Orman v. Secretary of State for the Home Department

ORMAN v SECRETARY OF STATE FOR THE HOME DEPARTMENT

Immigration Appeal Tribunal
His Honour Judge D. S. Pearl (President), Mrs J. M. Abrahams JP and Mrs S. I. Hewitt
29 January 1998

Asylum - Children - Guidelines for appeals involving asylum-seekers who are below 18 years of age at time of application - Interviewing of children - Whether interview of applicant conducted in the presence of cousin had breached the Immigration Rules - Statement of Changes in Immigration Rules (HC 395), paras 350-352 The appellant was a 14-year-old Turkish national who had travelled to the UK on his own. At port he had been met by his cousin and uncle and claimed asylum. The appellant was subsequently interviewed in the presence of his cousin by an immigration officer. His application was refused by the Secretary State and his appeal to a special adjudicator dismissed. The Immigration Appeal Tribunal refused leave to appeal on 19 February 1997 stating that, although some of the grounds of appeal submitted had merit, the grounds did not warrant the grant of leave. The appellant subsequently applied for judicial review and the Tribunal's refusal of leave was quashed by order of the high Court dated 1 August 1997, the statement of reasons stating that it was 'arguable that where the Tribunal considers that one or more grounds of appeal have some merit but nevertheless refuses leave to appeal on the basis that the appeal would in any event be doomed to failure, the Tribunal must take particular care to explain its reasoning'. Leave was subsequently granted by the Tribunal. Before the Tribunal the appellant's representatives argued that (a) the matter should be remitted to another special adjudicator to be heard de novo, (b) the appellant's interview had been conducted in breach of paras 350-352 of the Immigration Rules (HC 395), and (c) the special adjudicator's determination was unsafe by reason of the approach adopted towards the appeal and the special adjudicator's failure to apply the appropriate standard of proof. Held - dismissing the appeal- (1)In all asylum appeals involving appellants who, at the date of their application for asylum, were under the age of 18, adjudicators should ask themselves: (a) What was the age of the child at the date of application for asylum? (b) Should the hearing be held in camera or should it be open to the public? Has the representative requested the public to be excluded pursuant to r 32(3)(a) of the Immigration Appeals (Procedure) Rules 1984? (c) Should the venue of the hearing be shifted to accommodate a more child-friendly surrounding? (d) Have paras 350-352 of the Refugees' Guidelines1[1] concerning children's evidence, been considered? Is it possible for the child to give evidence by video? In addition, a pre-hearing review should be held in all such cases. (2)Paragraphs 350-352 of the Immigration Rules (HC 395), had not been breached because the appellant's cousin had been present at the asylum interview. Remittal of the matter for rehearing de novo would not, in any event, be appropriate solely on the basis of a technical breach of para 350 as this would be contrary to the interests of the child in that it would lead to further delay. It was, therefore, the responsibility of the Tribunal to decide, on the basis of all the evidence before it, either to: (a) uphold the determination; (b) allow the appeal on the basis of the factual evidence before the special adjudicator; or (c) consider evidence afresh and then reach its own view on the merits of the appeal.

Mathanakumar doubted.

(3)Looked at as a whole, it was clear that the special adjudicator had approached the appeal fairly, applied the appropriate standard of proof and had been entitled to form a view which damaged the appellant's credibility. On examining the evidence afresh, the appellant had not demonstrated a 'well-founded fear of persecution' within the meaning of the United Nations Convention relating to the Status of Refugee 1951 and its 1967 Protocol if returned to Turkey. Statutory provisions considered Asylum Appeals (Procedure) Rules 1996 (SI 1996/2070), rr 18, 19, 41 Immigration Rules referred to in judgment Statement of Changes in Immigration Rules (HC 395), paras 350, 351, 352 International Treaties, Conventions and documents referred to in judgment United Nations Convention on the Rights of the Child 1989. Arts 22(1), 22(2) United Nations High Commissioner for Refugees' Guidelines on Refugee Children 1994 Cases referred to in judgment Mathanakumar (12817) (unreported), IAT Ozer, Yusuf (12233) (unreported), IAT Mr. M. Henderson for the appellant Mr Hills (Home Office presenting officer) for the Secretary of State HHJ PEARL (CHAIRMAN): The appellant is a citizen of Turkey who appeals, with leave of the Tribunal, against the determination of a special adjudicator (Mr B. S. Grewal) who had dismissed his appeal against refusal of leave to enter the UK. The appellant had claimed asylum. Leave was granted by the Tribunal by a determination dated 5 September 1997 subsequent to an earlier refusal of leave dated 19 January 1997 being quashed by order of the High Court on 1 August 1997. In the earlier refusal of leave, the Tribunal had written:

'The Tribunal has carefully considered the Grounds of Appeal submitted but, even though some of them have a certain merit, the Tribunal is not satisfied that they warrant the grant of leave to appeal.'

