Tribunal decisions

The decision

IN THE IMMIGRATION APPEAL TRIBUNAL

CC (Roma - Return – Minor) CG [2003] UKIAT 00212

Heard at:
Field House
Decision number:
[2003] UKIAT
Heard on:
15th December 2003
Appeal number:
CC / 00321 / 2003
Date typed:
18th December 2003
Date promulgated:
16th March 2004

Before:
MS D K GILL (CHAIRMAN)
MR. A. JEVANJEE

Between:

Appellant

And

The Secretary of State for the Home Department
Respondent

DETERMINATION AND REASONS

Representation:
For the Appellant: Ms. N. Atreya, of Counsel, instructed by Arona Sarwar & Co. Solicitors.
For the Respondent: Mr. A. Sheikh, Senior Home Office Presenting Officer.

1.1 The Appellant is a national of Romania, born on 24th November 1986. He arrived in the United Kingdom as an unaccompanied minor on 15th September 2002. At the date of the hearing before the Adjudicator (Mrs. V. Woolf) on 26th March 2003, he was 16 years old. At the date of the hearing before the Tribunal, he was 17 years old. He appeals with leave against the determination of the Adjudicator dismissing his appeal on asylum and human rights grounds against the Respondent's decision of 6th November 2002 to give directions for his removal to Romania as an illegal entrant.

1.2 The Appellant's asylum and human rights claims were certified. These were withdrawn at the hearing before the Adjudicator.

2. Permission to appeal was granted on human rights grounds only, and refused on asylum grounds. However, our comments in relation to (a) and (b) in paragraph 3 below are equally relevant in appeals brought on asylum grounds.

3. This decision is being reported because:

(a) we consider the approach to be taken in a human rights appeal where the Secretary of State declines to grant exceptional leave to remain to an unaccompanied minor but undertakes (in accordance with his published policy) not to remove the minor until he has made adequate arrangements for the reception and care of the minor (see paragraphs 18.1 and 18.2 below);

(b) we consider whether the objective evidence relating to the system of care in Romania for minor orphans is such that those of Roma ethnic origin are reasonably likely to face treatment in breach of their Article 3 rights (see paragraphs 28.2 and 28.3 below). We also consider whether the conditions are such that Roma orphans are reasonably likely to be forced to become street children (see paragraphs 29.1 to 29.3 below); and

(c) we consider whether family life has been established in the United Kingdom between the Appellant and his carer (see paragraphs 38 to 46 below).

4. Given the terms of the grounds of application, the issues before us are:

(a) Whether the Adjudicator's assessment of credibility is safe and whether she had applied the correct standard of proof.

(b) Whether the Appellant's removal to Romania would be in breach of his rights under Article 3 of the ECHR.

Before the Adjudicator, an undertaking was given on the Secretary of State's behalf that the Secretary of State would not return the Appellant unless there were adequate arrangements for the reception of a minor in Romania. Before us, Mr. Sheikh reiterated the undertaking that, if the Appellant is removed whilst still under 18 years of age, the Secretary of State would only remove him if adequate care arrangements are in place. The Appellant asserts that he would not be able to access the system of care in Romania and that, in any event, he would be exposed to treatment amounting to inhuman or degrading treatment or punishment in Romania. Whilst in Romania, the Appellant had lived in orphanages since the age of 3 years. He claims to have been verbally abused, sexually assaulted and beaten by other boys. He is a Roma by ethnic origin. Roma children in care experience ill-treatment.

(c) Whether the Adjudicator’s decision on the Article 8 (right to family life) claim is sustainable.

The family life claim is based on the Appellant's relationship with his carer (Mrs. Ene) in the United Kingdom. He had had some contact whilst in Romania with Mrs. Ene. The London Borough of Brent (LBB) have allowed her to care for him, although they have not formally appointed her as a carer. She herself is a Romanian national, of Roma ethnic origin. Her asylum appeal was allowed by an Adjudicator in May 2002. The Secretary of State has not appealed against that determination. Although she has not been formally granted any immigration status, she would not be able to return to Romania. The Appellant's relationship with her is the only “family tie” he has ever known in his life.

(d) Whether the Adjudicator adequately considered (or failed to consider) the Appellant's right to private life.

5. The Determination: The Adjudicator stated (at paragraph 51) that she accepted the core of the Appellant's claim and his life history. She stated that the only issues which arose in relation to the Appellant's credibility concerned the periphery of his account. She found “most implausible” his explanation of his ability to use a coin-operated telephone system in the United Kingdom to contact Mrs. Ene on the telephone number she had given him in a Christmas card she had sent him. The Adjudicator did not believe that, simply by stating that he was near a cinema and describing his locality but without giving a specific name, the Appellant would have been able to indicate to Mrs. Ene where she needed to meet him. She noted that there was a discrepancy between the evidence of Mrs. Ene and the Appellant as to when the Christmas card with Mrs. Ene’s telephone number had been sent. At paragraph 53, the Adjudicator stated:

In all I found that neither Ms. Ene nor the Appellant were being truthful about how the arrangements were made for the Appellant’s reception in the United Kingdom. I do not accept that Ms. Ene was unaware that the Appellant was coming when he telephoned her.

6. Although this was an aspect of the evidence which the Adjudicator stated remains “very much on the periphery”, she considered that it is a matter which “may have some significance” for his human rights claim, as she found that it is a matter which is intrinsically linked to the Appellant's claims about his circumstances – i.e. that his only family tie is to Mrs. Ene and her husband. The Adjudicator did not believe Mrs. Ene’s evidence about the extent of the contact she had had with the Appellant in Romania and her explanation that she had not been allowed to adopt him or look after him in Romania on account of her own ethnic origin as a gypsy and that that was the reason why she had not taken him out of the orphanage. She considered that there was nothing to indicate that the authorities in Romania differentiate solely on the grounds of race whether one is a suitable carer or not. At paragraphs 56 and 57 of the Determination, she stated:

56. …….. I find Ms. Ene’s account of her continuing relationship with the Appellant throughout his minority in Romania to be lacking in credibility, as I am unable to accept that there was any such impediment. I find that neither Ms. Ene nor the Appellant have been truthful about the duration of their relationship, its nature or exactly how his entry to the United Kingdom was secured.

57. In summary, I accept that the Appellant has been looked after in orphanages in Romania. I do not find that he has the relationship with Ms. Ene that both he and she have set out in their respective witness statements. Both the Appellant and this witness have attempted to obscure the truth regarding the arrangements which were made for the Appellant’s journey to the United Kingdom.

7. With regard to the Article 3 claim, a report of a Ms. Carmina Drace-Francis had been adduced. The Adjudicator considered the general background documents as well as the report of Ms. Drace-Francis, at paragraphs 43 to 49 of the Determination. At paragraph 43, she stated that Ms. Drace-Francis “demonstrated her expertise by the very nature and content of the report, which shows she has consulted a wide range of recent materials, and she demonstrates a considerable knowledge”. However, at paragraph 58, she rejected what she considered to be the main thrust of Ms. Drace-Francis’s report – namely, that the Romanian government has merely paid lip service to dealing with the Roma issue. The Adjudicator considered that the background documents indicate that, as a boy of 16 years, the Appellant would not be returned to an orphanage but that, even if it was feared that he would be returned to an institution, there had been major improvements in the welfare of children in such institutions and that, although not ideal, they could not be described as degrading or inhuman. She considered that there were sufficient channels for redress for any discriminatory treatment and that there was no reasonable likelihood that the treatment which he had experienced in the past would be repeated now that he has reached 16 years. She found that his removal would not engage the United Kingdom’s obligation under the Refugee Convention or be in breach of his rights under Article 3 of the ECHR.

8. With regard to the Article 8 claim, the Adjudicator stated, at paragraphs 63 and 64:

63. ……. I have considered the fact that the Appellant has been cared for in the United Kingdom by Ms. Ene and her husband. Ms. Ene stated that they were considering adoption proceedings. On my findings of fact, the Appellant and Ms. Ene have been less than candid about the true nature of their relationship and the involvement of Ms. Ene and/or others in the making of arrangements for the Appellant's entry to the United Kingdom. I have only been satisfied to the requisite standard that the Appellant has been looked after by Ms. Ene since his arrival in the United Kingdom since September 2002. Thus, it is not a relationship of any great length. Since neither the Appellant nor Ms. Ene has told the truth about their relationship, I am unable to make any reliable assessment as to its true nature.

64. However, the fact that the Appellant would be separated from someone who has taken responsibility for his care since September 2002 does amount to an interference with his private and family life. The Appellant is 16 years of age and his claim shows that the authorities in Romania responsible for his care have acted perfectly properly up until prevented, by his departure, from seeking a suitable family or other placement. There is no reason to believe that they would not also undertake these duties properly and sufficiently were he to be returned during his minority. When these factors are weighed with the Respondent’s desire to maintain proper immigration controls, I find that the Respondent’s decision is proportionate. The Appellant entered the United Kingdom illegally and there were no formal arrangements preliminary to any proposed adoption by Ms. Ene and her husband. Although the London Borough of Brent may be satisfied that he is being cared for appropriately by Ms. Ene and her husband presently, that is far from establishing that it is an appropriate long-term placement or that Ms. Ene and her husband are suitable as adoptive parents.

