England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		18 February 2010

1. MR JUSTICE COLLINS: These two claims have been considered together because they both raise similar points. In each case an unaccompanied minor has been, in the case of T actually returned, and in the case of M attempted to be returned, to Italy in order that, under the Dublin Regulations, their asylum claims can be considered in Italy. Both are in fact from Eritrea and both arrived, eventually, in this country clandestinely as unaccompanied minors. In the case of T, she is now just 17, that certainly is the age which has been accepted as a result of an age assessment. M is apparently 16.
2. Ms Cronin makes the point that there is no direct evidence, certainly in the case of T, that she ever did claim asylum in Italy. The fact that her fingerprints were on file from Italy does not, of itself, necessarily indicate that an asylum claim was made. However, I think that since the Italians have not positively objected, as they would be entitled to had there not been an application within Italy, it is likely that, on the facts, the court would accept that the Secretary of State was entitled to form the view that there had been claims for asylum in Italy. Nonetheless, if that point is to be pursued, I am not going to prevent it from being raised. It will depend, I think, on evidence, and I am well aware that the defendant has not had the opportunity yet to put in all the material which may be relevant in each case.
3. The worrying aspect of each is the manner in which removal was effected. It was done via the TCU, which is the unit of the Borders Agency responsible for, among other things, removals or returns under the Dublin Regulations. TCU stands for Third Country Unit. Essentially, it means what it says, return to safe countries in circumstances where claims for asylum have been made here. As I say, it is the manner of removal that is exceedingly worrying to say the least in each case. For reasons which seemed good to the TCU, the view was taken, and indeed to an extent it is clearly policy, that minors should not be detained, unless it be only over night, as a general proposition. Accordingly, for that reason, it appears to be policy that when there is a question of returning under the Dublin Regulations, it has to be what is called a same day removal. Frequently the flight is early in the morning, in the case of T I think it was 7.30 in the morning, and in the case of M 9.30am or thereabouts. The result was, in T's case, that she was descended upon by a posse of enforcement officers at 4 o clock in the morning, no doubt aroused from sleep; was bundled out and taken straight to the airport, and was given no opportunity whatever of contacting anyone. It was known, because there had been contact with the person known as the Children's Champion, that there were concerns being raised about her well being. She had asserted that when in Italy (it was accepted that she had been in Italy for some considerable time before coming here when she would have been only 15) she had been forced to earn a living by prostitution and had been raped in Libya and in Italy, and certainly suffered considerable trauma. Although it may well be that she had not told the truth in a number of respects, and some of her evidence was, at the very least, entitled to be viewed with some scepticism, there was evidence that she had suffered and may well have been forced into a sort of life that was hardly consistent with her welfare as a child. Thus, it was clearly of the utmost importance that it was established that she would, when returned to Italy, be treated in an appropriate fashion, and she would have someone there, having regard to the fact that she was a minor, to look after her. There is no evidence before me that steps were taken to ensure that that was the situation. Indeed, whatever the possible dispute about the precise circumstances, she unfortunately told Italian authorities on her arrival that she was over 18, because her previous experiences in Italy suggested that she might get better treatment that way. But it would have been important, as I say, that some arrangements were made and that she had immediate access to the equivalent of a social worker on her arrival.
4. The situation now is that she, fortunately, has managed to contact her solicitors by use of a mobile phone. It appears that she, whilst on the street in Bergamo, met a male stranger with whom she is now living. Apparently she has not suggested that he has molested her in any way as yet, but I am told that the communications with her by the solicitors indicate that she is clearly in some distress.
5. I have no doubt whatever that the manner of removal, done as it was on the same day without any opportunity for the minor to contact any lawyer or indeed any social worker or anyone else who may be able to assist, was unlawful. Indeed, it seems to me at the moment that the contrary is simply not capable of any sensible argument. The sooner the same day removal is reconsidered and hopefully abolished, the better. Apart from anything else, it goes totally against the Home Office arrangement with this court and agreement that no one will be removed unless 3 days opportunity is given for advice to be sought and contact to be made with a lawyer. Detention may not generally be desirable, and clearly is not. Howeevr, there may be circumstances where there is a real and appropriate fear that if warned that removal is going to take place within 3 days the individual will abscond. If there is such a concern then, as it seems to me, the interests of the child in being able to contact advisers must prevail over the question of detention, which after all need not be in a severe unit, if I may put it that way. There are surely arrangements that can be made that any such detention is, for example in a Local Authority secure accommodation, or some secure accommodation which the Home Office could arrange. I can see no conceivable justification for same day removals in the sort of the circumstances that we have seen in these two cases.
