Written by Mahfuz Ahmed

 

 

The Court of Appeal have recently handed down a judgement determining that a vulnerable 16 year old Afghan boy should be awarded damages for the infringement of his Article 8 rights under the European Convention on Human Rights (ECHR).

 

Article 8 of the ECHR states:

 

1.  Everyone has the right to respect for his private and family life, his home and his correspondence.

 

2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

 

QH (Afghanistan) v Secretary of State for the Home Department

 

In the case of QH (Afghanistan) v Secretary of State for the Home Department, the Appellant appealed against the Upper Tribunal’s decision that a declaration was sufficient for the breach of the Appellant’s rights under Article 8 of the ECHR.

 

The Appellant is an Afghan national who came to the UK via Germany in April 2016. Upon arrival, he claimed asylum on the basis that he was a minor.

 

The Secretary of State removed the Appellant to Germany, after Lincolnshire County Council decided that he was 19. However, shortly after being removed, Germany recognised him as a minor and a person with significant mental vulnerabilities. The Appellant was ordered to be brought back to the UK.

 

The Appellant bought proceedings against the Secretary of State for damages. The matter was heard by the Upper Tribunal who held that the Appellant’s removal had been a breach of his rights under article 8 of the ECHR. However, the Tribunal was not of the view that it was justified for the Appellant to be awarded damages.

 

The Appellant then appealed the decision to the Court of Appeal.

 

Court of Appeal

 

The sole issue that the Court had to consider is whether the Upper Tribunal erred in making the decision that the Appellant was not entitled to damages. The Upper Tribunal had already confirmed that the Appellant’s article 8 rights were breached.

 

Lady Justice Laing also determined that the removal of the Appellant was “not an accident. It was a deliberate act”, contradicting the Home Office’s claims that it had been because of a clerical error.

 

The Court held that the Secretary of State’s actions had significant practical consequences for the Appellant. The only conclusion which would give just satisfaction to the Appellant would be an award of damages to the Appellant. Accordingly, the Appellant was successful.

 

Our comments

 

This case is a reminder to the Secretary of State of the importance of ensuring that every individual’s rights under the ECHR are protected. We welcome the decision by the Court of Appeal to award damages and hope this case will represent a reminder to the Secretary of State for the Home Department.

 

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