AN & FA (Children), R (On the Application Of) v Secretary of State for the Home Department  EWCA Civ 1636.
The challenge brought in AN & FA resulted from work done by Refugee and Migrant Justice (RMJ), a national charity providing legal advice to refugees and migrants in the UK until it went into administration in 2010. RMJ was the original home of the RCRP. The national reach of RMJ gave strategic litigation staff there a unique overview of the differing and arbitrary practices of immigration officers at various ports in the UK. This enabled the identification of the iniquitous practice in Dover and Folkestone whereby children seeking asylum were detained for extended periods of time without access to adult support or legal representation, purely for the purpose of obtaining screening details in relation to an asylum claim. The children arriving at these ports had often spent many months travelling across Europe in very poor conditions, witnessing traumatic events, and often fearing for their lives. Their arrival on UK shores was usually immediately preceded by a period of time living in the ‘Jungle’ camp in Calais amongst traumatised, desperate and violent adults. The last stage of their journey would have been equally terrifying – clinging to the undercarriage of a lorry as it sped along the motorway, or being secreted in the back of a lorry along with adults, disoriented and suffocating. They arrived exhausted, malnourished, traumatised and physically unwell.
When RMJ went into administration and the RCRP legal team moved to ILC this vital work was preserved. Work on AN & FA involved the collection of testimony from many young people who had arrived in the UK in these circumstances, and analysis of the impact of this experience upon their wellbeing and their ability to provide coherent and correct accounts of their reasons for requiring asylum. The voice of the children was clear – they required care and attention before they were able to engage with the asylum process adequately. They needed to be treated as children first, and asylum seekers second.
The judgement in the Court of Appeal recognised the need of the children to be referred to social services so that their immediate needs could be met, before formal screening could be undertaken, and indeed ruled that reliance on any information provided before those needs were met would be unlawful.