In Dereci & Ors (European citizenship) [2011] EUECJ C-256/11 (15 November 2011) (click here for transcript) the CJEU identified the criterion used in Ruiz Zambrano (European citizenship) [2011] EUECJ C-34/09 (08 March 2011) to determine whether there has been or would be a breach of the right to the genuine enjoyment of the substance of the rights conferred by virtue of EU citizenship. The Court held that the criterion only applies exceptionally (para 67) and only where the child will be forced to leave the territory of the EU as a whole (para 66). In Secretary of State for Work and Pensions v RR (IS) [2011] UKUT 451 (AAC) Upper Tribunal decided that the Zambrano principle extends to an EU parent of a dependant British child. The case concerns a German claimant (R). She came to the UK in 1985 and gave birth to a daughter (D) here on 1.6.00. She returned to Germany in April 2002. The claimant and D returned to the UK on in July 2006. R was unable to take up a job offer in the UK, first because she did not have her own accommodation and later by reason of her health (she was diagnosed with breast cancer). The Upper Tribunal reasoned that the fact that R was not a third country national was not significant as the key person in the case was D, the claimant's child. However, the decision was made before the clarificaiton given to the Zambrano principle by CJEU in Dereci. The DWP has announced that it intends to apply for permission to appeal against the Upper Tribunal decision and has issued guidance to decisions makers on staying lookalike cases - i.e. where, an EU citizen is a parent of a dependent child who is a UK citizen – in DMG Memo 35/11- UT DECISION ON RIGHT TO RESIDE – STAYING LOOKALIKES" (click here for link).
On 23 November 2011, As recommended in the Migration Advisory Committee’s report into A2 (Bulgarian and Romanian) nationals dated 4 November 2011, the Government has decided to extend the controls to restrict how Bulgarian and Romanian nationals access the UK labour market until the end of 2013 (click here for UKBA news story).
In respect of Age Disputed Minors:
R (Hossein) v SSHD and Kent County Council [2011] EWHC 1924 (Admin) (Collins J): Court held that the age assessments carried out by the Kent social workers was sustainable and there was nothing that the claimant could produce to show that at trial he could persuade a judge of a different conclusion. The analysis was somewhat fact-specific to the case in circumstances where the claimant child did not know his date of birth or his age and his account of his age varied over time. An independent social work report produced on behalf of the claimant child gave yet a different answer as to age. Balanced against the experience of the Kent social workers who observed the claimant over a period of time, it was difficult to see how it could be set aside. On the basis that Collins J found that the young person was over 18, it followed that the claim that he was unlawfully detained by the SSHD fell away. However, Collins J went beyond the facts of this particular claim to consider the scope of the SSHD’s duty / policy to consider whether an age assessment was Merton compliant before placing reliance on it for immigration-related decisions. The claimant placed reliance on observations made by Collins J in R (A) v Croydon LBC [2009] EWHC 939 Admin) at §38 where the judge stated that it was necessary for the SSHD to obtain a full report if it intends to rely on the report to determine age for its own purposes, particularly if there is other evidence which points in the other direction. Collins J stated that only if the full report was available could it be seen whether there were apparent flaws in it and whether it was truly Merton compliant, and sight of the full report would be essential if there was any challenge raised to the decision in question. However in Hossein, Collins J takes a step back from the position he took in A v Croydon to state that the need to obtain the full report is only necessary where the correctness of an age assessment is in dispute. He stated at §22:
It must be borne in mind that objections to the age assessment, if it goes against a particular claimant, are by no means unusual. That underlines the need for a full assessment to be forwarded to the Home Office but it does not follow that in every case where this does not happen there is automatically a breach of the Home Office guidance. If that were the case very many of the age assessments would have been regarded as flawed and if detention had been decided on the basis that the individual was over age it might arguably have been unlawful. That is not the position. I do not think what I said in A can be used to that effect. Accordingly, the Secretary of State in this case was entitled to rely upon the age assessment, indeed on both of them, in deciding what to do with this claim.
This analysis of Collins J apparently is based on a belief that the judge had (at §21) that assessments from an authority such as Kent which regularly deals with age assessments could be normally assumed to be Merton compliant. This may have been a dangerous assumption to have made in view of the fact that one of the authorities which regularly deals with age assessments (Croydon) is in fact one of the authorities whose age assessments have routinely been set aside by the Court. Thus query the soundness of the assumption made by Collins J.
