England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		23/04/2009

Mr C M G Ockelton:

1. This is a claim for judicial review of the defendant's decision to have the claimant removed from the United Kingdom in pursuance of a deportation order signed on 8 November 2006, following the claimant's unsuccessful appeal to the Asylum and Immigration Tribunal. Those representing the claimant do not appear to have provided a copy of the decision under challenge and the precise dating of the early transactions between the Secretary of State and those now representing the claimant is not clear to me. What is clear is that the Secretary of State has received a number of further submissions on the claimant's behalf and has, a number of times, confirmed her decision that the claimant should be deported. She has refused to revoke the deportation order against him and has refused to treat the new submissions as a fresh claim carrying a right of appeal to the Tribunal on its refusal. Permission was granted by Dobbs J following a hearing on 22 May 2008. A further decision letter was issued by the defendant on 9 September 2008.
2. There is no doubt about the question before me now. It is whether the new representations, that is to say the representations made on the claimant's behalf since his appeal, taken with all the other material relevant to his case, create such a prospect of success that the Secretary of State was not entitled to take the view that he had no reasonable prospect of success if his claim were to be considered again by the Tribunal with the benefit of that new material. As explained in WM (DRC) v Secretary of State for the Home Department [2006] EWCA Civ 1495, that involves a two stage test for the Secretary of State. She must first decide whether the new material is "significantly different from that already submitted". If it is, she has to consider whether it, taken together with the material previously considered, creates a realistic prospect of success in a further claim. Miss Weston, who appears for the claimant, points out that directions issued by the Secretary of State to her officer indicate that for these purposes "success" should be broadly interpreted so as to include any basis upon which the claimant is allowed to stay in the United Kingdom, and that "important changes of circumstances, such as a revised policy or new country information or new case law, which could result in successful claims from people in the same circumstances" may make material new.
3. The claimant is a Hutu, of Rwandan nationality. He says he was born in 1989. The defendant says he was born in 1986. He arrived in the United Kingdom 14 April 1997 with this mother and his siblings, including a twin brother. The members of the family were granted exceptional leave to remain on 25 April 2001. The claimant has a substantial criminal record, including theft by shoplifting in November 2001 and August 2002, burglary in December 2002, robbery in February 2003 and assault in August 2004. He was convicted in April 2005 of an offence of aggravated burglary. He was made subject to a detention and training order for two years. That is the longest sentence that can be imposed under that regime, which is the usual regime for dealing with an imprisonable offence by a person of 16, the age the claimant was treated by the criminal justice system as being. I pause at this point to emphasise that, because there has been a persistent attempt by the claimant's representatives to minimise the criminality of the claimant's conduct. In the skeleton argument of counsel who appeared before the immigration judge, the claimant's offences were described as not of a very grave or serious nature. Miss Weston's skeleton makes it look as though the claimant had no responsibility for his conduct at all: "C became involved in juvenile crime culminating in an offence of aggravated burglary". What actually happened was that the claimant burgled a flat which was occupied at the time by a fifteen year old girl, at home by herself, whom the claimant confronted at knife point. In the pre-sentence report it is recorded that he accepted that he had the knife with him, and in the witness statement prepared for his immigration appeal, he said that he accepted that he had put other people at significant risk of harm and in fear for their lives. The claimant's offence must be regarded as a serious one. He pleaded guilty, although it is not apparent what effect that can have had on his sentence. His reports during the course of the order are for the most part entirely satisfactory and there is no record of any further offences by him.
4. Following his conviction the Secretary of State took the view that his deportation from the United Kingdom would be conducive to the public good. The decision to make a deportation order was served on him on 5 May 2006. He appealed to the Asylum and Immigration Tribunal on the grounds that the discretion to make such an order should have been exercised differently, and that to carry it out would be a breach of his human rights. The claimant's case before the Tribunal was based largely on an assertion that he was born in 1989, and was therefore the age that the criminal justice system had treated him as being, and that the immigration authorities were wrong to treat him as an adult, born in 1986. As Miss Weston says, the claimant's age is not the primary issue before me today, and it was not the primary issue before the immigration judge. But almost everything depends on it. In the criminal proceedings, and before the Tribunal, the claimant's date of birth was claimed to be 22 March 1989. If that date is right, he was correctly sentenced as a person under eighteen, but he would still have been under eighteen at the date of the decision to make a deportation order, which could in all probability be properly challenged on that basis alone. The defendant's position is that the claimant was born on 22 March 1986. If that is right, he was over eighteen when he was sentenced, and over twenty when the decision to deport him was made. His case against the deportation decision would be weaker, as would any claim based on Article 8.
5. The claimant was represented by counsel and solicitors before the Tribunal, and the immigration judge dealt in detail with the claimant's age. I will set out his findings.

