15 September 2010

CHAMBER
FOURTH SECTION
Application no. 19159/08
by Marlyse Bienvenue MALLA
against the United Kingdom
lodged on 18 April 2008

STATEMENT OF FACTS
THE FACTS
The applicant, Ms Marlyse Bienvenue Malla, is a Cameroonian national who was born in 1974 and lives in Douala, Cameroon.
A.  The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
The applicant arrived in the United Kingdom on 15 March 2005. On 17 March 2005, she made an application for asylum on the basis of her fear of persecution by the Cameroonian authorities due to links with a group campaigning for justice for the “Bepanda 9”, a group of men who had disappeared in 2001. On 13 May 2005, her application was refused by the Secretary of State as it was not accepted that she had had any connection to the Bepanda 9, had ever come to the adverse attention of the Cameroonian authorities or would be at any risk upon return. In a decision promulgated on 27 July 2005, her appeal was dismissed by the then Asylum and Immigration Tribunal as incredible and implausible. On 11 August 2005, a Senior Immigration Judge refused to make an order for reconsideration of the appeal determination.
Towards the end of 2005, the applicant started a relationship with D, a recognised refugee from the Democratic Republic of Congo who had been granted indefinite leave to remain in the United Kingdom. The applicant claims that she cohabited with D from January 2007 until the birth of their daughter C on 22 April 2007. After C was born, the relationship between the applicant and D broke down which led to the applicant and C moving out of D's home.
In the early hours of 27 November 2007, immigration officials arrested the applicant and C at their home and transferred them to Yarl's Wood Immigration Removal Centre to effect their scheduled removal as failed asylum seekers from the United Kingdom to Cameroon on 1 December 2007. On 28 November 2007, the applicant became ill, fell unconscious and was taken to hospital. As a result of the applicant's hospitalisation and her inability to care for C at that time, C was taken into the care of Bedfordshire Social Services and placed with foster carers.
On 29 November 2007, the applicant's legal representatives appear to have submitted further representations on her behalf on the basis of her fear upon return. On 1 December 2007, those representations were refused by the Secretary of State as not amounting to a fresh claim.
Removal directions which had been set to take place on 1 December 2007 were deferred because the applicant was considered to be medically unfit to fly. The applicant claims that when she started to recover, she asked the domestic authorities about C and was informed by social workers that she was being well looked after by foster carers.
On 17 December 2007, C was placed into D's care with the applicant's agreement. On 23 December 2007, further removal directions were set to take place to remove the applicant to Cameroon on 6 January 2008. On 27 December 2007, the applicant was sent a letter from a senior social worker advising her that following appropriate checks, C had been placed with D and was settling in well; and that it might be in the applicant's interests to seek legal advice as the matter was considered to be a private matter between the applicant and D.
The removal directions which had been set for 6 January 2008 were cancelled because the applicant became disruptive and refused to board the plane. Further removal directions set to take place on 10 January 2008 were cancelled when the applicant lodged an application for judicial review at the High Court relying on Articles 2, 3 and 8 of the Convention.
On 30 January 2008, the High Court dismissed her application for permission to apply for judicial review observing that
“1. The applicant's appeal was dismissed on 27 July 2005 in circumstances where her account was disbelieved in many respects. Her appeal rights have long been exhausted. She cannot re-open them or challenge the findings at paragraph 29 by now running the “Father Jean Pierre” point (which in any case, in my view, is a side show).
2. Further and in any case, the purported fresh representations in the letter of 29 November 2007 are completely un-particularised and were properly rejected as amounting to a fresh claim by the SSHD.
3. In such circumstances, the present claim is devoid of all merit. Any attempt at renewal need not operate as a bar to removal. No order as to costs, simply because it is pointless in practice.”
The applicant claims that, subsequent to that decision, when she was beginning to make a full recovery from her illness, she refused to be removed from the United Kingdom without her daughter C. Therefore, on 31 March 2008, the applicant submitted a fresh claim to the Secretary of State relying, inter alia, on Article 8 of the Convention and claiming that her removal to Cameroon without her daughter would be disproportionate. She claimed that she had agreed for C to reside with her father D only because she had been genuinely concerned for the health and safety of C if returned to Cameroon. She set out that she did not want to be separated from C but also that she did not want her to be sent to Cameroon. She asked for full and detailed plans for C's future care to be drawn up prior to her removal; stated that a care assessment report from social services would be appropriate; requested that the compassionate circumstances of her case be taken into account; and stated that issues concerning the interests and welfare of the child of the family were relevant and cogent to her claim. In addition, she submitted that she suffered from psychiatric problems for which she would be unable to obtain appropriate care in Cameroon. She asked for removal directions to Cameroon to be deferred until all of these issues had been resolved.
The applicant was removed to Cameroon on 14 April 2008 and claims that at the time of her removal she was not aware of any response from the Secretary of State to her fresh claim.
After her removal to Cameroon, the applicant submitted an application to the Court complaining about her removal to Cameroon and her separation from her daughter C.
In a letter dated 5 May 2010, the Judge appointed as Rapporteur under Rule 49 § 2 of the Rules of Court decided that further information was required and asked the Government of the United Kingdom to respond to various factual questions in accordance with the provisions of Rule 49 § 3 of the Rules of Court. In a letter dated 7 June 2010, the Agent of the Government of the United Kingdom responded to those questions and informed the Court, inter alia, that the Government had been aware that the applicant would be removed without C; that C had been placed in the care of D because the applicant had refused to care for her and had agreed that D should care for her if she was removed from the United Kingdom; and that the applicant's fresh claim of 31 March 2008 had been responded to and rejected in a letter dated 4 April 2008. In respect of the applicant's separation from C, that letter stated:
“I can assure you that full consideration was given to this issue prior to any removal directions being set. In cases such as this where families are being separated a great deal of care is taken to ensure the most appropriate course of action is followed, with the child's welfare being a prime factor for consideration. In this instance it has been decided that the suitable course of action to follow is to seek your client's removal whilst her daughter remains here with her father. This aspect of the case has received consideration and is not accepted as being a new issue that would give rise to a new claim.”