R (J) v SSHD [2011] EWHC 3073 (Admin) (Coulson J): Judge looked at the Wiltshire assessment and held that it was an example of what not to do in an age assessment. On concluding this, Coulson J then considered whether it could therefore be said that the SSHD acted unlawfully in detaining the claimant child and answered in the affirmative on the following bases:
- In deciding to detain the claimant, the SSHD must have considered the Wiltshire assessment. Although the SSHD was entitled to rely on a Merton compliant age assessment, there was an independent obligation on the part of the SSHD to consider that assessment and to reach a conclusion as to whether the assessment was Merton compliant. Although the detail of the assessment was looked at in the case, there was no discussion with the local authority and no reconsideration of the position as to age despite obvious flaws in the age assessment. The SSHD could not have rationally concluded that the Wiltshire assessment was Merton compliant and therefore should not have relied on it: §§30-32.
- That the FTT considered the issue of age and found against the child in terms of age did not itself mean that the issue of age had been resolved as against the SSHD. Although it was not appropriate to criticise the FTT judge given his judgment was not appealed, before the FTT judge there was a competing and fresh assessment of age fro Cardiff which indicated support for the claimant’s claimed age. The FTT judge may not have understood the purpose of this re-assessment. In any event, the FTT judge may not have appreciated the fairly obvious points which Coulson J made as to why the Wiltshire assessment was not Merton compliant as they were not canvassed properly before the FTT. That however did not mean that the SSHD could necessarily be bound by the decision of the FTT in circumstances where the flaws of the Wiltshire assessment were so obvious.
R (AS) v LB of Croydon [2011] EWHC 2091 (Admin) (HHJ Anthony Thornton Q.C.): The claimant applied for judicial review of an age assessment undertaken by the defendant local authority. He was an Afghan who had arrived in the United Kingdom as an unaccompanied minor. He claimed that his date of birth was March 18, 1996. The local authority conducted two separate assessments and concluded that his date of birth was March 18, 1994. The Claimant served three different expert reports which all assessed his date of birth at approximately March 18, 1995. The parties agreed to accept the date put forward by the experts and sought a declaration that the two local authority assessments should be quashed and that the Claimant’s date of birth was March 18, 1995. The issues were (i) whether the court should quash the local authority's age assessments; (ii) whether the declaration of S's date of birth was an order in rem, which was therefore binding for all purposes upon everyone. Held (1) When a judge was presented with a proposed settlement of an age assessment dispute, he had to independently consider its terms and satisfy himself that he could and should approve it. The parties had to submit an agreed statement of reasons for the court to consider – see N v Croydon [2011] EWHC 862 (Admin) In the instant case, the statement submitted provided cogent reasons for accepting the date put forward by the experts. Further, the local authority assessments had not complied with the procedural guidance given in Merton. The local authority assessments would be quashed since the question of whether the Claimant was a "child" was one of jurisdictional fact under the Children Act 1989 and determined whether the Claimant had been eligible for assistance at the date of his original application to the local authority. The courts, rather than public authorities were the ultimater arbiters of that issue. A declaration would be granted of S's date of birth as reflected in the expert reports. (2) In light of the decision in A v Croydon LBC, it was possible to identify factors which had to be established for a declaration to be made in rem. A claimant had to show that: (a) the determination was in the form of a judgment and not simply a finding of facts upon which a judgment was based; (b) the tribunal had jurisdiction to make the relevant determination; (c) the relevant statute, expressly or by necessary implication, conferred on the tribunal the jurisdiction to make a determination in rem, indicated by the conferral of exclusive jurisdiction to make a final determination about the status of the claimant; (d) the judgment was final, on the merits and not by consent; and (e) there was a public interest in the judgment being one which bound everyone, R (on the application of PM) v Hertfordshire CC (2010) EWHC 2056 (Admin) applied. (3) In the instant case, the determination was to the effect that S was a child. In light of A v Croydon LBC, the court had the jurisdiction and obligation, to make the age determination, under s.20 of the Act. The determination was clearly intended to govern all future considerations of S's eligibility for assistance under the Act and under UK Border Agency protocol. Since the instant court had been given exclusive jurisdiction to determine whether the Claimant was eligible for such assistance and since that issue of fact determined an incidence of his status and had to be determined first, the determination was an in rem determination which was binding on the world at large. Although the instant judgment was made without an oral hearing, there had been a full trial on the merits in the sense required for a judgment in rem since there had been a formal age assessment, a clear crystallisation of a dispute, an application for judicial review, a reasoned joint agreement to settle and an independent assessment of the claim by a judge which was embodied in a formal and final order. Finally, there was a clear public interest in the judgment being expressed as a judgment which bound everybody, not merely the local authority. It would be contrary to the best interests of a child defendant to be subject to further and possibly different age assessments. The declaration should be expressed to be in rem.
