Strategic Litigation

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We take forward and help set up strategic litigation to achieve wider impact beyond individual cases to ensure that the rights of migrant and refugee children and young people are fully considered in law, policy and practice affecting their lives. We also provide expert opinion, evidence and support to lawyers, interveners and the courts in test case litigation. Some examples of cases we have been involved in:

MiCLU

JA (child – risk of persecution) Nigeria [2016] UKUT 00560 (IAC)This is an important case for understanding refugee protection rights of children, as the judgment explains how a child can be at risk of persecutory harm contrary to the UN Convention on the Rights of the Child in circumstances where a comparably placed adult would not be at such a risk.

The Queen on the application of ZAT, IAJ, KAM, AAM, MAT, MAJ and LAM v Secretary of State for the Home Department [2016] UKUT 00061 (IAC)This case, led by our sister project the Migrants’ Law Project, concerned unaccompanied minors from Syria living in the unofficial camp near Calais known as ‘the Jungle’. It was found that refusal by the Secretary of State for the Home Department to admit them to the UK to be reunited with family members pending the determination of their asylum applications amounted to a disproportionate interference with their Article 8 ECHR right to family life. To reconcile with the requirements of Dublin III Regulation principles the tribunal ordered that the applicants apply first for asylum in France in order to be processed under the provisions of the regulation.

RA (a child by his litigation friend) and BF v SSHD & Office of the Children’s Commissioner 2015This was a successful challenge to the Secretary of State’s refusal to return a five-year-old boy from Nigeria and his mentally ill mother on the basis that the Secretary of State did not adequately consider the child’s best interests. The court ordered the return of the child to the UK.

R (Tigere) v Secretary of State for Business Innovation and Skills [2015] UKSC 57In this highly important case the Supreme Court held that a blanket ban on eligibility for a student loan based on a young person’s immigration status was a disproportionate interference on the right to education and also constituted discrimination.

Sanneh & Ors v Secretary of State for Work and Pensions and Others [2015] EWCA Civ 49. The court in this case considered the rights of EU citizen children and their non-EU national parents.

IS v The Director of Legal Aid Casework & Anor [2015] EWHC 1965 (Admin). It is hoped that this judgement, in which Mr Justice Collins declared the current operation of the Exceptional Case Funding (ECF) Scheme to be unlawful, will have profound implications for access to justice.

Gudanaviciene and Ors v Director of Legal Aid Casework [2014] EWCA Civ 1622. The Court of Appeal in this case found that the Lord Chancellor’s Guidance on Exceptional Case Funding was unlawful, namely through specifying that immigration matters do not engage any rights under the ECHR and could thus not qualify for legal aid.

TN and MA (Afghanistan) v Secretary of State for the Home Department; AA (Afghanistan) v same [2014] UKSC 40. This was a case which considered the implications of a breach of the family tracing duty. The court also emphasised that tracing should only take place where it is in the child’s best interests and the child has been properly consulted about his or her wishes.

R (on the application of the Public Law Project) v Secretary of State for Justice [2014] EWHC 2365. This notable judgement confirmed that Government proposals to introduce a “residence test” for civil legal aid following the enactment of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) was unlawful.

R (on the application of Detention Action) v Secretary of State [2014] EWHC 2245A ground-breaking case challenging the lawfulness of the detained fast track regime (DFT) for vulnerable asylum applicants. The DFT has been suspended following the judgement of the Court of Appeal in The Lord Chancellor v Detention Action [2015] EWCA Civ 840.

L & Ors v The Children’s Commissioner for England & Anor [2013] EWCA Crim 991.  This case dealt with the prosecution of three children were from Vietnam who had been trafficked to the UK and forced to work in cannabis factories as well as a Ugandan woman trafficked for sexual exploitation, who had been prosecuted for using a false passport. The judgment emphasised that trafficking victims are to be treated as victims of crime and rather than being criminalised and prosecuted their rights must be protected, and this led to the CPS changing their guidelines on the identification and treatment of victims of trafficking.

AN & FA (Children), R (On the Application Of) v Secretary of State for the Home Department [2012] EWCA Civ 1636. Landmark decision considering the treatment of unaccompanied asylum seeking children arriving into the UK, their treatment, duties and responsibilities owed to them as children in need of protection. (RCRP were also involved in this case on its hearing in the high court.)

Refugee Children’s Rights Project

ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4. A landmark case which established that children’s best interests, needs and welfare should be considered in all immigration decision-making processes.

MA & Ors, R (on the application of) v Secretary of State for the Home Department [2011] EWCA Civ 1446. This case concerned the process through which asylum applicants can be sent to another European country for the processing of their asylum claim (Dublin II) and held that unaccompanied children should generally not be subject to this process and their asylum claims be considered in the host State. 

DS (Afghanistan) v Secretary of State for the Home Department [2011] EWCA Civ 305. This judgement confirmed that child orphans in Afghanistan constitute a particular social group. It also considered the Secretary of State’s obligations to conduct family tracing for unaccompanied children, and found that failure to consider the best interests of a child renders an immigration decision unlawful. 

R (on the Application of Medical Justice) v Secretary of State for the Home Department  [2011] EWCA Civ 269. In this case the Court of Appeal ruled that the Home Office’s policy of giving little or no notice of removal directions to certain categories of individuals, including unaccompanied children, was ultra vires. 

Malla v the United Kingdom 19159/08 This case concerned an unrepresented mother who had been removed from the UK without her child. Although settled out of court, the judgment clearly established government responsibility to take far greater care to protect the interests of children where it seeks to expel a family from its territory.

Refugee and Migrant Justice

FA (Iraq) v SSHD [2011] UKSC 22. This case, involving an Iraqi boy who entered the UK aged 15, concerned the impact of EU law on the availability of an appeal in a case where humanitarian protection is sought under the EU Qualification Directive.