UK would accept the applicant’s transfer. The respondent asked the Greek authorities to advise of the arrangements to transfer the applicant to the UK at least 3 working days in advance of the transfer. In both her Acknowledgment of Service and Supplementary Summary Grounds of Defence the respondent contended that the challenge was now academic.
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On 15 May 2019 Upper Tribunal Judge Kopieczek granted permission to proceed with the JR observing, inter alia, that “the claim for damages seems to me to be an obstacle to the conclusion that the claim is academic.”
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In amended judicial review grounds dated 5 July 2019, and in light of the respondent’s acceptance of the family link and purported acceptance of the TCR, the applicant sought declarations that the respondent breached her obligations under EU law (Dublin III and the Charter of Fundamental Rights – CFR) and under Article 8 ECHR, and damages for the said breaches. In Detailed Grounds of Defence dated 19 July 2019 the respondent maintained, in reliance on the recently promulgated Upper Tribunal decision in R(FA, AT, TT) v SSHD (JR/5523/2018, JR/5405/2018, JR/5406/2018) (FA), that it was not necessary to grant any declaration in relation to the late response to the initial TCR or in respect of the time taken for the respondent to accept the re-examination request as any such declaration would be academic given that all that remained was for Greece to make arrangements to transfer the applicant and Greece had up to 10 October 2019 to do so. Any unlawfulness in respect of the decision of 24 December 2018 was equally academic following the decision of 10 April 2019. Given that the overall time-frame had not been exceeded damages were not required to give just satisfaction, even if the Tribunal were...
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