The statement of reasons quashing this refusal of leave states:

'The Secretary of State accepts that it is arguable that where the IAT considers that one or more grounds of appeal have some merit but nevertheless refuses leave to appeal on the basis that the appeal would in any event be doomed to failure, the Tribunal must take particular care to explain its reasoning. Here the Tribunal arguably did not give adequate reasons for refusing leave to appeal and did not identify which of the grounds of appeal it considered to have merit.'

When considering whether to grant leave on the second occasion, the Tribunal simply granted leave without a further indication as to which grounds had merit and which not. In a letter dated 23 December 1997 to the Home Office presenting officers' unit (copied to the Tribunal), solicitors on behalf of the appellant (Gill & Co) wrote:

'The case concerns a 16-year-old Kurdish asylum-seeker from Turkey and in our view there is no doubt given the grounds of appeal and successful judicial review that the special adjudicator's determination is unsafe and the matter should be heard de novo. In our view this is also a case where it would be most suitable that the de novo hearing takes place before the Tribunal rather than being remitted back to a special adjudicator.'

At the hearing before us, Mr Henderson of counsel appeared for the appellant, and the Secretary of State was represented by Mr Hills. We made it clear to both parties that the Tribunal had been convened to hear the appeal. In effect, Mr Henderson was seeking an adjournment. In the light of r 18, the Tribunal formed the view that it was not appropriate to adjourn the case other than for a short period on the day to enable Mr Henderson to seek instructions on whether he wished to call oral evidence. We granted him this adjournment, and after seeking instructions, he returned to inform us that he was content to rely on the statement of the appellant, and that he was ready to proceed. We extend the time-limit laid down under r 19 by our powers under r 41.2[2]

Unaccompanied minors

Mr Henderson in his submissions referred first to the fact that the appellant in this case at the time of his arrival was a child of 14 sent on his own to the UK. He said that on arrival in the UK, the appellant was interviewed by the Home Office as to the substance of his asylum claim and that this interview was a clear breach of the Immigration Rules relating to unaccompanied minors [para 350ff]. He submitted that an interview in breach of the rules cannot be relied on (Mathanakumar) (12817): '350Unaccompanied children may also apply for asylum and, in view of their potential vulnerability, particular priority and care is to be given to the handling of their cases. 351A person of any age may qualify for refugee status under the Convention and the criteria in paragraph 334 apply to all cases. However, account should be taken of the applicant's maturity and in assessing the claim of a child more weight should be given to objective indications of risk than to the child's state of mind and understanding of his situation. An asylum application made on behalf of a child should not be refused solely because the child is too young to understand his situation or to have formed a well-founded fear of persecution. Close attention should be given to the welfare of the child at all times. 352A child will not be interviewed about the substance of his claim to refugee status if it is possible to obtain by written inquiries or from other sources sufficient information properly to determine the claim. When an interview is necessary it should be conducted in the presence of a parent, guardian, representative or another adult who for the time being takes responsibility for the child and is not an Immigration Officer, an officer of the Secretary of State or a police officer. The interviewer should have particular regard to the possibility that a child will feel inhibited or alarmed. The child should be allowed to express himself in his own way and at his own speed. If he appears tired or distressed, the interview should be stopped.' Mr Hills submitted to us a letter from IND to a firm of solicitors dated 29 December 1995 which explained how the Unaccompanied Children's Module (UCM) operates. In particular this letter states as follows:

'If and when the appeals process has been exhausted the Government will not seek to remove an unaccompanied child under the age of 18 from the UK unless it is possible to put in place acceptable reception and care arrangements in their country of origin. If this does not prove possible the child will be granted either exceptional leave to enter or remain.'

