QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| R (on the application of ) TS
|- and -
|THE SECRETARY OF STATE FOR THE HOME DEPARTMENT
NORTHAMPTONSHIRE COUNTY COUNCIL
Mr Tim Eicke (instructed by Treasury Solicitors) for the Defendant
The Interested Party did not appear and was not represented
Hearing dates: 17 September 2010
Crown Copyright ©
Mr Justice Wyn Williams:
The relevant facts
"In order to facilitate the child's smooth transfer of care to Belgium, I would like to offer you the opportunity to meet via a conference call with officials from the UKBA to discuss any concerns, and if it is deemed appropriate to continue with the transfer, to arrange the child's care plan which will be sent on to the receiving country.
Please contact me ASAP to arrange a suitable date and time."
"TS has been living in the UK for over 9 months, in this time he has made exceptional progress in his integration into British society. Since moving to Northampton his spoken English has improved enormously, he did speak some English on arrival and that has been a solid foundation for the progress made. If TS is allowed to stay in the UK it is likely that with his positive attitude to education and his proven ability that he will continue to a wider based curriculum and further education. His spoken English is his key to accessing economically useful education and assisting him to a sustainable lifestyle and making a positive contribution to the UK economy.
For TS to be removed then his access to education will be severely hampered and the likelihood of financial independence also restricted severely.
Were TS to be removed to Belgium in my professional view it would severely affect his likelihood of thriving. It may also be negative psychologically as he is currently still overcoming the trauma of his journey where he was witness 2 violent murders and also suffered beatings to his body and feet on an almost daily basis.
His personal progression towards being a fully integrated member of British society has been exceptional; he has shown an enthusiasm and an ability which is really unusual and a pleasure to witness. I am sure that to remove him from his current place of residence would be against four of the five outcomes of the Government's Every Child Matters Programme to
- be healthy
- enjoy and achieve
- make a positive contribution
- achieve economic well-being.
As such I feel his human rights under the European Convention of the Child would be compromised."
"Please find attached to document from TS's social worker, Paul Pateman, giving us an update on his personal circumstances. I have attached the document for two reasons. Firstly, it is a clear and concise assessment of the subject's circumstances and secondly because I wanted to read for yourselves the stance that his Social Worker has taken on the situation. Subject has at present a firm of solicitors making representations on his behalf.
At the end of the day we consider subject to be a young healthy male with no compassionate circumstances to take into account before removal. He did claim asylum in another EU country before arriving in the UK, and he failed to inform the officer who screened him for his asylum claim that he had spent some time in another country.
We would therefore like to request your agreement to proceed with this third country removal of a young person."
The Claimant's Grounds of Challenge
a) The decision-maker failed to take account of a material consideration and misdirected himself on how a child's welfare should be taken into account. The decision-maker failed to consider whether removal would be in accordance with the best interests of the child (as required pursuant to section 55 of the Borders, Citizenship & Immigration Act 2009.) Instead he asked whether the Claimant's medical condition "was so compelling as to warrant departure from the usual practice of returning third country cases."
b) On the available evidence the decision-maker could not rationally conclude that removal to Belgium would safeguard the Claimant's welfare or be in accordance with his best interests.
c) The decision-maker irrationally rejected the conclusion of the clinical psychologist.
d) The decision-maker failed to ensure that adequate arrangements were actually (rather than theoretically) in place, should the Claimant be removed to Belgium.
I deal with each ground in turn.
"(1) The Secretary of State must make arrangements for ensuring that –
(a). the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b). any services provided by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in subsection (1) are –
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)."
- protecting children from maltreatment;
- preventing impairment of children's health or development (where health means 'physical or mental health' and development means 'physical, intellectual, emotional, social or behavioural development');
- ensuring that children are growing up in circumstances consistent with the provision of safe and effective care; and
- undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully."
"2.6 The UKBA acknowledges the status and importance of the following: the European Convention for the Protection of Human Rights and Fundamental Freedoms, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the EU Reception Conditions Directive, the Council of Europe Convention on Action Against Trafficking in Human Beings, and the UN Convention on the Rights of the Child. The UK Border Agency must fulfil the requirements of these instruments in relation to children whilst exercising its functions as expressed in UK domestic legislation and policies.
2.7 The UK Border Agency must also act according to the following principles;
- Every child matters even if they are someone subject to immigration control.
- In accordance with the UN Convention on Rights of the Child the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children.
- Ethnic identity, language, religion, faith, gender and disability are taken into account when working with a child and their family.