"12. I have looked carefully at the totality of the documentary evidence before me in relation to the appellant's age. I take note of the fact that the appellant has been processed through the criminal courts on the basis that he was a minor. The judge's sentencing remarks at Snaresbrook Crown Court on 11^th April 2005 indicate that the appellant was treated as aged 16, which would reflect his date of birth as being in 1989. However, I have no indication before me as to the basis on which the criminal court adopted the appellant's age as being 16. There is no indication before me that any corroborative documentary evidence of the appellant's age was given to the criminal court. It may be that his age was simply based on the appellant's own indication of his date of birth. Against this, I find that the documentary evidence in support of the appellant having been born on 22^nd March 1986 is overwhelming. I shall now consider that evidence.

13. There is an Immigration Service minute sheet dated 12th June 2006 confirming that the appellant had made a travel document application in which he stated that he was born in 1986. He also informed an Immigration Officer that his brother, Faruk, was of the same age as the appellant, being his twin, but then indicated that Faruk was about 19 in June 2006. It is quite clear from Home Office records that Faruk's date of birth has consistently been stated as being 22^nd March 1986 and that it has been consistently claimed that Faruk is the twin brother of the appellant.

14. In a letter dated 15^th August 2005 from the appellant's mother to the Immigration and Nationality Directorate, she clearly stated the appellant's date of birth to be 22^nd March 1986. Indeed, in that letter she claimed that the appellant had started leading his own life and was no longer dependent on her in May 2004 after turning 18. If the appellant turned 18 in 2004, as claimed by the appellant's mother in that letter, this would indicate that he was born in 1986. I have to bear in mind that this information was provided by the appellant's mother herself in that letter, and I find this to be strong evidence in support of the respondent's contention that the appellant was born on 22^nd March 1986 and is an adult.

15. The appellant's mother sent a further letter to the IND on 6^th June 2006 in which she again stated that the appellant's date of birth was 22^nd March 1986. I have also had regard to the letter from Charles Allotey & Co, Solicitors of 21^st April 2005 sent to the IND with the application for indefinite leave to remain made by the appellant's mother with her six children (including the appellant) included therein as dependants. In that letter, Charles Allotey & Co clearly stated the date of birth of the appellant and his twin brother, Faruk, to be 22^nd March 1986. It would be reasonable to assume they would not have done so without having taken instructions from the appellant's mother. I note that Charles Allotey & Co are representing the appellant in relation to the appeal before me, in which it is now claimed that the appellant was born on 22^nd March 1989. Again, it would be reasonable to assume, therefore, that the instructions given to Charles Allotey & Co regarding the appellant's date of birth have changed between the time that the application for indefinite leave to remain was made on behalf of this family and the date of the hearing before me. Indeed, it is to be noted that in the appellant's notice of appeal relating to the appeal before me, it was again stated that the appellant was born on 22^nd March 1986. Yet a further indication of the appellant's date of birth was given in the application made by this family for indefinite leave to remain in the United Kingdom, in which it was clearly stated that the appellant's date of birth was 22^nd March 1986, being the same date of birth as his twin brother, Faruk.

16. As can be seen, it has been consistently stated to the respondent throughout the appellant's immigration history in the United Kingdom that he was born on 22^nd March 1986. In his witness statement, the appellant now claims that he was born on 22^nd March 1989, but confirms that Faruk is his twin brother. It has been consistently claimed to the Home Office that Faruk was born on 22^nd March 1986, and indeed that was the date of birth on the basis of which he was granted indefinite leave to remain in the United Kingdom as evidence in a letter from the IND to the appellant's mother dated 16^th November 2005.