Mr Hills repeated this undertaking in relation to the present case. In this case, Mr Hills reminded us that the appellant was met at the port by his cousin and his uncle, and the cousin was present during the interview. We were told that the Unaccompanied Children's Module was consulted, and when considering whether to hold the interview, we were told that due account was taken of the maturity of the applicant. Mr Hills argued that there had been no breach of the Immigration Rules. Mr Henderson, in contrast, said that there was a breach. He referred us to the paragraph in the Tribunal determination of Mathanakumar (12817) where the Tribunal said:

'The presence of a solicitor may or may not be a sufficient safeguard. Much depends upon the extent to which the solicitor is himself able to protect a child either because he knows how to do so, or because he is allowed to do so.'

The difference in approach taken by Mr Henderson and Mr Hills illustrates the problem of determining asylum claims by minors. Our understanding of the policy is that children are rarely interviewed and it is seen as a last resort. If an adult is present, then the Home Office consider that an interview may be appropriate. The difficulty when there is no interview of course means that decisions taken by IND are taken on the documentation alone and often without the benefit of any intervention by experienced and qualified child welfare personnel. In addition, the failure to interview exposes the child at an appeal stage to a very difficult and often traumatic experience, especially because there is often insufficient information upon which an adjudicator can determine the application. It is certainly worth considering a different approach, whereby there is a presumption that there should be an interview with the appointed panel adviser from the Refugee Council present. In the event of an adverse decision, and an appeal, the panel adviser should be present also during all stages of the appeal hearing, and his or her views should be communicated to the adjudicator in advance of the hearing by way of a report. The panel adviser should of course be available at the hearing for questioning by the HOPO and the representative of the appellant, either on the contents of the report or any other relevant matter. Such a proposal would in our view fall within the framework, for example, of good practice outlined in Art 22(1) and (2) of the UN Convention on the Rights of the Child3[3] and the UNHCR Guidelines on Refugee Children 1994.4[4] In looking at the facts of this case, we have decided that there was no breach of the rules because the cousin was present. Even if there had been a technical breach, the approach adopted by the Tribunal in the case of Mathanakumar (12817) of setting aside the determination of the adjudicator and remitting it for a hearing de novo before another adjudicator, is not an approach which appeals to us. The determination in Mathanakumar (12817) is no longer to be regarded as persuasive. It is the responsibility of the Tribunal to decide, on the basis of all the evidence before it, (a) to uphold the determination, or (b) to allow the appeal on the basis of the factual evidence before the adjudicator, or (c) to consider evidence afresh and then reach its own view. A remittal is not appropriate solely on the basis of a breach of para 350. For one thing, this would lead to further delay which is clearly not in the interests of the child. In children cases, speed is of the essence (as indeed the solicitor in this case is aware and which is referred to in their letter dated 23 December 1997).

Grounds of appeal

These are as follows: '(1)In the first paragraph on p 10 of the determination the adjudicator (after a long passage of quoting almost verbatim from the respondent's "reasons for refusal" letter) states:

"…in the circumstances I do not fund that the appellant is very likely to suffer persecution if returned to his own country."

It is submitted that:

(a)the adjudicator has effectively applied an incorrect, and far too stringent, standard of proof to the crucial issue of the likelihood of future persecution - very likely is the antithesis of the approach ruled to be appropriate by the House of Lords in Sivakumaran [1988] Imm AR 147;

(b)the adjudicator has unfairly given far too much weight to the respondent's "reasons for refusal letter" and evidence and far too little weight to the evidence, both oral and documentary and both direct and background, submitted by the appellant. This is illustrated, it is submitted, by the fact that not only does the adjudicator find it appropriate to quote in full the "reasons for refusal letter" on pp 2-4 of his determination while not finding it appropriate to even summarise the appellant's statement that constituted his evidence-in-chief (bottom of p 4 of the determination refers) but also the adjudicator's conclusions consist in the main of a re-recital of the "reasons for refusal" letter along with the odd example of incidents, extracted from the background evidence, in which the Turkish authorities managed to restrain their normally persecutory approach to any sign of dissent or protest from the country's Kurdish community (bottom of p 11 and top of p 12 of the determination refer) while dismissing the documented evidence of serious persecution directed against young Turks in a very similar position to that of the appellant as being "examples that can always be produced" (middle of the second paragraph on p 10 of the determination refers). It is submitted that the lack of even-handedness in the adjudicator's approach to the determination of this appeal is inimical to basic principles of natural justice and contrary to the provisions of s 19(2) of the Immigration Act 1971 which, it is submitted, requires, by implication at least, an independent review of questions of fact.