- Children should be consulted and the wishes of children taken into account whenever practical when decisions affecting them are made, even though it will not always be possible to reach decisions with which the child will agree. In instances where parents and carers are present they will have primary responsibility for the children's concerns.
- Children should have their applications dealt with in a timely way and that minimises the uncertainty that they may experience"
"6. This guidance is issued under section 55(3) and section 55(5) which requires any person exercising immigration, asylum, nationality and customs functions to have regard to the guidance given to them for the purpose by the Secretary of State. This means they must take this guidance into account and, if they decide to depart from it, have clear reasons for doing so."
"You have asked that the statutory duty and guidance under section 55 of the Border, Citizenship and Immigration Act 2009 is taken into account when considering removing your client. You have also asserted that UKBA has not carefully planned or liaised with care professionals in the management of your client's expectations. The Secretary of State refutes this totally. He notes that your client has had the proper care and attention afforded to him with regards to this section of the Act throughout the period that his immigration matter has been processed. Your client's needs and welfare have been fully met by both UKBA and the Northamptonshire Social Services. The social services were made aware of every aspect of your client's application and kept informed fully throughout the process. Indeed when your client was due to be removed to Belgium a Care Plan was drawn up to help with his transfer to Belgium. This Care Plan was faxed to the authorities in Belgium in advance to ensure they were aware of all the issues. Taking this into account and that any removal action taken in the future would follow the same care and attention to the welfare of your client, it is considered that your assertion that this was not followed in your client's case is baseless."
This part of the decision letter is a response to the representations which were made by RMJ in the letter of 1 December 2009 referred to in paragraph 19 above. It is worth setting out the material parts of that letter. It reads:-
"Since our letter of 15 September 2009 was written, section 55 of the 2009 Act has been brought into force, thereby placing upon the Secretary of State the statutory duty to safeguard and promote TS's welfare."
The letter then sets out the relevant parts of section 55 and continues
"The Secretary of State has provided the guidance required by subsection 55(3) in "Every Child Matters – Change for Children" published in November 2009……
….the guidance explains that
"Safeguarding and promoting the welfare of children is defined in the guidance to section 11 of the 2004 Act….as:
(inter alia) preventing impairment of children's health or development (where health means "physical or mental health" and development means "physical, emotional or behavioural development)" (and)
"undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully"
In our opinion it is evident from the supporting evidence, that removal to Belgium in the face of recommendations to the contrary from Dr Perrin and Northamptonshire Social Services, could not be said to be safeguarding and promoting TS's welfare. Dr Perrin's evidence is that such removal will impair TS's mental health and his emotional development.
"It is my view that attempts at deportation are likely to cause him to have a relapse of his PTSD (if successfully treated) and a depressive reaction would significantly worsen his prognosis and increase the likelihood of him seriously self-harming".
In his letter to the United Kingdom Border Agency dated 17 September 2009, TS's social worker, Paul Pateman, could hardly have made his opinion any clearer:-
"Were TS to be removed to Belgium in my professional view it would severely affect his likelihood of thriving. It may also be negative psychologically as he is currently still overcoming the trauma of his journey where he was witness [to] 2 violent murders and also suffered beatings to his body and feet on an almost daily basis.
His personal progression towards being a fully integrated member of British society has been exceptional; he has shown an enthusiasm and an ability that is really unusual and a pleasure to witness. I am sure that to remove him from his current place of residence would be against four of the five outcomes of the Government's Every Child Matters Programme to – be healthy - enjoy and achieve - make a positive contribution - and achieve economic well-being."
Any steps that are taken to remove TS would therefore be clearly contrary to the statutory duty to prevent impairment of children's health or development.
The guidance makes specific reference to the problem which we have raised above, that the harm that would be caused to TS's physical and psychological integrity by his removal to Belgium will be compounded by the fact that he has been allowed twelve months in which to establish a private life in this country. At paragraph 2.20, the guidance says
"There should also be recognition that children cannot put on hold their personal development until a potentially lengthy application process is resolved. Every effort must therefore be made to achieve timely decisions for them."
In the following paragraph the guidance requires that
"In co-operating with the bodies qualified to plan for the children's futures, including local authority children's including Local Authority Children's Services, schools, primary and specialist health services, arrangements must be put in place to secure the support needed by the individual child as they mature and develop into adulthood."