6. So far as M is concerned, fortunately she managed to prevent her removal taking place, albeit in the course of trying to remove her she was handcuffed and suffered some physical injury. That is to be thoroughly deprecated. It is quite appalling to think that a child is dealt with in that sort of harsh manner. The guidelines issued by the Secretary of State very properly make the point, and it is now contained in section 55 of the 2009 Act, that the welfare of a child is an important consideration and must be taken into account. How it could conceivably be suggested that it was in the interests and welfare of a child to act in the way that was done in this case is entirely beyond me.
7. For that reason, if for no other, it would be necessary to grant permission, and indeed if this stood on its own, mandatory immediate orders would certainly be considered.
8. However, there are further matters that need to be considered in relation to the Dublin Regulations, because there is some question mark as to the proper construction of Article 6. It is suggested, and appears to have been accepted by Blake J in an earlier order he made in T, that removals of children are not permitted under the Dublin Regulations. That is derived, as I say, from a reading of Article 6, and essentially the omission of the word "first", because what Article 6 provides, so far as material is:

"In the case of an unaccompanied minor, the member state responsible for examining the application is to be that where the minor has lodged his or her application for asylum".

9. In Article 5, which is the general approach, the provision is that:

"The member state responsible shall be determined on the basis of the situation obtaining when the asylum seeker first lodged his application with a member state".

It is argued that the distinction there means that there cannot be removal of minors.

10. I am bound to record that it seems to me that the language of 5(2) is not sufficiently clear to show that the "first" must mean the first member state. However, the matter is clearly arguable and it is a point that ought to be decided, because, of course, if the claimant's argument is correct then there can be no removals of unaccompanied minors, absent of course family presence in another member state, to another member state, and so the Dublin Regulations do not apply effectively to unaccompanied minors. That, for obvious reasons, is a most important point which needs to be decided.
11. The other point, of course, is the lawfulness -- I have already dwelt on this -- of same day removals. As I say, I am satisfied that, not only is it arguable, but if it was left to me I would find it difficult to think that there is any argument that could support the same day removal process that is at present applied by the TCU. Even if same day removals be considered appropriate, there should be some means of ensuring that advance `notice is given to either a lawyer who is known to be representing, or a social worker where it is apparent that the social worker has been involved, or the Children's Champion in a case involving them, or perhaps a lawyer who has not hitherto been instructed but would be able to give advice if necessary. That is for consideration on the full hearing.
12. Accordingly, I give leave on all points that the claimants in each case wish to argue.
13. T, as I have said, has already been removed. In my view, as I have indicated, and this is why I had to deal with it in the way that I have, there can be no justification for the manner in which she was removed. Accordingly, I am entirely satisfied that her removal was unlawful. In those circumstances, and particularly as she is living in conditions which are far from satisfactory, she must be returned to this country as soon as possible. I have discussed with counsel the appropriate order and it will be as indicated. I do not need to spell it out in the course of this judgment because counsel will draft and put before the court the necessary order to reflect what I have already indicated. Essentially, what it will require is that best endeavours be made to return her as soon as possible, and in any event within 14 days.
14. Is there anything else?
15. MS CRONIN: My Lord, as you have given us leave on all the matters we wish to argue, perhaps I should just make clear that in both cases it is being claimed by these claimants that their removal would breach Article 3, on the basis of being reduced to destitution.
16. MR JUSTICE COLLINS: Well, that depends upon the circumstances in Italy.
17. MS CRONIN: My Lord, yes and --
18. MR JUSTICE COLLINS: Now, the difficulty with that Ms Cronin is that that may well require much more time to deal with what the situation is in Italy.