(our emphasis)

Oral submissions before the Tribunal:

9. Although we did not hear oral evidence, we acceded to Ms. Atreya’s request for the hearing to be held in camera. Ms. Atreya informed us that the Appellant is quite distressed and has lost quite a lot of hair on account of his distress. Our observation of the Appellant's visual appearance is that he does appear to have lost a lot of hair.

10. Mr. Sheikh informed us that, before effecting removal, the Home Office would check with the appropriate Embassy and social services and satisfy itself that adequate arrangements are in place in this case. The Secretary of State normally only makes care arrangements when removal is imminent. It would be pointless for the Secretary of State to take such steps now, because the Appellant has a pending appeal.

11. Mr. Sheikh sought to rely on a telex dated 5th March 2002 from “FM Bucharest” to “Immigration Croydon” with the heading: “Re-integration of asylum-seeking children”. Ms. Atreya informed us that she would be in difficulty if we received the document in evidence because she had not had prior notice of the document. We assured Ms Atreya that we received a copy of this document only so that we could record what document Mr. Sheikh sought to rely on. We consider that, given the late production of the document and the difficulty which that places Ms. Atreya, it is not appropriate for us to consider the contents of the document.

12.1 Ms. Atreya informed us that Ms. Ene still has not been granted any form of leave by the Secretary of State. Mr. Sheikh confirmed that the Secretary of State has not lodged any application for permission to appeal against the determination of the Adjudicator allowing her asylum appeal. He did not know why status had not been granted to Ms. Ene but could only suppose that this was due to the backlog.

12.2 Ms. Atreya informed us that she did not accept the undertaking given on the Secretary of State’s behalf that the Appellant would only be removed when adequate care arrangements have been made. Given that the Tribunal would need to decide the human rights claims as at the date of hearing, then (in Ms. Atreya’s submission) it was relevant to take into account that there was no evidence before the Tribunal that any appropriate arrangements have been made for the Appellant’s care in Romania. She confirmed that she did not seek to suggest that the care arrangements provided by the Romanian authorities for all Roma minor orphans amount to inhuman or degrading treatment. She was at pains to point out that she had only been instructed to argue for this Appellant; that, given this Appellant's past experiences in the orphanage (which had been accepted by the Adjudicator and which included sexual abuse), the care arrangements which he would be able to access in Romania would expose him to inhuman or degrading treatment.

12.4 The Adjudicator accepted that orphans in Romania live in orphanages until the age of 16 years and that there is a move away from orphanages in Romania. The Adjudicator’s view was that, on his return to Romania, the Appellant would not be returned to an orphanage (see paragraph 58 of the Adjudicator's Determination) but she did not say where the Appellant would be sent to. At paragraph 58, she stated that, even if it is feared that he would be returned to an institution, the background materials demonstrate that there have been major improvements in the welfare of children in such institutions. It appears, from paragraph 49 of the Adjudicator's Determination that the Adjudicator considered that, if the Appellant is not returned to an orphanage, then he would be sent to a professional foster parent or he would be placed within a “range of alternative child protection services”. In Ms. Atreya’s submission, the Adjudicator had failed to take into account the expert’s evidence that there are few chances of the Appellant being adopted even by another Roma family and that return to an orphanage would mean a return to on-going exposure to racism (page 6 of the Appellant's bundle A refers). Although the expert accepted that there is an attempt on the part of the Romanian authorities to change and improve the system, she stated that the transition to the new system of child protection can be difficult and with few chances of immediate success. Paragraphs 6.90 and 6.92 of the CIPU report dated October 2003 shows that orphanages in Romania are generally decreasing in number. In Ms. Atreya’s submission, there is a real risk, based on the expert's report, that the Appellant will fall through the net – that is, that he will not be adopted or be able to access the new system of child protection in Romania.

12.5 Pages 20 and 21 of the Appellant’s bundle B show that Roma children in Romania suffer discrimination in terms (inter alia) of economic, social, cultural, civil and political rights. Paragraph 6.83 of the CIPU report refers to the sexual exploitation of children which continued to attract press attention in 2001. In Ms. Atreya’s submission, this is important in this case, because the Appellant has suffered sexual abuse previously. We were referred to pages 37 to 55 of the Appellant's bundle B. Roma continued to be targeted by members of society and also by the state security forces. According to the USSD Report dated 31st March 2003, there are significant numbers of street children living in the capital because a significant percentage have left the large institutions with no skills and employment and no ability to earn a living and obtain housing. There is no systematic provision of labour market information, skills training or job placement services for these young persons and there is a high probability that they would gravitate to the streets, engaging in prostitution or trafficking.

12.6 For the above reasons, Ms. Atreya submitted that the Appellant’s removal to Romania would be in breach of his rights under Article 3 of the ECHR.

12.7 With regard to the Article 8 claim, we asked to be addressed on whether it can be said that the Adjudicator had found that family life had been established. Ms. Atreya submitted that it can be inferred from paragraph 64 of the Adjudicator's Determination that the Adjudicator had found that family life had been established. If we were to disagree, then she submitted that the Tribunal would have to remit the appeal on Article 8 grounds or hear oral evidence on the issue. Although at paragraph 63 of the Determination, the Adjudicator stated that neither the Appellant nor Ms. Ene had told the truth about their relationship, the Adjudicator had failed to give the Appellant the benefit of the doubt when assessing his evidence about the Christmas card. The fact that the Adjudicator stated that this was a credibility issue which was at the periphery of his account is inconsistent with a finding that he is not to be believed about his relationship with Ms. Ene. Even on the Adjudicator's findings, there was some contact between the Appellant and Ms. Ene in Romania. In Ms. Atreya’s submission, it would be extraordinary if there was found to be no family life on the evidence before the Adjudicator.

12.8 Accordingly, Ms. Atreya submitted that the issue before us was whether the interference with the Appellant's family life with Ms. Ene is proportionate. In Ms. Atreya’s submission, removal would be disproportionate because:

(a) Ms. Ene should be regarded by the Tribunal as a refugee. Accordingly, it is not reasonable to expect her to return to Romania to enjoy family life with the Appellant.

(b) the Appellant would not be able to obtain entry clearance from Romania in order to visit Ms. Ene. Once he is over 18 years of age, he cannot be adopted. His prospects of securing entry clearance to return to the United Kingdom as a visitor, given that he would be a failed asylum seeker, would be remote.

(c) the Appellant's only family life is in the United Kingdom. If he is returned to Romania, he would be placed into care.

12.9 If Ms. Ene had been granted indefinite leave to remain, then there is a possibility that an application could be made outside the Immigration Rules for the Appellant to be granted leave to remain for adoption proceedings to take place. If the Appellant is removed, then the situation in Romania is that there is a moratorium on inter-country adoptions in Romania, as paragraph 6.89 of the CIPU Report states.

13.1 Mr. Sheikh asked us to uphold the Adjudicator's credibility assessment, which he submitted could not be ignored when assessing the Article 8 claim. He submitted that the Adjudicator had not made a finding that family life had been established, although it is true that he had found that there was a family life “of a sort”. In any event, Mr. Sheikh submitted that removal was proportionate. The Adjudicator's credibility assessment could not be ignored when considering proportionality. The short duration and precarious nature of the relationship between Mrs. Ene and the Appellant was also relevant, as was the fact that no formal arrangements preliminary to any proposed adoption by Mrs. Ene and her husband had been made.

13.2 With regard to the Article 3 claim, he submitted that the Adjudicator was correct to reject the main thrust of the report of Ms. Drace-Francis that the Romanian authorities had only paid lip service to the Roma issue. He submitted that the objective evidence shows that, if returned to Romania, the Appellant would not be exposed to treatment amounting to a breach of Article 3. There are orphanages for Roma children, schools and housing. In Mr. Sheikh’s submission, the issue is not whether the housing or schooling provided to Roma children in Romania is of inferior quality to that provided to non-Roma children. The issue is whether what is provided to Roma children is of such low quality that it is to be regarded as inhuman or degrading treatment. If paragraph 58 of the Adjudicator's Determination is read in conjunction with paragraph 49, it is clear that the Adjudicator considered that the Appellant would not be sent to an institution or an orphanage. We were referred to paragraphs 6.81 to 6.89 and to paragraphs 6.109 to 6.130 of the CIPU Report. In Mr. Sheikh’s submission, it is not true to say that the level of care provided is such that a child would be forced to go on the street. The documents at pages 25 to 36 of the Appellant's bundle B were largely irrelevant. For example, the fact that these evidence complaints made by Roma parents that their children had been put up for adoption without their knowledge. In any event, these documents show that the child protection agency has a “hands-on approach” to protecting Roma children.

14.1 In reply, Ms. Atreya informed us that there was no evidence of any formal arrangements preliminary to adoption proceedings, because Ms. Ene is not able to take any steps in this connection until she is granted indefinite leave to remain. Although Ms. Ene has not been legally designated as a carer, she is in effect his carer.

14.2 The Adjudicator had not taken into account the Appellant's evidence that he had had contact with Ms. Ene since he was a minor. If she had evaluated his evidence, she would have accepted that there was some form of contact. The Adjudicator did not deal with the fact that, as a refugee, Ms. Ene could not be expected to return to Romania to enjoy family life with the Appellant. Accordingly, her consideration of the proportionality issue was flawed.

14.3 Ms. Atreya asked us to consider the fact that the Home Office has provided no evidence of any care arrangements being in place for the Appellant against the fact that he has established his family life in the United Kingdom. She accepted that she could not go so far as to say that any Roma child orphan in Romania is at real risk of Article 3 ill-treatment. However, based on what the expert has said, she submitted that this particular Appellant would not be able to access child protection. The USSD Report (page 48 of the Appellant's Index B) refers to the number of street children who have left large institutions. Ms. Atreya asked to note the reference to “large institutions”, and not orphanages.

