Asefa, R (on the application of) v Secretary of State for the Home Department [2012] EWHC 56 (Admin)

[2012] EWHC 56 (Admin)Case No CQ/11197/2010Date 31/01/2012
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LEEDS
Before
Mr JUSTICE LANGSTAFF
Between
R (MEAZA ASEFA)ClaimantSECRETARY OF STATE FOR THE HOMEDefendantDEPARTMENTDefendantR (MEAZA ASEFA) ClaimantSECRETARY OF STATE for HOME DefendantDEPARTMENT
Melanie Plimmer (instructed by Switalskis) for ClaimantAlan Payne (instructed by Treasury solicitor) for DefendantHearing Hearing dates: 7 th and 8 th December 2011
Judgment
[1]The Claimant has a regrettable immigration history. The central issue in her case is whether the Secretary of State was right to certify her claim to remain in the UK as clearly unfounded, such that she cannot appeal against it from within the country. In the circumstances of this case, this involves asking what the best interests are of the two of her children who remain with her. Could they reasonably be found to be such that to remove the Claimant to Italy could arguably be an exercise of power disproportionate to the demands of consistent and effective border control, since her removal would be bound to involve their removal too unless the family unit were to be split?[2]It is suggested by her that the best interests of the children are recognised by their remaining in the UK, and are so strong that they are capable of outweighing the considerations which argue in favour of her compulsory return. Background Facts[3]The undisputed facts are as follows. The Claimant is a citizen of Eritrea. In June 2005 she applied for, and in April 2006 was granted, asylum status in Italy. In early 2008, her three children were brought by an agent to Italy. In April 2008, the Claimant entered the UK clandestinely and unlawfully, and claimed asylum on 21st. of that month in Leeds. She did not disclose that she had claimed and been granted asylum status in Italy. Indeed, she appeared to have gone to some lengths to disguise this, since her fingertips were damaged, preventing her fingerprints being taken which would have revealed it. She denied having previously claimed asylum elsewhere. After three unsuccessful attempts to take her fingerprints, they were taken successfully on 9th. June 2008, and within a week had been matched with an asylum seeker in Italy (who had adopted a different name while there).[4]In her statement - taken by her legal representatives, and containing a statement of truth - submitted in support of her claim for asylum in the UK, the Claimant gave an account entirely inconsistent with any physical harm having befallen her directly in Eritrea. Rather, she claimed she had been forewarned that the authorities were looking for her, and had fled before they arrived at her house to seize her.[5]On 3rd. July 2008 the defendant asked the Italian authorities to accept responsibility for the Claimant under Article 16(c) of the Dublin Regulation. The Italian authorities failed to respond within the requisite time-limits and were therefore taken to have accepted responsibility.[6]Removal directions were set for the 27 . August 2008, to return the family to Italy. These were cancelled after the Italian Police reported that they were not willing to accept the children, because the details the Claimant gave did not match the details of the dependent children recorded by the Italian authorities. They had given different names when in Italy.[7]The Claimant then refused to co-operate with the Defendant’s attempts to interview her in relation to the children, though she produced a medical report showing that she was HIV positive, and receiving medication for that, in an attempt to argue against removal.[8]Removal directions were set, but cancelled in the light of the revelation of her HIV status. They were set again for 24 July 2009 when Italy did accept responsibility, but the Claimant sought judicial review, and the removal was cancelled.[9]This application for judicial review was withdrawn, following judgment in EW v SSHD [2009] EWHC 2957.[10]A further challenge to removal followed, on a different ground again - this time that the Claimant’s permit to stay in Italy had expired - and again came to nought.[11]On 13 July 2010 removal directions were again set. The family were due to self check-in. They did not comply.[12]Up to this time, the Claimant had not alleged that any direct physical or sexual harm had befallen her, despite her detailed statement about the events which caused her to leave Eritrea (2 May 2008), her claim in early 2009 to be suffering from HIV, her claim in July 2009 that she had been forced to live on the streets in Italy, her claim to remain in the UK made in April 2010 (alleging that her permit to stay in Italy had expired) and the removal directions with which she had been supposed to comply in July 2010. In late July 2010, for the first time, she alleged that she had been repeatedly raped in both Eritrea and Italy, and that there was a real risk of her committing suicide if returned to Italy.[13]In support of this, she submitted a report from a Dr. Buller, a psychiatrist.[14]On 26th. August 2010, the Defendant certified her human rights claim as clearly unfounded, and refused to transfer refugee status to the UK. Removal directions were set once again, for the 26th. October 2010, but were cancelled in the light of evidence that she was unfit to fly.