Date of hearing: 15 December 2003
Date Determination notified: 16 March 2004
|Secretary of State for the Home Department||RESPONDENT|
(a) we consider the approach to be taken in a human rights appeal where the Secretary of State declines to grant exceptional leave to remain to an unaccompanied minor but undertakes (in accordance with his published policy) not to remove the minor until he has made adequate arrangements for the reception and care of the minor (see paragraphs 18.1 and 18.2 below);
(b) we consider whether the objective evidence relating to the system of care in Romania for minor orphans is such that those of Roma ethnic origin are reasonably likely to face treatment in breach of their Article 3 rights (see paragraphs 28.2 and 28.3 below). We also consider whether the conditions are such that Roma orphans are reasonably likely to be forced to become street children (see paragraphs 29.1 to 29.3 below); and
(c) we consider whether family life has been established in the United Kingdom between the Appellant and his carer (see paragraphs 38 to 46 below).
(a) Whether the Adjudicator's assessment of credibility is safe and whether she had applied the correct standard of proof.
(b) Whether the Appellant's removal to Romania would be in breach of his rights under Article 3 of the ECHR.
Before the Adjudicator, an undertaking was given on the Secretary of State's behalf that the Secretary of State would not return the Appellant unless there were adequate arrangements for the reception of a minor in Romania. Before us, Mr. Sheikh reiterated the undertaking that, if the Appellant is removed whilst still under 18 years of age, the Secretary of State would only remove him if adequate care arrangements are in place. The Appellant asserts that he would not be able to access the system of care in Romania and that, in any event, he would be exposed to treatment amounting to inhuman or degrading treatment or punishment in Romania. Whilst in Romania, the Appellant had lived in orphanages since the age of 3 years. He claims to have been verbally abused, sexually assaulted and beaten by other boys. He is a Roma by ethnic origin. Roma children in care experience ill-treatment.
(c) Whether the Adjudicator's decision on the Article 8 (right to family life) claim is sustainable.
The family life claim is based on the Appellant's relationship with his carer (Mrs. Ene) in the United Kingdom. He had had some contact whilst in Romania with Mrs. Ene. The London Borough of Brent (LBB) have allowed her to care for him, although they have not formally appointed her as a carer. She herself is a Romanian national, of Roma ethnic origin. Her asylum appeal was allowed by an Adjudicator in May 2002. The Secretary of State has not appealed against that determination. Although she has not been formally granted any immigration status, she would not be able to return to Romania. The Appellant's relationship with her is the only "family tie" he has ever known in his life.
(d) Whether the Adjudicator adequately considered (or failed to consider) the Appellant's right to private life.
In all I found that neither Ms. Ene nor the Appellant were being truthful about how the arrangements were made for the Appellant's reception in the United Kingdom. I do not accept that Ms. Ene was unaware that the Appellant was coming when he telephoned her.
56. .. I find Ms. Ene's account of her continuing relationship with the Appellant throughout his minority in Romania to be lacking in credibility, as I am unable to accept that there was any such impediment. I find that neither Ms. Ene nor the Appellant have been truthful about the duration of their relationship, its nature or exactly how his entry to the United Kingdom was secured.
57. In summary, I accept that the Appellant has been looked after in orphanages in Romania. I do not find that he has the relationship with Ms. Ene that both he and she have set out in their respective witness statements. Both the Appellant and this witness have attempted to obscure the truth regarding the arrangements which were made for the Appellant's journey to the United Kingdom.
63. . I have considered the fact that the Appellant has been cared for in the United Kingdom by Ms. Ene and her husband. Ms. Ene stated that they were considering adoption proceedings. On my findings of fact, the Appellant and Ms. Ene have been less than candid about the true nature of their relationship and the involvement of Ms. Ene and/or others in the making of arrangements for the Appellant's entry to the United Kingdom. I have only been satisfied to the requisite standard that the Appellant has been looked after by Ms. Ene since his arrival in the United Kingdom since September 2002. Thus, it is not a relationship of any great length. Since neither the Appellant nor Ms. Ene has told the truth about their relationship, I am unable to make any reliable assessment as to its true nature.