14.4 Ms. Atreya asked us to allow the Article 3 and 8 claims. In the event we dismissed the appeal, she asked to make a recommendation that the Appellant be granted exceptional leave to remain until he reaches the age of majority, on the ground that his account of his experiences in Romania was believed by the Adjudicator. She also asked us to make any statements we are able to make about the removal arrangements.

15. We reserved our determination.

16. We have decided to dismiss the appeal. We now give our reasons.

17.1 We deal with the issues before us in the following sequence:

(a) The Article 3 claim.
(b) The Article 8 (right to family life) claim.
(c) The Article 8 (right to private life) claim.

17.2 In our view, the issue taken with regard to the Adjudicator's assessment of the credibility of the evidence before her as to the nature, extent and duration of the contact between the Appellant and Ms. Ene before the Appellant’s arrival in United Kingdom is only relevant in relation to the Article 8 claim.

The Article 3 claim:

(i) The Secretary of State’s undertaking:

18.1 Ms. Atreya informed us that she did not accept the undertaking given on the Secretary of State’s behalf that adequate care arrangements would be made for the Appellant if he is removed to Romania during his minority. She submitted that the Adjudicator (and therefore the Tribunal) had to determine the appeal before us. That evidence includes the fact that adequate care arrangements had not been made. The thrust of her argument before us was that, when the fact that adequate care arrangements have not been made by the Secretary of State is considered alongside the objective evidence as to the care which would the Appellant would receive in Romania (having regard, inter alia, to the expert’s report) and his past experiences in a Romanian orphanage, then we should find that his removal to Romania would expose him to treatment amounting to inhuman or degrading treatment. On the other hand, Mr. Sheikh submitted that the Secretary of State normally only makes care arrangements when removal is imminent and that it would be pointless for the Secretary of State to make any care arrangements now because the Appellant has an appeal pending. The Secretary of State’s position is that detailed care arrangements would only be made if the Appellant loses his appeal. In Mr. Sheikh’s submission, the system of care for Roma orphan minors in Romania is not such that it can be said that the Appellant would be exposed to inhuman or degrading treatment.

18.2 We are of the opinion that the Secretary of State's undertaking relates to the practicalities of removal, whereas the Adjudicator (and the Tribunal) are concerned with the lawfulness of the decision to remove. If the Appellant’s removal to Romania is reasonably to be in breach of his protected rights under the ECHR, then his appeal would succeed and the Secretary of State would not seek to remove him. On the other hand, if his removal to Romania is not reasonably likely to be in breach of his protected rights under the ECHR, then his appeal would fail. If that happens, we are entitled to assume that the Secretary of State will follow his published policy in relation to unaccompanied minors and only remove the Appellant when he has put in place adequate reception and care arrangements in Romania - see the Home Office’s “Information Note” on “Unaccompanied asylum seeking children”, in particular paragraph 8.3 on page 8 of the Appellant's bundle B, and the wording of DP/4/96 at page 1 of the Appellant's bundle B. There would therefore be no question of the Appellant not being able to access the system of care in Romania. If and when detailed arrangements for the Appellant’s care in Romania are made by the Secretary of State, it is considered that such arrangements are not adequate in his particular case or otherwise do not comply with the Secretary of State's undertaking, then the Appellant may well have some judicial remedy elsewhere. However, that is not for us to say and does not concern us.

(ii) The system of care to which the Appellant would be returned to in Romania:

19. It is relevant to bear in mind, in determining the Article 3 claim, the fact that the Adjudicator accepted the core of the Appellant’s accounts as to his experiences in care in Romania. Ms. Atreya submitted that the Appellant’s evidence was that he had been verbally abused, sexually assaulted and beaten by other boys whilst at the orphanage. According to paragraph 6 of the Appellant’s witness statement dated 2nd October 2002 (page 3 of the Appellant's bundle A), there were “attempts to sexually use him a few times”.

20.1 In the Adjudicator's view, the main thrust of the report of Ms. Drace-Francis was that Ms. Drace-Francis was saying that the Romanian authorities have only paid lip service to the Roma issue. Given that the Adjudicator rejected what she saw as the main thrust of Ms. Drace-Francis’ report, it is illogical for her to have said that the expert has demonstrated her expertise. In these circumstances, we consider that she ought to have explained in greater detail why she considered that Ms. Drace-Francis had demonstrated her expertise in her report. We agree with Ms. Atreya that the Adjudicator did not deal with the opinion of Ms. Drace-Francis that the Appellant “would have few chances of being adopted even by another Roma family and that returning to an orphanage would mean a return to ongoing exposure to racism and that the transition of child protection can prove difficulty with few chances of immediate success”. Furthermore, the Adjudicator stated at paragraph 58 of the Determination that the Appellant would not be returned to an orphanage but she did not state what the objective evidence indicates the Appellant would be returned to. This has to be inferred by reading the last sentence of paragraph 49.

20.2 We therefore set aside the Adjudicator's consideration of the objective evidence and determine it ourselves. This, of course, means that we are not bound by the Adjudicator's consideration of the report of Ms. Drace-Francis.

21. With regard to the situation of Roma in Romania generally, we believe that it is generally accepted that, whilst Roma experience widespread discrimination in Romania, they do not, in general terms, experience treatment which is sufficiently severe as to amount to persecution or inhuman or degrading treatment – see, for example, the UNHCR’s advice of October 2000, mentioned at paragraph 6.111 of the CIPU report dated October 2003, and also paragraph 6.112 of the same report. That advice relates to the general situation for Romas and does not relate specifically to the situation of Roma children in care in Romania. Our opinion that, in general, people of Roma ethnic origin in Romania experience discrimination but not treatment which is sufficiently severe as to amount to persecution or inhuman or degrading treatment is also supported by the section entitled “National/Racial/Ethnic Minorities” in section 5 of the USSD report, on pages 49 to 50 of the Appellant's bundle B.

22. Ms. Atreya relied heavily on the documents at paragraphs 20 to 36 of the Appellant's bundle B. Our comments on these documents are as follows:

(a) pages 20 and 21: This document, issued by ERRC (European Roma Rights Centre) in August 2003, sets out some of the concluding observations of the United Nations’ Committee on the Rights of the Child in its review on Romania. The UN Committee refers to the discrimination of children belonging to the Roma community. It states that the principle of non-discrimination is not fully implemented for all children in all parts of the State party and that unequal enjoyment of economic, social, cultural, civil and political rights persists for, inter alia, children between 16 years and 18 years, children belonging to Roma or other minority groups and children living on the streets. Whilst noting the observations of the UN committee, this document does not materially assist us in determining what type of care arrangement the Appellant is reasonably likely to be returned to or whether such would be in breach of his rights under Article 3, beyond making us aware, in general terms, that he would experience discrimination as a Roma child.

(b) pages 22 to 24: This is another document, issued by ERRC dated October 2003, which refers to the shooting of two Romani men by police in civilian clothes who reportedly caught the men in the act of breaking into a car. The ERRC claims to have uncovered a different version of events. We are aware that there have been credible reports of police harassment of Roma people in Romania (paragraph 6.112 of the CIPU Report dated October 2003) and that police officers have reportedly harassed and used excessive force against the Roma (the USSD Report dated 31st March 2003, see the fourth paragraph on page 37 of the Appellant’s bundle B). However, it cannot be said that the attitude of the police in Romania generally towards people of Roma ethnic origin is such that they in general terms pursue a campaign of persecution against people of Roma ethnicity or that there is a general denial of sufficiency of protection to people of Roma ethnicity. Such a contention would run counter to the documents referred to in paragraph 21 above.

(c) pages 25 to 35: This is another document issued by the ERRC dated May 2003. It refers to a ten-day field mission to Romania undertaken by the ERRC in October 2002. The report states that, during the course of the ten days, the ERRC did not enter a single Romani community which was not affected by a number or all of the concerns which the report then goes on to describe. The report goes on to mention:

(i) instances of Romani children in state institutions in Romania who were being put up for adoption without the knowledge or consent of their parents or being arbitrarily kept separated from their parents.

We do not see the relevance of this issue in this case, since the Appellant has not seen his mother for many years, and her whereabouts are not known. The issue in the Appellant's case is that he would not be adopted, rather than that he would be adopted without the consent of his mother being properly obtained.

(ii) that there is a disproportionately high number of Romani children in state institutions, compared with the percentage of Romani people.

Again, we do not see the relevance of this issue, since it appears that the reason for the over-representation of Romani children in state institutions is because of the actual or perceived inability of their parents to adequately care for them.

(iii) that the living standards of Romani settlements in Romania is poor. Reference is made to the lack of electricity, heating and water, overcrowding, separate entrances for Romani people and for other Romanians who share the same block and inadequate accommodation provided to those Romani people who are forcibly evicted.

This is supported by paragraphs 6.122 and 6.123 of the CIPU Report dated October 2003.

However, we cannot see the relevance of these issues to this case, since it is not being suggested that the Appellant would be returned to a Romani settlement. The Secretary of State has undertaken that the Appellant would only be removed if adequate care arrangements are in place. The focus of our enquiry should therefore be the child care system in Romania, and not the situation pertaining in Romani settlements.

