We represented two brothers in their asylum claims, initially made in mid-2012, when they were aged 13 and 14. The boys were unaccompanied asylum seeking children. When dismissing both appeals from the Home Office decisions to refuse their claims the Judge of the First Tier Tribunal stated as follows:
‘Just as they were able to find their way here, so they can find their way back to their village’
There is guidance in place for how the Tribunal should deal with children, although this is grouped together with guidelines for other vulnerable and sensitive appellants and witnesses. It is perhaps symptomatic of the Tribunal’s approach, doing little to differentiate and identify the particular needs of children at court. There are, of course, basic safeguards for children in the guidance, ensuring that child appellants are accompanied by a responsible adult for example, and arrangements for child friendly courts, including the exclusion of members of the public if necessary.
By way of analogy, though, the Criminal Justice System provides a whole raft of measures designed to facilitate the full participation of children in the (criminal) judicial process. A full list of these measures (and how the Criminal Justice System was found to be measuring up) can be found here. In short, the Tribunal does not place anywhere near the same emphasis on preparing a young witness to give evidence. This is curious given the arguably higher stakes in, for example, an asylum appeal for a young appellant where the outcome of an incorrect decision may be serious physical or other harm or death rather than, at worst, deprivation of liberty in the justice system.
A recent case
In the case referred to above our clients’ claims were refused by the Home Office on the grounds that their stories were incredible and that, even if true, both boys could have safely relocated internally to Kabul to avoid the harm feared. We should say that our client’s benefited from the Home Office policy regarding minors and were granted Discretionary Leave to remain until they were 17½ at the same time that their asylum claims were refused. This did not affect their right to appeal against the refusal to a tribunal which they exercised.
On the day of the appeal hearing the case was one of several on the list. The Immigration Judge was made aware that the matter involved two young appellants, by that time aged 14 and 15, but refused to hear the matter first (as requested, and as the guidance recommends) and in fact only heard the case after lunch having dealt with all of the other matters beforehand. This included appeals against refusals to grant visas and similar cases. This meant an anxious wait of several hours before the hearing eventually began in the afternoon. During the hearing itself both appellants were questioned extensively (and fairly) by the Home Office regarding their accounts.
In the joint decision dismissing the appeals of both boys the judge found, amongst other things, that the claimants were ‘mature beyond their years’ and as a result chose not to treat them like children, and anyway rejected their evidence including the immortal line that ‘just as they were able to find their way here, so they can find their way back to their village’. The judge concluded that the brothers ‘entered this country illegally with a view to making an application for refugee status which is essentially an exercise in deceit’.
Onward appeal and remittal
These comments in the determination were symptomatic of the entire approach to the appeal by the Immigration Judge which was also clear from the fact that there was even argument about whether the case should have been heard at the top of the list. An application was made to the Upper Tribunal for permission to appeal and granted (although only just, and at the second time of asking). The Upper Tribunal then proceeded to a full hearing and subsequently agreed that the original decision of the First Tier Tribunal was wrong in law.
The case was sent back down to the FTT where it was re-heard last month. In the most recent determination, received earlier this month, a different Judge of the First Tier Tribunal found that the brothers had been consistent in almost everything they had said, particularly regarding their core accounts, and rejected any assertion that their claims were in any way implausible. The judge, contrary to the assertion that the claims were ‘an exercise in deceit’, agreed that both boys would be at real risk of harm if they were to be returned to their home countries.
At a time when access to justice and remedies within the justice system are coming under huge pressure from all sides, including legal aid cuts and judicial review ‘reform’, this case is a timely reminder that no decision-maker is infallible and that the appeal process (not just at first instance) provides vital safeguards against errors.