Upper Tribunal rules Home Office’s removal of disputed minor to Germany unlawful and orders his return to UK

Following a hearing that took place on 11 October 2018, Mr Justice William Davis, a High Court Judge sitting in the Upper Tribunal, ruled that the Home Office unlawfully removed ‘QH’, an exceptionally vulnerable young Afghan male, to Germany. As a result, the Court has today ordered the Home Office to take steps to return QH to the UK so that his asylum claim can be decided here.

Unprecedented ruling

This is the first time in the UK that a court has ordered the Home Office to arrange the return of an asylum seeker following a finding that their removal under the Dublin Regulations (‘Dublin III’) was unlawful.

United with his family

The Court accepted that QH, who was granted anonymity by the Court, should not have been removed to Germany, and should be returned to the UK. This means that QH will be reunited with his uncle and his uncle’s family, with whom he was staying prior to removal from the UK. Since his removal from the UK, QH has been living in foster care and shared asylum accommodation in Germany, without any family support.

If the Court had not ruled that he should be returned, he would have been compelled to pursue an asylum claim in Germany, where he lacks any family links. QH was a victim of horrific torture in Afghanistan, and suffers from severe mental health problems as a result. Now that QH is able to return to the UK, he will be able to obtain medical treatment and therapy in a supportive environment, which will aid his recovery.

QH had been removed by the Home Office to Germany in April 2017 because he had been fingerprinted in Germany en route to the UK. Therefore, under Dublin III, the Home Office considered that his asylum claim should be determined in Germany.

Unlawful removal

The removal of QH was found to be unlawful for two main reasons:

1. First, QH had given evidence to the Home Office, including an Afghan identity card (a Tazkira), showing that he was in fact under 18 years old. The Home Office had not considered this evidence before removing him. Additionally, and wholly exceptionally, QH’s uncle who was actually present at his birth, was in the UK and available to give evidence regarding QH’s age. The Home Office did not consider either of these facts but maintained the position that QH was an adult, based on a local authority age assessment which the Upper Tribunal now ruled was itself ‘flawed’.

Under Dublin III, the EU legal framework which governs which Member State should be responsible for considering an asylum claim, minors should not be sent back to Member States where they had previously claimed asylum. Dublin III also stipulates that if a minor has relatives in an EU Member State – as QH does - they should have their asylum claims processed in that state. Importantly, on arrival in Germany, QH was assessed to be under 18 years old.

2. Second, the Home Office did not give QH sufficient warning prior to his removal to Germany. QH met with immigration officers in the early hours of the morning of Sunday 9 April 2017 and was told that he would be removed to Germany. He was then removed to Germany on the morning of Tuesday 11 April 2017. Therefore, he was given only one working day’s notice of his removal from the UK. Under the Home Office’s removals policy, Chapter 60 of the Enforcement Guidance and Instructions, five working days’ notice must be given where an asylum seeker is to be transferred to another Member State under the Dublin III.  His then lawyers were unable to bring a challenge in time.

Challenge by judicial review

QH applied for permission for judicial review on the basis that the Home Office failed to consider relevant information (including QH’s Tazkira and oral evidence from his uncle) regarding his age when deciding to remove him. He argued that if the Home Office had properly considered this information, they would likely have concluded that he was a child and therefore not removed him to Germany. Moreover, had the Home Office given QH sufficient notice of his removal, as per its own policy, QH would have had time to seek legal advice and prevent his removal through judicial review proceedings.

In their acknowledgment of service, following the application for permission to apply for judicial review, the Home Office conceded that they had not followed their own policy on the provision of five working days’ notice, but argued that this breach was ‘immaterial’ as QH would have been removed in any event. The Home Office also argued that, now that he was in Germany, the UK courts did not have jurisdiction over QH and therefore could not order his return.

Judgment

At the full hearing on 11 October 2018, the Upper Tribunal disagreed with the Home Office, finding that if QH had received proper notice, he likely would have had time to secure legal advice and funding to issue a judicial review claim to prevent his removal to Germany, whereupon the Upper Tribunal would likely have held the decision of the Home Office to remove QH to Germany to be unlawful.

In his judgment, Mr Justice William Davis took the view that:

“[T]he main planks of the SSHD’s case in justifying the removal decision in a judicial review of the decision before the Upper Tribunal would not have withstood proper scrutiny. The mere fact that the Applicant by then was within the jurisdiction of Germany would not have tipped the balance. The principle of comity is important. Of greater importance is the need for UK courts and tribunals to uphold the human rights of those within their jurisdiction even if the interference with those human rights has led to the removal of the individual to a third country.”

Hannah Baynes, solicitor for QH said:

“I am delighted that the Court has agreed that the Home Office should take steps to return my client to the UK to live with his uncle, after more than a year living in Germany. Even though the Home Office accepted that my client’s removal breached their own policy, they said that it didn’t make any difference as he would have been removed anyway. The Court disagreed, accepting that my client was unlawfully removed from the UK to Germany as a child.

“This is an important and unprecedented result, and it means that my client will be able to have his asylum claim processed in the UK and to resume his recovery from his past experiences of torture in Afghanistan. The detrimental impact on my client resulting from being wrongfully removed to Germany and separated from his family and support network in the UK has been significant. I hope that the Court’s decision here will make the Home Office wake up to the reality that their administrative errors have serious repercussions, affecting real people, and that proper consideration in the future will mean that other vulnerable children are not wrongfully removed from the UK”.

QH is represented by Hannah Baynes and Helen Baron of the Harrow Public Law Team at Duncan Lewis Solicitors, instructing Sonali Naik QC and Greg Ó Ceallaigh both of the Garden Court Chambers Immigration Team.