COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No: HX/00249/2006]
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE KEENE
LADY JUSTICE SMITH DBE
| CL (VIETNAM)
|- and -
SECRETARY OF STATE FOR THE HOME DEPARTMENT
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Mr J Hyam (instructed by the Treasury Solicitors) appeared on behalf of the Respondent.
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Lord Justice Keene:
"Despite the fact that Applicant is a minor it is considered that he can be returned to Vietnam as it has been established that there are adequate care provisions for children returned to Vietnam. See attached letter from the British Embassy in Hanoi."
"The Law on Care, Protection and Education of Children of Vietnam states that all children, including orphans, shall be given appropriate care and education by the state. All children homes are run by the Ministry of Labour, Invalids and Social Affairs. Some receive additional financial assistance from foreign NGOs.
In principle, childcare ceases at the age of 18 but, in practice, continues until individuals have found a job. Vietnam is a secular society with no restriction on religious practices."
"71. The respondent has, as is accepted, embarked upon the exercise of establishing whether there are sufficient reception facilities for the appellant in Vietnam. I am satisfied that it is not open to the respondent simply to say that no return would be made unless the respondent were satisfied that there would in the future be adequate reception facilities. The facilities which have been ascertained so far must be assessed, and a decision made accordingly.
72. I am not satisfied that the letter from the Vice Consul in Hanoi, dated in 2001, establishes the existence of adequate reception facilities. Indeed, the respondent's skeleton argument goes quite a long way towards conceding as much.
73. In the absence of evidence as to specific arrangements for receiving the appellant, I am not satisfied that such a reception would be adequate. In reaching this conclusion, I have considered the objective evidence, and in particular that contained in the COI report at paragraphs 6.96-6.105. Paragraph 6.104 refers to the existence of over 21,000 street children in the country as at February 2003. These children were vulnerable to abuse and were sometimes abused or harassed by the police. Further particulars as the nature of the plight of these children are given in that paragraph. I note also from paragraph 6.100 that the orphan population of Vietnam, estimated at 124,000 in a report of June 2002, had recourse to only 214 centres, which have to provide shelter additionally to over 182,000 disabled children.
74. In all these circumstances, I am not satisfied that there are adequate reception facilities in Vietnam for the appellant. I am therefore not satisfied that the respondent can demonstrate compliance with its own policy of not returning children in the absence of such facilities. I am therefore not satisfied that the return of the appellant would be lawful.
75. In all these circumstances, I am satisfied that the return of the appellant to Vietnam would be a breach of his rights under Article 8 of the Human Rights Convention, because of its unlawfulness.
76. Additionally, bearing in mind the fact that the appellant is a minor, and taking account of the objective evidence I have referred to above linked with the unlawfulness of return, I am satisfied that the return of the appellant would not be proportionate to the maintenance of effective immigration control. In reaching this conclusion I take account of the fact, as I find, that at the time when the respondent made its decision in 2002, the letter from the Vice Consul of the previous year did not establish the existence of adequate reception faculties. The appellant should therefore have been granted exceptional leave to remain at that time which, as pointed out by his Counsel, would have afforded him the possibility of a further claim to indefinite leave to remain."
"23. Furthermore, by deciding that the claimant's family had abandoned him, the adjudicator was pre-empting the consideration that the Secretary of State was himself intending to give when he came to make his own enquiries in Vietnam. As appears from the Tribunal's decision in N (Vietnam), the Secretary of State will first consider whether there are family members in Vietnam who are likely to assume responsibility for the child. In our judgment, until those enquiries had been concluded, it was not for the adjudicator to decide whether the claimant had been abandoned.
24. The adjudicator then went on to deal with the Article 8 claim. In paragraph 73 of the determination, the adjudicator decided that the Secretary of State had not considered proportionality at all and that it was, therefore, open to him to carry out the balancing exercise himself, albeit paying deference to the Secretary of State's duty to maintain effective immigration control. For the reasons that we have set out above, once the adjudicator had embarked upon a simple comparison of conditions in the United Kingdom and the absence of any information as to conditions in Vietnam, the contest was bound to result in the claim succeeding. For reasons we have given, that is not the correct approach."
"We accept that there is no reason to doubt that the Secretary of State will follow his own detailed published policy in this respect. He clearly cannot be expected to make these inquiries and put in hand such arrangements until the asylum appeal process has been exhausted, partly because this might breach matters of confidentiality which he has undertaken to preserve in dealing with the claimant's application, and partly because it is self-evident that it would not be practicable to make such arrangements until a point in the asylum process had been reached when it was known whether or not the claimant was likely to be returned. That point has only just been reached in the present case with the refusal of leave to appeal other than on Article 8 grounds, and even then the asylum process will not have been exhausted until this determination is formally promulgated. Insofar as Mr Richmond sought to rely on any failure to have made inquiries in advance, we are satisfied that that cannot provide any valid basis for challenging the proportionality of the intended removal under Article 8."
" the rights protected by article 8 can be engaged by the foreseeable consequences for health of removal from the United Kingdom pursuant to an immigration decision, even where such removal does not violate article 3, if the facts relied on by the applicant are sufficiently strong."
Lady Justice Smith:
Lord Justice Sedley:
Order: Appeal allowed