AA, R (on the application of) v The Upper Tribunal & Anor

In an immigration case involving an unaccompanied child, the best interests of the child must be assessed as a primary consideration before countervailing immigration-control interests are weighed. The assessment must be full and rounded, including present welfare, development, future prospects and the conditions awaiting the child on return. Approaching the age of 18 does not remove that duty, although it may affect the weight ultimately given to the child’s interests. A failure to apply that approach may disclose an arguable error of law, but judicial review of an Upper Tribunal refusal of permission requires the stringent second-tier test. Strongly arguable legal error and serious consequences may constitute a compelling reason, but the test is not met merely because an error is arguable.

The claimant, an Iranian Kurdish national who arrived in the United Kingdom as an unaccompanied minor, challenged the Upper Tribunal’s refusal of permission to appeal against the dismissal of his asylum, humanitarian protection and human-rights claims by the First-tier Tribunal. The First-tier Tribunal had accepted that he had established a private life in the United Kingdom but concluded that removal to Iran would not breach Article 8 of the ECHR. It also considered that he would be approaching or over 18 on return and could re-establish family relationships in Iran.

The claimant argued that the First-tier Tribunal had failed to apply the duty under section 55 of the Borders, Citizenship and Immigration Act 2009 to treat his best interests as a primary consideration, and had failed adequately to assess reception conditions and family tracing. The central issues were whether the First-tier Tribunal arguably erred in law and, if so, whether the second-tier appeal test under R (Cart) v The Upper Tribunal was satisfied.

1. Claim dismissed. The First-tier Tribunal’s treatment of Article 8 disclosed a strongly arguable failure to apply the best-interests test, but the Upper Tribunal’s refusal of permission was not quashed because the stringent second-tier appeal test was not met.
2. The best interests of a child must be treated as a primary consideration. The decision-maker must first assess those interests in a full and rounded way, including present circumstances, development, future prospects, integration, family relationships and the arrangements awaiting the child in the receiving country. Only then may competing immigration-control interests be balanced against them: ZH (Tanzania) v SSHD [2011] UKSC 4.
3. The duty is not reduced because the child is approaching 18. The interests of a 17-year-old are different from those of a younger child, but the duty remains. The imminent attainment of adulthood may affect the weight given to the child’s interests at the balancing stage; it cannot operate as a factor which automatically defeats them.
4. The First-tier Tribunal was entitled to find that the claimant remained in contact with his family. Although the Secretary of State appeared not to have complied with the family-tracing duty in regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005, that failure did not justify quashing the decision in light of the Tribunal’s specific and unchallengeable factual findings.
5. The checklist in section 1 of the Children Act 1989 was not the applicable statutory framework for this assessment. The court also rejected the contention that the evidence of the social-services witness required additional express reasoning: R (TS) v SSHD [2010] EWHC 2614 (Admin) established no additional principle on the giving of reasons.
6. The second-tier test requires a sufficiently strong legal basis for challenging the Upper Tribunal together with a compelling reason. The test is stringent but flexible. The extremity of consequences may be relevant when combined with a strongly arguable error of law, but does not constitute a free-standing ground. The claimant’s impending majority and the finding that he would have family contact meant that the consequences were not sufficiently extreme: R (Cart) v The Upper Tribunal [2011] UKSC 28; JD (Congo) v SSHD [2012] EWCA Civ 327.
7. The earlier grant of permission to apply for judicial review was not set aside. Permission had been granted after argument on an realistically arguable case, and the circumstances were not exceptional.
8. The claim was dismissed. The claimant was granted permission to appeal to the Court of Appeal. The interested party’s costs were to be determined by a costs judge or district judge, subject to the claimant’s public-funding position.

1. First-tier Tribunal: dismissed the claimant’s appeal against refusal of refugee recognition, humanitarian protection and leave to remain.
2. Upper Tribunal: refused permission to appeal on 20 May 2011, holding that no arguable error of law was disclosed.
3. High Court (Administrative Court): dismissed the judicial-review claim, declined to quash the Upper Tribunal’s refusal, refused to set aside the earlier grant of permission, and granted permission to appeal to the Court of Appeal.