19. MS CRONIN: Well, my Lord --
20. MR JUSTICE COLLINS: Because I suspect there will be a need -- I thought Hickinbottom J had dealt with this?
21. MS CRONIN: He was dealing with a case of adults, and of course healthy male adults.
22. MR JUSTICE COLLINS: That is true.
23. MS CRONIN: I accept that that is now a resolved matter. But, my Lord, there is a report by the European Commissioner, Mr Hamabo(?), and that points out the particular problem of what he sees as profound deficits, I think is the phrase that he uses, in Italy's treatment of unaccompanied asylum seeker children. So he makes the point that many of them are reduced to begging and sex work to survive. My Lord, so you have some European case work. We have also put in some modest --
24. MR JUSTICE COLLINS: I think there is enough to give rise to concern. The only thing, as I say, that worries me slightly is that if we need, and there is obviously a need for urgency, Mr Kovats may well say with force that he needs some time to gather together evidence to deal with that particular issue.
25. MS CRONIN: Well, my Lord, it may well be that the parties can negotiation as to ways in which this matter could be brought before the court. But can I say that these Article 3 points, if one is looking at a queue of cases in these courts, the queue is coming on those Article 3 points as well as the same day removal points. So, in a sense, it is an issue that is going to have to be resolved at some stage.
26. MR JUSTICE COLLINS: I accept that.
27. MS CRONIN: I think my friend has the same problem. Once you get, as your Lordship is well aware, once you get a certain queue in these courts, in a sense it does put a block on removals. But the issues that --
28. MR JUSTICE COLLINS: Well we have got that at the moment.
29. MS CRONIN: The issues are there for the arguing in any event, so I am not sure that speed ought to --
30. MR JUSTICE COLLINS: Yes. Well, the sensible thing is to try to set out some sort of a timetable if we can, because it is desirable, for obvious reasons, apart from everything else the Home Office wants to know whether they can return unaccompanied minors at all under the Dublin Regulations.
31. MS CRONIN: My Lord, it may be possible to deal with the discreet issues.
32. MR JUSTICE COLLINS: There is another problem that is, I think I am right in saying, that unless the court makes an order in an individual case to prevent return, the time limit under Dublin continues to run, and can only be lifted if there is a specific court order in individual cases. I think I am right in that. The reason I raise it is because I had it in another case and I am pretty sure that is the position. So that is a further problem if I am going to put a blanket ban without reference to orders in individual cases.
33. MS CRONIN: My Lord, it may well be, depending of course on the view that the Secretary of State takes --
34. MR KOVATS: Yes, it arose in the age assessment cases.
35. MS CRONIN: But, my Lord, there are certain discreet issues that could certainly be dealt with separately, so that if there is to be a contest over same day removals, that could be something that was dealt with rather quickly, and it, certainly so far as the Secretary of State is concerned --
36. MR JUSTICE COLLINS: That does not need much evidence does it?
37. MS CRONIN: My Lord, no.
38. MR JUSTICE COLLINS: But equally the construction of Article 6 is not a matter, again, which requires evidence. Also the construction of 21(d) on the consultation point.
39. MS CRONIN: My Lord, yes. On both consultation and the --
40. MR JUSTICE COLLINS: The other point.
41. MS CRONIN: Yes. So, some of these issues effect, I mean there are obviously child removals to countries other than Italy, the central issue that only effects Italy is the country conditions in Italy for those particular claimants. So I think it may well be that the parties can speak about this and perhaps make joint representations to the court. I do not want to put my friend in a difficulty, but it may be that that is a way forward.
42. MR JUSTICE COLLINS: Yes. Mr Kovats, do you have any observations on this? I mean, I think it is clearly desirable, is it not, that all the general issues which do not only effect Italy and also the Italian specific issues, that is to say the argument that Italy is not safe for unaccompanied minors anyway, ought, if possible, to be dealt with, because each of them obviously has a knock on effect on a number of other cases.
43. MR KOVATS: My Lord, I entirely agree that each of them does have a knock on effect for a number of other cases, but --
44. MR JUSTICE COLLINS: The unsafe nature of Italy generally is something, I imagine, upon which you would want to produce evidence.
45. MR KOVATS: Yes. And there are a number of other points. Italy has very recently been looked at in great detail in the case of EW. I appreciate that is an adults case, but there is actually nothing to suggest that somehow children are in a radically different position, so the court has looked at this. Secondly, other things being equal, that is the sort of thing that should be considered by what would now be the first tier IAT, because as your Lordship will appreciate --
46. MR JUSTICE COLLINS: You mean the question of fact. I take that point. The difficulty is that there is no way -- I mean we have got this problem actually, what I regard as a problem, with the decision of the House of Lords in A about precedent fact on age assessment.
