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London Borough Croydon v Y [2016] EWCA Civ 398

 

Refusal by asylum seeking child to consent  to dental and other examination  by Home office independent experts held unreasonable

 

In London Borough of Croydon v Y [2016] EWCA Civ 398, the Court of Appeal  addressed the following issues: 

The asylum claimant(Y)  sought asylum claiming to  have been born on 24 May 1994. His claim was refused by the Secretary of  State.  Y was subsequently  assessed by Social Services  as being over the age of 18years. The assessment of the social workers  was based  exclusively  on Y ‘s physical appearance. Y brought judicial review proceedings .

Trial was fixed to start on  8 February  2016.  

Y  had been granted permission to rely on reports by, a forensic physician, a child and adolescent psychiatrist and a  specialist adviser on human trafficking and child exploitation

On 20 November 2015, Croydon Social Services( “Croydon” )  applied to the Upper Tribunal Asylum and Immigration Chamber for an order that the challenge to the age assessment should be struck out (or stayed) unless Y consented to and co-operated fully with (i) a dental examination (including a dental X-ray), (ii) a psychiatric examination and (iii) an age assessment by two Croydon social workers. In support of this application, Croydon relied inter alia on the decision  in Starr v National Coal Board [1977] 1 WLR 63. The application was refused by an Upper Tribunal Judge.

Croydon  mounted a challenge to the Court of Appeal  and argued that the Tribunal Judge  had erred in holding that the Starr principles did not apply in respect of Y’s refusal to consent to   the assessments. It was argued that the Upper Tribunal Judge  should have held that the Starr principles did apply and that, on a proper application of them, he should have acceded to Croydon’s application to stay or strike out Y’s claim unless he consented to each of the three assessments sought.

The  Court of Appeal summarised the Starr principles:  in the exercise of its discretion in this class of case, the court has to recognise that in the balance there are “two fundamental rights, which are cherished by the common law and to which attention has to be directed by the court”. The first is the plaintiff’s right to personal liberty. The second is an equally fundamental right, namely the defendant’s right to defend itself as it and its advisers think fit, including the freedom to choose the witnesses that it will call. It is particularly important that a defendant should be able to choose its own expert witnesses, if the case is one in which expert testimony is significant. The court in Starr  went on to say that, if a defendant in a personal injuries case made a reasonable request for the plaintiff to be medically examined by a doctor chosen by the defendant, the plaintiff should accede to the request unless he had reasonable grounds for objecting to the particular doctor chosen by the defendant.

The Court of Appeal in Y’s case  considered that  the Upper Tribunal Judge  did address the Starr principles, but held that they did not apply for the three reasons that he identified when refusing permission to appeal. First, in Starr the plaintiff had conceded that it was necessary for the defence to have the opportunity for their expert to examine the plaintiff.  Secondly, Starr was a private law claim, whereas the present case concerned a public law claim. Thirdly, refusal of Croydon’s application was an appropriate use of his case management powers to ensure the efficient disposal of the application. The Court of Appeal rejected these reasons.

The concession was  a basis for distinguishing Starr from the present case on the facts, however the Court of  Appeal stated that it cannot, however, be a reason for holding that the Starr principles only apply where there is such a concession. In the absence of such a concession in the present case, the judge had to decide whether all or any of the three examinations sought were reasonably necessary for the proper conduct of Croydon’s defence.

There is no basis in principle for confining the Starr principles to private law litigation. But in judicial review claims where the court does hear oral evidence and is required to make findings of fact, there is no reason in principle why Starr should not be applied in an appropriate case. The fundamental common law right of a defendant to defend itself in litigation to which Scarman LJ  in Starr, referred applies in any litigation. That is so whether the case involves a private law or a public law claim.

Although Croydon had failed to comply with some of its procedural obligations, these could not have justified a decision to refuse its application unless at least they caused Y to suffer significant prejudice. If acceding to the application had jeopardised the hearing date, this would have caused prejudice which, might have justified a refusal of the application. But there was no finding by the judge that the trial could not have started on 8 February 2016 if the order had been made and there was  no material on which the Court of Appeal  could make such a finding. The evidence before  the Court  showed  that  the  dental expert  could have seen Y before Christmas 2015. There was  no doubt that Croydon’s two social workers could have done so as well. The only doubt  was  in relation to the consultant psychiatrist. There was  no evidence before  the Court of  Appeal  as to when he could have seen Y. In  the Court’s  view, it would be quite wrong to uphold the judgment solely because it was possible that the order sought by Croydon would have necessitated an adjournment of the hearing date on account of the time it would have taken for consultant psychiatrist  to have examined Y and produced a report. This was  far too uncertain a basis on which to reach such a conclusion.

The Court of Appeal was satisfied that the judge should have made the order sought by Croydon. It was reasonably necessary to enable it to defend the challenge to its age assessment. Y’s refusal to give his consent was unreasonable.

By way of a postscript,  the Court of Appeal   noted that it was  said that the method of assessing age using mean data taken from dental x-rays was  controversial and unreliable. The Court however stated   that it is impossible for the court to reach a conclusion on whether this is correct or not. In  the Court’s view, it cannot be a reason for refusing the order and that no doubt, the reliability of the assessment based on dental x-rays would  be investigated at the hearing.