The paragraph continues, making specific reference to the planning that needs to be put in place if third country removal is contemplated:-
"Unless it is clear from the outset that the child's future is going to be in the UK, these arrangements will necessarily involve planning for the possibility that children and their families may have to be returned to their countries of origin (or in some cases the EU country in which they first claimed asylum). [Para 2.21]
In our submission the guidance implies that very careful planning, and liaison with care professionals in the management of a child's expectations, are essential pre-conditions to the third country removal. In TS's case this has not occurred. The Secretary of State has sought to remove TS in contradiction of the recommendations of those who have been involved in TS's care. We hope that you will agree that it is now too late for a process envisaged by the guidance to be embarked upon with a view to third country removal."
"5. The UK Border Agency has considered the fact that your client suffers from PTSD and depression in regard to his removal to Belgium. However it is not considered that your client's medical condition is so compelling as to warrant departure from the usual practice of returning third country cases to the relevant Member State responsible for considering their asylum claim under the Dublin Regulation.
6. The United Kingdom Border Agency is aware that Belgium has at least the equivalent health care service to that available in the United Kingdom and your client will be able to access the appropriate treatment and support he requires upon arrival in Belgium. In order to ensure your client's safe transfer to Belgium, the United Kingdom Border Agency will inform the Belgian authorities of your client's medical condition upon arranging his removal. They will also be provided with any medical reports your client has submitted. This will enable the Belgian authorities to arrange the appropriate reception arrangements for your client's arrival. Your client will be accompanied by at least two escorts, one of which will be medically trained, throughout the whole journey to ensure your client's safety and comfort. If required, the escort will also carry with them your client's medication which will be handed to the Belgian authorities on arrival.
7. Belgium is a signatory to Council Directive 2003/9/EC of 27 January 2003 laying down the minimum standards for the reception of asylum seekers (Minimum Standards Directive), which sets out that housing, food, medical care and clothing must be provided to asylum Applicants. The Directive also sets out that Member States shall provide the information on organisations that can provide legal assistance to asylum seekers and also that any information should be passed on to asylum seekers in writing, and as far as possible, in a language that they may reasonably be supposed to understand.
8. In the light of the above, the United Kingdom Border Agency is satisfied that your client will be able to access the appropriate treatment he requires upon return to Belgium."
"A particular difficulty arises in the contention that a report should be seen as corroborating the evidence of an applicant for protection. A doctor does not usually assess the credibility of an applicant; it is not usually appropriate for him to do so in respect of a patient or client. So for very good and understandable reasons the medical report will nearly always accept at face value what the patient or client says about his history.
Where the report is a psychiatric report, often diagnosing PTSD or some form of depression, there are often observations of behaviour at the interview, and a recounting of the answers given to questions about relevant conditions e.g. dreams and sleep patterns. Sometimes these answers are said to be consistent with what has been set out as the relevant history of the applicant. It is more difficult for the psychiatrist to treat what he observes as objectively verified, than it is for the description of physical conditions, because they are the more readily feigned; it is rare for a psychiatrist's report to be able to indicate that any part of the observations were undertaken in a way which makes them more objectively verifiable. It is the more difficult for there to be any verification of conditions which the psychiatrist cannot observe and for which he is wholly dependant on the applicant.
The further major problem with the contention that a psychiatric report can be used to support an applicant's claim to have told the truth about the history is that there are usually other obvious potential causes for the signs of anxiety, stress and depression. These include the fact that the applicant may be facing return to the country which he has left, at some expense to himself and family, and it may well not be a pleasant place to which to return. He may face the loss of friendships and lifestyle which he has enjoyed in the UK. There may be a loss of family contacts and of medical treatment. He may anyway suffer from some depression without having been ill-treated in a way requiring international protection. He may have experienced difficulty other than those which he relies on for his claim. But it is very rare, and it will usually be very difficult, for a psychiatrist to assess such factors without engaging in the process of testing the truth of what the applicant says. This is not his task and if there is a therapeutic side to the interview, it may run counter to those aims as seen properly by the doctor."
The decision letter then continues:-
"10. The determination above shows that a psychiatric report does not necessarily assess the credibility. Your client only raised concerns about his mental state when he was aware that he was going to be removed to Belgium. The claim that he suffers nightmares due to what he witnessed on the journey to the UK is not credible as his symptoms did not exist before his removal direction was set. The social services conducted reviews on your client on 30 December 2008, 2 April 2009 and 18 September 2009. It was only during the last review that your client raised the issue of having nightmares about his Home Office application. This was not mentioned by your client in the previous reviews."