(iv) that there is discrimination against Romani people in the allocation of social aid.

(v) that, in many communities in Romania, the ERRC found that Romani children were educated in segregated schools within their communities, with substandard facilities and were provided with inferior education.

Whilst we accept that (iv) and (v) are evidence of discrimination against Romani people (and this is also referred to in paragraph 6.112 of the CIPU report dated October 2003), we are not persuaded that any discrimination against the Appellant in terms of (iv) and (v) would be of such severity as to reach the threshold for a breach of Article 3.

23.1 We now turn to the report of Ms. Drace-Francis, which is at pages 6 to 12 of the Appellant’s bundle A. Firstly, we are given no information about the curriculum vitae of Ms. Drace-Francis, other than that the heading on page 6 of the Appellant's bundle A indicates that she has MA and MPhil qualifications. We are not told what experience or expertise she has on the subject of the situation of Roma in Romania generally or, more importantly (since this is the issue in this case), on the subject of the situation which Roma children living in care in institutions in Romania face.

23.2 Secondly, we note that the second paragraph of the section entitled “General Introduction” states:

“One could say that there is hardly any sincere interest coming from the [Romanian] authorities in order to deal with the problematic situation of the Roma in Romania. The latest attempts may look very convincing on the surface: the National Strategy for the Improvement of the Situation of the Roma (adopted in 2001) was conceived with the help of PHARE funds and foreign know-how. However, as shown below, the Strategy has been already considered (by European and Romanian organisations) as a flawed and largely rhetorical document. The government’s attempts to improve the situation of the Roma could therefore be considered as superficial”.

Ms. Drace-Francis’ opinion that the Romanian government has made no sincere efforts to improve the situation of Roma people in Romania is astonishing, since it is not mirrored in the reports of international bodies who are known to be impartial and objective – for example, the last sentence of paragraph 6.112 of the CIPU report states:

….. the European Commission considered that the [Romanian] Government has made steady progress in implementing 2001’s National Strategy for Improving the Condition of Roma …..”

According to footnote [3], this is attributed to the European Commission’s Accession Report of October 2002.

and, further, paragraph 6.118 of the CIPU report states:

“The World Bank considers that, over the last decade, significant efforts have been made by government, political parties and non-governmental organisations towards improving the condition of Roma in Romania…

According to footnote 39, this is attributed to the World Bank’s report entitled “Roma in an Expanding Europe 2003”.

It is inconceivable that, if the efforts made by the Romanian authorities were only superficial, bodies such as the European Commission would not say so.

23.3 Since Ms. Drace-Francis states, in the second paragraph of the “General Introduction”, that she shows later in her report that the National Strategy for the Improvement of the Situation of the Roma “has been considered (by European and Romanian organisations) as a flawed and largely rhetorical document”, we turned to the later part of her report to see how she demonstrates this. On page 14 of the Appellant's bundle A (page 9 of the report itself) she refers to the view of the ERRC – a body which itself has a particular axe to grind. Furthermore, the footnotes numbered 32 and 34 on this page and footnote number 35 on the next page show that the quotes to which they relate are from reports published in 2001. That was in fact the year in which the National Strategy was adopted. Whilst we acknowledge and accept that there are funding problems with the National Strategy (as paragraph 6.115 of the CIPU report states), Ms. Drace-Francis does not mention the following signs of progress in relation to the National Strategy which are referred to in the CIPU report:

paragraph 6.114: One of the key features of the [National] strategy is its decentralised nature. This is an important consideration since most of the public institutions covered by the strategy (e.g. education, police and hospitals) are managed at the local level. In order to implement the strategy local Roma offices, with staff, who are themselves Roma, are being set up in each county. According to footnote 13, this is attributed to the newsletter of the European Union, issued August 2001. Although this is dated August 2001, we quote this in order to show the relevance of the next quote, which is:

paragraph 6.115 Local Roma offices have been set up in every county and nearly 400 Roma experts have been hired to carry out the action plan for 2001-2004. According to footnote 38, this is attributed to Freedom House report, entitled “Nations in Transit 2003”.

paragraph 6.116 The European Commission noted, in October 2002, that the structures for the implementation of the Roma Strategy were progressively established. At the country level, the Roma offices provided for in the strategy have become operational. The Roma party has been the main interlocutor when making these appointments. According to footnote [3], this is attributed to the European Commission’s Accession Report of October 2002.

paragraph 6.117 At the national level, 15 commissioners have been established in ministries or national agencies for the implementation of the Roma sector strategies…… In the field of employment the Ministry of Labour and Social Solidarity has promoted Roma participation in labour market programmes. In additions [sic], courts, for the first time, ruled against employers and newspapers for publishing discriminatory job vacancies. According to footnote [3], this is attributed to the European Commission’s Accession Report of October 2002.

23.4 Ms. Drace-Francis may or may not have expertise to comment on the subject of the situation of the Roma. As we have said, we have not seen her curriculum vitae. Whatever her expertise, we can and do say that we consider that her sweeping statements about the Romanian government not being sincere in its efforts to address the situation of the Roma people in Romania and the fact that she has not provided a balanced and objective account of views about the National Strategy throw her objectivity and impartiality into question. We do not accept that she is impartial and objective.

23.5 This means that we view what Ms. Drace-Francis says about the situation in Romanian children’s institutions and orphanages with caution. We would expect to see any general observations she makes about the system of care which the Appellant would return to to be substantiated not only with source material but source material which is recent and from organisations known to be impartial and to produce objective reports. We found that what she does say on this very important issue is unclear (see paragraphs 27(a) and (b) below) and that what she does say about this issue is un-sourced and unsubstantiated (see paragraph 27(a) below).

24. At pages 6 to 10 of the Appellant's bundle A (pages 1 to 5 of the report itself), Ms. Drace-Francis refers to children of Roma ethnic origin experiencing discrimination or degrading treatment from non-Roma pupils and teachers. Teachers allegedly are guilty of placing Roma children at the back of the class and of using “occasional” physical abuse against Roma children. Roma children are “often exposed” to verbal abuse by non-Roma children which goes uncorrected by staff. Although this is quoted in a report by the ERRC, we are prepared to accept this as a reasonably true picture of the situation since the picture which this creates of the discrimination which Roma children experience in schools in Romania conforms with the general picture of discrimination against Roma generally which we gain from other reports on the situation of Roma in Romania. However, we stress that there is nothing contained in Ms. Drace-Francis’ report which shows that it is reasonably likely that the level of discriminating treatment or the level of abuse the Appellant would experience would be such as to reach the severity level for a breach of Article 3.

25. On page 8 of the Appellant's bundle (page 3 of the report itself), Ms. Drace-Francis states that another problem which institutionalised children are widely confronted with is sexual abuse. Reference is made to data presented by Save the Children Organisation, which were quoted in a Romanian newspaper in March 2002. However, we note that this states that sexual abuse in Romanian orphanages is perpetrated either by older children or by the staff members themselves. As we have stated above, the Appellant said that he experienced attempts “to use him sexually” “a few times” by a group of boys. He has never claimed to have been sexually abused by the staff. The report of Ms. Drace-Francis produced on the Appellant's behalf itself states that the sexual abuse perpetrated by children at the orphanages is perpetrated by the older children. Accordingly, we are of the view (and we so find) that if, on the Appellant's return to Romania, he is cared for by an institution, it is not reasonably likely that he would experience sexual abuse. As he is already 17 years old, he would (on his return to any institution) be amongst the older children in the institution. Of course, guarantees cannot be given but we make it clear that we have assessed the likelihood of sexual abuse on the low standard of a reasonable likelihood. Accordingly, whilst we have noted that the USSD Report dated 31st March 2003 (6th paragraph of Section 5: “Children” on page 48 of the Appellant's bundle B) refers to legal provisions to protect children from abuse and neglect being inadequate and there being no consistent policy and procedure for reporting child abuse and neglect, we consider that this is not relevant. Furthermore, this paragraph indicates that this appears to relate to families who abuse their children and, in any event, this paragraph also states that the National Authority for Child Protection and Adoption monitors abuse cases and that a task force was established at the end of 2002 - co-ordinated by the National Authority for Child Protection and Adoption - which is developing standards, training, policies and procedures for child abuse and neglect. However, as we have said, it is not reasonably likely that the Appellant will experience sexual abuse.

26.1 With regard to the living conditions in orphanages, the Romanian government is in the process of closing down the large and dilapidated institutions or orphanages under the Ceausescu’s era and replacing them with the establishment of smaller foster homes and rehabilitation centres providing education and specialist care. This is referred to at page 7 of the Appellant's bundle A (page 2 of Ms. Drace-Francis’s report) and also at paragraph 6.86 of the CIPU report dated October 2003 - which refers to the strategy as the 2001-2004 strategy for the protection of children. This is the “transition” to which Ms. Drace-Francis refers. At paragraph 49 of the Determination, the Adjudicator states that the number of children in orphanages appears to be steadily declining – a figure of 50,000 in 2001 has been reduced to 43,000 in 2002. The move away from large institutions is said to be paralleled by substantial increases in the number of professional foster parents and the range of alternative child protection services.

26.2 We consider the Romanian government’s strategy of closing down the large and dilapidated orphanages of the Ceausescu era and instead providing care by the establishment of smaller foster homes and rehabilitation centres as a positive move, rather than a negative one, given that the living conditions in many of the orphanages of the Ceausescu era were appalling.

