Judge to decide if return facilities are adequate

Court of Appeal
Published January 7, 2009
CL (Vietnam) v Secretary of State for the Home Department
Before Lord Justice Sedley, Lord Justice Keene and Lady Justice Smith
Judgment December 10, 2008

Where an unaccompanied child seeking asylum appealed against the refusal of his claim and removal directions, it was necessary for the immigration judge, when considering that child’s human rights, to determine whether the reception facilities for the child on return were adequate. It was not solely an issue for the Secretary of State for the Home Department to determine.

The Court of Appeal so held, allowing the appeal of CL, a citizen of Vietnam, against the decision of Senior Immigration Judge Gleeson who allowed the Home Secretary’s appeal, on December 3, 2007, against the decision of Immigration Judge Dineen on July 14, 2006, to allow CL’s appeal against the Home Secretary’s refusal to grant him asylum.

Ms Jackie Bond for CL; Mr Jeremy Hyam for the Home Secretary.

LORD JUSTICE KEENE said that CL was a Vietnamese citizen who arrived in the United Kingdom in June 2002 and claimed asylum shortly after. He was aged 13, and accompanied only by his brother, aged 14. He was an unaccompanied child seeking asylum in respect of whom the Home Secretary had specific policies.

The secretary of state refused CL asylum on July 22, 2002, on the ground that there were adequate care provisions for children returned to Vietnam, and made directions for his removal. CL appealed on July 31, 2002, but his appeal was not heard until July 2006.

The secretary of state relied on the decision of the Immigration Appeal Tribunal in BV (Vietnam) ([2004] UKIAT 00148) for the proposition that the secretary of state should be left to assess the question of adequacy of reception arrangements in a claimant’s home country.

The immigration judge rejected that argument. After considering the question himself he was not satisfied that there were adequate reception facilities for CL, and therefore not satisfied that the secretary of state could demonstrate that he had complied with his own policy of not returning children in the absence of such facilities.

The immigration judge dismissed the asylum appeal but allowed the appeal under article 8 of the European Convention on Human Rights, protecting the right to a private and family life.

The secretary of state sought reconsideration by the senior immigration judge on the basis of a material error of law. She held that the immigration judge had failed to explain why BV (Vietnam) was not determinative of the appeal which constituted a material error of law. After reconsidering the appeal, she dismissed it.

An important issue arose in the Court of Appeal.

The question was whether the adequacy of reception facilities for an unaccompanied child on return was a matter for the secretary of state alone after the completion of the statutory appeal process and did not form part of the decision on the child’s article 8 rights.

His Lordship concluded that the immigration judge was required to determine the article 8 appeal on the basis of the evidence put before him.

The extent of suitable reception and care facilities in Vietnam was relevant to that determination. He was not entitled to put that aspect of the article 8 claim on one side and leave it for future consideration by the secretary of state.

The senior immigration judge conflated two matters which in reality were distinct: The first was the secretary of state’s policy towards unaccompanied children which required her to keep reception facilities in the receiving state under review pending removal, even after the conclusion of the statutory appeal process.

The second was the tribunal’s own duty to consider the article 8 claim and to take all the relevant evidence on that issue into account as at the hearing date.

The immigration judge properly recognised the need to deal fully with the article 8 position, despite the secretary of state’s undertaking not to return a child unless satisfied that reception facilities for him were adequate.

The senior immigration judge had wrongly concluded that there had been an error of law in the immigration judge’s decision, which should stand.

Lady Justice Smith agreed; Lord Justice Sedley delivered a concurring judgment.

Solicitors: Ms Tori Sicher, Southwark; Treasury Solicitor.

Source : The Times (January 07, 2009)

Immigration Advisory Service response

Publication date: 8 January 2009

Court of Appeal win for IAS safeguards unaccompanied asylum seeking children

Reported in The Times yesterday the case of CL (Vietnam) v Secretary of State for the Home Department sets out clearly that where an unaccompanied child seeking asylum appealed against the refusal of his claim and removal directions, it was necessary for the Immigration Judge, when considering that child’s human rights, to determine whether the reception facilities for the child on return were adequate. It was not solely an issue for the Secretary of State for the Home Department to determine.

“We are delighted with this judgment” said IAS Chief Executive Keith Best. “On too many occasions the Home Office has acted in an unfettered way and this was another example. Based on a 2004 judgment the Home Office had claimed that the Secretary of State was the sole determinant to assess the question of adequacy of reception arrangements in a claimant’s home country but, as the Court of Appeal found, it is the responsibility of the Immigration Judge to consider all the relevant evidence in relation to a claim under Article 8 of ECHR (the right to private and family life) and that included the adequacy of reception facilities. The Immigration Judge was not satisfied that there were adequate reception facilities for CL. On reconsideration the Senior Immigration Judge had overturned that. Thanks to the hard work of one of our solicitors, Ms. Tori Sicher, and the presentation of the case by counsel, Ms. Jackie Bond of 4 King’s Bench Walk, the original decision of the Immigration Judge was vindicated.

“This will mean that such matters must be judged independently by the judiciary rather than by the Home Office which has its own vested interest in returning asylum seekers and acting defiantly towards the rule of law. It is another safeguard that is necessary to ensure that the executive acts within the law.” – IAS