B.  Relevant domestic law and practice
1. Asylum and human rights claims
Section 82(1) of the Nationality, Immigration and Asylum Act 2002, provided a right of appeal against an immigration decision made by the Secretary of State for the Home Department. Appeals in asylum, immigration and nationality matters were at the relevant time heard by the Asylum and Immigration Tribunal.
Section 103A of the Nationality, Immigration and Asylum Act 2002 provided that a party to an appeal could apply to the High Court, on the grounds that the Tribunal had made an error of law, for an order requiring the Tribunal to reconsider its decision on the appeal. The High Court was able to make such an order if it thought that the Tribunal may have made an error of law. Prior to February 2010, all applications for reconsideration went through a “filter procedure”, so that an application for reconsideration was first made to an authorised immigration judge of the Tribunal. If the immigration judge refused to make an order for reconsideration, the applicant was able to renew the application to the High Court, which would consider the application afresh.

2. Fresh asylum and human rights claims
Section 1(4) and 3(2) of the Immigration Act 1971 provide for the making of Immigration Rules by the Secretary of State. Paragraph 353 of the Immigration Rules provides as follows:
“When a human rights or asylum claim has been refused and any appeal relating to that claim is no longer pending, the decision maker will consider any further submissions and, if rejected, will then determine whether they amount to a fresh claim. The submissions will amount to a fresh claim if they are significantly different from the material that has previously been considered. The submissions will only be significantly different if the content:
(i) had not already been considered; and
(ii) taken together with the previously considered material, created a realistic prospect of success, notwithstanding its rejection.”
As regards the scrutiny of fresh asylum claims and the power of the courts to review such scrutiny, the Court of Appeal in WM (DRC) v SSHD [2006] EWCA Civ 1495 (paragraphs 10-11) has held:
“Accordingly, a court when reviewing a decision of the Secretary of State as to whether a fresh claim exists must address the following matters. First, has the Secretary of State asked himself the correct question? The question is not whether the Secretary of State himself thinks that the new claim is a good one or should succeed, but whether there is a realistic prospect of an adjudicator, applying the rule of anxious scrutiny, thinking that the applicant will be exposed to a real risk of persecution on return ... The Secretary of State of course can, and no doubt logically should, treat his own view of the merits as a starting-point for that enquiry; but it is only a starting point in the consideration of a question that is distinctly different from the exercise of the Secretary of State making up his own mind. Second, in addressing that question, both in respect of the evaluation of the facts and in respect of the legal conclusions to be drawn from those facts, has the Secretary of State satisfied the requirement of anxious scrutiny? If the court cannot be satisfied that the answer to both of those questions is in the affirmative it will have to grant an application for review of the Secretary of State's decision.”
Section 2 of the Human Rights Act 1998 provides that, in determining any question that arises in connection with a Convention right, courts and tribunals must take into account any case-law from this Court so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen. Section 6(1) provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right.
COMPLAINT
The applicant complains about her removal to Cameroon which separated her from her daughter. She complains that her daughter was taken away from her without her consent, that her rights to motherhood have been violated and that she has no possibility of future contact with or news of her daughter because her father is a national of the Democratic Republic of Congo whose whereabouts are currently unknown.
QUESTION TO THE PARTIES

Did the removal of the applicant to Cameroon without her daughter amount to a violation of Article 8 of the Convention?