47. MR KOVATS: The Croydon case, yes.
48. MR JUSTICE COLLINS: Because, frankly, this court is not the right forum to decide on that, and ideally it ought to be, as you indicate, a Lower Tier Tribunal which can bring in lay members or independent, for example doctors and so on, because they deal with age problems in other contexts, but we can not do it. If you can think of some way in which we can send a judicial review point or a factual issue from this court to some Tribunal, I would welcome it, because we are trying to think of some way. The difficulty is that once you are in this court and it is a question of judicial review, I do not think there is any power to send the issue to what I entirely agree with you would be the most obviously appropriate Tribunal.
49. MR KOVATS: Yes, my Lord. The further factor is this, at first blush, if they make a human rights complaint they are going to have a breach of their convention rights in Italy, they have got an appeal to the Tribunal, but, in these cases, the Secretary of State certified the claim as clearly unfounded which is why there is a judicial review claim. But events have now moved on, the claimant is relying on material that is constantly coming in, and it is somewhat unreal to try and wind the clock back.
50. MR JUSTICE COLLINS: I agree.
51. MR KOVATS: Really that, in itself, means the whole thing does have a rather separate existence from the general points about the construction of the Dublin --
52. MR JUSTICE COLLINS: Well, that is what was occurring to me. I was wondering whether we could approach this on the basis that it would be possible, not suggesting necessarily desirable, but possible, if it turned out that it would take too long to put together the necessary material to deal with the situation in Italy, to hive that off and to deal with it. The other way that, of course, one could get what might be regarded as the right body, is for you to withdraw in a particular case the certification and allow an appeal to the Tribunal.
53. MR KOVATS: That is what I had in mind. In other words, if the claimant puts in up-to-date evidence as whatever it is, the Secretary of State will take a look at it. If the Secretary of State effectively says well this adds nothing to what Hickinbottom J dealt with then he will continue to certify the claims, if the Secretary of State accepts that it is in fact different to what Hickinbottom J was dealing with, then the chances are certificates would be withdrawn.
54. MR JUSTICE COLLINS: There is sufficient, at least on the face of it, it looks as if there is sufficient to raise some concerns about unaccompanied minors. You see what is going to happen is, if you continue to certify, they will say you are wrong to say it does not go beyond Hickinbottom J's case and we will be back to having it decided in this court.
55. MR KOVATS: My Lord, precisely. My concern is that process is liable to be somewhat lengthy, which is another reason for separating it out from the Dublin point.
56. MR JUSTICE COLLINS: Yes. I can see that that might be desirable. I am not going to do it immediately because it will depend upon the decision as to how long it is likely to take and so on, but, as I say, to an extent you have the possibility of hiving it off yourself by removing certification in a case, it does not terribly matter, I suspect, which case, because it will be general. But clearly judicial review will still be needed to deal with the general issues.
57. MR KOVATS: Yes.
58. MR JUSTICE COLLINS: I mean, I suppose there is one theory that they could be dealt with by the Tribunal as well, but I think it is probably desirable that, as soon as possible, the general issues are dealt with here. It may be the way around that one is a very simple one, that you indicate you are going to withdraw certification but do not do so until this court has decided those issues. That keeps the jurisdiction problem -- no one yet really has worked out the extent to which the Tribunal is opposed to this court.
59. MR KOVATS: Well we have got interesting times, as your Lordship knows there is provisions in the Tribunals Act that the Upper Tier Tribunal effectively has a judicial review jurisdiction.
60. MR JUSTICE COLLINS: Not in immigration cases, as a result of an amendment in the law, that goes beyond fresh claims.
61. MR KOVATS: Right.
62. MR JUSTICE COLLINS: It was an amendment that I think Lord Kingsley said, and got it got put through, but unfortunately before steps could be taken to suggest that perhaps it was not a good idea, Lord Kingsley died.
