NA (Iran) v Secretary of State for the Home Department [2011] EWCA Civ 1172

This case concerned a challenge to the decision of the SSHD to remove the Claimant, and her infant daughter, to Latvia on Third Country grounds. The challenge failed but the Court made some important comments in respect of s.55 and enforcement measures concerning children which make it worth sharing here.

The SSHD produced a statement from a UKBA official who described the nature of ‘ensured return’ for this particularly family. Sir Stephen Sedley was clearly concerned as to the ‘muscular prose’ evident from the statement of the official and said this:

22. Mr Wackenier’s statement sought to give reassurance that the claimant’s medical needs and any related needs of her child would receive proper attention prior to and during the process of removal. His key paragraph says:

“4. As the Appellant is receiving treatment from a hospital, a risk assessment will be undertaken by the medical practitioner who is responsible for her care prior to her removal to Latvia. UKBA staff will seek to keep in contact with the medical staff in order to have an up-to-date account of what the Appellant’s medications are, when and how they are to be taken and who is allowed to administer these medications. It is very common for a person who is due to be removed from the United Kingdom prior to removal to state that they have an alleged medical condition. The UKBA is well experienced in dealing with such removals and has set policy on how to handle these kinds of removal. The Appellant is receiving medical treatment and she will be dealt with in accordance with that policy. The UKBA will also ensure that a “Fit to fly” certificate is obtained prior to removal taking place. The “Fit to Fly” certificate is a medical report compiled by a doctor who will deem the subject as fit to fly prior to removal.”

23.Mr Wackenier goes on to describe the process for providing medical escorts in such cases. What gives some cause for concern, however, is the muscular prose in which the passage I have quoted describes what appears to be a one-way process. This is a matter to which I shall return.

Sir Stephen Sedley then went on to consider statute and relevant law and policy:

31. Section 55 of the Borders Act 2009, replicating the provisions of s.11 of the Children Act 2004, provides:

“55 Duty regarding the welfare of children
(1) The Secretary of State must make arrangements for ensuring that –
(a) the functions mentioned in subsection (2) are discharged having regard to the need to safeguard and promote the welfare of children who are in the United Kingdom, and
(b) any services proved by another person pursuant to arrangements which are made by the Secretary of State and relate to the discharge of a function mentioned in subsection (2) are provided having regard to that need.
(2) The functions referred to in subsection (1) are –
(a) any function of the Secretary of State in relation to immigration, asylum or nationality;
(b) any function conferred by or by virtue of the Immigration Acts on an immigration officer;
(c) any general customs function of the Secretary of State;
(d) any customs function conferred on a designated customs official.
(3) A person exercising any of those functions must, in exercising the function, have regard to any guidance given to the person by the Secretary of State for the purpose of subsection (1)”

32. The guidance referred to in subsection (3) currently takes the form of a publication entitled Every Child Matters, issued in November 2009. It seeks, in particular by promoting the sharing of information between agencies, to ensure that no child’s welfare is overlooked while the child is within the protection of the Crown.

33. More material, however, is the policy referred to by Mr Wackenier. It is to be found in chapter 45 of the Border Agency’s Operational Enforcement Manual, a chapter which by itself occupies 92 A4 pages. Mr Beer has taken us through enough of it to make it clear that the path it charts is a one-way street. It proceeds in three stages: assisted return, which seeks and depends upon the voluntary cooperation of the family concerned; required return, which invites the family to follow a prearranged departure process; and, if all else fails, ensured return, which is what its name suggests.

34. What is conspicuously lacking in the policy, at least so far as Mr Beer has been able to show us, is any slip-road for cases in which it has become apparent since the process was initiated that there is now a real risk of violating a Convention right if return is proceeded with. Such a case might typically be one in which there is an unexpected downturn in mental health bringing a real risk of suicide or of total breakdown, especially if there are children who may suffer by it.

35. Mr Beer readily, and in my judgment rightly, accepted on the Home Secretary’s behalf that whether or not such provision can be found in the Operational Enforcement Manual, there has to be such provision if policy and practice are to comply with the law. It seems to me a matter of urgency that this should not only be acknowledged in these proceedings but should be rapidly and clearly introduced into the policy document itself. Without it there is a daily risk that s.55 will be breached.

It would follow that the UKBA ought now to review their policy in the light of this judgment.

Lastly, chapter 45 was the subject of a recent Renaissance Chambers lecture I delivered. You can download the notes here if they are of interest.