27. The grounds of application assert that the Adjudicator did not engage with the opinion of the expert as to the situation which would face the Appellant on his return to Romania. We have therefore considered very carefully what Ms. Drace-Francis says about the system of care which the Appellant would return to. We find the report disappointingly unclear about this. We note:

(a) Ms. Drace-Francis’ opinion about the transition is that it “can prove difficult and with few chance of immediate success (even when new directors are appointed ....” (page 8 of the Appellant's bundle A, on page 3 of the report itself). Firstly, Ms. Drace-Francis does not indicate what this opinion is based on. We have already given our reasons above for treating Ms. Drace-Francis’ unsupported assertions with caution. Secondly, we note that Ms. Drace-Francis does not actually say that the Appellant would not be given a place in one of these smaller foster homes/rehabilitation centres. Neither does she say where he would be sent to, if he is not sent to one of these smaller foster homes or rehabilitation centres. We are left to infer (from (b) below) that, in such event, he would be sent to an orphanage. Thirdly, Ms. Drace-Francis does not explain what she means when she says that the transition “can be difficult with few chances of immediate success” or what effect such difficulties have on the conditions in the smaller foster homes/rehabilitation centres which replace the orphanage which has closed down.

(b) Ms. Drace-Francis also states that: “There are few chances of [the Appellant] being adopted (even by a Roma family) and returning to an orphanage would mean a return to ongoing exposure to racism”. The Appellant’s evidence was that he was told by the “Centru de Placement” that it would be difficult to find someone to adopt a Roma child. The Adjudicator appears to have accepted his evidence in this respect. Furthermore, the Appellant is now already 17 years old. The fact that he will reach the age of majority in less than one year may well reduce further the chances of finding anyone prepared to adopt him. For these reasons, we are prepared to accept that it is not reasonably likely that the Appellant would be adopted, despite the fact Ms. Drace-Francis does not indicate what this opinion is based on.

28.1 Prior to his departure from Romania, the Appellant was looked after in care by the Romanian authorities. There is no reason to suppose that, if returned in his minority, the Romanian system of child care would not be available to him. Indeed, even Ms. Drace-Francis appears to proceed on the basis that he would return to the Romanian child care system. However, for the reasons we have given above, we are unclear as to what particular arrangement Ms. Drace-Francis considers the Appellant is reasonably likely to return to. It is therefore not surprising, in our view, that the Adjudicator dealt with this issue in the way she did at paragraph 58 of the Determination.

28.2 After considering all of the evidence before us, it seems to us that, on return to Romania, the Appellant may be:

(a) placed, on a temporary basis, with a family (as he had been just before his departure from Romania) until a permanent arrangement can be made. However, if he is placed temporarily with such a family, he may well end up spending the remainder of his minority in such temporary placement, given that he will reach the age of majority in less than one year; or

(b) placed in one of the smaller foster homes or rehabilitation centres which are replacing the old orphanages of the Ceausescu era; or

(c) sent to an orphanage, such as the orphanage in Vaslui where he was placed until he reached 15 years.

28.3 We now turn to consider the evidence before us as to the conditions of each of the above, in reverse order. With regard to (c), the Appellant’s evidence about the conditions of the orphanage in Vaslui is set out at paragraph 4 of his witness statement dated 2nd October 2002 (page 2 of the Appellant's bundle A). He described the conditions as “awful”. The children slept in dormitories with 14 or more in a room. He says the building was really cold, the heating was terrible; they all fell sick in winter. There was a shortage of water; they were allowed showers only once a week. The bathroom was a huge room with many showers; two people had to share a shower at any one time and they were only allowed to stay in the shower for 15 minutes. The Adjudicator has accepted the Appellant's evidence in this respect, which is broadly consistent with the first paragraph on page 3 of Ms. Drace-Francis’ report (page 8 of the Appellant's bundle A). According to the footnote, this paragraph has been quoted from a report dated 27th November 2002 relating to a visit to Romania from 5th-9th October 2002 by Mr. Alvaro Gil-Rhodes, Commissioner for Human Rights at the Council of Europe. The orphanage which Mr. Gil-Rhodes visited appears to be less crowded (with 62 children sharing 8 dormitories) than the orphanage the Appellant lived in in Vaslui. We note that Mr Gil-Rhodes describes the material conditions in the orphanage he visited as being “far from ideal” but “dignified in the main”. We allow for the fact that some orphanages may be more overcrowded than the one Mr. Gil-Rhodes visited. The USSD Report dated 31st March 2003 refers to the conditions of these orphanages as being “unacceptable in terms of basic infrastructure as well as hygiene, medical care nutrition and general assistance” (third paragraph of the Section entitled “Children” of Section 5 of the report, on page 48 of the Appellant's bundle B). On the whole of the evidence before us, we are satisfied that it is not reasonably likely that the Appellant would be sent to an orphanage with living conditions so bad that they reach the severity threshold for a breach of Article 3. We have already stated that it is not reasonably likely that the Appellant would be subjected to sexual abuse. He may well be subjected to verbal abuse, on account of his ethnicity, from non-Roma children. He may well also experience discrimination by teachers, such as being required to sit at the back of a classroom. However, the threshold for Article 3 is high. We appreciate that the Appellant is very anxious at the prospect of being returned to Romania, to such an extent that it appears he has lost much hair. However, we are satisfied that, having regard to the high threshold for Article 3, it is not reasonably likely that, if sent to an orphanage, the cumulative effect of the conditions or treatment he would be subjected to would reach the severity level for a breach of his rights under Article 3.

28.4 With regard to (b), it seems to us a reasonable inference to draw that the conditions in the replacement homes / rehabilitation centres would be an improvement on the orphanages they are replacing. Furthermore, the report of Ms. Drace-Francis makes no mention of the conditions in the replacement homes or rehabilitation centres. The Appellant's bundles contain no reports of the conditions in these places. What are we to make of the lack of such information? We draw the inference that, if the conditions were bad (or worse than the orphanages they replace), this would have been reported. Given that there are reports of the conditions in the orphanages which are being closed down, it is reasonable to assume that the conditions in the replacement homes / rehabilitation centres are being monitored. The fact that there are no reports relating to the conditions in the replacement homes / rehabilitation centres means that the conditions are acceptable. The lack of such reports supports our inference that the conditions in the replacement homes / rehabilitation centres would be an improvement on the orphanages they replace. However, we do not make our decision simply on this basis. We also note that, according to the European Accession report of October 2002, living conditions in most placement centres (that is, decentralised childcare institutions) are adequate (paragraph 6.90 of the CIPU report). On the evidence before us, we are satisfied that, if the Appellant is placed in one of the replacement smaller foster homes and/or rehabilitation centres, it is not reasonably likely that the cumulative effect of the treatment he would be subjected to (including, for example, any discriminatory treatment) would reach the severity level for a breach of his rights under Article 3.

28.5 With regard to (a) above, the Appellant’s evidence about his life during the period when he was temporarily placed with the gypsy family when he reached the age of 15 years is set out at paragraphs 10 and 11 of his witness statement dated 2nd October 2002. He says that they were a rich family; they had a big house, cars, a big farm with pigs and horses. He slept in a room with other staff who worked on the farm. He says he was not really there to work but helped around, doing minor jobs like watering the garden, cleaning the pigs and washing the cars. He described it as easier than living in the orphanage. He does not claim to have been ill-treated in any way. There is nothing before us to indicate that the living conditions in such temporary placement homes for children in care in Romania are in any way unacceptable, or even unpleasant. On the whole of the evidence before us, we are satisfied that it is not reasonably likely that the cumulative effect of the treatment he would be subjected to would reach the severity level for a breach of his rights under Article 3.

29.1 Ms Atreya relied on the fifth paragraph of the Section entitled “Children” in Section 5 of the USSD report (page 48 of the Appellant's bundle B) which refers to the problem of street children in Romania. This states:

Large numbers of impoverished and apparently homeless, but not necessarily orphaned, children were seen on the streets of the larger cities. A 1998-1999 study by UNICEF and Save the Children estimated that there were 2,500 children living on the streets of the capital in the summer when the number generally peaks, but the Government did not have statistics defining the scope of the problem nationwide. A significant percentage had left large institutions with no skills and employment and no ability to earn a living or obtain housing. There was no systematic provision of labour market information, skills training, or job placement services for these young persons, and there was a high probability that they would gravitate to the streets, engaging in prostitution or trafficking. Although the Government took some initiatives, including the creation of emergency receiving facilities to address these problems, there has been no systematic effort to prevent new children from joining the street population or to integrate children living on the streets. In November 2001 the Social Assistance Law took effect; it targets more assistance to children in poverty.

29.2 This passage appears to suggest that there are, amongst the street children population, persons who are both over and under the age of 18 years. Those who are under the age of 18 years include orphans. However, as we have stated above, the Appellant would be received into the Romanian system of child care on his return. It follows that there is no reasonable likelihood that, upon his return to Romania, he would become a street child. At paragraphs 28.1 to 28.5 above, we examined the conditions he is reasonably likely to return to. We found that it is not reasonably likely that he would have to endure treatment in breach of Article 3. Accordingly, he would not need to leave the system of care he is returned to, whilst in his minority. There is therefore no reasonable likelihood that he would be a street child, whilst in his minority.