R (U) v LB of Croydon [2011] EWHC 3312 (HHJ David Pearl): Judicial Review on fact finding of age dismissed on basis of Judge’s acceptance of social worker’s age assessment.
R (T) v LB of Croydon (2011), extempore 5/12/11 (Nicol J): Condition four in the Senior Courts Act 1981 s.31A, namely that a judicial review application should not call into question any decision made under, amongst other things, the Immigration Acts, was not to be given a wide interpretation. It did not prevent a transfer. The immigration judge's decision was confined to immigration matters. The judicial review proceedings did not call into question the legality or validity of his decision. It had to be remembered that the fourth condition conferred a power on the High Court, which was not an obligatory power, to transfer matters to the Upper Tribunal and that the court could take all circumstances into account. Further, when s.31A was first inserted into the 1981 Act, the Asylum and Immigration Tribunal was not then to be incorporated into a First-tier Tribunal and Upper Tribunal system. The suggestion that the exclusion had to be given a wide interpretation had therefore lost some of its force as the AIT had since been absorbed into the unified appellate structure. Section 31A conferred a power on the High Court which was not obligatory to transfer matters to the Upper Tribunal.
R (AM) v LB of Croydon [2011] EWHC 3308 (Admin) (HHJ McKenna): Declaration in favour of the child in respect of his claimed age. Useful judgment in respect of the relevance of conventional judicial review principles in a substantive fact-finding on age. Judge accepted relevance of judicial review principles in deciding the weight that can be placed on the written and oral evidence of the local authority. (Judgment handed down on 22nd December 2011 - will be posted when available.)
R (CJ) v Cardiff CC [2011] EWCA Civ 1590 (Laws, Pitchford LJ, and Lloyd Jones J): Court of Appeal held that the concept of a burden of proof cannot be imported into the consideration of the jurisdictional fact of age. Neither the putative child or the local authority has the burden to prove age. The matter is one of fact for the judicial review court to determine taking an inquisitorial manner. See in particular paragraphs 21-22.
In respect of Migrant Children in context other than fact-finding hearings on age disputes:
SH (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 1284 (Ward, Moses and Patten LJ): Established the correct test for adjourning and and removing asylum appeals from the Detained Fast Track. Hearings held in the Detained Fast Track (DFT) must be adjourned, and if necessary, taken out of the DFT, in order to allow a party to answer the case against him by way of evidence, e.g., to secure his own social work report on age, in an age dispute case, if it would not be pointless to do so. The First Tier Tribunal's failure to do so had been unlawful and the Upper Tribunal also acted unlawfully by dismissing the appeal on the basis that the FTT had not acted irrationally and new evidence would not have made a difference (i.e. failing to apply the "pointlessness test"). The legal test established will make it very difficult for any case to remain within the DFT where there is a genuine dispute on which the appellant wishes to adduce relevant evidence.