17. The documentary evidence before me overwhelmingly indicates that the appellant was born on 22^nd March 1986. I note that there is a letter from the Rwandan Embassy in the United Kingdom confirming that the appellant was genuinely issued with a Rwandan passport in Kigali, Rwanda. That letter is dated 9^th August 2004. I have not been provided with a copy of the appellant's passport. It was claimed by the appellant's mother in evidence that she does not know where that passport is. However, I do have a copy of the appellant's mother's passport. It would appear from a similar letter from the Rwandan Embassy in the United Kingdom that the appellant's mother was also issued with her passport in Kigali, Rwanda. Indeed, the passport confirms that this was the case and that the passport was issued to her in May 2004. From this, it would appear that the appellant's passport was also issued to him in May 2004. Whilst the appellant's mother has been able to produce her passport, her evidence is that the appellant's passport has been lost or mislaid and that she does not know where it is. I do not believe that she was being truthful in this respect and I believe that the appellant's passport has not been produced simply because that would not corroborate the appellant being a minor, but would instead corroborate the appellant's consistently claimed date of birth to the Immigration Service as being 22^nd March 1986. It is noted that no passport relating to his twin brother, Faruk, has been produced or indeed any corroborative documentary evidence of his twin brother's date of birth, other than the documentation to which I have already referred which indicates that his twin brother was also born on 22^nd March 1986.

18. I would reiterate that I did not find the appellant or his mother to be credible or reliable witnesses. They were both questioned during the hearing regarding the appellant's date of birth. The appellant was unable to provide any explanation as to why it had been consistently claimed to the IND that he had been born in 1986. He was unable to provide any explanation as to why he told an Immigration Officer in June this year that his twin brother, Faruk, was aged 19, which would be inconsistent with any claim that he and his twin brother are currently minors or that they were born in 1989.

19. In her evidence, the appellant's mother claimed that both the appellant and his twin brother, Faruk, were born on 22^nd March 1989. Yet, she signed an application for indefinite leave to remain last year in which she clearly gave the date of birth for the appellant and his twin brother as 22^nd March 1986. She was asked to explain in evidence-in-chief and in cross-examination her correspondence with the IND in which she has clearly indicated that the appellant was born on 22^nd March 1986. As regards the letter of 15th August 2005, in which she referred to the appellant having become 18 in 2004 as well as stating his date of birth to have been 22^nd March 1986, she claimed that she writes a "9" like a "6". I found her evidence in this respect to be totally fabricated and untrue. Indeed, any such claim would be inconsistent with her having stated in that very letter that the appellant had attained 18 in 2004. When asked to explain why she had repeated that the appellant was born in 1986 in the application made to the respondent for indefinite leave to remain for herself and her family, the only explanation she could provide was that she takes tablets. I found that to be an unsatisfactory explanation. As regards her letter of 6^th June 2006, in which she again stated the appellant's date of birth to be 22^nd March 1986, she again claimed that she writes a "9" like a "6". However, Mr Norton pointed out to her that that particular letter had been typed and not handwritten. She was unable to provide any further explanation.

20. On the totality of the evidence before me, I find that I am satisfied on balance that the appellant is an adult. I find that he was born on 22^nd March 1986 as has been consistently stated to the IND during the course of the appellant's immigration history in the United Kingdom. I believe there has been a false attempt to persuade me that he is a minor. This does no credit to the appellant or his mother and simply reinforces their unreliability as witnesses and their lack of credibility. I am aware that my finding regarding the appellant's age would mean that he has been processed through the criminal courts under the misapprehension that he was a minor, but nonetheless that is my finding. It may well be that if the truth regarding the appellant's age had been known to the criminal courts, the pre-sentence report and the sentencing remarks, as well as the sentence itself, may have been different. It may well be that this is why the appellant preferred to be considered a minor during the course of the criminal proceedings and I believe that the same deception has been attempted in the appeal before me. I reiterate that my finding in this appeal is that the appellant was born on 22^nd March 1986. I am satisfied that he is an adult and that he became an adult on 22^nd March 2004. Therefore, he was an adult at the date of the respondent's decision on 5^th March 2006 and indeed was an adult at the date of the hearing before me. In the light of this finding, I shall now go on to consider the appellant's appeal on immigration and human rights grounds, initially considering his appeal on human rights grounds."

