CL (Vietnam) v Secretary of State for the Home Department

An immigration tribunal determining an unaccompanied child’s Article 8 appeal must assess all the evidence available at the hearing, including the adequacy of reception and care arrangements in the receiving country. The Secretary of State’s undertaking not to remove the child unless satisfied that those arrangements are adequate cannot remove that issue from the statutory appeal. Such a course would delegate an important part of the tribunal’s decision and leave the child only with the more limited remedy of judicial review.

The tribunal must determine a properly raised human rights claim even where removal may occur only in the future. A successful claim confers leave only until return can safely occur without violating Convention rights.

The appellant, an unaccompanied Vietnamese child, claimed asylum after arriving in the United Kingdom aged 13. The Secretary of State refused asylum and decided that removal would not breach the European Convention on Human Rights.

Immigration Judge Dineen later dismissed the asylum and Article 3 claims but allowed the Article 8 appeal. On the evidence before him, adequate reception arrangements in Vietnam had not been established. The Asylum and Immigration Tribunal reconsidered and dismissed the appeal, holding that the Immigration Judge had materially erred by failing to follow earlier tribunal authority which left the adequacy of future reception arrangements to the Secretary of State.

The central issue was whether the tribunal itself had to consider reception and care arrangements when determining the child’s Article 8 appeal, notwithstanding the Secretary of State’s undertaking not to remove him unless those arrangements were considered adequate.

1. The appeal was allowed unanimously. Immigration Judge Dineen had made no material error of law. The Asylum and Immigration Tribunal therefore lacked a proper basis for reconsidering his decision, which should have been allowed to stand.

2. An immigration appeal is determined on the evidence available at the hearing. Section 85(4) of the Nationality, Immigration and Asylum Act 2002 permits consideration of matters arising after the Home Office decision. The process is a statutory appeal, not judicial review confined to the material before the original decision-maker.

3. A tribunal must determine a properly raised human rights claim even where removal is not imminent. Although this may require hypothetical reasoning, the possibility that removal will occur only in the future does not relieve the tribunal of its adjudicative duty.

4. Article 8 protects physical and psychological integrity and may be engaged by the foreseeable consequences of removal even where Article 3 is not violated. In an unaccompanied child’s case, a proper assessment ordinarily requires examination of the circumstances awaiting the child, including the adequacy of reception and care arrangements. Those arrangements may materially affect the child’s physical and mental well-being.

5. The Secretary of State’s undertaking not to remove the child unless satisfied that reception arrangements were adequate could not displace that assessment. It guaranteed only the Secretary of State’s opinion, which might be right or wrong. Leaving the matter to a later executive decision would remove an important part of the Article 8 claim from the statutory appeal and leave only judicial review. The approaches adopted in N (Vietnam) [2003] UKIAT 00059 and BV (Vietnam) [2004] UKIAT 00148 could not therefore be followed.

6. A successful Article 8 appeal gives leave only until the person can safely be returned without violating Convention rights. The Secretary of State could reconsider whether return as an adult would breach the appellant’s rights.

7. Sedley LJ added that the policy reflected international obligations and that the evidence relied upon concerning reception conditions was inadequate. He also expressed the non-dispositive reservation that an undertaking given to a tribunal which is not a court of record might be unenforceable.

1. Court of Appeal (Civil Division): The appeal was allowed in [2008] EWCA Civ 1551. The court held that the Immigration Judge had made no material error of law and that his decision should stand.

2. Asylum and Immigration Tribunal on reconsideration: Senior Immigration Judge Gleeson found a material error of law and redetermined the appeal in the Secretary of State’s favour.

3. Immigration Judge: Immigration Judge Dineen dismissed the asylum and Article 3 appeals but allowed the Article 8 appeal because adequate reception arrangements in Vietnam had not been established.