 

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MA (Bangladesh) v Secretary of State for the Home Department [2016] EWCA Civ 175

 

Tanveer Ahmed, authenticity  and reliability  of documents-Is there an investigative duty upon the Home Office where document  are at  the centre of protection? 

 

 

The  issues that arose in MA (Bangladesh) v Secretary of State for the Home Department [2016] EWCA Civ 175, were as follows:

Two appeals ( MA and AM) were before the Court of Appeal,  raising a  common issue concerning the principles established in Tanveer Ahmed v Secretary of State for the Home Department [2002] INLR 345 in relation to the authenticity   and reliability of document in asylum claims.

In MA,  a question was  raised as to whether Tanveer Ahmed was still good law. The documents which MA provided, if authentic would provide strong support  for MA’s claim  that he was  convicted of murder  which took place  in the context of violence   between two  rival political organisations in Bangladesh and that he was sentenced to imprisonment.

In AM,  it was  argued that there was a duty  on the interested party to verify  the newspaper report he had provided.  The news paper report suggested that the Appellant  had been  charged  as a result of his participation in a political  demonstration. AM was granted permission to appeal  and his appeal was directed to be linked  with the  appeal in MA , “to assist the Court of Appeal to give guidance on the tension (if any) between Tanveer Ahmed and Singh v Belgium by reference to more than one fact situation”.

Tanveer Ahmed laid down the  approach in the case of contested documents.  The following principles arose:(i) In asylum and human rights cases it is for an individual claimant to show the document on which he seeks to reply can be relied on; (ii) The decision-maker should consider whether a document is one on which reliance should properly be placed after looking at all the evidence in the round; (iii) Only very rarely will there be the need to make an allegation of forgery, or evidence strong enough to support it. The allegation should not be made without such evidence. Failure to establish the allegation on the basis of abilities to the higher civil standard does not show that a document is reliable. The decision-maker still needs to apply principles (1) and (2). These principles have been consistently applied since 2002 by courts and tribunals in a host of decisions.

The question whether a national authority is under an obligation to take steps to verify documents relied on by asylum seekers arose for consideration by the European Court of Human Rights in Singh v Belgium (33210/11) 2 October 2012. The Strasbourg Court observed that the original decision-making body (CGRA) had not carried out any investigation as to authentication of the identity documents presented by the petitioners.  The  Court concluded that  the steps taken in the case which consisted of the removal of documents which were at the heart of the request for protection not only by the CGRA but also CCE, by judging them not to be convincing, without previously checking their authenticity, when it would have been easy to do this at the UNHCR, these steps could not  be viewed as a careful and rigorous investigation expected of national authorities within the meaning of Article 13 of the Convention and did  not give an effective protection against any treatment contrary to Article 3 of the Convention.

The Court of Appeal also referred to the case of In PJ (Sri Lanka) v Secretary of State for the Home Department [2015] 1WLR 1322.  It was noted that in  PJ (Sri Lanka) the  Court of Appeal  considered whether the approach to verification of documents laid down in Tanveer Ahmed was compatible with the decision of the Strasbourg court in Singh v. Belgium and decided that there was  no material difference in approach between the two decisions.  It was stated that PJ (Sri Lanka) permits an approach which is sequential in nature. In determining whether the circumstances of a particular case may necessitate an investigation, national authorities may first consider whether a disputed document is at the centre of the request for protection before proceeding to consider whether a simple process of inquiry will conclusively resolve its authenticity and reliability. If these conditions are satisfied it may be necessary for a national authority to make an enquiry to verify a document. It does not necessarily follow, however, that such a duty will arise; the judgment in PJ (Sri Lanka) makes clear that the evidence, including the documentary evidence, must be considered in its entirety. If the court or tribunal concludes that there was such a duty, it will proceed to consider whether it has been discharged and, if not, it must assess the consequences for the case.

The Court of Appeal  in MA’s case  stated that cases will be rare in which a court could be completely confident that a simple process of inquiry will conclusively resolve the issue. In Singh it was adjudged that a request of UNHCR would have been extremely likely to resolve the issue in that case once and for all. By contrast, the documents in the present case may well prove difficult to verify. The Court stated that the  approach formulated in PJ (Sri Lanka) also requires a consideration of whether in all the circumstances of the particular case the Secretary of State was under an obligation to make enquiries into the authenticity and accuracy of the documents. The court in PJ (Sri Lanka) emphasised that, while the circumstances of particular cases may exceptionally necessitate an element of investigation of documents by national authorities, documents should not be viewed in isolation but considered in the context of all the evidence. The uncontested evidence of MA’s conduct was compelling evidence that his claim for asylum was not genuine. In these circumstances, the Court of Appeal  concluded that the Secretary of State was under no obligation to make further enquiries, which in any event may give no certainty of outcome, as to the authenticity of the documents.

In  relation to the case of AM,  the Court of Appeal was  unable to accept that the documents were  at the centre of AM’s request for protection. On the contrary, while certain of them may provide some support for his claim, they seemed  to be totally peripheral to the substance of his case. There was no duty on the Secretary of State to seek to verify the documents relied on by AM. It was  concluded that taking the evidence in its entirety, the First-tier Tribunal dealt with the issue of the authenticity of documents correctly in accordance with Tanveer Ahmed.