RA, R (on the application of) v The Secretary of State for the Home Department

Where removal has followed an unlawful decision, unlawfulness is the starting point when deciding whether to order a person’s return. The tribunal must exercise a fact-sensitive discretion. It should weigh restoration of the position that lawful decision-making would have produced against the practical consequences of return and any later out-of-country challenge.

In a child’s case, breach of the duty under UK Borders Act section 55 is a powerful factor. Current evidence bearing on the child’s welfare and the likely delay before a lawful reconsideration can also justify return. The risk of a further relocation is relevant but is not necessarily determinative.

The applicant child and her mother had been removed to Nigeria. In an earlier judgment, R A, a child, by his litigation friend v Secretary of State for the Home Department [2015] UKUT 00242 (IAC), the Upper Tribunal held that the Secretary of State had breached her duty under section 55 by deciding that representations did not amount to a fresh claim without considering the child’s best interests.

The child then applied for an order requiring their return to the United Kingdom. The central issue was whether the Tribunal should exercise its discretion to order return following the unlawful removal.

1. The application was granted. The Secretary of State was ordered to take all reasonable steps to secure the return of the child and her mother to the United Kingdom.

2. The Tribunal applied the discretionary approach identified in R (YZ (China)) v Secretary of State for the Home Department [2012] EWCA Civ 1022. Unlawfulness of the removal decision was the starting point. A further important consideration was whether return would restore the person to the position that lawful application of the legislation would have produced.

3. The section 55 breach was a powerful factor, particularly because the case concerned a child. The breach was not treated as flagrant: the representations had been made on the eve of removal, and an application for urgent judicial review might have prevented removal. Those matters reduced, but did not remove, the weight of unlawfulness.

4. The Tribunal gave limited weight to possible difficulties in conducting a future out-of-country appeal. No fresh decision had yet been made, so no appeal right then existed, and the case was unlikely to turn heavily on oral evidence. However, post-removal evidence concerning the mother’s mental health raised concerns for the child, and the prospect of delay before any further challenge materially affected the child’s position in Nigeria.

5. The possibility that return might lead to a second relocation and harm the child’s wellbeing was relevant but not determinative. Balancing all matters, the factors favouring return prevailed. The claimant was awarded 70% of costs. Permission to appeal was refused to both parties.

• Upper Tribunal (Immigration and Asylum Chamber): In R A, a child, by his litigation friend v Secretary of State for the Home Department [2015] UKUT 00242 (IAC), the Tribunal held that the Secretary of State had breached the duty under section 55 of the UK Borders Act.
• Upper Tribunal (Immigration and Asylum Chamber): On this subsequent application, the Tribunal ordered the return of the child and her mother to the United Kingdom.