A Palestinian refugee threatening to take his own life in a dispute over the age recorded on his residence permit has lost a judicial review at the Court of Appeal. The case is (WA (Palestinian Territories)) v Secretary of State for the Home Department [2021] EWCA Civ 12.

Background

The facts are almost unbearably tragic. WA “suffered sustained torture” at the hands of Hamas for refusing to become a suicide bomber. His family arranged for his escape from Gaza, but in Italy he was “subjected to physical, sexual and mental abuse”. That left him with considerable psychological damage, one aspect of which is a fixation with his claimed date of birth: 29 December 1994. WA said that his grandmother had given him documentation confirming this as his date of birth before he fled, but it was lost in flight.

The date on WA’s biometric residence permit instead says 19 April 1989, making him 31 rather than 26. This was the product of no less than four different age assessments which ultimately concluded that he was probably born between 1986 and 1991. Of the specific dates of birth that WA provided at various stages of the asylum process, the one that seemed “most likely to be accurate” was 19/04/89. The social workers concluded that the 1994 date of birth fell well outside the plausible range.

Why is the age issue so important?

As WA now has refugee status, nothing turns on his age in terms of his treatment by the asylum system. But he has always found the imposed 1989 date of birth to be “dehumanising and corrosive of his sense of identity”. Things came to a head last year, when he volunteered to work in a Nightingale hospital but was rejected because the date of birth he put down was not the one on his residence permit. This “triggered a severe relapse in his mental state” and a hunger strike.

WA was admitted to hospital in April 2020 and has remained there ever since. He is accepting limited food and water, but “only so as to be still alive to learn the outcome of the judicial review”, according to a report on an earlier stage of the case.

The judicial review was aimed at forcing the Home Office to change the date on the residence permit to make WA 26 rather than 31. It was agreed all round that WA is willing to die for his cause and that the hunger strike is “not manipulative or designed to achieve leverage with the Home Office”. The mental health charity Mind, intervening in the case, argued that all that was standing between WA and recovery was “pettifogging bureaucracy”: why not just give him what he wants?

The department’s position is that, although “acutely aware of what is at stake”, it has no legal power under the Immigration (Biometric Registration) Regulations 2008 to put information on residence permits that officials understand to be false.

Should the courts decide what WA’s age is?

The Home Office accepted that if the courts decided that WA is in fact 26, it would then have to change his residence permit.

The Court of Appeal found that there was, in the absence of hard evidence, no sure way of establishing WA’s age. The age assessment process was the best available, even if only an “educated guess”, and various experts had essentially concluded there was no way WA could be as young as 26. The court agreed with the Home Office that “the evidence is not capable of establishing that the Claimed Date is WA’s true date of birth… the state is being asked to include in a core official document important information which is simply wrong”.

Human rights arguments

WA also argued that the state’s positive duties to preserve life under Article 2 of the European Convention on Human Rights should override the residence permit regulations. It would be “obviously proportionate” for the Home Office to change the date in order to fulfil those right to life obligations.

But the Court of Appeal found that the “operational duty” here fell on the NHS, not the Home Office. It also said that changing records in response to suicide risk would set an unmanageable precedent. Lord Justice Phillips, giving the leading judgment, said that 

The range of administrative decisions which might have to be reconsidered and reversed in this scenario is obviously wide: decisions as to benefit payments, taxation, housing and immigration status would be subject to review if they resulted in great distress and consequent threats (considered to be genuine) to commit suicide.

Underhill LJ added:

… the integrity of official records is, rightly, a matter of fundamental importance. That entitlement, and obligation, cannot be altered by the fact that as a result of a mental illness the subject [of those records] is prepared to imperil their life unless plainly incorrect information is included in the official record. The consequent risk to their life is a tragic consequence of their illness, and it cannot fairly be regarded as the responsibility of the state because it is not willing to record something that it knows to be untrue…

The court also rejected a third argument based on Article 8. All three judges urged WA to choose life despite the outcome of the case.