ZY -v- Secretary of State for the Home Department (anonymity order)
Administrative CourtHigh CourtKing's Bench DivisionAnonymity Order
Claim number: AC-2024 LON 000712
In the High Court of Justice
King’s Bench Division
Administrative Court
3 May 2024
Before:
The Honourable Mr Justice Ritchie
Between:
The King on the application of
ZY
-v-
Secretary of State for the Home Department
Notification of the Judge’s decision
on the application for permission
to apply for judicial review (CPR 54.11, 54.12)
BEFORE the Honourable Mr Justice Ritchie sitting at the Royal Courts of Justice, the Strand, London on 3.5.2024.
FOLLOWING CONSIDERATION of the Claimant’s application dated 29.2.2024 for permission to apply for judicial review (CPR 54.4; 54.11; 54.12) and the documents lodged by the Claimant in one bundle and the Acknowledgement of Service and statement of facts and grounds filed by the Defendant.
AND UPON:
(a) consideration of the Claimant’s Article 8 right to respect for private and family life and the Article 10 right to freedom of expression;
(b) the Defendant indicating their neutrality to the making of the order and there being no representations from the press or any other interested party;
(c) the press making no representations to the contrary.
AND UPON IT APPEARING that non-disclosure of the identity of the Claimant is necessary in order to protect the interests of the Claimant, who is a child.
AND PURSUANT to rule 39.2(4) of the Civil Procedure Rules and section II of the Contempt of Court Act 1981 and rules 5.4C and 5.4D of the Civil Procedure Rules.
NOW IT IS ORDERED THAT
Transfer
1. The application for permission to apply for judicial review is transferred to the Upper Tribunal Immigration Appeals Chamber.
Costs
2. Costs reserved.
Anonymity
Identity and address
3. That the identity of the Claimant shall not be disclosed.
4. That reporting restrictions apply as to the disclosing of any information that may lead to the subsequent identification of the Claimant. The publication of the name and address of the Claimant is prohibited.
Documents filed in future
5. That the name of Claimant shall be described in all statements of case and other documents to be filed or served in the proceedings in future and in any judgment or order in the proceedings and in any report of the proceedings by the press or otherwise as “ZY”.
6. That the address of the Claimant shall be stated in all statements of case and other documents to be filed or served in the proceedings as the address of the Claimant’s solicitors.
Court files
7. That, in so far as necessary, any statement of case or other document disclosing the Claimant’s names or address already filed in the proceedings shall be replaced by a document describing such name or address in anonymised form as above.
8. That the original of any such document disclosing the name or address of the Claimant placed on the Court file (digital or paper) shall be marked “confidential: not to be opened without the permission of a Master or High Court Judge”.
9. That a non-party may not inspect or obtain a copy of any document on or from the Court’s paper or digital files (other than this order duly anonymised as directed) without the permission of a Master or District Judge. Any application for such permission must be made on 14 days notice to the Claimant’s solicitor or deputy and the Court will effect service.
10. The Court’s paper and digital files are to be marked “subject to an Anonymity Order”.
Procedure
11. That any non-party affected by this Anonymity Order may apply on notice to all parties to have this Anonymity Order set aside or varied.
Reasons (CPR r.54.11)
Judicial Review, permission stage
1. CPR r. 54.4 requires applicants to gain permission for judicial review. Permission is granted where the applicant satisfies court that there is an arguable case that a ground for seeking judicial review exists which merits full investigation at a full oral hearing with all the parties and all the relevant evidence, see R. Ex p. Hughes v Legal Aid Board [1992] 5 Admin. L.R. 623. An arguable case is one which has a realistic prospect of success and where there is no discretionary bar to a remedy such as delay, an alternative remedy, the application being purely academic or hypothetical, or the applicant being unlikely to gain any benefit, see Sharma v Brown-Antoine [2007] 1 W.L.R. 780 at [14(4)] and Simone v Chancellor of the Exchequer [2019] EWHC 2609 (Admin) at [112].