64. However, the fact that the Appellant would be separated from someone who has taken responsibility for his care since September 2002 does amount to an interference with his private and family life. The Appellant is 16 years of age and his claim shows that the authorities in Romania responsible for his care have acted perfectly properly up until prevented, by his departure, from seeking a suitable family or other placement. There is no reason to believe that they would not also undertake these duties properly and sufficiently were he to be returned during his minority. When these factors are weighed with the Respondent's desire to maintain proper immigration controls, I find that the Respondent's decision is proportionate. The Appellant entered the United Kingdom illegally and there were no formal arrangements preliminary to any proposed adoption by Ms. Ene and her husband. Although the London Borough of Brent may be satisfied that he is being cared for appropriately by Ms. Ene and her husband presently, that is far from establishing that it is an appropriate long-term placement or that Ms. Ene and her husband are suitable as adoptive parents.
Oral submissions before the Tribunal:
(a) Ms. Ene should be regarded by the Tribunal as a refugee. Accordingly, it is not reasonable to expect her to return to Romania to enjoy family life with the Appellant.
(b) the Appellant would not be able to obtain entry clearance from Romania in order to visit Ms. Ene. Once he is over 18 years of age, he cannot be adopted. His prospects of securing entry clearance to return to the United Kingdom as a visitor, given that he would be a failed asylum seeker, would be remote.
(c) the Appellant's only family life is in the United Kingdom. If he is returned to Romania, he would be placed into care.
(a) The Article 3 claim.
(b) The Article 8 (right to family life) claim.
(c) The Article 8 (right to private life) claim.
The Article 3 claim:
(i) The Secretary of State's undertaking:
(ii) The system of care to which the Appellant would be returned to in Romania:
(a) pages 20 and 21: This document, issued by ERRC (European Roma Rights Centre) in August 2003, sets out some of the concluding observations of the United Nations' Committee on the Rights of the Child in its review on Romania. The UN Committee refers to the discrimination of children belonging to the Roma community. It states that the principle of non-discrimination is not fully implemented for all children in all parts of the State party and that unequal enjoyment of economic, social, cultural, civil and political rights persists for, inter alia, children between 16 years and 18 years, children belonging to Roma or other minority groups and children living on the streets. Whilst noting the observations of the UN committee, this document does not materially assist us in determining what type of care arrangement the Appellant is reasonably likely to be returned to or whether such would be in breach of his rights under Article 3, beyond making us aware, in general terms, that he would experience discrimination as a Roma child.
(b) pages 22 to 24: This is another document, issued by ERRC dated October 2003, which refers to the shooting of two Romani men by police in civilian clothes who reportedly caught the men in the act of breaking into a car. The ERRC claims to have uncovered a different version of events. We are aware that there have been credible reports of police harassment of Roma people in Romania (paragraph 6.112 of the CIPU Report dated October 2003) and that police officers have reportedly harassed and used excessive force against the Roma (the USSD Report dated 31st March 2003, see the fourth paragraph on page 37 of the Appellant's bundle B). However, it cannot be said that the attitude of the police in Romania generally towards people of Roma ethnic origin is such that they in general terms pursue a campaign of persecution against people of Roma ethnicity or that there is a general denial of sufficiency of protection to people of Roma ethnicity. Such a contention would run counter to the documents referred to in paragraph 21 above.
(c) pages 25 to 35: This is another document issued by the ERRC dated May 2003. It refers to a ten-day field mission to Romania undertaken by the ERRC in October 2002. The report states that, during the course of the ten days, the ERRC did not enter a single Romani community which was not affected by a number or all of the concerns which the report then goes on to describe. The report goes on to mention:
(i) instances of Romani children in state institutions in Romania who were being put up for adoption without the knowledge or consent of their parents or being arbitrarily kept separated from their parents.
We do not see the relevance of this issue in this case, since the Appellant has not seen his mother for many years, and her whereabouts are not known. The issue in the Appellant's case is that he would not be adopted, rather than that he would be adopted without the consent of his mother being properly obtained.
(ii) that there is a disproportionately high number of Romani children in state institutions, compared with the percentage of Romani people.
Again, we do not see the relevance of this issue, since it appears that the reason for the over-representation of Romani children in state institutions is because of the actual or perceived inability of their parents to adequately care for them.
(iii) that the living standards of Romani settlements in Romania is poor. Reference is made to the lack of electricity, heating and water, overcrowding, separate entrances for Romani people and for other Romanians who share the same block and inadequate accommodation provided to those Romani people who are forcibly evicted.
This is supported by paragraphs 6.122 and 6.123 of the CIPU Report dated October 2003.