63. MR KOVATS: Well, I will not blame him, but perhaps somebody might want to --
64. MR JUSTICE COLLINS: Frankly, I think that limitation is, for want of a better word, surprising. It does create its difficulties, but at the moment, in immigration cases, I do not think that there is power in the Tribunal to deal with judicial review. You are quite right, there is, otherwise, a general power to deal with judicial review, but not, unfortunately, in immigration cases generally. I suppose there would be an argument that the true construction of Dublin is not itself an immigration case, but I think that is a difficult argument.
65. MR KOVATS: Yes. I will not say anything about that now.
66. MR JUSTICE COLLINS: Right. Well, Mr Kovats, obviously it is desirable, although in a sense it is down to them to decide how soon they want the point, because the likelihood is, so long as it is there, there is a possibility it will be difficult to justify removal to Italy.
67. MS CRONIN: My Lord, yes. Can I say that the Article 3 point I think has some bearing even on the general question, because these cases do raise the distinctions that one builds around the Naseri(?) case, because if you have a --
68. MR JUSTICE COLLINS: It goes to the welfare point.
69. MS CRONIN: It does, absolutely. So one cannot exclude it entirely, even from this court's consideration.
70. MR JUSTICE COLLINS: Well the evidence about it is clearly material.
71. MS CRONIN: My Lord, yes. All I would say --
72. MR JUSTICE COLLINS: The court may not have to determine it, it may simply be able to say, look there are these worries, and that is another matter that has not been properly taken into account.
73. MS CRONIN: My Lord, yes. And in fact it may be best to deal with it as a certifiable issue, because then it is a matter that is explicitly left to the Tribunal to determine, and in the fullness of time one will --
74. MR JUSTICE COLLINS: There is something to be said for the suggestion that the factual issues would be better dealt with by the Tribunal, go up through the Upper Tier, rather than this court dealing with the factual issues. I am not saying we cannot, but, as you know, we do not like doing it, partly because of the work load on this court and it all takes time.
75. MS CRONIN: I think, so far as the question of the circumstances of children in Italy is concerned, what distinguishes it from the EW case is that there are quite a number of reports from very credible --
76. MR JUSTICE COLLINS: You have the point that, in the light of those reports, it is incumbent upon the Secretary of State, at the very least to take account of that, so that they make sure that the arrangements for a particular child's reception are satisfactory, because of the concerns, and unless they get assurances, you can argue, it would be inappropriate to remove. That I can see is one aspect which may not need a final determination as to whether actually the concerns are justified.
77. MS CRONIN: My Lord, it may require only for this court to make the very clear observation that there is enough there to limit the capacity to certify in these cases, and then one has it --
78. MR JUSTICE COLLINS: Should we perhaps leave it this way, it will depend upon, to some extent, the defendant. You have put in the material upon which you rely.
79. MS CRONIN: We have put in some of the material.
80. MR JUSTICE COLLINS: Well, you had better put in all material upon which he rely. How long do you need to do that?
81. MS CRONIN: My Lord, one of the difficulties with the Italian material is that it is in Italian, so some of it will need to be translated and so forth.
82. MR JUSTICE COLLINS: There are plenty of Italian speakers, that should not take too long.
83. MS CRONIN: It will not take too long, but it will --
84. MR JUSTICE COLLINS: How long do you want?
85. MS CRONIN: My Lord, not less than 3 to 4 weeks.
86. MR JUSTICE COLLINS: As long as that?
87. MS CRONIN: Just to get this country material together. My Lord, I say that only because, you will see, we have a circular put out by Save the Children, and they refer in it to a variety of reports on the subject.
88. MR JUSTICE COLLINS: Have you not got those?
89. MS CRONIN: We have not got those reports as yet, no.
90. MR JUSTICE COLLINS: There is no difficulty I take it in getting them?
91. MS CRONIN: There will be no difficulty in getting them.
92. MR JUSTICE COLLINS: What you need is someone to sit down and translate them into English. Are they lengthy?
93. MS CRONIN: I cannot say at this stage. Your Lordship will appreciate that legal funding is such that generally what would be sought is somebody to read and then to translate --
94. MR JUSTICE COLLINS: Well, look, Mr Kovats, if they produce all their material and some of it is in Italian, rather than a battle with the Legal Services Commission who are desperately mean about providing for interpreters, can you not, because it is in your interests to get it as quickly as possible, can you not do the translation?