Background
Decision
1. On 14.6.2022 the Claimant (C) applied for asylum. He is a child aged 17 (dob 6.1.2007, unevidenced). His mum died. He asserted that: he was sent by his dad to a religious school run by a Shiekh to learn the Quran; he was beaten a lot; he was forced to beg for food; he ran away back home but was returned by his dad; he was beaten; a boy was murdered; the school was shut down; he ran away home again and then he ran away with a cousin to Libya; they worked on a farm; they crossed the Mediterranean by boat; they were found and taken to Sicily, Italy; they stayed with a kind family; they left and travelled to Calais and then were assisted across the channel to England in a boat by nefarious persons for money. C asserts that he cannot go back to Chad because his father would send him to another religious school where he will be beaten.
2. In relation to modern slavery and human trafficking, he received a positive reasonable grounds decision from the NRM on 21.11.2022. No conclusive grounds decision (CGD) has been made.
3. C, through his lawyers, chased D to make the asylum decision ASAP. On 29.11.2023 the Defendant (D) decided to refuse the Claimant’s asylum application despite the absence of a CGD. Leave to remain was granted. The decision was sent out on 3.12.2023. He was not found to qualify under the Human Rights Convention or the Refugee Convention. It was fear of his own father and step-mother. It was not accepted that his father/step-mother were reasonably to be feared because they did not send C to another inappropriate school after the first one was shut down and C had domestic remedies/protection/relocation abilities in Chad. Family life grounds and exceptional circumstances (S.55 BA 2009) were not found. C appealed in time to the first tier tribunal (FTT). Medical evidence is being gathered.
Asserted facts
4. This is a judicial review claim. It must be brought within 3 months of the decision to be reviewed. It was dated 29.2.2024. C has locus.
5. C asserts that the asylum decision should not have been made before the CGD. This is rather different to C’s approach before the decision was made, which was to press for D to get in with it.
6. D asserted initially that she was entitled to determine the Asylum application before the CGD under the Streamlined Asylum Processing Guidelines v3.0. Lattery she asserts she was entitled to under a Prime Minister’s announcement.
7. C asserts that D relied on the Adult Guidance not the Children’s Guidance; failed to apply S.55 of the Borders, Citizenship and Immigration Act 2009 (child’s best interests); misapplied the Guidelines; applied unpublished Guidelines which were only published later, on 22.2.2024 (the New Modern Slavery Guidance). C asserts that the evidence in the appeal to the FTT will be messy or impossible to determine because the CGD has not been made.
8. The Claimant seeks: a) A declaration that the Defendant unlawfully refused the Claimant’s protection and human rights claim because the CGD was pending and/or without regard to trafficking and exploitation; b) A declaration that the unpublished policy or policies applied in this case, was unlawful; c) An order that the Defendant make a CGD within 28 days; d) An order that the Defendant issue a supplementary refusal letter within 28 days of the CG D; e) Any other remedy that the Court sees fit; f) Such further or other relief as needed to give effect to the court’s judgment; and g) Costs.
9. The paragraph in the Guidance the subject of the dispute states: “An NRM referral does not prevent an assessment of someone’s asylum claim which results in a positive protection decision (a grant of permission to stay). If someone is eligible for refugee status or humanitarian protection, then you can grant protection status or refuse the asylum claim with a right of appeal, even if there is an outstanding NRM reasonable or conclusive grounds decision as to whether they are a victim of human trafficking or modern slavery.”
10. The issue is whether C has had a “positive protection decision (a grant of permission to stay)”. D refused asylum with a right of appeal and granted leave to remain.
11. D submits that C has a suitable remedy through his appeal to the FTT. Also D asserts that exclusive jurisdiction lies with the UT, not the High Court.
12. I have re-read the Lord Chief’s Guidance dated 21.8.2013 and S.s 15 and 18 of the Tribunals, Courts and Enforcement Act 2007. This is clearly an immigration and asylum case and is better heard in UTIAC.