H-DML-V1
[2003] UKIAT 00059 N (Vietnam)

IMMIGRATION APPEAL TRIBUNAL

Heard at : Field House
Written Determination Promulgated
on :  1 April 2003

Determination given orally in Court
...................03/09/03......................

Before:

Mr J Barnes – Chairman 
Mr C A N Edinboro

between

Appellant

and

The Secretary of State for the Home Department

Respondent

DETERMINATION AND REASONS

1. 	The appellant was represented before us today by Mr P Richmond of Counsel instructed by Ormerods Solicitors.  The Secretary of State was represented by Mr J McGirr, Home Office Presenting Officer.  We are indebted to both of them for their able submissions before us. 

2.	The appellant is a citizen of Vietnam who was born on 15 April 1987 and so will be 16 years of age in a few weeks.  He claims to have left Vietnam on 15 April 2002 and to have arrived in the United Kingdom on 10 May 2002 illegally.  He subsequently claimed asylum on 28 May 2002 and his asylum application was refused by the Secretary of State for the reasons set out in a letter dated 2 July 2002.  The Secretary of State issued directions for his removal to Vietnam as an illegal entrant on 5 July 2002 and he appealed against that decision on both asylum and human rights grounds.  His appeal was heard on 7 November 2002 by Ms A Dhanji, an Adjudicator, who dismissed his appeal.  He now appeals to us with limited leave against the decision of the Adjudicator.  In granting leave the Acting Vice President said this:-

 “I am unimpressed with the grounds of appeal. In particular, I see nothing to support the assertions made in paragraphs 3 and 5 of the grounds nor is there any reason to disturb the Adjudicator’s findings in relation to credibility or the Refugee Convention.  It is, however, possibly arguable that, in the particular circumstances of this case, further consideration should be given to the human rights appeal.  Leave to appeal is granted pursuant to Rule 18(7)(b) of the Immigration and Asylum Appeals (Procedure) Rules 2000, limited to the human rights appeal”.  

3.	Mr Richmond correctly understood this to be a grant limited to issues with might arise under Article 8 of the European Convention and the question of proportionality of removal, which is a matter with which the Tribunal has rightly to be concerned in cases where an unaccompanied minor is concerned.  The Adjudicator had found that the claimed reasons for the appellant’s departure from his own country were not credible and there is no appeal before us in that respect.  The position from which we approach this appeal is therefore that the appellant has no current well-founded fear of persecution or of treatment in breach of his Article 3 rights if now returned.  For the Secretary of State Mr McGirr accepted that the appellant had, as a minor, formed some family life in this country since his arrival.  He is currently with foster carers under the care of Social Services in the London Borough of Croydon.  The Adjudicator dealt with the Article 8 appeal at paragraphs 6.5 and 6.6 of her determination.  In paragraph 6.5 she dealt with the evidence before her, which is similar to that before us, in the following terms:

		“… I have taken into account the letter from his GP indicating that after his asylum application was rejected the appellant has, inter alia, been feeling low and has experienced a loss of appetite.  I have also considered the report prepared by the South London and Maudsley NHS Trust which expresses the opinion that these symptoms of depression displayed by the appellant are likely to have been triggered by the refusal of his asylum application.  It also says that there is no evidence that the appellant is suffering from any Post Traumatic Stress Disorder.  The appellant is a minor who has been separated from his family and, given his pending asylum appeal, he does not know what his future holds.  I accept that the experience has been difficult for the appellant and this is reflected in the medical evidence before me.  However, the evidence before me does not indicate that his psychological condition is of the minimum level of severity that would breach Article 3 if the appellant is returned.  The medical evidence also does not support a finding that his return would be disproportionate under Article 8”.  

4.	Having dealt with the medical evidence, she then proceeded to deal in more detail with Article 8 at paragraph 6.6 as follows:-

“I note that the appellant is staying with a foster family and that he is attending a language course at Croydon College.  No doubt, his relationship with his foster family and other relationships he may have formed here, as well as his course of studies, will be disrupted if the appellant is returned.  However, in the circumstances of this case I am unable to find that that makes his return disproportionate to the objectives of immigration control legitimately exercised by the UK.  I also note that at the very least his grandmother remains in Vietnam. The appellant lived with his grandmother for a number of years after his mother passed away, and by his own evidence, she has been willing to care and accommodate him after his father was detained, and I find it likely that she would be willing to do so again.  For the foregoing reasons I am unable to find that returning the appellant to Vietnam would give rise to a real risk of Article 8 being breached”.

5.	It is appropriate for us to comment that the Adjudicator had not accepted the claim that the appellant’s father had been detained but for the purposes of Article 8 she appears to have been prepared to proceed on that assumption having regard to the other evidence as to his past care in Vietnam.  