29.3 Furthermore, if one examines the statistics we have before us, they also show that there is no reasonable likelihood that the Appellant would become a street child whilst in his minority. In this regard, we noted that the Adjudicator referred at paragraph 49 of the Determination to the fact that the CIPU report before her indicates that there were 50,000 children in orphanages in 2001, which reduced to 43,000 in 2002. The USSD report refers to 2,500 children living on the street according to the 1998-1999 study, which we appreciate does not cover the same period. Nevertheless, on these figures, we consider that, even if one assumes that all of the 2,500 street children referred to in the USSD Report are under 18s and are from orphanages (which the report does not suggest), the number of children on the street is a very small proportion of the total number in orphanages. This further shows that it is not reasonably likely, and speculative to suggest, that the Appellant would become a street child in his minority.

30. Once the Appellant reaches his age of majority, he may well find it difficult to obtain housing and employment, although the fact that he has been receiving some education in the United Kingdom should place him in better stead than others of his age leaving the system of child care in Romania. It is possible that he may end up on the streets. Paragraph 6.87 of the CIPU report refers to the existence of national programmes dealing, inter alia, with the social and vocational integration of young persons leaving care institutions. We appreciate that there are funding problems with these programmes and we also appreciate that there is little by way of evidence before us to show the success of such programmes. However, we make two further points. Firstly, the total number of “street children” indicated by the USSD Report is 2,500. This, as we have said, includes children under and over the age of 18. Accordingly, the total number of “young persons” (those 18 years old and over) would be lower than 2,500. Even assuming that all of these young persons are of Roma ethnic origin, this still represents a very small percentage of the total Roma population – estimated to be between 1.8 million and 2.5 million (paragraph 6.109 of the CIPU report). On these figures, the likelihood of the Appellant being forced into the streets when he reaches majority is far below that of a reasonable likelihood. It is speculative to suggest that the Appellant would be forced to live on the streets. Secondly, he would be an adult by then. An Article 3 claim by a Romanian national of Roma ethnic origin based simply on the risk of homelessness and general discrimination on account of ethnic origin would be unlikely to succeed, given the high threshold for Article 3. We see no reason to take a different view in this case, simply because the assessment of the Article 3 claim is taking place at a time when the Appellant is still a minor.

31. For all of the above reasons, we find that the Adjudicator's finding that the Appellant’s removal to Romania would not engage his rights under Article 3 is sustainable on the whole of the evidence which was before her. We make the same finding on the whole of the evidence which is before us. Based on the objective evidence, there is no reason to suppose that the Secretary of State will not be able to make adequate arrangements for his reception and care in Romania as he undertakes to do.

32. With regard to paragraph 9 of the grounds of application, we would comment that the Adjudicator was concerned with whether the Appellant's removal is reasonably likely to be in breach of his rights under the Refugee Convention or Article 3 of the ECHR, rather than whether his past experiences amounted to persecution. There may be occasions when a finding as to past persecution may be relevant. This is not one of those occasions, given that the Appellant would be returning as a minor but one who would reach the age of majority in less than a year and, if returned, he is not reasonably likely to be subjected to sexual abuse (for the reasons we have given). The Adjudicator came to the same conclusion, at paragraph 60, when she stated that there is no reasonable degree of likelihood that the Appellant’s past treatment, experienced in the orphanage, would be repeated now that he has reached the age of 16 years (meaning, as at the date of the hearing before her). However, in case we are wrong about this, we consider whether the Appellant's past experiences did amount to persecution. He referred to boys having “a few times attempted to sexually use him”. We appreciate that he would have found this distressing. Without in any way condoning or trivialising his distress, we nevertheless note that these attempts were made towards the end of the 15 minutes allocated for the boys to shower so that, on the Appellant's own evidence, the boys had to leave him because they knew that the duty officer would be coming around to chase them out of the showers. This evidence shows that, although distressing for the Appellant, the boys did not succeed in what they tried to do. It also shows that the boys were wary of being caught by the duty officer. The Appellant therefore had the option of reporting these incidents to those in authority in the institution. There is nothing to indicate that he availed himself of that option. Taking his evidence about these attempts to sexually use him in conjunction with his failure to report the incidents and his other evidence (as to verbal abuse, beatings, being made to sit at the back of the classroom and the living conditions), we are not persuaded that he experienced treatment sufficiently severe as to reach the severity threshold for persecution or Article 3.

The Article 8 claim

(i) The Adjudicator's assessment of credibility:

33.1 Various challenges have been made to the Adjudicator's assessment of credibility. In this particular case, we are satisfied (for the reasons we give below) that credibility is not determinative of the outcome of this appeal. Even if the Appellant's claims concerning the level of contact he had with Ms. Ene are taken at their face value, his Article 8 claim cannot succeed, for the reasons we give below.

33.2 However, we deal with the challenge to the credibility assessment, given the terms of the grounds of application and the submissions we heard.

34. There is no substance in the assertion in the grounds of application (paragraph 4 thereof) that it is unclear what standard of proof the Adjudicator had applied when assessing the evidence. She referred to the low standard of proof at paragraph 42, before considering the background materials at paragraphs 43 to 49 and credibility at paragraphs 50 to 58. At paragraph 60 (where she set out her conclusions in relation to the appeal on asylum grounds), she said that there was “no reasonable degree of likelihood” that the Appellant's past treatment experienced in the orphanage in Romania would be repeated now. In considering the Article 8 claim at paragraph 63, she stated that she had only been satisfied “to the requisite standard” that the Appellant has been looked after by Ms. Ene since his arrival in the United Kingdom. This follows her re-iteration of her finding that the Appellant and Ms. Ene have been less than candid about the true nature of their relationship. When the Determination is read as a whole, we are satisfied that the Adjudicator did apply the low standard of proof when assessing the evidence before her.

35. Furthermore, we are satisfied that there is no substance in the assertions in the grounds of application that the Adjudicator had erred in her assessment of the evidence of Ms. Ene. The Adjudicator gave the following reasons for doubting Ms. Ene’s credibility:

(i) that Ms. Ene had been inconsistent in her accounts as to when she had sent the Christmas card to the Appellant with her telephone number;

(ii) that the account of Ms. Ene (as well as that of the Appellant) as to how Ms. Ene was able to locate the Appellant on his arrival in the United Kingdom was utterly implausible;

(iii) that the claim of Ms. Ene that she was not allowed to adopt the Appellant in Romania was not credible, because the Appellant's own account of his history undermined her claim that she would not have been considered as a carer by the Romanian authorities on account of her Roma origin and because there was nothing in the objective evidence which indicates that the Romanian authorities differentiate solely on the grounds of race whether one is a suitable carer or not.

Whilst the Adjudicator correctly noted that (i) and (ii) related to the periphery of the Appellant's account, (iii) went towards the strength or nature of the relationship between the Appellant and Ms. Ene prior to his arrival in the United Kingdom, given that Ms. Ene claimed that the reason why she reduced her visits to the Appellant in Romania is because of the attitude of the Romanian authorities towards her. There is no substance in the assertion in paragraphs 6 and 7 of the grounds of application that, in considering this aspect of Ms. Ene’s accounts, the Adjudicator had failed to take into account the fact that the CIPU report indicated that, from 2001, there was a substantial change in policy in Romania, with the reduction in numbers of institutions and a parallel increase in the number of professional foster parents and a range of alternative child protection services. The Adjudicator was clearly aware of this – she referred to it specifically at paragraph 49. There is no reason to suppose that she did not have it in mind when considering the credibility of Ms. Ene’s accounts. As the Adjudicator correctly noted, there is no evidence that the Romanian authorities discriminate in the appointment of professional foster parents on the basis of ethnicity, whether before the change of policy or afterwards.

We are satisfied that the Adjudicator's assessment of the credibility of Ms. Ene is fully sustainable, for the reasons she gave.

36. It is also asserted that the Adjudicator erred in her assessment of the Appellant's credibility in that:

(i) Having accepted that the matter of how the Appellant and Ms. Ene met in the United Kingdom was a peripheral matter the Adjudicator failed to give the Appellant the benefit of the doubt in relation to his evidence of how he met up with Ms. Ene (paragraph 8 of the grounds of application).

This assertion is not only illogical, it is based on a misconception of the “benefit of the doubt” principle.

(ii) That the peripheral matter (concerning how the Appellant and Ms. Ene met up in the United Kingdom) has adversely affected the entire outcome of the appeal (paragraph 8 of the grounds of application). We make two points. Firstly, although the Adjudicator stated at paragraph 54 that this issue was at the periphery of the Appellant's account, she then immediately went on to state that it is a matter which may have some significance in relation to the human rights claim since it was intrinsically linked to the Appellant's claim about his only family tie being with Ms. Ene and her husband. We see no error in this approach. It is clear, when the Determination (in particular, paragraph 54) is read as a whole, that, in referring to the “periphery of his account”, the Adjudicator meant that this issue was a peripheral matter in relation to that aspect of his claim which is based on his past experiences in care in the orphanage and his fear of returning to the same situation. Secondly, this assertion is based on the assumption that, if the Appellant’s accounts of his relationship with Ms. Ene prior to his arrival in the United Kingdom had been accepted, this would have led to the appeal being allowed. We do not find this to be the case, for the reasons we give below.

(iii) That the Adjudicator failed to consider whether the Appellant's evidence as to when the Christmas card was sent should be preferred to Ms. Ene.