[15]The Claimant applied again for judicial review - this is the application which now comes before the court. Although HHJ Behrens refused permission on the papers, HHJ Belcher granted permission on oral renewal of the application, on limited grounds.[16]It is a matter of fact that the Claimant has made more than one witness statement with the aid of solicitors during the course of this history. The first (May 2008) gives an account which is completely inconsistent with any physical harm having befallen her in Eritrea - her reason for fleeing was that she had adopted Pentecostal Christianity, and she says she left before the authorities could arrest her. A second account, also verified by a statement of truth, is contained in her review application of 24th. July 2009, which concentrates on conditions in Italy, alleging (contrary to accepted facts) that the family had not been allowed to take up employment in Italy (whereas the evidence before me, which I accept, is that as someone who had been granted asylum she was in no different a position than an Italian citizen). Nothing was said then about any sexual or physical assault upon her, despite graphic descriptions of the abject conditions she says she was forced to adopt. In a statement of September 2010 she denied deliberately damaging her fingertips, but gave no explanation how they came to be damaged. Finally, in a witness statement dated 11th. January 2011, she explained that she did not mention anything about her time in Italy in her initial application because when she thought about what had happened to her there it made her feel terrible, and that she should kill herself; she had not mentioned the rapes because she was ashamed; inconsistency in her account as to when her problems began (obvious on a comparison of her accounts) was because of misunderstanding by the interpreter. She also volunteered that she had not spoken about the rapes in front of her children - but this is arguably contradicted in that on other occasions she has said that at least one rape took place in front of them, so it is not as if they were unaware of what had happened, if it did.[17]The report of Dr. Buller is said by the Defendant to contain more inconsistent material emanating from the Claimant. She claimed to him that in Eritrea, rather than having fled the family home before she could be found by the authorities, 4 soldiers who had come to her home had raped her in front of her children. This does not fit with her earlier accounts.[18]She claimed to have been in Italy for around 6 months during which she was living on the streets, in dangerous places surrounded by those on drink and drugs. She said she had been raped there on a number of occasions, sometimes in front of the children, and believed that is how she contracted HIV. It is however now accepted that she actually had accommodation, provided for her by SPRAR, at least until early 2008 at about the time she says (and the Defendant is prepared to accept) she was joined by her children.[19]Accordingly, the account she gives has been the account of someone who objectively viewed has been deceptive, manipulative, and prepared to change her account to such an extent that her latest statement deposes to a completely different set of facts than did her first.[20]Her claim here does not however rest centrally upon the merits of her own claims viewed in isolation, but upon a matter raised by her only recently in this long history: that of the best interests of her children.[21]The children whose interests fall for consideration, a daughter and a son, are Eritrean. As best can be established, they (when 14 or 15, and about 10 - different dates of birth have been given) came with a brother (then 12 or 13) to Italy in early 2008 to join their mother once she had achieved refugee status there. There is no evidence to suggest that while there they were accommodated by the State. The Claimant, and the elder daughter, say that the Claimant left SPRAR accommodation, lived rough, then came clandestinely to the UK, becoming separated from the third child at Calais. They have not seen him since.[22]Martha (the daughter) is now 17, and becomes 18 on 16th. January 2012. She has completed secondary education, and gained a place at Kirklees College to study a performing arts course. That College describes her as honest, hardworking and conscientious, and her behaviour as impeccable. In a later letter, the College adds that she is regarded as one of its most reliable students, and notes that recently she has been accepted at the College to commence a BTEC Level 1 Health and Social Care course[23]Daniel is now 13. He will be 14 on 22nd. May 2012, His behaviour is described by his school, which he has attended now for just over 2 years, as “generally very good”. He is said to be pleasant, friendly and polite, and to try hard - his recent progress in science is “exceptional”. Certification: the Test[24]The challenge now brought is to the Secretary of State’s certification of the claim as clearly unfounded. The determination of whether a claim is clearly unfounded is one in respect of which a claim must be so clearly lacking in substance that it is bound to fail (Yogathas [2002] UKHL 36). As was observed by Lord Hope at paragraph 62 of the subsequent case of ZT (Kosovo) v Secretary of State [2009] UKHL 6:
"The Yogathas decision underlines the importance of preserving the strictness of the clearly unfounded test."
