This is a case where Erica ran two challenges to the Home Office in one set of judicial review proceedings. The first challenge concerned the decision to certify the refusal of FB’s initial asylum claim on the basis that this was ‘clearly unfounded’. The second part of the judicial review concerned a challenge to the lawfulness of FB’s detention by the Home Office pending his removal from the UK. Both claims were ultimately successful after a final hearing held in the Administrative Court in Leeds.
FB was an Albanian national who came to the United Kingdom in 2014 and claimed asylum. His claim for asylum was made on the basis of his family’s involvement in a blood feud with his uncle. After unsuccessfully seeking assistance from both the police and village elders in his area, the family home being set on fire and his being shot at, FB fled Albania to the UK.
At the time of FB’s arrival he claimed to be a minor. The local authority who undertook an assessment of his age disputed the same and proceedings for judicial review against this were issued against them.
At the same time, the Home Office refused his asylum claim and certified it as clearly unfounded. This meant that FB was denied the right to appeal the decision in country. Directions were set for FB’s removal from the UK. Shortly thereafter FB was detained by the Home Office on the basis that his removal was imminent.
Judicial review proceedings were subsequently issued against the Home Office both in relation to the decision to certify FB’s asylum claim and the lawfulness of his detention. It was argued that the detention of FB was unlawful as, at the time he was detained, he had ongoing proceedings for judicial review against the local authority. In circumstances where there were ongoing judicial review proceedings, it was the Home Office’s policy to not remove. It was argued that in those circumstances removal could not be said to be imminent, the only basis for justifying FB’s detention on immigration grounds.
The challenge to the certification decision was essentially based upon failures identified within the Home Office decision which included: the failure of the Home Office to properly consider the definition of blood feuds as set down by the UN Human Rights Council and in country guidance case law, erroneous reliance upon matters relating to FB’s credibility, and a flawed approach to the issues of sufficiency of protection and internal relocation.
After judicial review proceedings were issued, the Home Office agreed to withdraw directions for FB’s removal from the UK and to further release him from detention. The unlawful detention claim for therefore became one of a compensation claim for the period he was detained.
After securing permission from the Court in relation to both parts of the judicial review and the Court agreeing to continue to deal with the compensation claim as part of the judicial review proceedings(something which is not normally pursued by way of a judicial review), and the matter proceeded to a final hearing. The claim was successful on both counts.
The Court found that the decision to certify FB’s asylum claim was unlawful and quashed the same, requiring the Home Office to make a new decision. The effect of this was for the Home Office to again refuse FB’s asylum claim but this time grant him a right of appeal which he subsequently pursued in the Tribunals. As regards the unlawful detention claim, the Judge found that FB had been unlawfully detained for a period of 43 days for which FB was awarded damages in the region of £14,000.
MA – This was a claim in which Erica assisted MA in challenging the level of support that was provided to herself and her four children by her local council under Section 17 of the Children Act 1989. MA had been granted 30 months leave to remain in the UK by the Home Office on the basis that she was a parent of British citizen children. However, as a condition of her leave, she was denied any recourse to public funds. As such she was unable to claim any state benefits. She sought to apply to have this condition lifted, however, in the interim period she was supported by Social Services. This was on the basis that her children would otherwise be homeless and destitute and they therefore met the definition of ‘children in need’.
The question in this case concerned the level of financial support being provided to MA. At the time of Erica’s instruction, she was receiving the equivalent of £21 per week for herself and her 4 children. Although the client’s accommodation was provided by Social Services, she was expected, from this sum to pay all her utility bills, Council tax as well as the cost of food, clothing, school uniforms and meals, travel expenses, nappies and other associated products for her two youngest children who were aged 2 and 1. The level of support proved was insufficient to cover all these costs and, as a consequence, MA got into considerable debt on credit cards, with loan companies and her utility providers.
We sent a letter before claim arguing that the level of financial support provided to MA was insufficient to meet hers and her children’s needs, that being significantly below both the state benefit and Home Office minimum levels of subsistence. The Council did respond positively, increasing MA’s financial support and agreeing to pay her various arrears, future utility bills and Council tax. They also agreed to pay her an amount representing the backdated support which she should have received in the 12months prior to our involvement.