This assertion ignores the fact that the evidence of Ms. Ene was offered in order to support the Appellant’s claim. This assertion is tantamount to the Appellant saying that, if his supporting witness is found to be lacking in credibility, then his evidence should nevertheless be accepted simply because he is a minor. We have no hesitation in rejecting this assertion. In offering Ms. Ene’s evidence in his appeal, the Appellant took the chance that Ms. Ene’s evidence may be found lacking in credibility and that this would in turn bring his own evidence into question.

(iv) That the Adjudicator failed to make a finding on the Appellant’s “undisputed” evidence that he knew Ms. Ene from a young age in Romania and that she failed to consider whether the Appellant’s evidence was sufficient on the low standard to establish that he had known Ms. Ene from a young age in Romania.

However, it is clear, from paragraph 57 of the Determination, that the Adjudicator rejected the accounts of both the Appellant and Ms. Ene as to the relationship they said they had with each other before the Appellant’s arrival in the United Kingdom. Since the Adjudicator found the evidence of Ms. Ene about the contact she said she had had with the Appellant lacking in credibility, she was entitled to reject the Appellant's accounts in this respect.

37. For these reasons, we are satisfied that the challenges to the Adjudicator's credibility assessment do not stand up to examination. We are satisfied that the findings of the Adjudicator are fully sustainable, for the reasons she gave.

(ii) Whether family life has been established:

38. Ms Atreya submitted that the Adjudicator had made a finding that the Appellant has established family life in the United Kingdom with Ms. Ene since his arrival in the United Kingdom. We do not agree. The first sentence of paragraph 64 of the Determination cannot be read in isolation from the last three sentences of paragraph 63. In stating at paragraph 63 that the relationship was not any great length, she was referring to the relationship in the United Kingdom. She then went on to state that she was unable to make any reliable assessment as to the nature of the relationship. When paragraphs 63 and 64 are read together, we are of the view that the Adjudicator did not find that the Appellant had established family life within Article 8(1). It was therefore not necessary for her to go on to consider whether there would be interference and whether such interference would be proportionate.

39. Ms Atreya submitted that, if we were of the view that the Adjudicator had not made a finding that the Appellant had established family life in the United Kingdom, then we would have to remit the appeal for a fresh hearing on the Article 8 claim so that evidence can be given about the nature of the relationship between the Appellant and Ms. Ene. We do not consider a remittal necessary, because, even if the Appellant has formed family life in the United Kingdom (and even if he had had such contact with Ms. Ene whilst in Romania as has been claimed), we are satisfied that removal is proportionate, for the reasons we give below.

40. We have not heard full legal argument on whether a relationship between a carer and a child is capable of leading to a finding that family life exists. If, contrary to our view, the Adjudicator did make a finding that family life exists between the Appellant and Ms. Ene, it seems to us that her examination of the facts (as found by her) in arriving at such a finding was too limited. She appears to have considered only the following – the length of time Ms. Ene has had “responsibility” for the Appellant's care since his arrival in the United Kingdom in September 2002. It is true that she noted, in the later part of paragraph 64:

(a) that there were no formal arrangements preliminary to any proposed adoption by Ms. Ene and her husband; and,

(b) that she considered that the fact that the London Borough of Brent (LBB) may be satisfied that the Appellant is being cared for appropriately by Ms. Ene and her husband is a matter which is far from establishing that it is an appropriate long-term placement or that Ms. Ene and her husband would be suitable as adoptive parents

but it is clear, from paragraph 64, that she took factors (a) and (b) into account only in deciding proportionality. It seems to us that these factors are also relevant to the question whether family life exists.

41. Whether or not family life exists is a question of fact in each case. In the case of natural parents and their minor children, it is generally the case that there is a presumption of the existence of family life. In the case of other blood relationships, there would need to be a closer examination of the relationship. Cohabitation is an important factor. There is no blood relationship between the Appellant and Ms. Ene. However, the Appellant lives with Ms. Ene and her husband. This goes in his favour. It is also necessary to consider whether a psychological bond and dependency has developed. In this case, we fully appreciate that the Appellant is someone who has never before had the benefit of being in a “family-type” environment and has lived, for almost the whole of his life, in institutional care in Romania. We fully appreciate that this is a factor which is more likely to lead to the development, on his part, of a dependency and a bond with Ms. Ene and her husband. We fully appreciate that, in his eyes, this is the only “family tie” he has ever had. We bear this in mind but it does not mean that this tie constitutes “family life” within Article 8(1). We fully appreciate that Ms. Ene does not have children and is unable to have children. We appreciate that she had promised the Appellant's mother that she would look after the Appellant (paragraph 2 of her witness statement). We fully appreciate that these factors are more likely, in the situation she found herself of being allowed by the LBB to care for the Appellant, to lead to the development on her part (and perhaps even that of her husband, although there is no evidence from him) of a dependency and bond with the Appellant.

42. However, the fact is that the Appellant has only been living with Ms. Ene since September 2002 and such mutual dependency as there exists between them has only developed since then. Even if his evidence and that of Ms. Ene as to the amount of contact they had had with each other in Romania is accepted (see paragraph 47 below), it has to be remembered that that contact was in the nature of visits only. There has been no suggestion that any emotional or psychological or other form of dependency developed between them then.

43. Furthermore, such dependency as exists cannot be considered in isolation from the fact that Ms. Ene is only the Appellant’s carer, with the consent of the LBB. Ms. Atreya informed us that Ms. Ene has not been legally designated as the Appellant's carer, but that she is in effect his carer. However, Ms. Ene is not able to make important decisions relating to the Appellant (such as to move the Appellant away from the area under the control of the LBB without obtaining the consent of the LBB), nor does she have full financial responsibility for the Appellant; the LBB pays a weekly subsistence to the Appellant of £26 (see the letter from Social Services Department of the LBB at page 30 of the Appellant's bundle A). Indeed, in this letter, the Social Services Department makes this statement:

This is to confirm that London Borough of Brent looks after [the Appellant]. He is accommodated under section 17 of the Children’s Act and is receiving a weekly subsistence of £26.

(our emphasis)

44. We emphasise that this letter makes clear that the LBB regards itself as being the party which is looking after the Appellant and accommodating the Appellant. Such relationship as exists between the Appellant and Ms. Ene and her husband is subject, on their part, to the tacit acceptance of the overriding right of the LBB to make such decisions and take such steps in connection with the Appellant as it sees fit in order to discharge its legal responsibilities towards a child under its care. For example, the LBB may take the Appellant away from Ms. Ene’s care and place him elsewhere, if this would be in the interests of the Appellant. We agree with the Adjudicator that the fact that the LBB is satisfied to have Ms. Ene care for the Appellant at present does not mean that this is an appropriate long-term placement. Ms. Ene, as de facto carer, is responsible to the LBB for the discharge of her duties. She is obliged to comply with whatever requirements the LBB has imposed, or may impose, on her for the care of the Appellant. These factors distinguish this relationship from the relationship between a natural parent and a child living together or between an adoptive parent and child living together. Even in cases where the relationship between a natural parent and a child living together is interfered with by some legal process, this would normally be in order to give rights of access etc to the other natural parent. This is not the case here. The party with ultimate responsibility for the Appellant is the state.

45. The dependency between the Appellant and Ms. Ene and her husband has to be seen against the fact that the LBB has overriding responsibility for the Appellant and the fact that the Appellant, Ms. Ene and her husband all tacitly accept this overriding responsibility. Furthermore, it is relevant to consider such dependency as exists has only developed in the short period since September 2002.

46. Accordingly, whilst we acknowledge that some psychological bond and dependency would have developed between the Appellant and Mrs. Ene, the relationship does not bear the appearance, substance and permanence of “family life”.

47. We also take into account, at face value, the evidence of the Appellant and Ms. Ene as to the level of contact they had with each other in Romania. In this regard, we noted that the Appellant refers to seeing Ms. Ene in 1999 (paragraph 5 of his statement on page 2 of the Appellant’s bundle A). He says that, after this, Ms. Ene went to the orphanage to see him “a number of times”. The last time he saw her was in August 2000 (paragraph 14 of his statement at page 5 of the Appellant's bundle A). This does not entirely accord with Ms. Ene’s evidence (paragraph 3 of her statement at pages 18 and 19 of the Appellant's bundle A). She says she first saw the Appellant when he was 3 years old and, at that stage saw him “almost every month”. She says that “later on” (she does not say when) she was only able to see the Appellant once a year, until her last visit in August 2000. Ms. Ene’s evidence appears to suggest a higher level of contact than the Appellant’s. We take her evidence at its highest. However, as stated above, her visits to the Appellant in Romania were “visits”; the Romanian authorities had legal responsibility for him; there has been no suggestion that there was any dependency between them in Romania.

48. Taking all of these circumstances into account, we are satisfied that the relationship presently enjoyed between the Appellant and Ms. Ene and her husband does not have the appearance or substance of “family life” such that it falls for protection under Article 8(1).

(iii) If family life exists, whether removal is proportionate:

49. Even if the Appellant has established family life in the United Kingdom with Ms. Ene and her husband such as falls for protection under Article 8(1), there is still Article 8(2) to consider. It is not in dispute that any interference with his right to family life would be in accordance with the law and would come within one of the (exhaustive) list of reasons in Article 8(2). The Respondent asserts that interference would be proportionate in the legitimate aim of immigration control. We turn to the issue of proportionality.