[25]Accordingly, if there is any prospect that a tribunal might determine the facts to be such that the conclusion would follow that the Claimant was entitled to succeed on her claim for asylum or humanitarian protection, this court would hold the Secretary of State's conclusion was in error.[26]As has been pointed out, again in ZT (Kosovo) and again by Lord Hope (see paragraph 52), the focus of the test in section 94 is primarily on the quality of the claim rather than the prospects of success on an appeal.[27]Lord Phillips of Worth Matravers in ZT at paragraph 22 described the test of whether a claim was clearly unfounded as a "black and white test". If there was no dispute of primary fact, the question of whether or not a claim was clearly unfounded was only susceptible of one rational answer. The words he used there were reflective of words originally adopted by the Court of Appeal in R (ZL and VL) v Secretary of State for the Home Department [2003] EWCA Civ 25, but it is right to point out that that test may not be entirely uncontroversial: see the query in respect of it raised in ZT at paragraph 55, again by Lord Hope. I shall adopt here the approach more favourable to the Claimant which his words would suggest.[28]On the approach set out in MN (Tanzania)v SSHD [2011] EWCA Civ 193, a court is as well placed as a decision maker to assess whether a claim is clearly unfounded, although the process remains one of review (per Camwath LJ in YH(Iraq) v SSHD [2010] EWCA Civ 116). I am not concerned, therefore, with whether the Secretary of State was entitled to come to the view she did, applying “Wednesbury” criteria, but whether on the court’s assessment the claim is clearly unfounded in the sense revealed by the authorities I have cited. The Issues[29]The central issue is whether the claim can be said to be clearly unfounded once the best interests of the children are considered as well as the case of the Claimant herself.[30]A second issue (which has taken a secondary role in the argument before me) is whether the Secretary of State was arguably wrong in law to refuse to transfer refugee status. The conventional judicial review test applies to determine this second issue. The Arguments on the First Ground[31]Ms Melanie Plimmer, in attractively presented submissions, argues for the Claimant that the Article 8 rights to respect for private life (not family life as such, since she accepts that the family will be and should be removed together if at all) will be interfered with disproportionately if the family is returned to Italy. However, similar considerations apply in determining if there has been a breach of Article 8 based on private life as do in respect of family life: AA v UK at paragraph 49.[32]Although there is a presumption that, Italy being a member state of the European Union and bound by the European Convention on Human Rights and Fundamental Freedoms (“the Convention”), return to that country would be safe and it would honour its obligations to observe the Convention, the presumption is rebuttable: the practical realities of life there, the difficulties for the children in particular of return there, and the solidity of their relationships in the UK by comparison with those in Italy must all be examined. Here the ties with Italy are minimal - the children were there only for some three months or so, 3lA years ago. This case has unusual features that removal would not be to the family’s country of origin, that the links with Italy are minimal compared to those with the UK, that the Claimant has been granted asylum status, and that the family have suffered significant hardship in Italy in their brief acquaintance with it.[33]Further, she argued, background reports showed that once a person granted asylum had occupied SPRAR accommodation, they would not be offered another opportunity to do so again. There was thus a serious risk that the family would be street homeless and in miserable circumstances if returned. This would be bound to affect the children, particularly at delicate stages of their education, and would be liable to cause a loss of educational opportunity. Time lost by having to start to learn again on different syllabuses in a different language would never be recovered. Although the mother had a bad immigration history, this was not the children’s fault, and it should not be held against them.[34]When the Secretary of State made her decision certifying the claim, it is not clear she had regard to the interests of the children: she made no real reference to that which the daughter said in her witness statement, which on some material points verified her mother’s account (as to sexual harassment on the Italian streets, and living and sleeping rough, in particular). The 2009 Guidance: “Every Child Matters: Change for Children” (Home Office and Department of Children Schools and Families) was not addressed in the decision, nor were the unusual features mentioned above at paragraph 32.[35]Mr. Payne, for the Secretary of State, pointed out that the Claimant’s position was that although set against a background of illegal entry into the UK and unlawful presence here, the disruption of the children’s education, uncertainty as to the level and duration of State welfare support (in particular accommodation), and the difficulties of the children adapting to life in Italy after 3 years in the UK were said to be sufficient to show that the claim would not necessarily fail before a First Tier judge, since he might conclude that it was not in the children’s best interests to be returned, and that this was so even if the countervailing factors of conduct, the needs for coherent and consistent immigration control, and the obligations of Italy to respect the Convention were taken into account. The factors relied upon, it should be noted, extend beyond essential safeguards, and are tantamount to relying on the avoidance of discomfort and inconvenience to argue that it is in the children’s best interests to remain in the UK.[36]The Dublin Regulations (“Dublin”) under which asylum seekers are to be returned to the country in which they first claimed asylum are, he submits, part of a common European Asylum system, of which the return of those who are recognised refugees is likewise a part: though dealing with seekers of asylum status, as opposed to those who have gained it, the case-law in relation to Dublin is informative. It is recognised that it is both safe and appropriate to return refugees to safe third countries in which they have established rights.[37]The Qualification Directive 2004/83/EC establishes minimum standards to which Member states must adhere not only in respect of the grant of refugee status, but in relation to the content of that status once granted, and in respect of the rights afforded to refugees in terms of access to employment, social welfare and accommodation.[38]The policy considerations which drove this legislation are echoed in Paragraph 5(4) of Schedule 3 to the 2004 Asylum and Immigration (Treatment of Claimants etc) Act, which makes it clear there is a presumption in favour of certification of a claim not to be returned to a scheduled country as being clearly unfounded. Italy is one such country.[39]Lord Hoffman observed in Nasseri v SSHD [2010] AC 1, that a Member State of the EU was entitled to assume (not conclusively presume, but to start with the assumption) that other Member States would adhere to their treaty obligations. The Court of Appeal explicitly adopted this approach in refusing leave to appeal against the decision of Hickinbottom J. in EW, recognising that “..there must be limits...as to how far this country can be expected to police the asylum policy of such a state”. It is authoritatively recognised in the recent decision of NS (C-411/10), delivered since oral argument but upon which both counsel have delivered written submissions.