6.	Mr Richmond in his able submissions to us sought to contrast the appellant’s present life in this country with what awaits him on his return, and also to raise the question of whether the Secretary of State has shown sufficient interest in the inappropriateness of removal, given his policy which relates to unaccompanied minors.  

7.	It is perhaps appropriate that we deal first with the question of that policy.  It is, in essence, that no unaccompanied child will be removed from the United Kingdom unless the Secretary of State is satisfied that adequate reception and care arrangements are in place in the country to which he or she is to be removed.  Enquiries will be made by the Secretary of State in the country of intended return to establish this before removal for the purposes of identifying a potential carer, and checking that there is a realistic prospect of setting up suitable arrangements for the child’s return.  Those enquiries will initially be with family members, although alternatively the Social Services or equivalent in the child’s home country may be able to provide for the child but this will depend very much on the quality of care provision available.  If, following all those enquiries, the Secretary of State is not satisfied that such adequate reception and care arrangements will be in place on the return of the unaccompanied minor then the general presumption is that he should be granted exceptional leave to enter or remain until he attains the age of 18 years.  

8.	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 enquiries 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 enquiries in advance, we are satisfied that that cannot provide any valid basis for challenging the proportionality of the intended removal under Article 8.  

9.	Mr McGirr has properly pointed us to the general approach to proportionality in removal as laid down in the Court of Appeals judgments in Mahmood  [2001] INLR 1, and also as applied in the case of Bakir [2002] UKIAT 01176 where, in a case not involving husband and wife but siblings, the view was taken that similar principles were to be applied to the question of proportionality.  Mahmood of course sets a deliberately high standard and Mr McGirr was properly entitled to remind us that the issue was whether there were insurmountable obstacles to removal in both those cases.  In our view, although the particular circumstances must of course be carefully considered, a similar approach is appropriate in the case of unaccompanied minors because of the policy of the Secretary of State in relation to their removal where that is his intention.  

10.	Mr Richmond sought to contrast the situation that the appellant enjoys in this country, where we accept that he has made efforts to integrate both with his foster carers and in the pursuit of his further education here, with the situation which would await him on his return.  He said to us initially that there was an absence of family to receive him.  We cannot accept that that follows from the evidence because it is clear that, for whatever reason, the appellant has preferred that there should be no attempt to make contact with his family in Vietnam since his arrival here.  The Adjudicator was in our view perfectly entitled to look at the totality of the evidence before her as to the way in which the appellant had been cared for in Vietnam in the past, and to make the assumption that there was a reasonable likelihood that such caring ability would continue to apply after the comparatively short time since the appellant’s departure from Vietnam.  The medical evidence is aptly summarised by the Adjudicator in the passage which we have quoted above.  It is right to say that the report from the South London and Maudsley NHS Trust does include a passage to the effect that the appellant is, in their opinion, a vulnerable teenager whose current symptomatalogy suggests that if he removes to an environment in which he feels unsafe and under threat, “such as he is likely to encounter in Vietnam”, he will be at risk of developing a clinical depression which would require psychiatric treatment.  We would make these comments on that passage in the medical report.  First, it assumes that the account which the appellant has given to the maker of the report is true.  There is, of course, no reason why the medical consultant should seek to challenge claims put forward as to past treatment by someone in the appellant’s situation but it is not the function of the maker of that report to make findings of fact on such matters; it is the function of the Adjudicator.  She has done so in this appeal and has not believed what the appellant has claimed.  Secondly, the prognosis is to some extent speculative and, in any event, there is clear evidence from the country background material that there would be appropriate medical facilities in Vietnam to deal with any such eventuality.  In summary, the situation is that this appellant has no current basis on which he would, if he were over the age of 18, be able to suggest that he should not now be removed to his own country.  The fact of his minority does not in our view on the present facts make any difference given the clear stated policy of the Home Office which we are satisfied will be followed.  If adequate arrangements for his reception cannot be made then he is likely to be granted exceptional leave to remain until he attains his majority. It is perfectly proper in our view for that to be a decision to be taken by the Secretary of State after he has had the opportunity of making appropriate enquiries as to care arrangements in which we trust the appellant will see fit to cooperate in his own interests.  We had noted the passages in the country reports to which Mr Richmond has drawn our attention which suggest that the Vietnamese authorities do not make provision for orphans over 15 years of age and it may therefore be that, if appropriate arrangements cannot be made with the family, the Secretary of State will need to give further consideration to this element in the country background evidence. Since, however, they concern matters which are already covered by his stated policy we need do no more than simply refer to the point at this stage. 

11.	For the above reasons we find that the findings of the Adjudicator as we have set them out above in relation to the Article 8 issue are sustainable, despite all that Mr Richmond has urged upon us, and, taking into due account that the appellant is an unaccompanied minor, we are not persuaded that there is any basis on which we should interfere with that decision.  For the above reasons this appeal is dismissed.

	

J Barnes
Vice President