Upper Tribunal orders return of asylum seeker and son to UK after ‘unlawful’ removal to Nigeria

The Upper Tribunal (Immigration and Asylum Chamber) held that Secretary of State Theresa May “did not fulfil her duty” under section 55 of the Borders, Citizenship and Immigration Act 2009, namely, to have the child’s interest as the “primary consideration”.

Mr Justice Cranston and Upper Tribunal Judge Reeds heard the application for the return of the child “RA” and her mother to the UK following their judgment on 30 March 2015 in R (on the application of RA (a child, by his litigation friend) and BF v Secretary of State for the Home Department.

In that judgment the Upper Tribunal held that the Secretary of State, in making a decision on representations on behalf of the mother “BF” that there was “no fresh claim”, was in breach of her duty under section 55 of the Borders Act.

The tribunal heard that the 45-year-old Nigerian woman had been in the country since 1991 and was discovered working illegally in a shop in London using a false Dutch passport, in 2007.

She made a claim for leave to remain in the UK on the basis of “long residence” but her application was turned down.

Her son was born in the UK in August 2009 and the woman then claimed asylum and humanitarian protection in 2010, saying she feared “persecution and ill-treatment” in her home country.

But her application was refused and the Secretary of State served notices of removal, RA being said to have “an out of country right of appeal”.

However, the Upper Tribunal ruled that the Home Secretary had failed to take into account the impact on the child or mental health problems suffered by his mother, and the “risk of deterioration” if removed.

The tribunal said the decision was “flawed” because the boy’s interests should have been a “primary consideration”.

On behalf of the claimants, it was submitted that RA and her mother should be returned to the United Kingdom since in the light of the decision they were removed to Nigeria “unlawfully”.

A number of points were advanced, derived from the authorities and against the background of the facts of this case which, it was argued, should lead to an order for their return.

First, there was the issue of the legality of removal; secondly, there was the issue of vindicating the rights which RA has under the Human Rights Act of 1998; and thirdly, there were the practical issues associated with any out of country appeal by RA.

The Upper Tribunal said that there were three factors which “tip the balance in favour of our exercising discretion to order return”.

Giving the judgment, Mr Justice Cranston said: “First, this is a case involving a child. As we have described in the judgment, the work of the independent panel was thorough albeit that it was focused on the mechanics of return.

“However, at the end of the day the decision on the eve of removal, as we have held, did not properly accord with the legislation and the Secretary of State did not fulfil her duty under Section 55 of the Act.”

The judges explained that they did not want to prejudge any decision which will subsequently be made, but added: “The second point is that we cannot turn a blind eye to the evidence which the current solicitors have now accumulated.

“It is a matter for the Secretary of State to take into account relevant factors. However, that evidence post-removal does raise concerns about the position of RA, turning as it does primarily on the deteriorating mental health of the mother.”

Thirdly, there were “practical factors” which had to be considered, including the possibility of delay and further legal challenges, as well as legal aid implications for any out of country appeal.

The judges concluded: “As we have indicated, the exercise of our discretion in this case is finely balanced. However, considering the very unusual circumstances in the round we have decided that the Secretary of State should be ordered to take all reasonable steps to ensure the return of RA and his mother to this country.”