[40]Mr Payne submits that, contrary to the Claimant’s approach, which is that the “best interests” of the child may involve an inquiry into relative standards to life which the child is likely to enjoy, a child cannot generally challenge removal on the grounds that where he is he has access to better accommodation, or education, or medical treatment, or would like to have access to better further education. He cannot insist on a preference for the “status quo” being maintained on the ground that to depart from it would be disruptive of his life to some extent, where that disruption amounts to no more than discomfort and inconvenience, especially when the “status quo” is the consequence of presence which was unlawful from the outset. Discussion[41]The resolution of whether or not a claim is bound to fail depends upon what is meant by “the best interests of the children” in the present context. If(i) it is to be assumed, and if no evidence displaces the assumption in the present case, that generally prevailing conditions in Italy all meet a minimum standard, which is protective of the rights enshrined in the Convention and of common humanity and decency,(ii) there is no sufficient reason to think that for some reason personal to the Claimant or her children the generality would not apply to her or them; and(iii) that insofar as the best interests of children are served by being with their only known surviving parent, that will be not be disturbed, then unless it is arguable that part of establishing the best interests of a child is drawing a comparison between the standard of life likely in the UK on the one hand and Italy on the other, beyond those minima, just as one might compare the benefits of sleeping at the Ritz with spending the night at a low-end budget hotel, or (as Mr.Payne put it in argument) comparing the benefits of public school with state school education, the claim must fail. If, on the other hand, “best interests” in the present context can involve a comparison between two states of economic well-being, educational, accommodation, and welfare provision (both of which are generous in comparison with Eritrea) to resolve which of the two is better, so that one may conclude that the best interests of the children are served by providing access to that better standard, the door may not entirely be shut in the face of the Claimant.[42]What, then, do “best interests” involve?[43]In ZH (Tanzania) v SSHD [2011] UKSC 4; 2 AC 166 Baroness Hale recognised that the content, and hence approach, might be different in the immigration context than it is under the Children Act 1989 (see para.25, at 2 AC 179 E). The phrase broadly describes the well-being of a child (paras. 25, 29), in respect of which Baroness Hale agreed that as Lord Bingham had indicated in EB (Kosovo) [2009] AC 1159, it will involve asking if it is reasonable to expect the child to live in another country, adding:
“ Relevant to this will be the level of the child’s integration in this country and the length of absence from the other country; where and with whom the child is to live and arrangements for looking after the child in the other country; and the strength of the child’s relationships with parents of other family members which will be severed if the child has to move away”
[44]The Supreme Court in ZH did not more closely examine the extent to which relative economic and social well being (the observance of all basic rights being assured) was encompassed in an assessment of “best interests”, since what was in issue was not the content of, but the weight to be given to, the best interests of children affected by a decision to remove or deport one or both parents from the UK. However, Baroness Hale did have positive regard to matters identified in the Australian case of Wan v Minister for Immigration and Multicultural Affairs (2001) 107 FCR 133 at para.30 (see para.30 of her own judgment) which regarded as relevant matters “evoked by, but not confined to, the broad concept of lifestyle”, social and linguistic disruption caused by a move, and loss of educational opportunity, none of which (I observe) is restricted to the lower boundary of the minimum standards guaranteed by the Convention.[45]Such an approach is consistent with the requirement of s.55 of the 2009 Borders, Citizenship and Immigration Act that a decision should be such as to “safeguard and promote” the welfare of the child. Promotion of welfare goes beyond ensuring its security: it implies the taking or recognition of positive steps to improve a person’s lot, rather than the mere avoidance of that lot becoming so poor as to render Convention guarantees insecure.[46]The absence of any reference in a decision to s.55 itself is not fatal to the decision being made, for regard must be had to its substance, not its form: that substance was recognised by Pill LJ in AJ (India) and or s. v SSHD [2011] EWCA Civ 1191 as being the attention given to the “overall wellbeing” of the child, as he described Baroness Hale’s description of it in ZH.[47]Both parties referred me to SSHD v MK [2011] UKUT 00475, a decision of the Upper Tribunal (Immigration and Asylum Chamber) which reversed a decision by the First- Tier Tribunal to allow an appeal by a would-be stayer, as being a case in which there was a useful review of recent case-law relevant in identifying that which the best interests of a child encompasses in a case such as the present. From the UNHCR “Guidelines on Determining the Best Interests of the Child” (May 2008) it derived that this determination required a broad-ranging inquiry, and encompassed multifarious factors including a child’s need for security, continuity of care and affection and the opportunity to form long term attachments based on mutual trust and respect, rarely to be determined by a single over-riding factor (see para 21 et seq.) One factor, though not on this approach over-riding, to which the Tribunal paid specific regard was that of a child’s educational development, in respect of which it contemplated comparing the likely “educational setting” which would confront the children in that case if returned to India, their country of origin, with that which would obtain in the UK.[48]Since ZH, the European Court of Human Rights has delivered its decision in Neulinger and Shuruk v Switzerland [2011] 1 FLR 122. The impact of that decision on domestic law was considered by the Supreme Court in E (FC) [2011] UKSC 27, a case which itself concerned the reconciliation of the approach to be taken to international obligations under the Convention and the United Nations Convention of the Rights of the Child (“UNCRC”). At para. 21, however, Baroness Hale said this:
“The decisive issue..” (in Neulinger) “..was whether a fair balance had been struck between the competing interests of the child, the parents and of public order, bearing in mind that the child’s best interests must be the primary consideration (para.134). The child’s interests comprised two limbs: maintaining family ties and ensuring his development within a sound environment, not such as would harm his health and development (para. 13 6). The same philosophy is inherent in the Hague Convention, which requires the prompt return of the abducted child unless there is a grave risk that the child’s return would expose him to physical or psychological harm or otherwise place him in an intolerable situation...”
