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Warren, Richard; York, Sheona (2014)
Publisher: Kent Law School
Languages: English
Types: Book
Subjects: KD

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    • 27 R (Rashid) para 36 see fn 22 above
    • 28 The R(S) guidance was withdrawn on 20/12/2010 and is no longer on the UKBA website
    • 29 Again in R (S, H, Q v SSHD [2009] EWCA Civ 334 it was held that when the SSHD exercises her discretion whether to grant indefinite leave to remain, she should have regard to the 'correction of injustice caused by the previous unlawful failure to apply the policy'.
    • 30 AA (Afghanistan) [2007] EWCA Civ 12
    • 31 Home Office guidance to senior caseworkers & SAT (sic)when dealing with further representations in the light of the case of AA(Afghanistan) (Kent Law Clinic FOI request 23/4/13, replied to 4/7/13)
    • 32 SL (Vietnam) v SSHD [2010] EWCA Civ 225
    • 33 Procedural guidance was given by Stanley Burnton J (as he then was) in R (B) v Merton London Borough Council [2003] EWHC 1689 (Admin). In March 2003 practice guidelines were published by the London boroughs of Hillingdon and Croydon that were approved by the High Court and became the legal standard for formal assessments known as Merton-compliant age assessments.
    • 34 See below fn 47 [AN & FN]
    • 35 DS (Afghanistan) v SSHD [2011] EWCA
    • 36 See fn 21 above (reception D
    • 37 Asylum Seekers (Reception Conditions) Regulations 2005 2005/7
    • 38 See fn 35 above
    • 39 Borders, Citizenship and Immigration Act 2009 (BICA 2009) s55
    • 40 LQ (Age: immutable characteristic) Afghanistan [2008] UKAIT 00005
    • 41 A 'country guidance' case is a case chosen by the Immigration Tribunal (first tier or upper tier) to examine in detail the facts about a particular aspect of persecution in a particular country in great detail, and their findings of fact are binding on subsequent tribunal cases.
    • 42 AA (unattended children) Afghanistan CG [2012] UKUT 16 (IAC) (headnote para (2)) held that '...the background evidence demonstrates that unattached children returned to Afghanistan ... may be exposed to risk of serious harm, inter alia from indiscriminate violence, forced recruitment, sexual violence, trafficking and a lack of adequate arrangements for child protection'.
    • 43 HK and others Afghanistan v. Secretary of State for the Home Department, CG [2010] UKUT 378 (IAC)
    • 44 HK (Afghanistan) & Ors v Secretary of State for the Home Department [2012] EWCA Civ 315 para 34
    • 45 Local organisations working with the target group made initial referrals, and these clients having received advice would then refer friends who were in a similar situation.
    • 46 Screening interview and any other initial interview, SEF/statement, SEF/interview, Reasons for Refusal letters (RFRL), Applications for further leave, Determinations of first-tier tribunal, applications for permission to appeal and further determinations.
    • 47 We do not believe that the recent inspection report by the Independent Chief Inspector of Borders and Immigration deals adequately with stakeholders' concerns about the handling of asylum applications from children, and appears to these writers to be dangerously complacent. ( An Inspection into the Handling of Asylum Applications Made by Unaccompanied Children, Independent Chief Inspector of Borders and Immigration, October 2013)
    • 48 AN (A child) & FA (A child) v SSHD [2012] EWCA Civ 1636.
    • 49 Landing in Dover: The immigration process undergone by unaccompanied children arriving in Kent Children's Commissioner, January 2012 NOTES (CONT)
    • 94 See Section 3 below
    • 95 EU (Afghanistan) & Ors v Secretary of State for the Home Department [2013] EWCA Civ 32
    • 96 SHL (Tracing obligation/Trafficking) Afghanistan [2013] UKUT 00312 (IAC)
    • 97 We believe this appellant has appealed to the Supreme Court
    • 98 Whereas objective evidence on child migration, from Afghanistan and elsewhere, shows that motivations and drivers are complex - see for example Broken futures: report from the Youth on the Move segment of the Refugee Support Network; Complexities and Challenges in Afghan Migration: Policy and Research Event: Maastricht University Policy brief no 14, 2013)
    • 99 SHL (fn 96above) para 29, referring to EU, states: 'Arguably the most important feature of this decision is that it appears to give its quietus to (Rashid)…' Readers might contrast the fate of SHL with that of the appellants in the country guidance case of HM (Iraq), for whom that CG determination was quashed in the Court of Appeal on the basis that a CG case should not proceed without there being a 'proper contradictor' (para 31, HM (Iraq) & Anor v Secretary of State for the Home Department [2011] EWCA Civ 1536.
