The High Court dismissed a Kenyan child’s judicial review proceedings as an abuse of process, finding the grounds advanced could not succeed and that complaints about the quality of the asylum decision could be pursued through an appeal to the Refugee Appeals Tribunal.
The judgment, delivered by Mr Justice McDermott on 19 December 2013, concerned a child identified as D.O.O., who was three years old at the time. His father and next friend, E.O., had brought the case challenging the Refugee Applications Commissioner’s recommendation that the child not receive refugee status. The recommendation followed a consideration concluded on 1 October 2010. The proceedings began on 20 October 2010.
The child’s claim was advanced by his father, who said the child could not safely return to Kenya because of the Mungiki sect. The father said the group had tried to recruit him and threatened him after he refused. The Commissioner treated the child’s claim as linked to his parents’ and siblings’ asylum applications and found it was not well founded, referring to prior decisions rejecting those family members’ claims. The Commissioner also considered state protection and internal relocation in Kenya, and the possibility of travel to Côte d’Ivoire.
The child sought to quash the recommendation and obtain other relief, including a declaration concerning the asylum procedures and an order for reconsideration. The Minister for Justice sought to dismiss or strike out the proceedings, arguing that grounds were already settled by case law, were vague, or could be dealt with on statutory appeal.
Justice McDermott said the court should be cautious about dismissing a judicial review case before the statutory leave process. He concluded, however, that the Minister’s application could be considered under the court’s inherent jurisdiction because it alleged the proceedings were an abuse of process in light of an adequate appeal route.
The court found the challenge to the asylum procedure’s compliance with EU minimum standards was moot in light of earlier court decisions. It held that the Commissioner could rely on decisions concerning the parents and siblings where the young child’s claim was based on their experiences. Complaints about the assessment of state protection, relocation, future risk and related matters could be raised on appeal and did not establish a fundamental flaw undermining the Commissioner’s jurisdiction. Other grounds lacked the particulars needed to support them.
The proceedings were dismissed as an abuse of process. The court noted the applicant was a minor and the caution required before making such an order. The judgment did not determine the child’s statutory appeal or grant the requested reconsideration.