[49]Neulinger itself had required that a national court consider a child’s best interests by having regard to an “in depth examination of the whole family situation” and “a whole series of factors” in order to make a “balanced and reasonable assessment”; but this did not require such a painstaking exploration of every facet that the delay in conducting that exploration created the very prejudice it was aiming to avoid (see paras. 22 - 26 of E): summed up by Baroness Hale at para. 26 in these words:
“...in every Hague Convention case where the question is raised, the national court does not order return automatically and mechanically but examines the particular circumstances of this particular child in order to ascertain whether a return would be in accordance with the Convention; but that is not the same as a full blown examination of the child’s future; and that it is, to say the least, unlikely that if the Hague Convention is properly applied, with whatever outcome, there will be a violation of the article 8 rights of the child or either of the parents.”
[50]Nonetheless, at paragraph 136 of Neulinger the statement is one of general principle, in which the concentration is on ensuring development in a sound environment, and avoiding “such measures...as would harm the child’s health and development”. Whatever force is given to the expression “sound environment”, this falls short of giving centrality in decision making to any form of comparative study of levels of economic and social well-being (or as Mr.Payne might say, comfort and convenience) between the removing and the receiving countries: rather, it emphasises matters of basic and essential importance generally as being just that, of basic and essential importance, in this particular assessment too.[51]It was argued by the Secretary of State (in a response by leave of the court) that the words “sound environment” may appear to go further than the legal duty imposed by s.55 requires. Mr Payne submitted on her behalf, however, that these words had to be understood in context. It was effectively the same as a safe environment. For this submission he relied on the reference to “sound environment” in para. 136 of Neulinger, adopted by the Supreme Court (for whom Baroness Hale and Lord Wilson spoke) at para. 52 of E :
“The best interests, not only of children generally, but also of any individual child involved are a primary concern in the Hague Convention process. We agree with the Strasbourg court that in this connection their best interests have two aspects: to be reunited with their parents as soon as possible, so that one does not gain an unfair advantage over the other through passage of time; and to be brought up in a “sound environment”, in which they are not at risk of harm. The Hague Convention is designed to strike a fair balance between those two interests. If it is correctly applied, it is most unlikely that there will be any breach of article 8 or other Convention rights unless other factors supervene.”
[52]Mr. Payne is right when he submits that the emphasis in these passages is on a sound environment rather than the relative material advantages of a particular society. He may be right when he suggests that the collocation of “sound interests” and “freedom from harm” mean that “soundness” is to be understood as reasonable freedom from the risk of harm; but I prefer the view that it is asking too much to suggest that this is the only consideration. The citations from E and Neulinger must be seen in the context of those cases, which concerned the return of a child from the jurisdiction to which it had been removed, and the parent who had removed it there, to the country from whence it came and the parent who lived there. In these circumstances, it would be surprising if great or possibly conclusive importance were not to be given to the child being free from harm. It is easy to understand why in that context it may have been of slight or no relevance that social conditions were more challenging in one country than in the other. Accordingly, although the citations are indicative of an approach that looks to be assured that basic rights are secure, rather than contemplates that the answer to the question of the scope of “best interests” can readily be determined by comparative comfort and convenience, or the desirability of one sound system of education over another, it does not in my view restrict the words “best interests” to the former as a matter of principle.[53]As to the words of the domestic statute (s. 55 of the 2009 Act) imposing a duty to “safeguard and promote the welfare of children”, the law should strain to avoid any conflict between the approach demanded by those concepts, and defining the scope of the best interests of the child for the purposes of article 8 assessments. In the guidance to s. 11 of the Children Act 2004, and in Working Together to Safeguard Children “safeguarding and promoting” is defined as:
“ protecting children from maltreatment; preventing impairment of children’s health or development (where health means ‘physical or mental health’ and development means ‘physical, intellectual, emotional, social or behavioural development’); ensuring that children are growing up in circumstances consistent with the provision of safe and effective care; and undertaking that role so as to enable those children to have optimum life chances and to enter adulthood successfully”
