UK - Court of Appeal , Kadri, R (on the application of) v Birmingham, City Council & Anor, [2012] EWCA Civ 1432

Facts:

Of the four applicants, three were from Afghanistan and one was from Iran. All four claimed that they were children (under 18) and the UK government disputed their age. The applicants’ ages were assessed by UK immigration services, by the local authority, Birmingham City Council (“Birmingham”), and in some cases also by immigration judges. This led to inconsistencies: immigration judges ruled that three of the applicants were children, despite the fact that Birmingham had decided they were adults.

Part of this appeal concerned whether, as a matter of EU law, a local authority is bound to accept the decision of the Secretary of State for the Home Department (“SSHD”), the UK government authority responsible for determining asylum applications (or on appeal, the decision of an immigration judge) as to the age of an individual. 

Decision & reasoning:

The applicants argued that where the SSHD determines that a person is a child applicant for asylum or an unaccompanied child refugee, it is a requirement of EU law that all other government or state bodies are bound by the decision and must treat him as a child. They argued this was compelled by a proper construction of the three main asylum Directives read as a whole. In particular, they argued that the system contravenes the ‘principle of effectiveness’ if it requires an applicant to prove he is a child for the purposes of receiving the benefits prescribed by the Directives, when he has already been held to be a child by the authority designated for the determination of asylum applications. It is unfair and oppressive to subject the child to multiple decision making processes.

The Court did not agree.  It held that the principle of effectiveness is breached only if the exercise of the rights conferred by Community law is rendered ‘virtually impossible or excessively difficult’. This is a high hurdle; Member States enjoy a significant ‘margin of appreciation’ in determining the methods they employ to implement a Directive. The Court did not accept that the requirement that an applicant must prove that he is a child on the balance of probabilities if he is to enjoy the benefits contained in the Directives makes the exercise of those rights virtually impossible or excessively difficult.

Outcome:

Appeals dismissed

Subsequent proceedings:

The UK Supreme Court refused permission to appeal

Other sources:

Joint working protocol of November 2005 between the Immigration and Nationality Directorate of the Home Office and the Association of Directors of Social Services for the United Kingdom Local Government and Statutory Childcare Agencies “to support a co-operative approach to age assessment between the Immigration and Nationality Directorate … and the [local authorities]”.