6. The immigration judge's conclusions are expressed, if I may say so, with admirable clarity; and it would be difficult to challenge them on their own terms. The Secretary of State relies on them now. In his submissions, Mr Greatorex analysed the various factors before the immigration judge that led him to the conclusion he reached. There were at least eight separate documentary reasons for finding that the claimant's date of birth was 1986, and no reliable evidence to the contrary. Further, there was reason to suppose that neither the claimant nor his mother were being truthful in the claims they made to him.
7. Part of Miss Weston's case now is that, as she puts in her skeleton argument, "the claimant has sought to evidence WHY it is that his mother's evidence is unreliable". It is true to say that amongst the material now available there is a psychiatric report on the claimant's mother in which there is an assessment of her mental condition, which might be regarded as providing some explanation for the unreliability of her evidence. But in my view that does not advance the case at all, for two reasons. First, as the Secretary of State has observed, the report itself is based on information provided by the claimant's mother. If she is unreliable in her evidence to the Tribunal, there is no particular reason to suppose that she is any more reliable in the material she provided to the psychiatrist. Secondly, even if Miss Weston is right in her claim that an explanation is provided for the unreliability of the mother's evidence, that in itself, is not positive evidence assisting the claimant to prove a date of birth in 1989. The immigration judge did take the claimant's mother's prevarications and unsatisfactory explanations into account in assessing her credibility, but in my judgment it is perfectly clear that he reached his conclusions primarily on the basis of the documentation, and that those conclusions would have been exactly the same if the claimant's mother had not given oral evidence before him.
8. As the Secretary of State points out, the fresh claims procedure is not intended to provide an alternative to an appeal. The points which might be derived from the psychiatrist's report on the claimant's mother are, it seems to me, merely points about the assessment of the evidence that was before the immigration judge and, as they provide no basis for a conclusion that he was born in 1989, they cannot assist him now.
9. The claimant has also produced a new expert opinion on his age. There is no doubt that this assessment, by Dr Michie, is independent of the claimant's mother's evidence. The Secretary of State says that it is no help to the claimant. It follows an interview and an examination on 20 December 2007. On that date, if the claimant was born in 1986, he was twenty-one, whereas if he was born in 1989 he was eighteen. The conclusion of the report is that:-

"In chronological terms, it is more likely than not that the client is twenty years old.

It is possible that the client is either nineteen or twenty-one.

It is highly unlikely that the client is either eighteen or twenty-two."