95. MR KOVATS: I have no reason to doubt that we would be able to do it, but I do not have formal instructions saying that we can. I do not want to be difficult but --
96. MR JUSTICE COLLINS: No, I have been in your position. I know well, I would not expect you to be able to. What I suggest is that between you, again there has got to be a sensible liaison here, between you you see if you can come up with some way of ensuring that translations are obtained as quickly as possible. Which means that the raw material -- why should you need more than 7 days to get the raw material together?
97. MS CRONIN: Well, my Lord, I am just going on the past history with just getting contact with the --
98. MR JUSTICE COLLINS: All right, 14 days to the get the raw material. Of course the earlier the better. Serve all of it, if necessary as it comes in rather than waiting until you have got everything, on the Home Office. I am sure you can find some Italian speaker who will at least tell you what it says.
99. MS CRONIN: My Lord, yes.
100. MR JUSTICE COLLINS: Or rather the gist of what it says, if necessary. Serve it as you get it. It needs someone actually be the liaison officer who deals with this case, because it is rather important this is dealt with as soon as possible. See how we go.
101. If it is possible for the matter to be dealt with within a reasonable time, on all issues, fine. If it turns out that the state of Italy point is likely to mean that the case cannot come on for rather longer than is desirable, then that can be hived off, subject of course to you being able to take the point that you have material which the Home Office ought to have, and has not in these cases, taken properly into account in deciding, and of course a general approach as to what is desirable or necessary in unaccompanied minor cases for the TCU to have regard to, because that is a general point. But, as I say, the existence of the material, whether or not there has been any final decision upon whether Italy is safe, is and will be material for the general approach, but the actual decision whether Italy is or is not safe on the material may be desirable, if necessary, to hive off and perhaps to be dealt with by a Tribunal, but that will depend upon the Secretary of State taking the view that he can un-certify it, if that is the right word. But, clearly, if possible, it would be desirable for the whole thing to be heard together. Otherwise, we need expedition.
102. Will it be sensible for me to leave it to you between you to suggest a timetable and so on?
103. MR KOVATS: Yes.
104. MR JUSTICE COLLINS: And put it in, and if, but only if, you find you cannot agree about something I will give a decision.
105. MS CRONIN: My Lord, I am sure we can work something out.
106. MR JUSTICE COLLINS: I warn you that I am not here next week. I will not be in this jurisdiction the first and second weeks in March, but I can be contacted if necessary, of course, and deal with any problem. I will not be available to deal with anything next week, but I do not think that is disastrous. Obviously this case, what I am looking to ideally is that this case should be heard in April or May. I do not think we can get it in before that. Mr Kovats, I very much doubt whether it is feasible in terms of this term.
107. MR KOVATS: Yes. I agree.
108. MR JUSTICE COLLINS: But as early as possible next term.
109. MR KOVATS: Yes.
110. MR JUSTICE COLLINS: Anything else?
111. MS CRONIN: No, my Lord.
112. MR JUSTICE COLLINS: Do you want a transcript of the judgment I have given?
113. MS CRONIN: My Lord, I would appreciate that enormously.
114. MR JUSTICE COLLINS: Certainly you can have that, for what it is worth it can be relied on, ie I open up the usual embargo.
115. The claimants should be referred to throughout by initials.
116. MS CRONIN: My Lord, the only other matter I need is in respect of my legal funding.
117. MR JUSTICE COLLINS: Do you need an order now?
118. MS CRONIN: My Lord, I am not sure if I do need an order now, and I do not know whether your Lordship wants to make any consideration as to costs at this level?
119. MR JUSTICE COLLINS: I see no reason to do other than the usual order. Do you have to get a renewal for legal aid once permission is given?
120. MS CRONIN: My Lord, we do have to get a renewal.
121. MR JUSTICE COLLINS: Well, you can tell them that, if you want to, that in my view it would be entirely perverse not to extend legal aid and that legal aid must include the possibility of interpreting the Italian documents.
122. MS CRONIN: My Lord, that is enormously helpful, because, as you know, doors are otherwise closed.
123. MR JUSTICE COLLINS: The trouble is that legal aid and the Court Service come under the same boat, so sometimes there are conflicting concerns.
124. All right. Thank you both.