ST – Erica acted for ST in relation to two claims. The first was against the Secretary of State for the Home Department regarding the refusal to accept his further submissions and evidence amounted to a fresh claim for asylum pursuant to Paragraph 353 of the Immigration Rules. ST was an Iraqi national of Kurdish ethnicity, originating from the area of Kirkuk. He was a Sunni Muslim. Whilst his family lived in Kirkuk at the time he left Iraq in 2010, he had not been in contact with them since then so had no idea as to their whereabouts. He also did not have any Iraqi identification documents with him when he arrived in the UK.
ST’s original asylum claim was based on his fear arising from when he worked in the Iraqi police force. His asylum claim was refused by the Home Office and thereafter dismissed on appeal.
He subsequently made a fresh claim for asylum on the basis of two matters: the first a deterioration of the country conditions in Iraq due to the civil war and the fact that he derived from an area considered to be ‘contested’ to which it was not considered reasonable for him to return. It was also argued that in the individual circumstances of his case and in line with the country guidance case law, he could not reasonably internally relocate to the Iraqi Kurdistan Region (IKR).
The second element of ST’s claim was on the basis of his diagnosis, since arriving in the UK, with a significant and inoperable whole in his heart. The concerns from his medical team were that without a heart transplant, his condition was terminal.
In refusing ST’s fresh claim, the Home Office relied upon its own policy, contrary to the case law, that Kirkuk no longer constitutes a contested area, ST did not fit within any category of vulnerable groups to warrant humanitarian protection, he could obtain an emergency passport from the Iraqi Embassy in London with the assistance of his family in Kirkuk and his health did not meet the requisite threshold with there being available treatment in Iraq such that return would not breach his human rights.
Proceedings for judicial review were issued against the Home Office regarding the decision. It was argued that the Home Office had made an error in considering that ST could obtain the necessary identity documents in order to return to Iraq. In so doing, the Home Office had failed to consider ST’s claim that he had not been in contact with his family since 2010, had no idea as to their whereabouts or had any means for contacting them. As such, they would not be able to assist him in obtaining the necessary paperwork for applying for a travel document in the UK. In any event, it was not reasonable, in light of the country guidance case law, to expect ST to return to his home area in Kirkuk given that this was still considered to be a contested area. If it was the case that ST could not return to his home area then the Home Office should have considered whether he could internally relocate to another part of Iraq or to the IKR. It was argued that as a Kurd and a Sunni Muslim he could not relocate to Baghdad and, in the absence of any identity documents or the ability to obtain the same, no family members to support him, and ST’s poor health, it was unreasonable to expect him to internally relocate to the IKR.
In relation to ST’s health condition it was argued that without a cardiac transplant he was highly likely to die prematurely, the fact he could not feasibly be returned in the absence of any identity documents and the unavailability of transplant treatment in Iraq, meant that ST’s case fell within the rare group of extreme cases where removing him as a result of his medical condition would constitute a breach of his human rights. For all of those reasons it was argued that the Home Office’s conclusion that Article 3 and 8 ECHR had not been triggered was irrational.
After issuing judicial review proceedings, the Home Office settled the claim. This resulted in the Home Office agreeing to make a new decision. Whilst the new decision was again to refuse to grant ST any leave to remain, he was, on this occasion granted a right of appeal. That meant that ST could bring his case before the First Tier Tribunal. The result was for the Tribunal to agree that ST’s home area of Kirkuk is contested and as such he could not return there. The Home Office subsequently conceded that the client could not internally relocate to the IKR and the appeal was allowed on the basis of ST’s human rights. As a result, ST was granted 5 years humanitarian protection.
The second case Erica dealt with on behalf of ST concerned his access to healthcare treatment whilst he remained in the UK namely, the decision of the NHS to not put him on the transplant list on the basis that he was not eligible for such and should return to Iraq to access cardiac transplant treatment there. This however was not the case. Although individuals who are not classed as ‘ordinarily resident’ in the United Kingdom, such as asylum seekers, are not permitted to be placed on the priority group (group 1) transplant list, they are entitled to be placed on the group 2 list. This essentially means that they will be entitled to receive a transplant organ if there is no clinically suitable person in the group 1 list who is eligible. Although ST realised the likelihood of his receiving an organ via this means was slight, he was still clear that he wanted every possible chance he could to save his own life. After making detailed representations to the relevant NHS Trust and, under the threat of judicial review proceedings, they agreed to place ST on the group 2 transplant list.