(2)In the second paragraph on p 10 of the determination the adjudicator states:

"However, I am not satisfied that just the fact that the appellant is an Alevi Kurd is itself enough to give rise to a well-founded fear of persecution for the appellant in Turkey. This is particularly so in may view in the case of this particular appellant who is very young indeed and who has not been actively involved in the anti-government campaign."

It is submitted that it is quite evident that the appellant's case is not and never has been based on just the fact that he is an Alevi Kurd. The appellant's claim is that he has been active in the anti-government campaign through his activities on behalf of the Communists by demonstrating and distributing leaflets. Furthermore the adjudicator accepts this (second paragraph p 12 of the determination refers). The appellant's claim is also that his father and older brother were active sympathisers of the Communist party in Turkey and that they both disappeared following periods of detention and torture shortly before he himself fled Turkey (the appellant's statement, not recorded by the adjudicator, refers). The adjudicator has failed to make any findings on the position of the appellant's father and older brother which, it is submitted, is all the more lamentable given the appellant's minority (cf paras 43 and 218-219 of the UNHCR Handbook on Procedures and Criteria for Determining Refugee Status). It is submitted that the adjudicator's determination is vitiated by inadequacy and perversity.

(3)At the bottom of p 10 of the determination the adjudicator states:

"I am not surprised that the appellant was chased by the police for taking part in demonstrations in association with the communist movement but I cannot say that this in itself amounted to persecution entitling him to political asylum."

It is submitted that the adjudicator has addressed the wrong issue. The correct issue it is submitted is not whether being chased by the police amounts to persecution but rather the degree of likelihood of the appellant being persecuted in the future if at some stage the police catch up with him. It is submitted that in the context of the background documentary evidence and the appellant's evidence - not rejected by the adjudicator - concerning the treatment of himself and, in particular, his father and older brother and, more generally, other family members (the appellant's statement, not recorded by the adjudicator, refers), there is a high degree of likelihood that the appellant will be persecuted if he is forcibly returned to Turkey: cf Yusuf Ozer (12233).

(4)In the antepenultimate and penultimate paragraphs on p 11 of the determination the adjudicator makes adverse credibility findings regarding the appellant's evidence concerning his method of leaving Turkey and travelling to the UK. The adjudicator refers to "discrepancies" and "embellishment". It is submitted that:

(a)In his written statement (not recorded by the adjudicator) the appellant clearly describes his travel itinerary and gives specific reasons as to why he told certain untruths at various stages in his asylum claim - fundamentally because he was told to do so by adults, he being only 14 years old at the time. Accordingly it is submitted that it is quite unfair of the adjudicator - who did not think it necessary to so much as summarise the appellant's statement in his determination - to hold any "discrepancies" against the credibility of the appellant.

(b)The appellant's written statement (not recorded by the adjudicator) does not "embellish" his claim but rather does the opposite. It is submitted that the adjudicator's reference to "embellishment" should be considered in the light of his failure to record or even summarise this statement in this determination.

(c)These are effectively the only findings on the appellant's credibility made by the adjudicator in his determination. It is submitted, further to ground 2, above, that the adjudicator's failure to make any findings on the substance, rather than the periphery of the appellant's claim as detailed in his written state - in particular with respect to the past persecution of himself and his family - vitiates the determination.

(5)It is submitted that on the basis of the appellant's evidence, particularly that contained in his written witness statement, that has not been rejected or impugned by the adjudicator, there is a reasonable degree of likelihood that were the appellant to be forcibly returned to Turkey he will be persecuted, after at the airport on arrival or otherwise, by reason of his Kurdish race, Alevi religion, pro-Communist political opinion, real and/or attributed and/or his membership in a particular social group, namely his family. Accordingly it is submitted that the adjudicator has erred in dismissing this appeal.'

Mr Hills submitted that the adjudicator had taken due cognisance of the age of the appellant. We have read the determination carefully, and we are satisfied that the adjudicator followed the draft guidelines in existence at that time applied by adjudicators when appeals involve minors. Note: The guidelines have now been developed into a checklist as follows:

'(1)What was the age of the child at the date of application for asylum?

