Upper Tribunal (Immigration and asylum chamber), 2020-12-15, JR/01265/2020
| Jurisdiction | UK Non-devolved |
| Date | 15 December 2020 |
| Published date | 28 April 2021 |
| Hearing Date | 02 October 2020 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Appeal Number | JR/01265/2020 |
JR/1265/2020
UTIJR6
JR/1265/2020
Upper Tribunal
Immigration and Asylum Chamber
Judicial Review Decision Notice
The Queen on the application of MA
(a child by his litigation friend ASM)
[Anonymity Direction Made]
Applicant
v
Secretary of State for the Home Department
Respondent
Upper Tribunal Judge Blum
Application for judicial review: substantive decision
This decision follows a remote hearing in respect of which there has been no objection by the parties. The form of remote hearing was by video (V), the platform was Skype for Business. A face to face hearing was not held because it was not practicable and all issues could be determined in a remote hearing.
Having considered all documents lodged and having heard the parties’ respective representatives, Ms M Knorr of Counsel, instructed by Wilson Solicitors LLP, on behalf of the applicant and Ms H Masood, of Counsel, instructed by the Government Legal Department, on behalf of the respondent, at a remote hearing at Field House, London on 1 and 2 October 2020.
Decision: the application for judicial review is granted
Background
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The applicant challenges four decisions of the respondent made under the provisions of the Council Regulation (EU) No 604/2013 (“the Dublin III Regulation” or “Dublin III” or “DIII”):
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The decision on 27 January 2020 to refuse a request by Greece that the United Kingdom (UK) should take charge of his asylum claim;
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The decision on 13 March 2020 to refuse the request again, having been asked by Greece to reconsider her earlier refusal;
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The decision on 27 April 2020 to refuse the request a third time, having been asked by Greece to reconsider the previous refusal;
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The decision on 2 June 2020 to refuse the request a fourth time, in response to a third reconsideration request from Greece.
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I summarise the applicant’s account based on the information and evidence that was available to the respondent when her decisions under challenge were made. The applicant is a male national of Somalia born in 2006. He is the second cousin of ASM, a British citizen of Somali origin who arrived in the UK in 2006 and was granted refugee status. ASM works as an Uber driver and lives in a property with one bedroom and a separate living room.
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The applicant’s mother left him when he was approximately one year old. His father remarried and fathered children with his new wife. Although he lived with his father and his father’s new family for a short time the applicant mostly lived with H, his father’s cousin. H has several children, all of whom are older than the applicant.
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From a young age the applicant has suffered from a medical condition that eventually required him to undergo an end colostomy in 2014. The edge of his colon was brought through his abdominal wall to form an opening through which his faeces drain. The applicant requires the use of colostomy bags but these were difficult to obtain in Somalia and he often made do using a cloth which was unhygienic and smelled foul. As a result of his medical condition he suffered neglect, social exclusion, bullying and physical and mental abuse, and did not attend school. As H’s children did not want the applicant to sleep in their rooms because of his physical condition, he slept outside most of the time.
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The applicant and ASM maintain that their respective mothers were first cousins. ASM’s own mother informed him of the applicant’s circumstances in 2008. ASM began to send money to his mother in Somalia intending that it be given to the applicant’s father to help support the applicant. After the applicant’s end colostomy operation in 2014 ASM started to send him colostomy bags or money to buy the bags. The applicant and ASM used to speak to each other regularly.
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ASM first met the applicant in 2014 in Somalia. ASM wanted to help the applicant because the applicant was a member of his family and because he was a sick child who wasn’t being properly cared for by adults. The applicant stayed with ASM in his hotel for a week. ASM arranged for the applicant to have a wash and have his hair cut and bought him clothes and shoes and food and gave him money. ASM and the applicant “became close” during that week. ASM told the applicant that he loved him and wanted to change his life. They were both very sad when ASM returned to the UK. They would speak to each other once a week or fortnight and would message each other.
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ASM became aware that doctors in India may be able to perform an operation on the applicant that was not available in Somalia. ASM raised funds and saved money to enable the applicant to travel to India for the operation. In May 2018 ASM travelled to Somalia and then travelled with the applicant to India. The applicant and ASM stayed in a hotel and ASM took care of the applicant. ASM collected and administered medication to the applicant, dealt with the applicant’s dressings, bought him food, washed his clothes, played with him, and accompanied him to hospital. The applicant and ASM returned to Somalia in July 2018 and the applicant returned to the UK on 19 July 2018. The operation did not make much difference to the applicant’s daily life and he required further treatment following an infection.
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ASM raised further funds and saved more of his own money to take the applicant to Turkey for a further operation in 2019. Although it was originally intended for the applicant’s father and AF, H’s oldest son to accompany the applicant to Turkey, the applicant’s father died in May 2019. In June 2019 ASM returned to Somalia and, together with AF, they all travelled to Turkey on 9 July 2019. Doctors in Turkey advised that the applicant needed to strengthen the relevant muscles in his body before any further operation and that the applicant’s infection also needed to first be treated. ASM paid for the doctors, the accommodation and food. ASM had to return to the UK after spending around a month in Turkey. ASM returned to continue working to support himself and the applicant and AF. ASM paid their rent and left them money for expenses. The applicant and ASM maintained frequent contact.
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Unbeknown to ASM the applicant and AF entered Greece on 7 September 2019. The applicant did not want to return to Somalia because of the way he was treated and because H was no longer willing to care for him. ASM continued to send money to the applicant and AF. AF remained in a refugee camp in Chios but the applicant was accommodated by the Greek authorities in a hostel for children in Athens. ASM purchased a mobile phone for the applicant and they speak to each other frequently. ASM continues to financially support the applicant. ASM is in communication with the staff at the hostel and discusses the applicant’s behaviour and progress. ASM has been unable to visit the applicant because of the coronavirus.
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According to ASM’s statements the applicant can’t communicate with other children or his carers in the hostel because of language difficulties, and he is depressed because he is lonely and feeling anxious because of his situation. The applicant requires a private space to change his colostomy bag which he does not have. The applicant also needs to insert a metal device every night to make sure that his bottom does not close up and has little privacy to do that. ASM provides the applicant with financial and practical support, advice, love and attention, and wants to be responsible for the applicant and take care of him. ASM loves the applicant and wants to change his life, and if the applicant came to the UK ASM would look after him like his own child. The applicant maintains that ASM is the only family member with whom he has a positive loving relationship and who is willing to accommodate and take care of him. The applicant regards ASM as a father figure.
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The applicant currently resides in a hostel in Athens accommodating unaccompanied asylum-seeking children. He has no family members in Greece. He maintains that he has no family members in Somalia who would be prepared to support him.
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ASM states that the Home Office have never written to him or telephoned him concerning the applicant.
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According to a psychiatric report obtained after the date of the last challenged decision the applicant is suffering from PTSD and Major Depressive Disorder as a consequence of his history of abuse and neglect. In her written submissions provided after the hearing the respondent expressed her concerns with the psychiatric report, particularly the diagnosis of PTSD and major Depressive Disorder. A report by an Independent Social Worker (ISW), also obtained after the date of the last challenged decision, supports the applicant’s account of his...
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