Upper Tribunal (Immigration and asylum chamber), 2020-11-06, JR/00221/2018
| Jurisdiction | UK Non-devolved |
| Date | 06 November 2020 |
| Published date | 17 November 2020 |
| Hearing Date | 23 September 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/00221/2018 |
JR/221/2018
Upper Tribunal
Immigration and Asylum Chamber
JR/221/2018
Field House,
Breams Buildings
London
EC4A 1WR
Heard on: 22nd and 23rd September 2020
BEFORE
UPPER TRIBUNAL JUDGE COKER
UPPER TRIBUNAL JUDGE KEITH
Between
The Queen (on the application of 'QH')
(Anonymity direction continued)
Applicant
v
Secretary of State for the Home Department
Respondent
Direction Regarding Anonymity — Rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008
Unless and until a Tribunal or court directs otherwise, the applicant is granted anonymity. No report of these proceedings shall directly or indirectly identify him or any member of his family. Failure to comply with this direction could lead to contempt of court proceedings.
Having considered all documents lodged and having heard Ms Sonali Naik QC and Mr Greg Ó Ceallaigh, instructed by Duncan Lewis Solicitors on behalf of the applicant and Mr Gwion Lewis, instructed by the Government Legal Department on behalf of the respondent at a hearing at Field House, London on 22nd and 23rd September 2020 and upon judgment being handed down on 5th November 2020, the application for judicial review having previously been granted by Mr Justice William Davis in a Judgment dated 4th December 2018.
APPLICATION FOR JUDICIAL REVIEW
JUDGMENT
Previous orders and judgments
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The applicant applied on 10th January 2018 for judicial review of the respondent's decision to remove him from the UK; and for the linked decisions in which the respondent certified his asylum claim on third country grounds and certified his human rights claim as clearly unfounded, to be quashed. He also sought damages for breach of his rights under Article 8 of the European Convention on Human Rights ('ECHR') and under EU law, including under the Dublin III Regulation.
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In the previous order and judgment of Mr Justice William Davis on 4th December 2018, sitting as a Judge in the Upper Tribunal (IAC), which is not recited in full for the sake of brevity, he granted the applicant's claim for judicial review; declared that the respondent had unlawfully removed the applicant from the UK without proper notice, in breach of the respondent's own policy on notice and in breach of Article 27 of the Dublin III Regulation; and ordered that the decisions to remove the applicant from the UK, to certify the applicant's asylum claim on third country grounds, and to certify the applicant's human rights claim as clearly unfounded, were quashed. The same orders required the return of the applicant from Germany, to where he had been removed, back to the UK.
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Mr Justice William Davis did not carry out an age assessment judicial review, but nevertheless made adverse findings on the adequacy of a third-party age assessment, on which he said that the respondent ought not to have relied in treating the applicant as an adult, when removing him. The applicant has never sought permission to apply for judicial review of the third-party (Lincolnshire County Council) age assessment.
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Mr Justice William Davis also did not determine the issue of whether the applicant's removal breached his rights under Article 8 of the ECHR and the resumed hearing was relisted to consider liability and the applicant's claim for damages on 5th March 2020.
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In advance of the resumed hearing, staff of this Tribunal wrote to both parties' representatives on 2nd March 2020 in the following terms:
“In light of a forthcoming Presidential panel which will be considering the issue of damages for breach of Dublin III in other separate cases, the Tribunal is considering whether the determination of an award of damages in the above application should be linked to that Presidential Panel considering those other cases or adjourned pending the decision in those cases. The Tribunal therefore intends that only questions of “Article 8 liability” should be addressed and considered at the hearing on Thursday. The parties' representatives should attend, ready to:
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make submissions on the remaining areas of liability in dispute;
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to discuss, and if possible, agree, case management directions for future conduct of the litigation, on the issue of damages.”
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In the respondent's written skeleton argument dated 27th February 2020 (§[2(1)]) the respondent conceded that the applicant's removal did breach his rights to respect for his private life under Article 8 ECHR, but asserted that no damages were required to give just satisfaction for the breach.
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Nevertheless, the respondent continued to dispute that the applicant had a family life with his uncle in the UK, respect for which was capable of engaging Article 8, which the applicant's removal had breached.
The hearing in the upper Tribunal on 5th March 2020
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The sole issue that had been identified to be resolved at the hearing was whether the applicant had a family life with his uncle capable of engaging Article 8 ECHR. If such family life did exist, then just as the applicant's removal had breached his right to respect for his private life, it would similarly breach his right to respect for his family life. It became apparent, in the context of whether there was family life, that the applicant's age, and whether he had been a minor at the time of his interactions with his uncle, remained in dispute. Lincolnshire County Council confirmed on 27th November 2019 that the age assessment which it had carried out, dated 27th April 2016, assessing the applicant as 19 years' old, had been withdrawn, following Mr Justice William Davis's conclusion that that assessment was flawed. The applicant asserted that he was a minor at the relevant time. The respondent did not accept this, notwithstanding the flaws in the age assessment.
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This Tribunal regarded it as necessary to determine the applicant's age and the hearing had not been scheduled for an age assessment. The applicant was now living with his uncle in the London Borough of Sutton. This Tribunal therefore directed both parties to write to both local authorities, asking for their position on the applicant's age, with a further direction then seeking the respondent's position.
Case management hearing by telephone on 25th March 2020
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The respective Councils (Lincolnshire and Sutton LBC) did not express a view on the applicant's age, and Covid-19 subsequently intervened. With the assistance of the parties' representatives, a case-management hearing took place and directions were issued, which are not set out in full here, but which permitted the respondent to contact Sutton LBC again to ascertain if they would be willing to carry out a new age assessment; and to set out the basis of any continuing dispute on the applicant's age, in the context where a German local authority had since determined the applicant to be a minor. In the absence of subsequent agreement between the parties on the applicant's age, this Tribunal directed that it would reach a decision on the applicant's age on the papers, without the need for a hearing, following which a further case management hearing would take place. Sutton LBC subsequently indicated that it had no view on the applicant's status as a minor, and it became necessary for this Tribunal to determine the applicant's age, in light of a continuing dispute on that issue between the parties.
The age assessment decision and directions
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By a decision dated 14th May 2020 and reissued on today's date, to replace a typographical error, this Tribunal declared that the applicant had a date of birth of 18 January 2000, for the written reasons set out in that decision. The consequence was that the applicant was a minor when he lived with his uncle in the UK from in or around 28th April 2016, and prior to being removed to Germany on 11th April 2017, after which he has since been returned to the UK. The decision also included directions for future conduct of the litigation. The directions included seeking clarification on the remaining issues, including:
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whether the respondent continued to dispute that the applicant had a family life with his uncle, the respect for which was capable of engaging Article 8 ECHR; and
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in light of the Court of Appeal's decision in Secretary of State for the Home Department v R (on the application of FTH) [2020] EWCA Civ 494, whether the respondent maintained or sought to withdraw her previous concession that her decisions breached the applicant's right to respect for his private life, for the purposes of Article 8 of the ECHR.
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In correspondence dated 29th May 2020, the respondent subsequently confirmed that she maintained her previous concession that her removal of the applicant (as opposed to the other decisions - certification of the applicant's asylum and human rights claims) was in breach of the applicant's right to respect for his private life under Article 8 ECHR, distinguishing ‘R (FTH)’ on the basis that she had removed the applicant unlawfully before he had a chance to properly challenge that decision (which had resulted in its quashing by Mr Justice William Davis), and so was more serious than circumstances where the Dublin III procedure for an unaccompanied child to be reunited with a relative remained available.
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The respondent also confirmed that she continued to dispute the...
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