(2)Should the hearing be held in camera or should it be open to the public? Has the representative requested the public be excluded pursuant to r 32 (3)(a) of the Immigration Appeals (Procedure) Rules?

(3)Should the venue of the hearing be shifted to accommodate a more child-friendly surrounding?

(4)Have rr 350-352 and the UNHCR guidelines, concerning children's evidence, been considered? Is it possible for the child to give evidence by video? Note: A pre-review hearing will be held for all applicants who, at the date of the application for asylum, are under the age of 18.'

He wrote at p 9:

'I have taken very special note of the age of the appellant in this case and I have borne that in mind throughout the hearing. I was conscious throughout of the need to be sensitive about the way the hearing was conducted particularly when the appellant was giving evidence. I had checked specially at the commencement of the hearing that an adult relative of the appellant was present in court and I had already ascertained that an adult relative was present at his interview, I observed the appellant very carefully indeed and I noticed that in spite of his youth he gave evidence quite confidently and he was very articulate indeed. However, to be on the safe side I made sure that the appellant had a short break while he was giving evidence.'

We are satisfied that the adjudicator approached the case absolutely fairly. As to the specific grounds of appeal, looked at as a whole, it is clear that the adjudicator applied the appropriate standard of proof. This is clear from the final paragraph of his determination. The adjudicator makes findings of fact on the basis of the evidence before him and it is our decision that these are appropriate findings. He is entitled to consider whether past incidents amount to persecutory acts when assessing the future risks. Thus ground 3 of the grounds of appeal is of little consequence. So far as the discrepancies are concerned, it is our finding that the adjudicator was entitled, when looking at all the evidence in the round, to form a view which damaged his credibility. We do not think he was wrong in so doing. We have examined afresh the documentary evidence before us relating to Turkey, and the statement of the appellant. Looking at all this evidence, we have reached the same conclusion as the one reached by the adjudicator, namely that he has failed to demonstrate a well-founded fear of persecution for a Convention reasons if returned to his own country. On the evidence, there is no reasonable likelihood of the appellant being persecuted. The appeal is dismissed. Appeal dismissed. Solicitors: Gill & Co for the appellant

ANNEX I

The 'Determination of Refugee Status' section of the UNHCR's Refugees Children, Guidelines on Protection and Care 1994 reads:

'The 1951 Convention and 1967 Protocol relating to the Status of Children of refugees define a refugee regardless of age, and make no special provision for the status of refugee children. Applying the criteria [sic] of 'well-founded' fear of persecution to children does not normally give rise to any problem when, as in the majority of cases, they are accompanied by one or both of their parents. Determining the refugee status of unaccompanied children is more difficult and requires special consideration.

Depending on the law of the State, a child seeking asylum may be granted:

Refugee status for having a "well-founded fear of being persecuted", as defined in the 1951 Convention and the 1967 Protocol;

Refugee status as defined in the 1969 OAU Convention or the 1984 Cartagena Declaration;

If the refugee claim is denied, the child might be permitted to stay with an immigration status granted for another humanitarian reasons, or receive rejection or deportation order.

Regardless of what law a child may be seeking asylum under, there will be a procedure to determine the claim. The three basic methods are: (1) group determination, (2) determination based on an adult's claim, and (3) determination based on the child's own claim.

Group determination If a refugee movement is too large to make individual status determinations possible, the State might grant refugee status to all members of the group. Each child in the group would automatically receive refugee status.

Determination based on an adult's claim When the head of a household is granted refugee status, the common practice of States is to grant refugee status to the dependants. This is not required under any article of the refugee treaties, but States do it in order to promote family unity. (See the Handbook on Procedures and Criteria for Determining Refugee Status, paras 181-188.)

When a child is with one or both parents, the family unity principle clearly applies and, in most cases, a dependent child will be accorded with the parent's status. However, when a child is with an uncle, cousin or other relative a State might not consider the relatives to be a "family" and might therefore require each person, including the child, to make an individual claim. This could result in the relative being granted refugee status, based on their own well-founded fear but the child's claim being denied. When this happens, the child is split apart from the relative, and may become an unaccompanied minor. In practice, dependants should be considered if they are living in the same household. (Handbook, paragraph 185.)

A claim of "family unity" might also be made by a child in the care of a non-relative when the quality of relationship is equivalent to a family. In some cases, the claim might describe the relationship as an informal, traditional or de facto adoption.

