Case No:C5/2008/0390 
Neutral Citation Number: [2008] EWCA Civ 984
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
[AIT No. HX/00249/2006]
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 25th June 2008

Before:

SIR PETER GIBSON
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Between:

	CL (VIETNAM)	
Appellant	
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	THE SECRETARY OF STATE FOR THE HOME DEPARTMENT	
Respondent	

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Ms J Bond (instructed by Immigration Advisory Service) appeared on behalf of the Appellant.
THE RESPONDENT DID NOT APPEAR AND WAS NOT REPRESENTED
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Judgment
Sir Peter Gibson:

1.	This is a renewed application for permission to appeal from the order made by the Asylum and Immigration Tribunal on 3 December 2007 allowing the appeal of the respondent, the Secretary of State for the Home Department from the decisions of Immigration Judge Dineen on 14 July 2006.  The immigration judge dismissed the appeal of the appellant from decision of the respondent, so far as it refused asylum, but allowed the appellant’s appeal on human rights grounds.
2.	The appellant is Vietnamese. He was born on 28 October 1988 and has a brother a year older. His father was killed in 1997. He and his brother were left by his mother, with his grandmother and the grandmother died in 2001.  The appellant’s mother arranged for him and his brother to fly to the United Kingdom unaccompanied.  They arrived on 7 June 2002 where they were met by a friend of the mother.  The appellant applied for asylum.  That application was refused and there is a letter of 22 July 2002, recording that decision.
3.	The respondent, at that time had a published policy relating to unaccompanied asylum seeking children, (“the UASC policy”). Under that policy, (in its then form), such a child would not be removed from the United Kingdom unless the respondent was satisfied that adequate reception and care arrangements were in place in the country to which the child was to be removed or that the child’s family had been traced.  The procedure to ascertain whether there were acceptable reception arrangements involved attempts to locate the child’s close relatives who would have to be assessed as able and willing to care for the child.  Alternatively the social services, in the child’s home country might be able to provide for the child.  If there were no such reception and care arrangements, the child, if under fourteen would be given exceptional leave to remain for four years.  After which the practice was to permit the child to apply for indefinite leave to remain.  
4.	A Home Office caseworker who signed the decision letter of 22 July 2002 prepared a consideration note of the same date. In it the asylum claim was rejected, but under the heading, “Human Rights claim”, the caseworker said that careful consideration had been given as to whether the appellants human rights would be breached if he were to return to Vietnam, that is human rights would not be breached and that despite the fact that he was a minor it was concluded that he could be returned to Vietnam as it had been established that there were adequate care provisions for children returning to Vietnam.  Reference was made to a letter from the British Embassy in Hanoi; that appears to be a reference to a letter dated 4 July 2001 from the Vice Consul in Hanoi. The respondent relied on that letter at the hearing before the immigration judge.  
5.	On 12 August 2002 notice was given of a decision to remove the appellant to Vietnam.  The appellant appealed against both decisions.  On 31 July 2002 in a witness statement in support of his appeal, the appellant said that he did not have anyone to return to in Vietnam.  Thereafter, despite several chasing letters the appellant heard nothing from the respondent about the progress of the appeal.  The delay which lasted 4 years has never been explained by the respondent. I need say nothing about the asylum appeal, rejected as it was by the immigration judge and not taken further. 
6.	On the human rights appeal the respondent gave the immigration judge an undertaking not to return the appellant to Vietnam if there were no adequate reception facilities.  But the immigration judge said that to return the appellant to Vietnam would be to interfere with the appellant’s private life in the United Kingdom. He said in paragraph 71 of the decision, that the respondent had embarked on the exercise of establishing whether there was sufficient reception facilities in Vietnam, The immigration judge was not satisfied that it was open to the respondent simply to give the undertaking as the facilities which had been ascertained so far, needed to be assessed and a decision made accordingly.  He was not satisfied that the Vice Consul’s letter established the existence of adequate reception facilities and he referred to the objective evidence on children in Vietnam.  He said that he was not satisfied that the respondent could demonstrate compliance with the UASC policy, nor that the return on the appellant would be lawful.  He therefore found a breach of Article 8 of the European Convention on Human Rights.  The return of the appellant, he said, would not be proportionate to the maintenance of effective immigration control and said that the appellant should have been granted exceptional leave to remain in 2002.  
7.	The respondent applied for reconsideration of the decision of the immigration judge on the ground that in BV (Unaccompanied Minor – Timing of Decision) Vietnam [2004] UKAIT 00148, the Immigration Appeal Tribunal had accepted that the respondent would not remove an unaccompanied child unless satisfied of adequate reception arrangements and it held that an immigration judge should not pre-empt the consideration that the respondent was intending to give when he came to make his enquires.  In the present case it was said that the immigration judge failed to explain why he chose not to follow BV and that was said to be a material error of law.  It was also said that there was no evidence that the appellant’s mother would not be found in Vietnam in the course of the respondent’s enquiries and that thereby a material consideration had been ignored. A senior immigration judge ordered reconsideration.  On the appeal, the AIT allowed the appeal, holding that the failure to explain why BV was not determinative of the facts of this appeal was a material error of law.