R(T and ors) SSHD [2011] EWCA Civ 1446 (Maurice Kay, Moses LJ and Baron J): Where the Court of Appeal decided to refer to the Court of Justice of the European Union the question of whether Article 6 of Dublin II permitted unaccompanied asylum seeking minors to be removed at all to the Dublin State where they first claimed asylum. Delivering the judgment of the Court, in R (MA, BT, DA) v Secretary of State for the Home Department [2011] EWCA Civ1446, Maurice Kay LJ pointed out that "Mr Knafler frankly acknowledges that .... he is taking a point which is at variance with what appears to be a common understanding among Member States and which is unsupported by any previous judicial decision ..... [or] any textbook .. [and is contradicted by] R(Mosari) v Secretary of State for the Home Department [2005] EWHC 1343 ... and [a paper by] the European Council on Refugees and Exiles". However, Maurice Kay LJ went on to say that "Notwithstanding the volume of contrary argument and practice stacked against them, we tend to the view that [the appellants'] construction may well be correct" and that "the construction issue at the centre of this litigation cries out for resolution because, if the appellants are correct in their construction, there would need to be an EU-wide change of State practice".
The Court of Appeal also doubted whether the Nasseri presumption applied to unaccompanied minors and whether "cogent reasons" were required, to doubt the quality of the welfare conditions likely to apply, before the Secretary of State was obliged to consider whether reception conditions in a Dublin II receiving State were such that it would safeguard and promote the welfare of a child to be removed there, pursuant to section 55 of the Borders, Citizenship and Immigration Act 2009.
R (Tinizaray) v Secretary of State for the Home Department [2011] EWHC 1850 (Admin): High Court considered the application of the s55, BCIA duty in the context of a refusal of an application for indefinite leave to remain. As the Court rightly stated in its judgment, whatever the immigration decision under challenge, it cannot reduce / minimise the duty under s55, BCIA 2009 to take account of the best interests of any child directly affected by that application and its possible refusal. In Tinizaray, the relevant decision would have a direct effect on a child who is aged 9, born in the UK, lived in the UK her entire life, but who was, with her mother and grandmother, an Ecuadorian citizen, who has had no contact with and no prospect of having contact with her father, has had no contact with Ecuador or any understanding of an Ecuadorian way of life. The Court held that in considering the impact of the immigration decision on the child, s55 would require the following approach:
- When considering whether it is proportionate to grant or refuse a parent or grandparent of a child living with that person indefinite leave to remain in the United Kingdom or to remove that person from the United Kingdom, the decision-maker must balance the reason for expulsion or refusal against the impact upon the child, particularly when the child can reasonably be expected to follow the removed parent or grandparent.
- The child's best interests must be taken account of in undertaking this balancing exercise. These best interests that are referred to are the child's upbringing and well-being in general and whether it is reasonable to expect the child to live in another country.
- These best interests must be a primary consideration which should be considered first. These interests are, however, not paramount. However, any other consideration should not be treated as inherently more significant but the strength of these other considerations may, when taken together, outweigh the child's best interests.
- The nationality of the child must be taken account of. That nationality is of particular but not decisive importance, particularly if the child is British since deportation would deprive that child of her country of origin and the protection and support that she has acquired socially, culturally and medically from growing up in a British lifestyle and would also lead to a social and linguistic disruption and a loss of educational opportunities. Equally, the fact that a child is non-British may ensure that deportation is of less significance for her but her non-British nationality is not of decisive importance.
- The views of a child who is capable of forming her own views in all matters affecting her must be heard and due weight must be given to them in accordance with her age and maturity. Procedures should be adopted that ensure that those views are fully and freely obtained.
Importantly, the Court in Tinizaray held that the s55 BCIA 2009 duty and the assessment of ‘best interests’ cannot be limited to information which is supplied by the child / her family members, particularly if it is clear that that information is either incomplete or potentially slanted. The s55, BCIA 2009 duty requires further information to be sought by the decision maker including, in appropriate cases, interviews of the applicant and separate interviews of the child, questionnaires, and seeking / soliciting the views, assessments and reports of other agencies such as local authority social services, CAFCAS or local children’s welfare groups and schools: see §24 of the judgment. This is akin to the well-established public law Tameside duty to inquire (i.e. did the decision-maker ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?).
R (CZ) v Secretary of State for the Home Department, extempore judgment 5/12/2011 per Mitting J where judicial review proceedings were brought challenging the removal of a mother with a young child following the refusal to accept their fresh claim. Mitting J held that concerns expressed about removing a child from the UK to live in China with her mother and father, after her mother’s application for asylum had failed, were insufficient to overturn the decision to remove her. The best interests of a child were not a trump card and in any event an immigration judge would conclude that the child’s best interests were served by her returning to China to live with her mother.
