Upper Tribunal (Immigration and asylum chamber), 2022-11-21, JR-2022-LON-000555
| Appeal Number | JR-2022-LON-000555 |
| Hearing Date | 19 October 2022 |
| Published date | 21 December 2022 |
| Date | 21 November 2022 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
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In the Upper Tribunal (Immigration and Asylum Chamber) Judicial Review |
JR-2022-LON-000555 |
In the matter of an application for Judicial Review
The King on the application of
MH
(ANONYMITY ORDER MADE)
Applicant
versus
Secretary of State for the Home Department
Respondent
BEFORE Mrs Justice Lang DBE, siting as a Judge of the Upper Tribunal
HAVING considered all documents lodged and having heard Mr B. Bundock of counsel, instructed by Wilson Solicitors LLP, for the applicant and Ms M. Bayoumi of counsel, instructed by Government Legal Department, for the respondent at a hearing on 19 October 2022;
IT IS ORDERED THAT:
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The application for judicial review is refused for the reasons in the attached judgment.
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The Applicant do pay the Respondent’s costs. The Applicant having the benefit of cost protection under section 26 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, the amount that the Applicant is to pay shall be determined on an application by the Respondent under regulation 16 of the Civil Legal Aid (Costs) Regulations 2013. Any objection by the Applicant to the amount of costs claimed shall be dealt with on that occasion.
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There shall be a detailed assessment of the Applicant’s publicly funded costs.
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The application by the Applicant’s solicitors for an extension of time to make a possible application for permission to appeal at a later date is refused, for these reasons. The Applicant’s solicitors have not been able to make contact with the Applicant since the draft judgment was sent to the parties on 4 November 2022, and therefore they have no instructions. I consider there is a real risk that the Applicant will not make contact, either in the near future or at all. The note below explains that the Upper Tribunal must determine whether or not to grant permission to appeal when the order disposing of the claim is made, whether or not any application for permission has been made. However, if the Applicant makes contact within 28 days of the date on which this decision is sent, he can apply for permission to appeal to the Court of Appeal.
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Permission to appeal is refused, as the judgment of the Upper Tribunal does not disclose any error of law and an appeal has no real prospect of success. The decision of the Respondent turned on the particular facts in this case, and does not raise any issues of principle or wider importance.
Signed: Mrs Justice Lang
Dated: 14 November 2022
For completion by the Upper Tribunal Immigration and Asylum Chamber
Sent / Handed to the applicant, respondent and any interested party / the applicant's, respondent’s and any interested party’s solicitors on (date): 21/11/2022
Solicitors: Wilson Solicitors LLP Ref No.
Home Office Ref: EIU/5388621
Notification of appeal rights
A decision by the Upper Tribunal on an application for judicial review is a decision that disposes of proceedings.
A party may appeal against such a decision to the Court of Appeal on a point of law only. Any party who wishes to appeal should apply to the Upper Tribunal for permission, at the hearing at which the decision is given. If no application is made, the Tribunal must nonetheless consider at the hearing whether to give or refuse permission to appeal (rule 44(4B) of the Tribunal Procedure (Upper Tribunal) Rules 2008).
If the Tribunal refuses permission, either in response to an application or by virtue of rule 44(4B), then the party wishing to appeal can apply for permission from the Court of Appeal itself. This must be done by filing an appellant’s notice with the Civil Appeals Office of the Court of Appeal within 28 days of the date the Tribunal’s decision on permission to appeal was sent (Civil Procedure Rules Practice Direction 52D 3.3).
Case No: JR-2022-LON-000555
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London,
EC4A 1WR
21 November 2022
Before:
MRS JUSTICE LANG DBE
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Between:
THE KING
on the application of
MH
(ANONYMITY ORDER MADE)
Applicant
- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Benjamin Bundock
(instructed by Wilson Solicitors LLP), for the applicant
(instructed by the Government Legal Department) for the respondent
Hearing date: 19 October 2022
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J U D G M E N T
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Mrs Justice Lang:
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The Applicant, who is a national of Afghanistan, aged 17, seeks judicial review of the Respondent’s decision (“the Decision”), dated 27 January 2022, in which she rejected a “Take Charge Request” (“TCR”) from the French authorities to the United Kingdom (“UK”) under Article 8.1 of the Dublin III Regulation (“Dublin III”), Council Regulation (EU) No. 604/13, in respect of the Applicant’s application to be reunited with his brother, RH, in the UK.
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Permission was granted on the papers by Upper Tribunal (“UT”) Judge Macleman on 7 June 2022. Although he gave permission on all grounds, he expressed reservations about Grounds 1(i) and (iii), 2 and 3. He considered that Ground 1(ii) “shows scope for debate on whether the evidence before the SSHD led to a duty to facilitate DNA testing of MH and RH”.
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The Respondent’s decision made on 27 January 2022 was a reconsideration following a judicial review challenge to an earlier rejection decision (“the first decision”), made on 12 February 2021, which the Respondent withdrew after permission was granted by UT Judge Rimington on 20 July 2021.
History
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The Applicant is an unaccompanied asylum-seeking minor (“UASM”), currently residing in France. He was born on 13 January 2005 in Afghanistan.
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RH is the Applicant’s sponsor. He is a British citizen, resident in Birmingham. He owns his own home and runs a takeaway food business. He was born in Afghanistan on 2 May 1993. RH’s family fled from Afghanistan in 2008. RH became separated from his parents and siblings and travelled to the UK alone in 2008 where he was granted refugee status. He subsequently obtained indefinite leave to remain and naturalised as a British citizen.
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In 2013, RH sponsored an application for family reunion by his brother AMR. AMR was granted entry clearance for family reunion with RH in the UK, and now resides in the UK.
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RH submitted a statement, dated 10 December 2020, in support of the TCR. He stated that he was born and grew up in Khumdan village, Takhar province, Afghanistan. He lived with his parents, F and A, his two sisters and his brother, AMR. RH claimed that he did not know that the Applicant was also his brother until recently because the Applicant was brought up by his grandparents until they died, and then by RH’s aunt Ane and her husband Hashim. According to Ane, RH’s parents did not want the financial burden of another child and so they gave the Applicant to his grandparents and aunt to raise.
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RH also stated that since the Applicant left Afghanistan, they had been in regular contact with each other, and RH visited MH in Turkey for 3 to 4 days in August 2020.
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RH made a further statement on 11 May 2021, to clarify his previous statement, in which he explained that his parents lived in the same village as his grandparents, and Ane and her family. His grandparents and Ane and her family lived in adjoining houses on the same plot of land. When he visited his grandparents and Ane and her family, he believed that the Applicant was Ane’s son. It was not unusual for families to have many children and for children to stay at different people’s houses.
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RH stated that Ane told him that the Applicant was in fact his brother in about 2015 or 2016. RH did not try to speak to the Applicant about this at that time. The Applicant left Afghanistan for Iran with Ane and her family in 2018. In Iran, Ane told the Applicant of his true parentage and that was when RH began speaking to the Applicant regularly on the telephone.
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RH reiterated the evidence he gave in his first statement to the effect that he was unable to obtain a Taskera (identity document) because the area where he lived was under Taliban control. However, a new online process was available and he and AMR had used it to apply for a Taskera for AMR. Subsequent evidence indicated that AMR had obtained one before the online process closed. The Applicant does not have a Taskera either.
In his statement dated 8 November 2021, RH described his visit to the A...
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