[54]This approach is echoed in the guidance “Every Child Matters” under Part 1, entitled “Understanding the Duty to Make Arrangements to Safeguard and Promote the Welfare of Children” (see paragraph 1.4).[55]Part 2 of Every Child Matters gives guidance as to the role to be expected of the UK Border Agency. It requires, in line with the jurisprudence of which both the UNCRC and ZH form an important part, that the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children: but it says nothing to add to the statements in Part 1 as to that which “best interests” comprise.[56]I accept and endorse the view expressed by Wyn Williams J. in R(TS) v SSHD [2010] EWHC 2614 that the need to safeguard and promote the welfare of children in the UK encompasses the concepts in the four bullet points from “Working Together”. As he observed, though in different language, the first two are protective against harm (“safeguarding”); the latter two are positive obligations (“promoting”). I note, however, that of these latter, promotive, obligations, the “circumstances” referred to in the first are those “consistent with the provision of safe and effective care”. They are not more generally referred to as “beneficial circumstances”, or “favourable circumstances” or the like, and are plainly related, again, to freedom from undue risk of harm. The second of the promotive obligations at first blush appears wider in its phraseology (“to enable ..optimum life chances...”) but the wording of this too is reflective of the content of the safeguarding obligations: it is expressly related to “undertaking that role...”, which must in context be to the role envisaged in the first three bullet points. Accordingly, though “promoting” goes beyond “safeguarding” it does not give much support to any argument that comparative comfort and convenience, or the desirability of one sound system of education over another, have significance in determining best interests.[57]The conclusions to be drawn from these various sources may be summarised in the following propositions: a) “Best interests” can involve a wide-ranging enquiry, and is not limited to the absence of harm, or breach of basic Convention rights; the inquiry extends potentially to take in “the broad concept of lifestyle” (Wan), and a “whole series of factors” {Neulinger), including the continuity of care and affection and the opportunity to form long term attachments based on mutual trust and respect (the 2008 UNHCR Guidelines, MK), and may extend to educational opportunity, and securing “optimal life chances” (2009 Guidance) for a child. b) However, the assessment which is called for is an holistic one, having regard to the particular context (a “balanced and reasonable assessment” (Neulinger) of the “overall well-being” of the child {ZH, AJ) in which it may be unlikely that any one single factor will be determinative (MK)). c) Reaching this overall assessment of what is in the best interests of a child, in the particular context of removal from the jurisdiction, will involve asking if it is reasonable to expect the child to live in another country (EB (Kosovo)) d) Whilst not diminishing the broad nature of the inquiry, of central and critical importance in assessing the reasonableness of this are likely to be two things - the interest of a child in remaining within the family unit; and the soundness of environment within which the child will continue to be brought up. The cases, and the Guidance, lay heavier emphasis on ensuring that basic rights and freedoms from risk are guaranteed, and that there is freedom to enjoy and develop a full family life, than they do upon comparative standards of economic educational and social provision in one state as opposed to another.[58]Accordingly, no universal strength of value can be given to what is recognised to be in the best interests of the children simply because it is said to be so: those interests will have much less weight if they reflect comparatively minor differences in state provision, or likely social conditions, as between a host country and a proposed recipient state, than they will if they reflect significant differences in risk, security, and the assurance of fundamental rights.[59]In a case such as the present, it is to be assumed unless the contrary can be established that there are no significant differences in risk, security and the assurance of fundamental rights as between the UK and Italy. If it were so, the decision in EW would not have been as it was. There is no reason in the evidence before me that establishes a reason why the generality applicable to refugees in Italy should not hold good for the Claimant.[60]In a case such as the present, where removal is to be to a developed Western state which is a full member of the European Union, and in which on the evidence of Carl Dangerfield the Claimant and her children will as refugees have the same access to economic educational and social provision as do citizens of that state, any difference in the standard of that provision (if it exists at all) is likely to be minimal, and could not be assumed by any Immigration judge to be significant.[61]It is insufficient to point to the Claimant’s past experiences to distinguish her case from that of the generality, even if her account were to be believed. As to the question whether it would be believed, I accept Mr. Payne’s submission to the effect that this is one of those rare cases in which it can confidently be said that an Immigration Judge would be most unlikely to regard the Claimant’s account as trustworthy unless corroborated by some independent source, given her many and various accounts, her insistence for so long that she had never been in Italy, her lack of explanation for the damage to her fingertips (and the probable conclusion this was deceptive) amongst other matters. But even if it were true that she had been repeatedly raped or sexually abused whilst on the streets in Italy, this is no proper basis for arguing that returning her to Italy risks this being repeated, for she and her family will have the protections of the state there, with a functioning legal system in comity with that of the UK, and it is well established that a sufficiency of state protection is not discounted merely because of incidents untypical of the whole, or “aberrations”. Just as the fact that rape or abuse on the streets of some British city may happen cannot be regarded as demonstrating that in the UK citizens do not generally enjoy a sufficiency of protection, so too is this true in the case of Italy. No Immigration judge, properly advised, could conclude otherwise.[62]The evidence before me on this which I accept is that of Carl Dangerfield, who in his witness statement deposes that refugees have the same access to employment, education, accommodation and social security as do Italian nationals. Following the decisions in Adam v SSHD [2010] EWHC 2261 (Admin) and Medhanye [2011] EWHC 3012 (Admin) it cannot realistically be argued that Italy systematically breaches the rights of refugees, such that return there would breach Art.3 rights.