10. I have to say, with the greatest respect to the author of the report, that if it does not help the claimant, it does not as expressed help me very much either. I take it, from a postage-stamp sized representation of a normal distribution included without further explanation on the last page of the report, that the expression of the report's conclusions owes something to the application of a standard deviation to the age as assessed. But the claimant does not claim to be an exact number of years old on the date of the examination, and it is equally unlikely that the standard deviation applicable to the estimate was an exact number of years. Although it is "possible" that the claimant is twenty-one and "highly unlikely" that he is eighteen, the real question is whether he was in December 2007 twenty-one and nine months old or eighteen years and nine months old. The latter age is nearer to the assessment and nearer to the range of "possible" than the former. If that is right, the report, which on its terms appears to support the Secretary of State's case, in fact, supports the claimant's. But that is on the basis of the assumption I make that an assessment of "twenty years" means what it says; that is to say that the subject is being assessed as around his twentieth birthday. If the assessment is merely that he is between his twentieth birthday and the day before twenty-first, (that is to say, that the peak of the "bell curve" represents an undifferentiated period of 365 days), then the assessment becomes even more difficult to apply, because at the edge of that period an error of only one day would move the probability from "more likely than not" to "possible", and an error of only 366 days (not two years) would move it from "more likely than not" to "highly unlikely".
11. An alternative interpretation, which would avoid the asymmetry and step effect of the description of ages, would be to assume that by specifying an age the author of the report means an age about the middle of the year given that name. The assessment would then be of an age of twenty years and six months, with a similar effect on the other terms of the assessment provided, of course, that they are to be regarded using the same vocabulary. If that is right, the central point of the distribution is twenty years and six months. The boundary of one year each side is from nineteen years and six months to twenty-one years and six months. Both the ages under consideration, that is eighteen years and nine months and twenty-one years and nine months, are outside that range, so they both now fall within "the highly unlikely" assessment although the claimant's claimed age is now further away than the Secretary of State's preferred age for him.
12. I am aware that the author of the report is highly regarded, and I do not mean to criticise his expertise. But in the present case, the terms in which his report is expressed prevent it from adding anything one way or another.
13. There is, however, one point of new evidence which I regard as important, indeed crucial. That is a minute, indeed it appears to be virtually a transcript, of a meeting of a "Child Protection Review Conference" on 21 March 2003 under the auspices of the Director of Social Services for the London Borough of Barking & Dagenham. The needs of all the family were discussed, with particular reference to the children. A dozen people were present, including social workers, a council estates officer, school nurses, a member of the police child protection team, SEN & CP co-ordinators from the children's schools and the claimant's mother with an interpreter. As one might expect, a large number of issues were discussed, including those relating to housing, educational needs (including records of school attendance), and criminal offences particularly by the claimant and his twin. At the beginning of the report the dates of birth of the family are given. The claimant's mother's date of birth is given 21 October 1963 (which is, incidentally, different from that given to the psychiatrist who examined her for the purposes of the report to which I have referred), the dates of birth of the claimant and his twin are given as 2 (not 22) March 1989, and there are two younger children, born in 1990 and 1992. In the course of the discussions, the estates officer comments on the difference between the date of birth specified in the claimant's mother's tenancy agreement and that on a social worker's report, but there is no further elaboration of that problem.
14. There are two reasons why this document is important. The first is its date. It is clear evidence that the family's position that the claimant and his twin brother were born in March 1989 was not, as the immigration judge seems to have thought, a relatively new one. This meeting, in connexion with which the claimant was said to have a date of birth in March 1989, was before his most recent conviction, before the decision was made to deport him, and indeed at a time when the family's immigration status was essentially trouble- free (because they had exceptional leave to remain which was likely to mature into indefinite leave to remain). So the document has importance simply because of its date.
15. But in my judgement it is much more important than that. As it happens, the conference was one day before his birthday as it is now claimed and nineteen days after his birthday as expressed in the report, but nothing turns on that. What is clear is that there is not the slightest suggestion that any of the no doubt highly-trained and experienced professionals taking part in the conference suspected that they were dealing not with a fourteen year old who had to be in school, but with a seventeen year old who did not. The lack of that particular concern appears also from other documents from that period now produced. There is a core assessment of the claimant in December 2003. Again his date of birth is given as 2 March 1989. There is a note that "he could physically pass for a few years older", but there is no suggestion that the social worker dealing with him thought that he was in fact much older than he had said. In the early summer of 2003 he had had his year nine statutory assessment, which would be appropriate for a person born in 1989. And, for what it is worth, documents obtained from the schools he attended (albeit sporadically) show that he was treated throughout his school career as a person born in March 1989.
16. Of course it is true, as the Secretary of State says, that the information about the claimant's date of birth in all these documents must derive originally from his mother. But it seems to me that the way in which he was treated in 2003 and in his school career, to say nothing of the time of his sentence in 2005, provides considerable support for the date of birth now claimed. In my judgement it should have been taken into account in those terms. What also should surely have been taken into account was the indisputable evidence that the claimant was treated as having been born in March 1989, whether that was right or wrong.
17. The Secretary of State, on examining the material now produced, and even accepting entirely the validity of the assessment of the immigration judge made on material before him, would have been bound to conclude that either the claimant really was born in 1989 or that he had been dealt with by the social services, educational and criminal justice authorities in this country throughout as a person three years younger than he really was. It is not for me at this stage to comment on what might be the impact of such treatment on a teenager's development. On the material before the Secretary of State the conclusion that the claimant was treated in that way is inevitable if her case as to the claimant's date of birth is to be preferred. Whilst I do not say that such treatment entitled him to be considered as having been born in 1989, the impact on him would have to be considered in deciding whether he should be removed.
18. It is for that reason that I have come to the conclusion that the Secretary of State's consideration of the material before was not adequate. It was right to concentrate on the evidence going to claimant's date of birth, but it was wrong to fail to take into account the supporting evidence provided by attitudes of professionals, specifically in 2003 and more generally during the claimant's schooling, and it was wrong to fail to take into account the necessary implications if for this long period the child's age had been considerably underestimated. The omission of those considerations from the Secretary of State's consideration of the issues is important, because they are both factors which might weigh with a Tribunal in deciding whether the claimant's deportation was appropriate; and its follows that in my judgment the Secretary of State was not entitled to reach the view that, even taking the fresh material into account, the claimant had no reasonable prospect of success before a tribunal.
19. I should add, for completeness, that in these circumstances I would not regard his right of appeal from abroad as an adequate alternative to these proceedings.
20. For those reasons I shall allow this claim and make the orders sought.