However, we cannot see the relevance of these issues to this case, since it is not being suggested that the Appellant would be returned to a Romani settlement. The Secretary of State has undertaken that the Appellant would only be removed if adequate care arrangements are in place. The focus of our enquiry should therefore be the child care system in Romania, and not the situation pertaining in Romani settlements.
(iv) that there is discrimination against Romani people in the allocation of social aid.
(v) that, in many communities in Romania, the ERRC found that Romani children were educated in segregated schools within their communities, with substandard facilities and were provided with inferior education.
Whilst we accept that (iv) and (v) are evidence of discrimination against Romani people (and this is also referred to in paragraph 6.112 of the CIPU report dated October 2003), we are not persuaded that any discrimination against the Appellant in terms of (iv) and (v) would be of such severity as to reach the threshold for a breach of Article 3.
"One could say that there is hardly any sincere interest coming from the [Romanian] authorities in order to deal with the problematic situation of the Roma in Romania. The latest attempts may look very convincing on the surface: the National Strategy for the Improvement of the Situation of the Roma (adopted in 2001) was conceived with the help of PHARE funds and foreign know-how. However, as shown below, the Strategy has been already considered (by European and Romanian organisations) as a flawed and largely rhetorical document. The government's attempts to improve the situation of the Roma could therefore be considered as superficial".
Ms. Drace-Francis' opinion that the Romanian government has made no sincere efforts to improve the situation of Roma people in Romania is astonishing, since it is not mirrored in the reports of international bodies who are known to be impartial and objective for example, the last sentence of paragraph 6.112 of the CIPU report states:
.. the European Commission considered that the [Romanian] Government has made steady progress in implementing 2001's National Strategy for Improving the Condition of Roma .."
According to footnote , this is attributed to the European Commission's Accession Report of October 2002.
and, further, paragraph 6.118 of the CIPU report states:
"The World Bank considers that, over the last decade, significant efforts have been made by government, political parties and non-governmental organisations towards improving the condition of Roma in Romania
According to footnote 39, this is attributed to the World Bank's report entitled "Roma in an Expanding Europe 2003".
It is inconceivable that, if the efforts made by the Romanian authorities were only superficial, bodies such as the European Commission would not say so.
paragraph 6.114: One of the key features of the [National] strategy is its decentralised nature. This is an important consideration since most of the public institutions covered by the strategy (e.g. education, police and hospitals) are managed at the local level. In order to implement the strategy local Roma offices, with staff, who are themselves Roma, are being set up in each county. According to footnote 13, this is attributed to the newsletter of the European Union, issued August 2001. Although this is dated August 2001, we quote this in order to show the relevance of the next quote, which is:
paragraph 6.115 Local Roma offices have been set up in every county and nearly 400 Roma experts have been hired to carry out the action plan for 2001-2004. According to footnote 38, this is attributed to Freedom House report, entitled "Nations in Transit 2003".
paragraph 6.116 The European Commission noted, in October 2002, that the structures for the implementation of the Roma Strategy were progressively established. At the country level, the Roma offices provided for in the strategy have become operational. The Roma party has been the main interlocutor when making these appointments. According to footnote , this is attributed to the European Commission's Accession Report of October 2002.
paragraph 6.117 At the national level, 15 commissioners have been established in ministries or national agencies for the implementation of the Roma sector strategies In the field of employment the Ministry of Labour and Social Solidarity has promoted Roma participation in labour market programmes. In additions [sic], courts, for the first time, ruled against employers and newspapers for publishing discriminatory job vacancies. According to footnote , this is attributed to the European Commission's Accession Report of October 2002.
(a) Ms. Drace-Francis' opinion about the transition is that it "can prove difficult and with few chance of immediate success (even when new directors are appointed ...." (page 8 of the Appellant's bundle A, on page 3 of the report itself). Firstly, Ms. Drace-Francis does not indicate what this opinion is based on. We have already given our reasons above for treating Ms. Drace-Francis' unsupported assertions with caution. Secondly, we note that Ms. Drace-Francis does not actually say that the Appellant would not be given a place in one of these smaller foster homes/rehabilitation centres. Neither does she say where he would be sent to, if he is not sent to one of these smaller foster homes or rehabilitation centres. We are left to infer (from (b) below) that, in such event, he would be sent to an orphanage. Thirdly, Ms. Drace-Francis does not explain what she means when she says that the transition "can be difficult with few chances of immediate success" or what effect such difficulties have on the conditions in the smaller foster homes/rehabilitation centres which replace the orphanage which has closed down.