[63]I reject Ms Plimmer’s argument that to rely upon there being no systematic breach of rights under Art. 3 of the Convention avoids dealing with the practical realities of life in Italy which (per Uner v The Netherlands [2006] 3 FCR 340) should be considered. While a judge will, by definition, not know what those realities will be, he has no reason to suppose that the treatment of the Claimant and her children by the state will differ from the generality of treatment afforded refugees — as to which the cases cited above, and the presumption they recognise, give a complete answer. Those realities might fall for consideration if, for instance, return were to be to some less developed country in which the generality was for there to be such difficulties, or where because of family or cultural ties they could reasonably be envisaged. But that is not this case.[64]Accordingly, as set out above, the question is whether the disruption of the children’s settled life, and education, and arguably some slightly greater discomforts and inconveniences in being in Italy rather than the UK, make it in the children’s best interests to remain: and, if so, the weight to be given to those interests in the overall assessment to be anticipated by the hypothetical judge whom the Secretary of State must have in mind when certifying.[65]Any doubt there may have been as to the weighting to be given to a child’s best interests generally, by the apparently interchangeable use in earlier authority of the definite and indefinite articles to precede the words “primary consideration” or “paramount consideration” appear to been laid emphatically to rest by Baroness Hale in E, where she said (para. 12) that “a primary consideration” (the phrase used in UNCRC) is not the same as “the primary consideration”, still less “the paramount consideration”. A submission that other considerations could not rank equally, but had to be of lesser significance in any assessment, was rejected by the Court of Appeal in AD Lee v SSHD [2011] EWCA Civ 348 (see paras. 13-16). Accordingly, in striking the balance between the conflicting factors, the importance of a child’s best interests must not be devalued to the second or lower rank behind other considerations which may also weigh for or against a particular decision: but the use of “a primary” consideration assumes, at least on a theoretical level, that other considerations may be sufficiently compelling to rank equally in weight, even if most will be secondary considerations and will not. (It is in that sense that, whilst recognising Pill LJ’s misgivings as to the phrase expressed at paragraph 28 in AJ (India), I would make sense of it - that is, assuming that the phrase is not purely to be used to indicate when, in the course of structured decision making, a child’s interests should be considered (a purely temporal approach which would seem to me to pay insufficient regard to them, and which since ZH has not been regarded as crucial by the Court of Appeal - see both AD Lee v SSHD [2011] EWCA Civ 348 at para. 17, and AJ (India) at para.32)). I would be prepared to accept that utilising the “children first” approach temporally may avoid the mistake of first determining whether a parent should be returned to their country of origin, and only after that inquiring if the child’s interests make a difference to the decision, whereas it seems plain that in determining the case of the parent it is necessary to consider the interests of the children as an integral part and parcel of the initial decision, and not either as an afterthought or a reason for review of that decision; but it cannot be said that in the present case the Secretary of State has made any such error. Paragraph 29 of the decision letter claims to have considered the best interests of the children, and the safeguarding and promotion of their welfare, when reaching the decision now under attack. Conclusions as to First Ground[66]The arguments that the children’s education will be affected adversely to an extent, and that they will face the difficulty of readjusting to a country with which they had very little former acquaintance, have some weight. So too, as the Secretary of State recognised in her decision letter, does the fact that there might be some temporary uncertainty and interference with access to education and social support. It is unlikely that the Claimant’s accounts of extensive sexual abuse, and involuntary rough living, in Italy will be accepted by any tribunal given the very great difficulties in regarding the Claimant herself as giving credible or reliable evidence free of significant self- interest. Even if they were, there is no objective reason on the material before me to suppose that such abuse or rough living would go unremedied in Italy, and the contrary should be presumed. Whatever weight the risk of repetition could be held to be, at greatest it would be very low.[67]An Immigration Judge would be bound to hold that the essential interests of the children and the Claimant would be preserved, and not adversely affected by any move to Italy. Hence the matters mentioned in the foregoing paragraph could have at most peripheral weight. The balance between those factors on the one hand, and on the other the need to maintain not only a coherent and consistent system of immigration control but also the integrity and practical utility of the common European Asylum system of which Dublin II forms part, is such that there is only one answer on the facts of this case. That is one which is unfavourable to the Claimant.[68]For completeness, even if the effects of removal on the Claimant herself of which Dr. Buller speaks were to be added to the balance in favour of the Claimant and her children - although his views may well be discounted by an Immigration Judge, and Ms Plimmer’s oral submissions were entirely silent on the point - I would remain satisfied that on any legitimate view of the facts the Art. 8 challenge would not succeed. Ground Two[69]Ms Plimmer argues that the decision not to transfer refugee status was the carrying out of a function within section 52(2)(a) of the 2009 Act, such that there was a need in reaching it to have regard to the duty to safeguard and promote the welfare of the children under s.55(l) and to have regard to the 2009 Guidance (s. 55(3)).