50. The reasons the Adjudicator gave for finding that removal would be proportionate are set out at paragraph 64 of the Determination. Ms. Atreya submitted that the Adjudicator ought to have taken into account the fact that the Appellant and Ms. Ene had had some contact prior to the Appellant's arrival in the United Kingdom. She also submits that the Adjudicator failed to take into account the fact that, as Ms. Ene has had her asylum appeal allowed, she should be considered a refugee, albeit that the Respondent has not yet formally granted her refugee status. This means that Ms. Ene would not be able to return to Romania, which in turns means that the Appellant would not be able to enjoy his family life in Romania. Since Romania has in place a moratorium on international adoptions, this means that Ms. Ene would not be able to apply to adopt the Appellant in Romania. Ms. Atreya submits that the Appellant would not be able to return to Romania and apply for entry clearance from there to visit Ms. Ene because he would be regarded as a failed asylum seeker. The Appellant would be returned to care in Romania and would therefore have to endure the conditions in care there. Ms. Atreya submits that removal would permanently terminate the only family tie the Appellant has ever known.

51. In considering these issues, we guard ourselves against assuming the role of a judge in the County Court. We are not concerned with the welfare of the child, which of course, would be the paramount consideration for the County Court. We are concerned with whether his removal would be proportionate to the right of the state in the legitimate aim of immigration control. If we were concerned with the former question, it is easy to see that many claims by minors in our jurisdiction would be likely to succeed for the simple reason that conditions in many of the countries we deal with in asylum and human rights cases do not compare with the United Kingdom.

52. We accept that the Appellant’s removal is reasonably likely to bring to an end any prospect of the Appellant living with Ms. Ene and her husband, for the following reasons:

(a) We agree that we should, for the purposes of this appeal, regard Ms. Ene as a refugee, given that her asylum appeal has been allowed, that the Respondent has not lodged an appeal against that determination and that Mr. Sheikh informed us that it would appear that the delay in granting her refugee status is due to the backlog. Since the adjudicator who heard her appeal allowed the appeal fairly recently in May 2002, we accept that she would not be able to Romania so that the Appellant could enjoy family life with her.

(b) We are prepared to proceed on the footing that, if the Appellant were to make an entry clearance application in Romania in order to re-join Ms. Ene and her husband, such an application is highly unlikely to succeed (not least, because of the difficulty of establishing that the right to family life is engaged on the facts).

(c) We agree that Ms. Ene would not be able to adopt the Appellant in Romania, because Romania still has in place a moratorium on international adoptions (see paragraph 6.89 of the CIPU report). Romania imposed the moratorium until it enacts new legislation which puts the interests of the child first and which is complaint with the Hague Convention on Inter-Country Adoption, the United Nations Convention on the Rights of the Child and the European Convention on Human Rights.

53. If the Appellant were to be allowed to remain in the United Kingdom, he would have a chance (and we put it no higher than that) of being adopted by Ms. Ene – assuming, of course, that she is granted refugee status before he reaches the age of majority. We have no reason to doubt that the lack of her formal status is the only reason why Ms. Ene has not formally applied to adopt the Appellant. However, before she can make an application to adopt him, there would have to be an application to the Home Office for the Appellant to be granted exceptional leave to remain outside the Immigration Rules for such adoption proceedings to take place (per Ms Atreya’s submission, see paragraph 12.9 of this Determination refers). It would be inappropriate for us to speculate whether, if an application for adoption were to be made within the Appellant’s minority, Ms. Ene and her husband would be granted an adoption order. We do not have any expertise in this area of law but it seems to us that there are several issues which a County Court judge may well wish to examine which go beyond enquiring about the suitability of Ms. Ene and her husband as adoptive parents. Notwithstanding the fact that the Appellant is now in the United Kingdom and says that the whereabouts of his mother are unknown, a County Court judge may well wish to be satisfied that the Appellant is legally free to be adopted (especially given his recent arrival in the United Kingdom) and it may well be that the views of the Romanian authorities (from whose care he absconded) would be required. These are some of the reasons why it would be inappropriate for us to speculate on the outcome of any adoption application. Furthermore, the Appellant is already over the age of 17 years. Any adoption proceedings may not reach finality by the time the Appellant reaches his age of majority.

54. We have already reviewed the objective evidence before us in considerable detail in deciding whether the Appellant’s return to Romania would mean that he would be subjected to treatment in breach of Article 3. We have concluded that it would not. We appreciate that life is much more comfortable and pleasant for him in the United Kingdom, as compared to Romania. We do not repeat our observations above in relation to the Article 3 claim, but we make it clear that we take them into account.

55. We take into account the contact between the Appellant and Ms. Ene prior to the Appellant's arrival in the United Kingdom. We take into account the evidence of elements of mutual dependency which exist in this case, but note that it has only developed since the Appellant's arrival in September 2002. Ms. Ene has not been legally designated as the Appellant's carer. She does not have the rights and responsibilities of a natural parent, or an adoptive parent. The LBB is entitled, in the exercise of its legal duties, to remove the Appellant and place him elsewhere, thus bringing an end to cohabitation. This is a factor we are entitled to take into account. We are conscious of the fact that the Appellant is very anxious at the prospect of being removed – so much so that it seems he has lost much hair.

56. The interests of the state in the legitimate aim of immigration control is a very weighty consideration. This has been stated often. In deciding whether removal is proportionate, the question which has to be addressed is whether the interference strikes a fair balance between the interests of the state and the wider community in immigration control and the rights of the individual.

57. As we have said, we appreciate that removal will effectively bring an end to the Appellant's relationship with Ms. Ene, which he sees as his only family tie, and that he will lose “a chance” of being adopted. However, when this is considered alongside the fact that cohabitation has only taken place for a short time, that Ms. Ene does not presently enjoy the rights and responsibilities of a natural parent together with the fact that removal is not reasonably likely to expose him to treatment in breach of Article 3, we are satisfied that the Adjudicator's finding that removal is proportionate to the legitimate aim of immigration control is sound. We make the same finding.

58. Given the Adjudicator's rejection of Ms. Ene’s evidence that she did not know that the Appellant was coming to the United Kingdom until he telephoned her and that both the Appellant and Ms. Ene have been untruthful about the arrangements for his journey, there is also the concern in this case that Ms. Ene had advance knowledge of the fact that a minor was about to abscond from care in Romania and place himself at risk of a perilous journey to the United Kingdom in the back of a lorry. We have not based our decision on this concern, since the Adjudicator's findings do not go far enough. However, if there were to be a clear finding in a future case (which would have to be made on a high standard of proof), we may need to consider whether the proportionality exercise should involve considerations as to whether we ought to allow our human rights legislation to be used to circumvent laws imposed in another country to protect children.

(iv) The private life claim:

59. It is not clear whether the Adjudicator found that the Appellant has developed such private life as falls for protection under Article 8(1). She dealt with this in the first sentence of paragraph 64. However, we have explained above that, when the last three sentences of paragraph 63 and the first sentence of paragraph 64 are read together, it is clear that she did not find that family life had been formed. If we are right about this, this also calls into question that part of the first sentence of paragraph 64 in which she refers to private life.

60. In the event that the Appellant's relationship does not qualify as family life within the meaning of Article 8(1), it can be taken into account in considering whether he has developed such private life in the United Kingdom as falls for protection within Article 8(1). We take into account all the factors we have mentioned above, such as, for example, such dependency as he has developed in his relationship with Ms. Ene and her husband. Again, we are mindful of the fact that the relationship is permitted by the LBB which has the legal responsibility for him. It is also necessary to bear in mind the short period of time for which they have been living in the same household. The level of contact they have had in Romania is also relevant. The fact that he would lose “a chance” of being adopted is relevant. We also take into account the fact that he is studying in the United Kingdom and has made many friends (paragraph 7 of Ms. Ene’s statement at page 20 of the Appellant's bundle A). The nature, extent and duration of his private life in the United Kingdom is limited, although we are prepared to say that he has established a form of private life within the meaning of Article 8(1).

61. However, we are satisfied that, for the reasons we have already given above, removal would be proportionate to the legitimate aim of immigration control.

Conclusion:

62. For all of the above reasons, we are satisfied that the findings of the Adjudicator that the Appellant’s removal to Romania would not be in breach of the United Kingdom’s obligations under the Refugee Convention or in breach of his rights under Article 3 or Article 8 are fully sustainable, and we make the same findings.

63. It follows that we must dismiss the appeal.

Other remarks:

64. It seems to us appropriate that we make some comment on the terms in which permission to appeal was granted in this case. The mere fact that the Secretary of State has not granted the Appellant exceptional leave to remain does not, of itself (even arguably) give rise to a breach of Article 3 and/or 8. We have already dealt with the Respondent's undertaking to remove the Appellant only when adequate care arrangements have been made. The function of the Adjudicator was limited to considering the issues which were raised on appeal to her – i.e. whether removal would be in breach of the United Kingdom’s obligations under the Refugee Convention or of the Appellant's protected rights under the ECHR. The same restraints apply to the Tribunal. It is no part of the function of this Tribunal to consider whether the Appellant should be allowed to remain in the United Kingdom pending any adoption proceedings.

Request for recommendation:

65. We have considered carefully Ms. Atreya’s request that we make a recommendation that the Appellant be granted exceptional leave to remain in the United Kingdom until he reaches his majority, on the ground that his account of his experiences in Romania was believed by the Adjudicator. We decline to do so. It is not appropriate for us to make any statements about the removal arrangements which the Secretary of State should make pursuant to his undertaking.

Decision

The appeal is DISMISSED.

Ms. D. K. GILL
Vice President Date: 11th March 2004