Upper Tribunal (Immigration and asylum chamber), 2023-04-20, JR-2020-LON-00416
| Appeal Number | JR-2020-LON-00416 |
| Hearing Date | 15 December 2020 |
| Published date | 28 April 2023 |
| Date | 20 April 2023 |
| Status | Unreported |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
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JR-2020-LON-00416 (JR/1265/2020) |
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In the Upper Tribunal (Immigration and Asylum Chamber) Judicial Review |
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In the matter of an application for Judicial Review |
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The King on the application of |
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MA (a child by his litigation friend ASM) |
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Applicant |
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Secretary of State for the Home Department |
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Respondent |
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NOTIFICATION of the Judge’s decision |
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Final Damages Decision/Order by Upper Tribunal Judge Blum:
UPON hearing Ms. M Knorr, Counsel, instructed by Wilson Solicitors LLP, for the Applicant and Ms H Masood, Counsel, instructed by the Government Legal Department, for the Respondent at a remote hearing held at Field House on 1-2 October 2020 and 15 December 2020.
AND UPON the Tribunal granting remedies as set out in its Order of 15 December 2020 (at paragraphs 1 to 4) and making an order with respect to costs (at paragraph 6).
AND UPON the parties having complied with the directions concerning damages at paragraph 5 of the Order of 15 December 2020 and the Tribunal’s further orders of 7 June 2021 and 15 September 2021 varying and supplementing those directions, and the Tribunal having considered the parties submissions with respect to damages together with the other documents filed in this claim as relevant to damages.
It is further ORDERED that:-
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The Respondent is to pay the Applicant £10,500 in non-pecuniary damages for the breach of his Article 8 ECHR family life rights within 28 days of the sealing of this Order.
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In addition to the costs awarded to the Applicant at paragraph 6 of the 15 December 2020 Order, the Respondent do also pay the Applicant’s reasonable costs since 15 December 2020, to be assessed if not agreed.
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The Respondent shall make a payment on account of costs in the sum of 40% of the Applicant’s bill of costs within 28 days of receipt of the same.
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The Applicant’s legally aided costs be subject to a detailed assessment.
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Permission to appeal is refused (no application for permission was made and the damages judgment does not disclose any arguable legal error).
Signed: D. Blum
Upper Tribunal Judge Blum
Dated: 20 April 2023
The date on which this order was sent is given below
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): 20 April 2023
Solicitors:
Ref No.
Home Office Ref:
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-2020-LON-000416
(formerly JR/1265/2020 (damages decision)
IN THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER)
Field House,
Breams Buildings
London, EC4A 1WR
Before:
UPPER TRIBUNAL JUDGE BLUM
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Between:
THE KING
on the application of
MA
(a child by his litigation friend ASM)
[Anonymity Direction Made]
Applicant
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SECRETARY OF STATE FOR THE HOME DEPARTMENT
Respondent
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Michelle Knorr
(instructed by Wilson Solicitors LLP), for the applicant
Hafsah Masood
(instructed by the Government Legal Department) for the respondent
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DAMAGES JUDGMENT
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Background
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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 is resident in the UK having been granted refugee status.
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The applicant’s mother left him when he was approximately one year old and he mostly lived with his late father’s cousin. From a young age the applicant has suffered from a medical condition that eventually required him to undergo an end-colostomy in 2014. As a result of his medical condition he suffered neglect, social exclusion, bullying and physical and mental abuse, and did not attend school. The applicant and ASM established a relationship as outlined in my judgment dated 15 December 2020.
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On 7 September 2019 the applicant entered Greece and was accommodated by the Greek authorities in a hostel for children in Athens. On 24 December 2019 the Greek authorities made a Take Charge Request (TCR) to the respondent under the provisions of EU Regulation 604/2013 (Dublin III).
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On 15 December 2020 the Upper Tribunal found that the respondent’s decisions refusing the TCR from the Greek authorities breached rights under Article 8 ECHR. The applicant and ASM shared “family life” and the respondent’s refusal to exercise discretion in the applicant’s favour pursuant to Article 17(2) (Dublin III) constituted a disproportionate interference with the right to respect for family life. The applicant’s application for judicial review was granted and the respondent’s decisions dated 27 January 2020, 13 March 2020, 27 April 2020 and 2 June 2020 refusing the TCR were quashed. The Upper Tribunal declared that the respondent’s decisions refusing to accept the TCR breached the applicant’s rights under Dublin III, Articles 7 and 24 of the Charter of Fundamental Rights of the European Union, and Article 8 ECHR.
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The Upper Tribunal required, inter alia, that the respondent make a new lawful decision in accordance with its judgment and order, and that in the event that she accepted the TCR the respondent was to request the Greek authorities to expedite the applicant’s transfer to the UK insofar as they were able to do so. The Upper Tribunal gave the parties 8 weeks to try to reach an agreement on damages and case management directions were issued in the event they could not agree. The Upper Tribunal refused an application by the respondent for permission to appeal its decision to the Court of Appeal.
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The UK accepted the TCR on 24 December 2020. There was then a delay on the part of the Greek authorities in transferring the applicant. He was eventually transferred on 24 May 2021. The respondent noted that there were generally delays at the time because of the Covid-19 pandemic.
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On 24 May 2021 Lord Justice Popplewell granted the respondent permission to appeal on one of her two grounds (concerning whether, in light of FWF v SSHD [2021] EWCA Civ 88, an exceptionality threshold applied to Article 8 ECHR/Article 7 of the Charter of Fundamental Rights). Lord Justice Popplewell noted that “any expedition consideration should be given to the appeal being heard together with that in BAA if feasible” (this being a reference to R (on the application of BAA and Another) v SSHD (Dublin III: judicial review; SoS's duties) [2020] UKUT 00227 (IAC), a decision of the President of the Upper Tribunal in respect of which the SSHD had obtained permission to appeal to the Court of Appeal). MA was not joined with BAA. A full hearing in the Court of Appeal in BAA occurred on 23-24 June 2021 in which the same ground in respect of which permission was granted in MA’s case was considered.
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By order dated 7 June 2021 the Upper Tribunal varied the timescale of its previous order by requiring the applicant to file and serve written submissions on damages by 1 July 2021, with the respondent to file her submissions within 14 days of receipt of the applicant’s submissions. The applicant was permitted to file and serve a reply within 7 days of receipt of the respondent’s submissions.
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The applicant produced written submissions on damages dated 1 July 2021. The applicant did not pursue any claim for damages for a breach of EU law (‘Francovich’ damages). The respondent produced written submissions on damages on 16 July 2021. The applicant provided a reply dated 22 July 2021.
On 15 September 2021 the Upper...
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