[70]She submits that the decision reached irrationally fails to take account as a primary consideration that the best interests of the children militate in favour of a transfer: this is because of the likely adverse consequence for them of a return to Italy, and their stronger links with the UK. There is no indication that the Secretary of State first accepted that it would be in the best interests of the children to have their mother’s refugee status transferred to the UK, before going on to consider countervailing considerations.[71]She accepted that the argument on this ground was much less likely to succeed if Ground 1 were to be answered unfavourably to the Claimant. This must be so: for this second ground is inextricably linked to the first. Having concluded that the best interests of the children have no prospect on any reasonable view of outweighing a decision to return their mother, the Claimant, and hence them with her, to Italy, the only basis remaining on which to argue irrationality is that no specific reference was made to the best interests, or safeguarding and promoting the welfare, of the children, or of section 55, in this context when certifying the claim: it could not otherwise be said to be unlawful, irrational or unreasonable to refuse transfer. However, as the cases of AD Lee v SSHD and AJ (India) make clear (see para.32 of the latter), what matters is not the form, but the substance, of the consideration given. Here it is plain that the Secretary of State had regard to the best interests and welfare of the children in reaching her decision, since they are intimately bound up in her reasoning - see e.g. paragraphs 28 and 29, in which this decision is reached, linked expressly to the paragraphs which follow from 30 to 49, which are headed “Your client’s children”, and demonstrate that careful thought has been given to their position.[72]Even if I were wrong in that, once it is accepted that the decision to certify stands, there could be no prospect of any application for meaningful relief succeeding, since any fresh decision would inevitably reach an identical conclusion.[73]Ms Plimmer was right to touch only slightly on this ground in her oral submissions: it was bound to fail.

Stay

[74]For completeness, I need to deal with an application for a stay made at the outset of Ms. Plimmer’s submissions, both in writing and orally. This application relies on a decision of the 19th. October 2011 by the President of the 5th. Section of the European Court of Human Rights in Application 64208/11 to grant a stay on the removal to Italy of the applicant in that case, for the duration of proceedings challenging the Italian system for dealing with refugees and asylum seekers; and the decision by Kenneth Parker J. in R (Medhanye) v SSHD [2011] EWHC 3012 (Admin) to grant a stay, on the basis that it was arguable that Article 1 of the Charter of Fundamental Rights might provide greater protection than, say, Art. 3 of the Convention.[75]In the latter, Kenneth Parker J. had express regard to para. 135 of the Advocate General’s opinion in case of NS, C-411/10 and the linked case, ME and others v Refugee Applications Commissioner, Minister for Justice, Equality and Law Reform, C-493/10, where she made the point that the principle of effectiveness meant that an asylum seeker must have the opportunity of challenging the rebuttable presumption that a member state of the European Union would be treated in a manner consistent with human rights and fundamental rights in the Member State primarily responsible.[76]With what he described as “extreme” reluctance, Kenneth Parker J. granted a stay until the Court had determined the appeal in R (NS) v SSHD [2010] EWCA Civ 990, in which a reference had been made to the European Court. He did not himself find the argument attractive, for reasons he gave at para. 45 of his judgment.[77]That case involved an asylum seeker, who was arguing that his human dignity might be affected by return, so as to infringe the Charter, even if his rights under Art. 3 of the Convention were not.[78]Although the case is yet to return to the Court of Appeal for final determination, the European Court delivered its judgment in NS whilst this judgment was in preparation, a matter of which the parties made me aware at a final stage. I had, in the absence of consideration of that case (being unaware of its terms) determined not to grant a stay. My grounds for doing so briefly were as follows. First, it is axiomatic that each case of review (which this is, in respect of both grounds) turns on its own facts. On those put before the Secretary of State in this present case I had already determined that there was no warrant for supposing that the Claimant would, by virtue of her past experiences, be disadvantaged so as to breach her Art.3 rights, or that those of her children would be infringed, for those arguments give no reason for distinguishing her future treatment from that of the generality of refugees. (I note, in passing, that NS is an asylum seeker, and thus in a different category in any event). The Claimant here has had the opportunity of challenging the rebuttable presumption that her and her family’s essential rights will be safeguarded in Italy. The reasons for granting a stay, thin as they were in Medhanye, do not in my judgment constitute a reason in this case for a stay: a view which judgment in NS has confirmed, Permission to advance the challenge here was given on the two grounds I have identified. The argument that there is a systematic abuse of rights of refugees in Italy has not been maintained before me. Nor is there any sustained argument by reference to Art. 3. Reliance has, instead, been placed on there being some argument properly to be advanced under Art. 8. There was no reason to think that in a case which involves Art. 8, and the balance to be struck between the interests of the Claimant and her children, as against the interests of the community as a whole, a decision relating to the comparative standing of Art. 1 of the Charter as against Art. 3 of the Convention would have anything of decisive principle to contribute. Having read the decision in full, and considered the submissions of the parties upon it, that view was amply justified.[79]I decline a stay. Final Determination[80]For those reasons, the claim is dismissed in its entirety. I should, however, finally like to pay tribute to the diligence of both counsel in their presentation of their respective cases.

Cited in 9 later judgments