(b) Ms. Drace-Francis also states that: "There are few chances of [the Appellant] being adopted (even by a Roma family) and returning to an orphanage would mean a return to ongoing exposure to racism". The Appellant's evidence was that he was told by the "Centru de Placement" that it would be difficult to find someone to adopt a Roma child. The Adjudicator appears to have accepted his evidence in this respect. Furthermore, the Appellant is now already 17 years old. The fact that he will reach the age of majority in less than one year may well reduce further the chances of finding anyone prepared to adopt him. For these reasons, we are prepared to accept that it is not reasonably likely that the Appellant would be adopted, despite the fact Ms. Drace-Francis does not indicate what this opinion is based on.
(a) placed, on a temporary basis, with a family (as he had been just before his departure from Romania) until a permanent arrangement can be made. However, if he is placed temporarily with such a family, he may well end up spending the remainder of his minority in such temporary placement, given that he will reach the age of majority in less than one year; or
(b) placed in one of the smaller foster homes or rehabilitation centres which are replacing the old orphanages of the Ceausescu era; or
(c) sent to an orphanage, such as the orphanage in Vaslui where he was placed until he reached 15 years.
Large numbers of impoverished and apparently homeless, but not necessarily orphaned, children were seen on the streets of the larger cities. A 1998-1999 study by UNICEF and Save the Children estimated that there were 2,500 children living on the streets of the capital in the summer when the number generally peaks, but the Government did not have statistics defining the scope of the problem nationwide. A significant percentage had left large institutions with no skills and employment and no ability to earn a living or obtain housing. There was no systematic provision of labour market information, skills training, or job placement services for these young persons, and there was a high probability that they would gravitate to the streets, engaging in prostitution or trafficking. Although the Government took some initiatives, including the creation of emergency receiving facilities to address these problems, there has been no systematic effort to prevent new children from joining the street population or to integrate children living on the streets. In November 2001 the Social Assistance Law took effect; it targets more assistance to children in poverty.
The Article 8 claim
(i) The Adjudicator's assessment of credibility:
(i) that Ms. Ene had been inconsistent in her accounts as to when she had sent the Christmas card to the Appellant with her telephone number;
(ii) that the account of Ms. Ene (as well as that of the Appellant) as to how Ms. Ene was able to locate the Appellant on his arrival in the United Kingdom was utterly implausible;
(iii) that the claim of Ms. Ene that she was not allowed to adopt the Appellant in Romania was not credible, because the Appellant's own account of his history undermined her claim that she would not have been considered as a carer by the Romanian authorities on account of her Roma origin and because there was nothing in the objective evidence which indicates that the Romanian authorities differentiate solely on the grounds of race whether one is a suitable carer or not.
Whilst the Adjudicator correctly noted that (i) and (ii) related to the periphery of the Appellant's account, (iii) went towards the strength or nature of the relationship between the Appellant and Ms. Ene prior to his arrival in the United Kingdom, given that Ms. Ene claimed that the reason why she reduced her visits to the Appellant in Romania is because of the attitude of the Romanian authorities towards her. There is no substance in the assertion in paragraphs 6 and 7 of the grounds of application that, in considering this aspect of Ms. Ene's accounts, the Adjudicator had failed to take into account the fact that the CIPU report indicated that, from 2001, there was a substantial change in policy in Romania, with the reduction in numbers of institutions and a parallel increase in the number of professional foster parents and a range of alternative child protection services. The Adjudicator was clearly aware of this she referred to it specifically at paragraph 49. There is no reason to suppose that she did not have it in mind when considering the credibility of Ms. Ene's accounts. As the Adjudicator correctly noted, there is no evidence that the Romanian authorities discriminate in the appointment of professional foster parents on the basis of ethnicity, whether before the change of policy or afterwards.
We are satisfied that the Adjudicator's assessment of the credibility of Ms. Ene is fully sustainable, for the reasons she gave.
(i) Having accepted that the matter of how the Appellant and Ms. Ene met in the United Kingdom was a peripheral matter the Adjudicator failed to give the Appellant the benefit of the doubt in relation to his evidence of how he met up with Ms. Ene (paragraph 8 of the grounds of application).