"I turn from the outcome in the present case to some more general observations. There can be no doubt in my mind that the evaluation of best interests is akin to a welfare appraisal. The speeches in Re F (Mental Patient: Sterilisation)  AC 1, sub nom Re F (Sterilisation: Mental Patient)  2 FLR 376 read in their respective context can only bear this interpretation: see particularly the speech of Lord Goff at 77D-G and 440C-F respectively. Subsequently the Law Commission in their 1995 Report on mental incapacity recommended an extensive evaluation of best interests: see para 328. The latest statement of Government policy in Making Decisions shows that the Government currently accepts the Law Commission's recommendation: see para 1.10. Pending the enactment of a check list or other statutory direction it seems to me that the first instance judge with the responsibility to make an evaluation of the best interests of a Claimant lacking capacity should draw up a balance sheet. The first entry should be of any factor or factors of actual benefit…. Then on the other sheet the judge should write any counterbalancing dis-benefits to the applicant….. Then the judge should enter on each sheet the potential gains and losses in each instance making some estimate of the extent of the possibility that the gain or loss might accrue. At the end of the exercise the judge should be better placed to strike a balance between the sum of the certain and possible gains against the sum of the certain and possible losses."
I am not convinced that a decision maker discharging an immigration or asylum function need adopt such a formal approach as was thought appropriate in the context of a decision in which the best interests of the person involved is the determinative issue. I can see no particular advantage in seeking to lay down prescriptive rules as to how a decision maker seeks to determine what are in the best interests of a child in the asylum or immigration context. I have little doubt that in a case where there is a serious debate about what constitutes the best interests of the child there would be considerable practical merit in adopting an approach at least similar to that advocated by Thorpe LJ. I stress, however, there is no legal requirement to do so and in many if not most cases the difficult task for the decision maker will be balancing the best interests of the child in question against other powerful competing interests.
"33 The leading Strasbourg authority in this respect is Uner v The Netherlands  EHHR 873. That concerned a Turkish national whom the Netherlands wished to deport following a conviction for manslaughter for which he was sentenced to 7 years in prison. He had been living in the Netherlands since he was 12 years old, and had a partner and two young children. The European Court of Human Rights, Grand Chamber, referred to the Boultif Criteria, which included reference to "the Applicant's family's situation…..whether there are children of the marriage, and if so, their age" (Boultif v Switzerland, ECHR  – IX) and added:
"58. The court would wish to make explicit two criteria which may already be implicit in those identified in the Boultif judgment:
- the best interests and well-being of the children, in particular the seriousness of the difficulties which any children of the Applicant are likely to encounter in the country to which the Applicant is to be expelled…."
34. In the event, the court rejected the Applicant's claim. It said:
"64. The court concurs with the Chamber in its finding that at the time the exclusion order became final, the Applicant's children were still very young – 6 and 1½ years old respectively – and thus of an adaptable age….given that they have Dutch nationality, they would – if they followed their father to Turkey – be able to return to the Netherlands regularly to visit other family members residing there.
Even though it would not wish to underestimate the practical difficulties entailed for his Dutch partner in following the applicant to Turkey, the court considers that in the particular circumstances of the case, the family's interests were outweighed by other considerations set out above….."
Those considerations were a mixture of the circumstances relating to the members of the family and the seriousness of the Applicant's criminality.
35. In this connection, Mr Vaughan submits that other instruments which he cited speak of the best interests of the child being "a primary consideration". Indeed he went so far as to submit that they amounted to the primary consideration. In my judgment, however, there is no support for that approach in Uner. Of course, in other situations, the welfare of a child might be the paramount concern of a court. In the present situation, however, conflicting public interests have to be balanced. I would view the present case as raising a less pressing case in terms of the single child than in Uner. Moreover, I do not accept the submission that the Tribunal paid other than the closest and most anxious consideration to the best interests of the boy, who's presently about 5½ years old. The Tribunal made express reference to Uner (at para 138), described the consequence of DS's conduct leading to his deportation as causing "enormous stress" to Ms K and the boy, and refers specifically to the loss of the opportunity of a British education and to greatly reduce contact with DS (at paras 139/1400.
36. I cannot find that the Tribunal erred in principle in addressing the presence in the family of the boy."
"……The case proceeded on the basis of a legal concession on behalf of the Respondent that the best interests of the child is a primary consideration which required to be applied in the decision making process by the respondent in this case. In my opinion it is significant that "the principle" does not include the words "the paramount consideration" or "the primary consideration". Both these formulations would give greater importance and affect the application of "the principle" in a way not demanded by "the principle" which is phrased in terms as "a primary consideration". I conclude from the wording that "the principle" carries with it the implication that depending on the facts and circumstances of the particular case, there may be other relevant considerations which may be regarded as primary in importance and which may properly be taken into account. I also consider that when one or more such considerations are taken into account, it follows that in a particular case, one or more of these considerations may outweigh the best interests of the child….. I consider that "the principle" is not determinative and can be outweighed. This flows from the meaning that I attach to "the principle".
