The case concerned the planned, imminent removal of an unaccompanied asylum-seeking child under the UK-France agreement. The young client was represented by the team at Duncan Lewis in his underlying judicial review claim of several interlinked decisions.
The client’s solicitors obtained a copy of his birth certificate and a specialist document authentication report, along with an expert trafficking report, and submitted them to the SSHD, requesting a review of her decisions. The Statement of Facts and grounds, prepared by Evin Atas, challenged the SSHD’s decision to treat the Claimant as an adult, the negative reasonable grounds decision, the inadmissibility decision, the decision to maintain removal directions and his continued detention. The crux of the judicial review challenge related to the SSHD’s decision to continue pursuing removal under the UK-France agreement, despite being presented with the new, significant evidence regarding the age dispute and trafficking issues.
The client’s initial interim relief application was refused on the papers. Brenda Efurhievwe was instructed to pursue an urgent interim relief application in the evening on 29 June 2026, ahead of planned removal in the morning of 30 June 2026. Brenda prepared detailed renewed grounds of Interim Relief, stressing the relevance of the document authentication report, the decisions’ failure to follow the age assessment policy and the relevance of the expert trafficking report to the refusal to reconsider the RG decision.
Several hours after the renewed interim relief application, the SSHD served a new decision, concluding that the client’s further submissions did not amount to a fresh claim under paragraph 353 of the Immigration Rules. Brenda reverted with written submissions regarding both the erroneous approach to the “fresh claim test” and the procedural unfairness of the SSHD issuing an out of hours decision, several hours before the Claimant’s challenged removal.
During the 2 AM hearing, Brenda successfully demonstrated that there were serious issues to be tried including the status of the age assessment decisions in the case, the lawfulness of the RG decision and the failure to reconsider it, as well as the resulting status of the inadmissibility and removal decisions.
Brenda stressed that, while it could not be directly challenged during the out of hours interim relief hearing, the late further submissions decision presented a serious risk of procedural irregularity. The Claimant’s removal was maintained despite his further representations and repeated requests for review of the impugned decisions. Brenda submitted that, if the interim relief application was not granted, the Defendant’s legally flawed further submissions decision would stand, without presenting the Claimant with a fair opportunity to challenge it ahead of his removal. Brenda submitted that the serious procedural concerns raised by this late decision, should be weighed in the balance of convenience, in favour of the Claimant.
In her arguments, Brenda demonstrated that the balance of convenience fell in favour of granting interim relief, preventing the putative child asylum seeker’s removal to France, while there was a live victim identification issue in his case. Her submissions demonstrated the Claimant presented “something very compelling” in the form of the disregarded or improperly considered expert evidence which bolstered the strength of both the age dispute and trafficking claims. Brenda disputed the SSHD claim that the Claimant’s status as a putative minor and PVoT with experiences of torture did not meet the significant vulnerability requirements under AYA. Relying on the findings in AYA, Brenda also submitted that the Claimant would not receive support relating to his trafficking experiences in France, and that he would be particularly affected by the recognised challenges in accessing entitlements, which even adult asylum seekers faced in France. She demonstrated that, due his vulnerable status as a minor PVoT and victim of torture, the Claimant’s removal would result in irreversible harm
Brenda argued that public interest also required the granting of interim relief pending a reconsideration of the decisions, to prevent the risk of SSHD breaching the UK-France agreement, which did not permit the removal of unaccompanied asylum-seeking children. She challenged the Respondent’s position that the Claimant would be able to continue pursuing his judicial review challenges from France, as this would not prevent the irreparable harm of the unlawful removal of a potential minor. Meanwhile, neither the SSHD nor the public would face any harm if the Claimant was permitted to remain in the UK pending the consideration of his claim.
Mrs Justice Ellenbogen DBE accepted that the case raises serious issues regarding the lawfulness of maintaining the age assessment decision and the approach to reconsidering the RG decision in view of further evidence. The Judge was satisfied that the balance of convenience favours the Claimant, considering the nature of the risk and the fact that consequences of removal would not be reversible.
Ellenbogen J found that the recent further submissions decision did not serve to undermine the Claimant’s real prospect of success. As this decision was communicated very late in the evening, prior to the Claimant’s removal, there was no opportunity for the Claimant or the Court to fully consider its lawfulness. The Judge also accepted the argument that there was public interest in the state not removing a minor to France as an adult under the UK-France agreement, when the lawfulness of the age assessment was in issue.
Ellenbogen J granted the client’s interim relief application, restraining the Defendant from taking any further steps to remove him to France, pending determination of his judicial review claim.
Brenda was instructed by Bahar Ata and Sarah Livesey of Duncan Lewis solicitors.
Related barristers: Brenda Efurhievwe (Efu-rie-ve)
Related practice areas: Immigration and Public Law