A child's individual claim If a child who is in the care of a parent, relative or other adult care-taker makes an individual claim, the adult can be of great assistance by giving factual information to document the claim, speaking on behalf of the child, helping the child understand the procedures, giving emotional support, offering advice, or making a decision based on behalf of the child.

By contrast, an unaccompanied child will have none of this support when making an individual claim.

Unaccompanied children

Although procedures for status determination exist in many countries, they do not normally take into account the special circumstances of unaccompanied children. All Field Officers should be aware of this and should sensitize governments to it. Considering the effects that a prolonged stay in camp or camp-like situations may have on children's physical or psychological developments, the refugee status determination or decision-making on the child's best interests must be made quickly, and with the appropriate special attention and procedures. Keeping children in limbo regarding their status, hence their security and their future, can be harmful to them. Determinations of the status of unaccompanied children should be guided by the following: (a)The question of how to determine whether an unaccompanied refugee child qualifies for refugee status will depend on the child's degree of mental development and maturity. An expert with sufficient knowledge of the psychological, emotional an physical development and behaviour of children should be called upon to make the necessary assessment, bearing in mind that children may manifest their fears in ways different from adults. When possible, such an expert should have the same cultural background and mother tongue as the child. NGOs can often provide such personnel. Guidance is provided in "Guidelines for Interviewing Unaccompanied Minors and Preparing Social Histories" which is available from Headquarters. (b)Where it is decided that the child is mature enough to have and express a well-founded fear of persecution, the case may be treated in a manner similar to that of an adult. (c)Where the child has not reached a sufficient degree of maturity to make it possible to establish a well-founded fear in the same way as for an adult, it is necessary to examine in more detail objective factors, such as the characteristics of the group the child left with the situation prevailing in the country of origin and the circumstances of family members, inside or outside the country of origin. (d)As children are not legally independent, they should be represented by an adult whose task it would be to promote a decision that will be in the child's best interests. In some situations, this function may be performed by persons carefully selected from within the refugee community. (e)The problem of "proof" is great in every refugee status determination. It is compounded in the case of children. For this reason, the decision on a child's refugee status calls for a liberal application of the principle of the benefit of the doubt. This means that there should be some hesitation regarding the credibility of the child's story, the burden is not on the child to provide proof, but the child should be given the benefit of the doubt. (f)Considering the special vulnerability of children, the determination of appropriate durable solutions in their best interest may be established following the refugee status determination.

Legal representative

A legal representative, or a guardian, as referred to in (d) above, should be appointed immediately to ensure that the interests of an applicant for refugee status who is a minor are fully safeguarded. In many countries, the appointment of such guardians has not worked satisfactorily. Problems reported are, for example, that the appointment of a legal representative takes too long, up to several months, or that such a representative does not have the time or skills required to protect the best interests of the child. Support to or training of guardians may be necessary.

Interviewing children

An interview for status determination can be very traumatic for a child. Arrange to have a trusted adult accompany the child during the interviewing process, either a family member of the child, a friend or an appointed independent person. Trained independent interpreters should be used when the interviewer does not share the child's language, even if the child appears to speak the interview's language adequately. See Guidelines for Interviewing Unaccompanied Refugee Children and Adolescents and Preparing Social Histories (UNHCR), for more information.

Keeping children informed

Minors old enough to understand what is meant by status determination should be informed about the process, where they stand in the process, what decisions have been made and the possible consequences. Uncertainty leads to unnecessary anxiety, and if not accurately informed, a minor will be all the more receptive to rumours and bad advice, and may form unrealistic expectations and as a consequence, be more likely to falsify information.

