UK - Court of Appeal, 10 December 2008, CL (Vietnam) v Secretary of State for the Home Department [2008] EWCA Civ 1551

Facts:

The applicant arrived from Vietnam aged 13 as an unaccompanied asylum seeker. His application for asylum was rejected and his appeal against that decision and the refusal to grant him humanitarian protection (Art 3) was dismissed.  He succeeded in his argument that removal would breach his Art 8 rights. The Secretary of State for the Home Department appealed on the ground that the Immigration Judge had erred in law by not following a decision which it was submitted meant that the assessment of reception facilities was solely a matter for the Secretary of State for the Home Department and not one to be considered in relation to Art 8 rights.

Decision & reasoning:

The court held that consideration of the reception facilities was relevant to the assessment of moral and physical integrity and should not be removed from the Immigration Judge. A promise from the Secretary of State for the Home Department to revisit the question and not to remove in the future if they proved inadequate was not sufficient to outweigh the Immigration Judge’s duty to reach a decision on the human rights claim on the evidence  at the date of the statutory appeal. To reserve the assessment to the Secretary of State would be to deny the child the full remedy of a statutory appeal. The Immigration Judge had not erred by considering the evidence and the conclusion that the evidence of poor reception facilities outweighed the letter from the Vietnamese authorities, which simply stated the law and made no analysis of the actual conditions for children was sound. 

Outcome:

The Secretary of State’s Appeal was dismissed and the original decision by the Immigration Judge allowing the appeal under Article 8 was allowed.

Observations/comments:

Although this case was only concerned with Art 8, there is obvious overlap between moral and physical integrity and the persecution as a child (see LQ (Age: immutable characteristic) Afghanistan [2008] UKAIT 00005 (see separate summary in this database). 

Comment of the court:

“I find it disturbing that a document as bland and jejune as the letter which Keene LJ has quote was relied on by the Home Office when deciding something as important as the safe return of a child to another country. The letter is plainly a recital of a formal answer obtained from the Vietnamese authorities. The Immigration Judge recorded evidence from the Home Office’s own in country information which shows that the reality for tens of thousands of Vietnamese children was very different.”