    • 100 AA (Iran), R (On the Application of) v Upper Tribunal (IAC) & Anor [2013] EWCA Civ 1523
    • 101 AA v SSHD [2013] EWCA Civ 1625
    • 102 See SS (Nigeria) [2013] for another case, albeit in the context of deportation proceedings, in which the Court of Appeal seeks to limit the SSHD's duty to pro-actively obtain information that will facilitate a determination of the best interests of the child. This is a move away from the earlier position of Tinizaray v SSHD [2011] EWHC 1850 (Admin) and indeed Elias LJ's comments in HK stating that “…the SSHD should obtain as much information as is reasonably possible to assist her in determining where those best interests lie”(para 40)
    • 103 Mohammed v Secretary of State for the Home Department [2012] EWHC 3091 (Admin), R(on the application of Geraldo) v SSHD [2013] EWHC 2763 (Admin), DM Re Judicial Review 2013 CSOH 114
    • 104 See fn 47 above, Introduction, 1st para
    • 105 See fn 95 above para 6
    • 106 Academics and public law theorists may point to the Parliamentary Ombudsman service, but only one of the many limitations to that remedy is the lack of injunctive relief.
    • 107 The Queen on the application of AA (Afghanistan) [2012] EWCA Civ 1643 para 18
    • 108 Jabarkhail, R (on the application of) v SSHD [2013] EWHC 1798
    • 109 Mamour, R (on the application of) v Secretary of State for the Home Department (FCJR) [2013] UKUT 86 (IAC)
    • 110 See fn 107 above [aa laws]
    • 111 See fn 30 above[AA 2007]
    • 112 TN & MA v SSHD [2013] EWCA Civ 1609
    • 113 Hashemi v Upper Tribunal (IAC) [2013] EWHC 2316
    • 114 Kuchiey [2012] EWHC 3596 Civ
    • 115 Judicial Review and compliance with administrative law Simon Halliday, Hart Publishing 2004
    • 116 See fn 36 aboveDS
    • 117 See fn 99 above AA 2013
    • 118 One of the round table solicitors found in an appeal determination that he himself was held to have breached his duty to trace the appellant's family.
    • 119 See fn 45 Above
    • 120 At the first symposium in the 'Uncertain Journeys' series Sue Clayton referred to her longitudinal study on Afghan young people in the UK which shows steady decline in their mental health as they approach 18, and the fear of refusal and removal looms over them. A Credible Witness? Deconstructing the Narratives of Separated Children Seeking Asylum 26 November 2013, Royal Holloway College, University of London, Garden Court Chambers, funded by ESRC
    • 121 And none of the refusal letters or Tribunal determinations in our cases mentioned the shared duty to establish and evaluate all the relevant facts, as set out in the UNHCR Handbook on procedures and criteria for determining refugee status para 196
    • 122 Expert roundtable discussions on the UNCRC and its application to child refugee status determination and asylum process Journal of Immigration Asylum and Nationality Law (2012)
    • 123 Promoting the best interests of the child in the UK asylum law and procedures, Bolton, S (2012) Journal of Immigration Asylum and Nationality Law
    • 124 For an example of particularly poor practice in the FTT (IAC) see ST (Child asylum seekers) Sri Lanka [2013] UKUT 00292 (IAC), in which a 10 year old whose account was not being contested by the Home Office was required by the judge to give evidence without a suitable interpreter and then had his account comprehensively discredited.
    • 125 JS (Former unaccompanied child - durable solution) (Afghanistan) [2013] UKUT 568
    • 126 Although a presumably unintended consequence of the proposal to abolish most appeal decisions may be that all minors refused asylum will receive an initial right of appeal (Immigration Bill part 2 s11).
    • 127 The deportation of unaccompanied minors from the EU: Family tracing and government accountability in the ERPUM Project Refugee Studies Centre Workshop Report May 2013
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