Determining age

It is often necessary for an asylum country to determine the age of a young person who has, or is claiming, refugee status. There may be different procedures or programmes for refugees who are below a specific age, for example, 16 or 18 years. Laws which apply to the general population may also have age limits, such as juvenile delinquency law. In addition, the Convention on the Rights of the Child only applies to persons under 18 years. States face practical problems in determining age. A refugee's birth might never have been registered, or identity documents never issued. Identity papers are sometimes lost, forged or destroyed. Even when the papers are in order, authorities might question their validity. When identity papers are not relied on to establish age, authorities usually base age assessments on physical appearance. Sometime "scientific procedures" are used, such as dental or wrist bone x-rays. Precautions must be taken if such methods are used. First, these methods only estimate age. Authorities must therefore make sure their methods are accurate and allow for margins of error. Second, when technology is used, it must be safe and respect human dignity. Third, special procedures or programmes usually are intended to help younger persons when their needs are greater. When the exact age is uncertain, the child should be given the benefit of the doubt. The family vaccination cards in some countries provide age estimates, and there are also traditional methods of approximately determining the age of a child. Provided the child is with the mother, she may relate the birth of the child to a local event or a local calendar, such as the Year of the Sheep, the year of the war between counties X and Y, the year before the migration from one place to another p lace, the locust year or an international event such as the Gulf war. Because States do face practical problems in applying laws that have age limits, it is important to keep the issues of accuracy, safety and dignity under constant discussion.'

ANNEX II

The relevant parts of the UNHCR's Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum 1997 read:

'REFUGEE STATUS DETERMINATION FOR UNACCOMPANIED CHILDREN

Procedures

(8.1)Considering their vulnerability and special needs, it is essential that children's refugee status applications be given priority and that every effort be made to reach a decision promptly and fairly. All appeals should be processed fairly and as expeditiously as possible. (8.2)Minimum procedural guarantees should include determination by a competent authority, fully qualified in asylum and refugee matter; where the age and maturity of the child permits, the opportunity for a persona interview with a qualified official before any final decision in made; and a possibility to appeal for a formal review of the decision. (8.3)Not being legal independent, an asylum-seeking child should be represented by an adult who is familiar with the child's background and who would protect his/her interests. Access should also be given to a qualified legal representative. This principle should apply to all children, including those between sixteen and eighteen, even where application for refugee status is processed under the normal procedures for adults. (8.4)The interviews should be conducted by specially qualified and trained representatives of the refugee determination authority who will take into account the special situation of unaccompanied children, in order to carry out the refugee status assessment. (8.5)An asylum-seeker or his/her legal representative should be able to seek a review of the decision. Appropriate deadlines should be set out for a child to appeal a negative decision. Every effort should be made to reach a decision in an efficient manner in order not to keep children in limbo for a long period of time regarding their status and their future. All appeal s should be processed fairly and as expeditiously as possible. This may require children's appeals to be prioritized over other outstanding appeals.

Criteria

(8.6)Although the same definition of a refugee applies to all individuals regardless of their age, in the examination of the factual elements of the claim of an unaccompanied child, particular regard should be given to circumstances such as the child's stage of development, his/her possibly limited knowledge of condition in the country of origin, and their significance to the legal concept of refugee status, as well as his/her special vulnerability. Children may manifest their fears in ways different from adults. Therefore, in the examination of their claims, it may be necessary to have grater regard to certain objective factors, and to determine, based upon these factors, whether a child may be presumed to have a well-founded fear of persecution. (8.7)It should be further borne in mind that, under the Convention on the Rights of the Child, children are recognized certain specific human rights, and that the manner in which those rights may be violated as well as the nature of such violations may be different from those that may occur in the case of adults. Certain policies and practices constituting gross violations of specific rights of the child may, under certain circumstances, lead to situations that all within the scope of the refugee Convention. Examples of such policies and practices are the recruitment of children for regular or irregular armies, their subjection to forced labour, the trafficking of children for prostitution and sexual exploitation and the practice of female genital mutilation. (8.8)It is also important to take into account the circumstances of the family members as this may be central to a child's refugee claim. Principles of confidentiality should not be compromised in this regard. While the child may have personally fear or have experienced persecution, more often s/he may fear or have been affected by other discriminatory or persecutory measures affecting the entire family. (8.9)Children often do not leave their country of origin on their own initiative. They are generally sent out by their parents or principal caregivers. "If there is reason to believe that the parents wish their child to be outside the country of origin on grounds of their own well-founded fear of persecution, the child him/herself may be presumed to have such a fear." If the will of the parents cannot be ascertained or if such will is in doubt, then a decision with have to be made regarding the well-foundedness of the child's fear on the basis of all known circumstances. (8.10)The final decisions should be based on a case-by-case examination of the unique combination of factors presented by each child, including the child's personal, family and cultural background. Therefore, it is important that persons involved in the refugee status determination procedures have an understanding of the history, culture and background of the child.

