Immigration

The Court of Appeal, Civil Division, gave guidance on the general approach to be adopted in law and practice by the tribunals to the fair determination of claims for asylum from children, young people and other incapacitated or vulnerable persons whose ability to effectively participate in proceedings might be limited. As the substantive issues were compromised, it remitted the appellant’s asylum claim for a fresh decision.

Background

The appellant Afghani national had been assessed as being 15 years of age. The respondent Secretary of State refused his asylum application, but granted him discretionary leave to remain in the United Kingdom until he was 17-and-a-half years old. The First-tier Tribunal (Immigration and Asylum Chamber) (the FTT) and the Upper Tribunal (Immigration and Asylum Chamber) (the UT) dismissed the appellant’s appeals, and he issued a second appeal. The parties compromised the issues in the appeal and it was agreed that the appellant’s asylum claim would be remitted to the FTT for a fresh decision to be made.

Appeal allowed.

Issues and decisions

Whether a general approach should be adopted in law and practice by the FTT and the UT to the fair determination of claims for asylum from children, young people and other incapacitated or vulnerable persons whose ability to effectively participate in proceedings might be limited.  

It was beyond argument that the tribunal and parties were required, so far as practicable, to ensure that an appellant was able to participate fully in the proceedings, and that there was a flexibility and a wide range of specialist expertise which the tribunal could utilise to deal with a case fairly and justly.  

In the FTT and UT the parties were expected to co-operate with each other and the tribunal to agree case management directions. The practice of waiting for the substantive hearing in the hope and expectation that a failure to have identified case management directions would lead to an adjournment with consequential delay and the waste of public funds was to be deprecated and had to cease.

The directions and guidance contained in the Practice Direction ‘First-tier and Upper Tribunal Child, Vulnerable Adult and Sensitive Witnesses’ and joint ‘Presidential Guidance Note No 2 of 2010’ were to be followed. Failure to follow them would most likely be a material error of law. They provided detailed guidance on the approach to be adopted by the tribunal to an incapacitated or vulnerable person.  

In addition, the guidance made it clear that one of the purposes of the early identification of issues of vulnerability was to minimise exposure to harm of vulnerable individuals. The guidance warned representatives that they might fail to recognise vulnerability and that they might consider it appropriate to suggest that an appropriate adult attended with the vulnerable witness to give him assistance. That said, the primary responsibility for identifying vulnerabilities had to rest with the appellant’s representatives who were better placed than the Secretary of State’s representatives to have access to private medical and personal information. Appellants’ representatives should draw the tribunal’s attention to the practice direction and guidance, and should make submissions about the appropriate directions and measures to be considered.

Further, the Solicitors Regulation Authority practice note ‘Meeting the needs of vulnerable clients’ set out how solicitors should identify and communicate with vulnerable clients. It also set out the professional duty on a solicitor to satisfy himself that the client either did or did not have capacity.  

The application of the statutory duty in section 55 of the Borders, Citizenship and Immigration Act 2009 applied to decisions about immigration, asylum, deportation and removal, including decisions taken by tribunals. A decision taken without regard to the need to safeguard and promote the welfare of any children involved would not be in accordance with the law for the purposes of article 8(2) of the European Convention on Human Rights.

A note of caution would be sounded, given that the guidance was provided in the context of parallel developments in other jurisdictions. The caution related to an over-elaborate interpretation of the guidance note. There was cautionary jurisprudence in each of the jurisdictions that had developed more sophisticated protections for incapacitated or vulnerable persons.

There was ample flexibility in the tribunal rules to permit a tribunal to appoint a litigation friend in the rare circumstance that the child or incapacitated adult would not be able to represent himself and obtain effective access to justice without such a step being taken. In the alternative, even if the tribunal rules were not broad enough to confer that power, the overriding objective in the context of natural justice required the same conclusion to be reached (see [27]-[32], [36], [37], [44], [47], [48], [50] of the judgment).

The principles of asylum law and practice which had particular importance in claims from children and other vulnerable persons had not been applied properly or at all in the determination of the appellant’s claim for asylum either by the FTT or the UT. Procedural fairness would have been provided had the tribunals had regard to the rules, practice directions and guidance that already existed, and if careful consideration had been given to them at an early stage in the process, and certainly at the outset of the hearing to determine whether or not oral evidence had been necessary and appropriate in the case (see [22], [23], [47], [48], [50] of the judgment).

JL (medical reports-credibility) China [2013] UKUT 145 (IAC) approved; Wiseman v Borneman [1969] 3 All ER 275 considered; Johnson v Edwardian International Hotels Ltd [2008] All ER (D) 23 (May) considered; BPP Holdings v Revenue and Customs Commissioners [2016] 3 All ER 245 considered.

Stephanie Harrison QC and Raza Halim (instructed by Brighton Housing Trust) for the appellant.

David Blundell (instructed by the Government Legal Department) for the Secretary of State and the Lord Chancellor, as intervenor.

Karina Weller - Solicitor (NSW) (non-practising).