 It appears also to be implicit in the submission on behalf of the petitioner that Article 3 of the UN Convention lays down some higher standard protecting the interests of the child so that even a mandatory consideration of the best interests of the child as part of the consideration of Article 8 could not meet that standard and therefore give effect to the principle. I do not accept that. Article 3 of the UN Convention does not elevate the principle to a higher status which would be implied by the words "the paramount consideration" or "the primary consideration". It is also my opinion not intended to be a reference to the best interests of the child in the very general sense which might be appropriate in care proceedings. What is in issue, in the immigration context, is whether or not the decision affects the Article 8 rights of the child. A failure to give consideration to the best interests of the child would not in my opinion satisfy "the principle". The mere fact that a balancing exercise of circumstances and factors is necessarily involved in Article 8 consideration, does not mean that "the principle" is not given effect. In my opinion a recognition of the best interests of the child must be considered in the balancing exercise is sufficient to give effect to the principle that it is a primary consideration. Other factors or circumstances may be omitted or discounted because they have not been given that status. But a failure to address the best interests of the child in a case where the child is involved, and the decision maker is required to consider Article 8 ECHR would in my opinion amount to a failure to give effect to "the principle"."
In the later case of Re HS Judicial Review  Scot CS CSOH 124 Lady Clark delivered a judgment in very similar terms.
"9. Nothing in the careful and detailed judgments of the judge and the Court of Appeal throws doubt on the fundamental principle enunciated by the House in R v Secretary of State for the Home Department ex p Bugdaycare  AC 514, 531:
"The most fundamental of all human rights is the individual's right to life and when an administrative decision under challenge is said to be one which may put the Applicant's life at risk, the basis of the decision must surely call for the most anxious scrutiny."
The same is true of a decision which may expose the Applicant to the risk of torture or serious ill treatment. But the judges in the Court of Appeal were in my opinion right to give weight, consistently with those fundamental principles, to two important considerations. The first is that the Home Secretary and the courts should not readily infer that a friendly sovereign state which is party to the Geneva Convention will not perform the obligations it has solemnly undertaken. This consideration does not absolve the Home Secretary from his duty to inform himself of the facts and monitor the decisions made by a third country in order to satisfy himself that the third country will not send the Applicant to another country otherwise than in accordance with the Convention. Sometimes, as notably as in Ex p Adan  2AC 477, he will be unable properly to satisfy himself. But the humane objective of the Convention is to establish an orderly and internationally agreed régime for handling asylum applications and that objective is liable to be defeated if anything other than significant differences between the law and practice of different countries are allowed to prevent the return of an Applicant to the Member State in which asylum was, or could have been, first claimed….."
"Where a case is referred to an enforcement officer to effect removal:
- Establish with the country to which the child is to be removed that adequate reception arrangements are in place;
- Liaise with the Children's Services and/or nominated guardian's responsibility for care of the child in the UK to ensure the removal is effective in the most sensitive manner possible."
The details said to support a breach of this policy are not important to this case. Mr Eicke derives support, however, from a short passage in the judgment of Cranston J to this effect:-
"42…. In as much as the issue of the application of this policy is concerned, that the Secretary of State must establish with Austria that adequate reception arrangements are in place, I accept Mr Kovats' submission that, given that Austria is a member of the European Union, some reliance may be placed on that fact by the Secretary of State in any consideration by her that her policy has been fulfilled. She was entitled to give weight to that fact and the expectation that Austria would treat the Claimant appropriately."
The Ultimate Question
"3(1).This paragraph applies for the purposes of the determination by any person, tribunal or court whether a person who has made an asylum claim or a human rights claim may be removed –
a) from the United Kingdom, and
b) to a state of which he is not a national or citizen.
(2). A state to which this part applies shall be treated, in so far as relevant to the question mentioned in sub-paragraph (1), as a place –
a) where a person's life and liberty are not threatened by reason of his race, religion, nationality, membership of a particular social group or political opinion,
b) from which a person will not be sent to another state in contravention of his Convention rights and
c) from which a person will not be sent to another state otherwise than in accordance with the Refugee Convention.
"To maintain a secure border, to detect and prevent border tax fraud, smuggling and immigration crime, and to ensure control, fair migration that protects the public and that contributes to economic growth and benefits the country".