CHILDREN ACCOMPANIED BY ADULTS WHO ARE NOT THEIR PARENTS

Principal caregivers

(1)In many cases the child will be accompanied by an adult caregiver who may or may not be a relative of the child. In order to determine whether or not a child is considered unaccompanied, the following specific but non-exhaustive guidelines may assist in identifying and measuring the quality of the relationship between a child and a potential principal caregiver. (2)Where a child is not with his/her parents in the first asylum country, then s/he will be, prima facie, unaccompanied. (3)The attachment of a child to the refugee claim of an adult principal caregiver for the purpose of refugee status determination should only be made after a careful assessment of all known facts. Caution should be exercised when considering such a claim. The consequences of an erroneous judgement or an ill-advised finding that a child is accompanied by an adult principal caregiver for the purposes of refugee status determination under the principle of family unity are serious:

(a)It may deprive the authority of the opportunity properly to investigate the child's history in the presentation of the refugee claim in an age-appropriate way.

(b)It may prevent the authority from being alerted to the particular vulnerability and needs of the child and from assessing the best interest durable solution for the child once refugee status determination has been completed.

(4)If the interviewer is in doubt as to the veracity of the account presented or the nature of the relationship between caregiver and child, then the child should be processed as an unaccompanied child. (5)Where a child is accompanied by an adult caregiver, the quality and durability of the relationship between the child and the caregiver must be evaluated to decide whether the presumption of "unaccompanied status" should be set aside. If, on evaluation of the nature of the relationship between the child and the caregiver, it is concluded that the child is not unaccompanied, then the child's case may be processed for refugee status under the regular status determination procedures with the adult caregiver according to the principle of family unity. (See paragraph (10).) … (10)If the principal caregiver is not recognized refugee status, "there is nothing to prevent any one of his dependants, if they can invoke reasons on their on account, from applying for applying for recognition as refugees under the 1951 Convention or the 1967 Protocol relating to the Status of Refugees. The principle of family unity operates in favour of dependants, and not against them." (The Handbook on Procedures and Criteria for Determining Refugee Status (UNHCR, 1992), para 185.) Therefore, the substance of a child's circumstances should be evaluated for refugee status even if the child forms part of a family unit.

Adult siblings

(1)A child accompanied by an adult sibling should be processed with that sibling through the refugee status determination procedure on the presumption that:

(a)they have a shared or common history and;

(b)the adult sibling is aware of and able to articulate the child's claim for refugee status.

(2)If evidence suggests that the assumption of similar backgrounds is not valid or the adult sibling is not capable of articulating the child's claim for refugee status on his/her behalf then the child should be treated as an unaccompanied child for the purposes of his/her refugee status determination procedures. These should then be followed by an assessment of the durable solution in the "best interests" of the child. (3)The option of review to assess the durable solution in the best interests of each child should remain open, even if their cases have been processed together for refugee status determination. It should be a fluid rather than a static process which reflects the evolving nature of a child's legal or personal circumstances. If the background is shares and leads to a determination that the child and the adult sibling are refugees, then the durable solution for both will be wither local integration or resettlement in the third country.'

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[1] Relevant extracts from the UNHCR's Refugee Children, Guidelines on Protection and Care 1994 and the UNHCR's Guidelines on Policies and Procedures in dealing with Unaccompanied Children Seeking Asylum 1997 have been annexed to this decision at pp 439-445. See also para 213-219 of the UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status. [2] Asylum Appeals (Procedure) Rules 1996. [3] Article 22 of the United Nations Convention on the Rights of the Child 1989 reads: '(1)States Parties shall take appropriate measures to ensure that a child who is seeking refugee status or who is considered a refugee in accordance with applicable international or domestic law and procedures shall, whether unaccompanied or accompanied by his or her parents or by any other person, receive appropriate protection and humanitarian assistance in the enjoyment of applicable rights set forth in the present Convention and in other international human rights or humanitarian instruments to which the said States are Parties. (2)For this purpose, States Parties shall provide, as they consider appropriate, co-operation in any efforts by the United Nations and other competent intergovernmental organizations or non-governmental organizations co-operating with the United Nations to protect and assist such a child and to trace the parents or other members of the family of any refugee child in order to obtain information necessary for reunification with his or her family. Inn cases where no parents or other members of the family can be found, the child shall be accorded the same protection as any other child permanently or temporarily deprived of his or her family environment for any reason, as set forth in the present Convention.' [4] See Annexes I and II.