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

For permission purposes, it was arguable that removal of an unaccompanied asylum-seeking child required a proper assessment of whether adequate reception and care arrangements existed under the UASC policy. A later undertaking to review removal did not necessarily cure an earlier potentially flawed policy decision. It was also arguable that a tribunal should not make a material finding about family reception arrangements without evidential support and a fair opportunity to address the issue.

The appellant, a Vietnamese national who arrived in the United Kingdom aged 13, challenged removal after his asylum claim was refused. An immigration judge dismissed the asylum appeal but allowed the human-rights appeal, finding that removal would breach Article 8 and that the respondent had not shown compliance with the policy for unaccompanied asylum-seeking children.

The Asylum and Immigration Tribunal allowed the Secretary of State’s appeal, treating the reasoning in BV (Unaccompanied Minor – Timing of Decision) Vietnam as determinative and finding that the appellant’s mother was probably available in Vietnam. Permission to appeal was refused on paper. The central questions were whether the immigration judge had materially erred in declining to follow BV, whether the Tribunal had exceeded the properly established facts, and whether the removal assessment was proportionate.

1. Application granted. Permission to appeal was granted on the ground concerning the effect of BV (Unaccompanied Minor – Timing of Decision) Vietnam and on the ground concerning the appellant’s alleged contact with his mother. The remaining grounds were not pursued.
2. The UASC policy required the respondent to be satisfied that adequate reception and care arrangements existed, or that the child’s family had been traced, before removal. If those conditions were not met, the policy contemplated exceptional leave to remain. It was arguable that the immigration judge could assess whether the evidence actually established adequate arrangements, rather than treating a later undertaking as sufficient.
3. The judgment identifies an arguable issue in defending a decision made when the appellant was a 13-year-old child by relying on evidence of a practice, not clearly foreshadowed in the policy, that the respondent would review the removal decision before return. The four-year unexplained delay and the appellant’s intervening private life were relevant to that concern.
4. The immigration judge arguably explained in paragraph 71 why he disagreed with BV, notwithstanding that removal directions had been given in that case. The apparent failure to follow BV was therefore not necessarily a material error of law.
5. The AIT also arguably went beyond the facts properly found by the immigration judge when it inferred that the appellant’s mother was probably still in Vietnam and could receive him. The evidence and procedural fairness concerning that issue required examination.

• Court of Appeal (Civil Division): renewed application granted; permission to appeal granted on the first and third grounds identified in the appellant’s proposed grounds, concerning BV and the finding about the appellant’s mother.
• Asylum and Immigration Tribunal: on 3 December 2007, allowed the Secretary of State’s appeal from the immigration judge’s decision.
• Immigration Judge: on 14 July 2006, dismissed the asylum appeal but allowed the human-rights appeal.