8.	The AIT found that the appellant had kept in touch with his mother through her friend in the United Kingdom -- presumably a reference to the appellant’s evidence in his witness statement that he had heard from the mother’s friend who had met him on arrival in the UK, that the mother had married a Taiwanese man.  The AIT found that the appellant would be over 18 when repatriated and had a mother probably still in Vietnam, whom he could contact and arrange to meet. In refusing permission to appeal, the AIT said that the immigration judge’s findings on the appellant’s contact with his mother were perverse and not based on any evidence before the immigration judge and that the appellant’s account of having no contact with his mother was:  “ not credible even to the lower standard.”
9.	The appellant sought permission to appeal on four grounds: 1) there was no material error of law by the immigration judge because BV, which was not a case of establishing a precedent which other tribunals are required to follow, did not relate to a case where the respondent had already taken a decision based on supposedly adequate reception arrangements;  2) if there was a material error of law, the AIT should have directed a further hearing to hear submissions in evidence on the BV issues in line with DK (Serbia) v SSHD [2006] EWCA Civ 1747;  3) there was no sound basis for the AIT to conclude that the appellant’s account of not having contact with his mother was not credible; 4) the AIT erred in its assessment and analysis of the proportionality of the appellant’s removal from the United Kingdom.
10.	Richards LJ on the papers refused permission to appeal. On the first ground he acknowledged that “at first blush” it would appear that the respondent had made a decision that there were adequate reception facilities and that he could therefore be returned consistently with the UASC policy and that the immigration judge was entitled to determine whether the evidence supported that adequacy.  Richards LJ referred to the BV case as well as to another case – N (Vietnam) [2003] UKIAT 00059 -- as suggesting a general practice of waiting until the enquiry process had been exhausted before deciding on the adequacy of the reception facilities, and he mentioned the respondent’s undertaking and concluded that the immigration judge made a material error of law in failing to apply the reasoning of BV or failing to explain why BV was not determinative.  He said that the fact that the respondent had embarked upon enquiries as to whether there were sufficient reception facilities was a not a valid or sufficient reason for distinguishing BV. He noted that in BV the respondent had given removal directions.  On the second to fourth grounds Richards LJ found that the AIT was entitled to proceed to its own determination without a separate further hearing. He described as “puzzling” the AIT’s comment on credibility in the reasons for refusing permission to appeal, but said that there was no departure from the immigration judge’s findings of fact.    
11.	It is with considerable unease that I differ from the assessment of Richards LJ, with his vast experience in this field. However, sitting back and looking at this matter with fresh eyes, I find it troubling that the respondent, charged with application of the UASC policy, can in 2002 take a decision which is arguably flawed (in its reliance on evidence which arguably does not justify the conclusion which is a necessary part of the application of that policy), with the consequence that the appellant, a 13 year old child, is in 2002 not granted the exceptional leave to remain which arguably he would have had if the policy had been correctly applied (with the possibility of indefinite leave to remain four years later) and that after an unexplained four-year delay by the respondent in progressing the appellant’s appeal, during which time the appellant establishes a private life in the United Kingdom, the appellant’s appeal can be defeated by evidence given in another case suggestive of a practice not foreshadowed in the policy, that the respondent, before returning an applicant to his country of origin will review the decision to remove,  that evidence being coupled with an undertaking to the like effect.  
12.	The immigration judge appears to have been equally troubled and this seems to have led him to his conclusion.  In paragraph 71 of his decision he seems to me to explain why he disagreed with BV,   notwithstanding that in BV notice of directions to remove had also been given.  I have to say that it strikes me as very surprising that the respondent can give such a notice without considering that part of the UASC policy which required that, unless the respondent was satisfied that adequate reception and care facilities were available, exceptional leave to remain should be given: see AA (Afghanistan) v SSHD [2007] EWCA Civ 12(14).  Yet in BV it was said that that was the position in that case.  
13.	For these reasons I would give permission to appeal on the first ground. 
14.	I am also troubled by the AIT’s approach to the evidence relating to the mother of the appellant.  The AIT appears to have been concerned to establish that the appellant could have been returned to Vietnam because the mother would have been there to receive and look after the appellant.  I am told by Ms Bond, for the appellant, that that aspect of the UASC policy did not feature in the hearing before the immigration judge. I have already noted what the appellant said in his witness statement about the lack of anyone in Vietnam, if he were returned there, to look after him. I am told that there was no cross examination relating to what the appellant had said in his witness statement.  The only evidence therefore appears to have been that which came from the appellant. I think it arguable, notwithstanding Richards LJ comments to the contrary that the AIT did go beyond the facts which were properly found by the immigration judge. I would therefore give permission to appeal on this ground too.  
15.	I questioned Ms Bond whether she wished to pursue the other grounds in her appellant’s notice. She has said that she is content to proceed on the two grounds, which I have indicated.  Accordingly, I will give permission to appeal on that basis.

Order: Application granted