This assertion is not only illogical, it is based on a misconception of the "benefit of the doubt" principle.
(ii) That the peripheral matter (concerning how the Appellant and Ms. Ene met up in the United Kingdom) has adversely affected the entire outcome of the appeal (paragraph 8 of the grounds of application). We make two points. Firstly, although the Adjudicator stated at paragraph 54 that this issue was at the periphery of the Appellant's account, she then immediately went on to state that it is a matter which may have some significance in relation to the human rights claim since it was intrinsically linked to the Appellant's claim about his only family tie being with Ms. Ene and her husband. We see no error in this approach. It is clear, when the Determination (in particular, paragraph 54) is read as a whole, that, in referring to the "periphery of his account", the Adjudicator meant that this issue was a peripheral matter in relation to that aspect of his claim which is based on his past experiences in care in the orphanage and his fear of returning to the same situation. Secondly, this assertion is based on the assumption that, if the Appellant's accounts of his relationship with Ms. Ene prior to his arrival in the United Kingdom had been accepted, this would have led to the appeal being allowed. We do not find this to be the case, for the reasons we give below.
(iii) That the Adjudicator failed to consider whether the Appellant's evidence as to when the Christmas card was sent should be preferred to Ms. Ene.
This assertion ignores the fact that the evidence of Ms. Ene was offered in order to support the Appellant's claim. This assertion is tantamount to the Appellant saying that, if his supporting witness is found to be lacking in credibility, then his evidence should nevertheless be accepted simply because he is a minor. We have no hesitation in rejecting this assertion. In offering Ms. Ene's evidence in his appeal, the Appellant took the chance that Ms. Ene's evidence may be found lacking in credibility and that this would in turn bring his own evidence into question.
(iv) That the Adjudicator failed to make a finding on the Appellant's "undisputed" evidence that he knew Ms. Ene from a young age in Romania and that she failed to consider whether the Appellant's evidence was sufficient on the low standard to establish that he had known Ms. Ene from a young age in Romania.
However, it is clear, from paragraph 57 of the Determination, that the Adjudicator rejected the accounts of both the Appellant and Ms. Ene as to the relationship they said they had with each other before the Appellant's arrival in the United Kingdom. Since the Adjudicator found the evidence of Ms. Ene about the contact she said she had had with the Appellant lacking in credibility, she was entitled to reject the Appellant's accounts in this respect.
(ii) Whether family life has been established:
(a) that there were no formal arrangements preliminary to any proposed adoption by Ms. Ene and her husband; and,
(b) that she considered that the fact that the London Borough of Brent (LBB) may be satisfied that the Appellant is being cared for appropriately by Ms. Ene and her husband is a matter which is far from establishing that it is an appropriate long-term placement or that Ms. Ene and her husband would be suitable as adoptive parents
but it is clear, from paragraph 64, that she took factors (a) and (b) into account only in deciding proportionality. It seems to us that these factors are also relevant to the question whether family life exists.
This is to confirm that London Borough of Brent looks after [the Appellant]. He is accommodated under section 17 of the Children's Act and is receiving a weekly subsistence of £26.
(iii) If family life exists, whether removal is proportionate:
(a) We agree that we should, for the purposes of this appeal, regard Ms. Ene as a refugee, given that her asylum appeal has been allowed, that the Respondent has not lodged an appeal against that determination and that Mr. Sheikh informed us that it would appear that the delay in granting her refugee status is due to the backlog. Since the adjudicator who heard her appeal allowed the appeal fairly recently in May 2002, we accept that she would not be able to Romania so that the Appellant could enjoy family life with her.
(b) We are prepared to proceed on the footing that, if the Appellant were to make an entry clearance application in Romania in order to re-join Ms. Ene and her husband, such an application is highly unlikely to succeed (not least, because of the difficulty of establishing that the right to family life is engaged on the facts).
(c) We agree that Ms. Ene would not be able to adopt the Appellant in Romania, because Romania still has in place a moratorium on international adoptions (see paragraph 6.89 of the CIPU report). Romania imposed the moratorium until it enacts new legislation which puts the interests of the child first and which is complaint with the Hague Convention on Inter-Country Adoption, the United Nations Convention on the Rights of the Child and the European Convention on Human Rights.
(iv) The private life claim:
Request for recommendation:
The appeal is DISMISSED.
Ms. D. K. GILL
Vice President Date: 11th March 2004