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Chapter 12 | Appeals: Right to Appeal and Representation
difficulties facing asylum seekers, the duty to ascertain
and evaluate all the facts is shared between the
applicant and the examiner. 52 It can be inferred that
unaccompanied or separated children face particular
difficulties in adducing the necessary evidence
and that therefore the adjudicator or Immigration
Judge would have to pay more attention to objective
evidence which was in the public domain.
For solicitors firms with devolved powers, the
merits test was applied by the firm itself. Otherwise,
the firm had to apply to the Legal Services Commission
who would apply this same merits test. If
the Commission refused funding, the solicitors firm
could appeal to an Appeal Committee. If the firm
with devolved powers refused funding the unaccompanied
or separated child had to appeal the
decision. The present research indicated that many
unaccompanied or separated children are told by
their solicitors that their appeal lacks merit and
accept this advice without question.
The main reason given by a number of solicitors
for not granting or applying for Controlled
Legal Representation in order to appeal against an
initial refusal of asylum was an insufficiency of merits.
53 However, when a sample of determinations
from February, May, and October 2004 were analyzed,
it appeared that the merits test may have been
wrongly applied in some cases. There was often the
factual basis for asserting that the unaccompanied
or separated child would face persecution on the
basis of a child specific or a general Convention reason.
In addition, legal representatives often failed to
apply a child specific framework when considering
issues of credibility.
It would appear that where an unaccompanied
or separated child became an adult before his
or her appeal hearing was heard, they were even
less likely to pass the merits test.
In February 2004, out of a total of 118 appeals heard
that month, 11 unaccompanied or separated children
were not legally represented. Four of these children
were from Iraq, two were from India, and the others
were from China, the Democratic Republic of Congo,
Morocco, Palestine, and Vietnam. The child from
the Democratic Republic of Congo was a girl of 12
who had claimed asylum on the basis of imputed
political opinion. The child from Vietnam was a girl
of 10 who was represented by an unrelated male
guardian but not a legal representative. 54 She also
feared persecution on the basis of imputed political
opinion. Four of the other unaccompanied minors
also had asylum appeals which had prospects for
success with representation.
In a further eight appeals former unaccompanied
or separated children were not represented.
Two of them were from Moldova and the others
came from India, Indonesia, Iraq, Romania, Serbia
and Montenegro, and Sierra Leone. In two cases
there was potentially the basis for being granted
refugee status and in the majority of other cases,
the potential for a claim under Article 3 of the
European Convention on Human Rights.
In May 2004, there were 113 appeals involving
unaccompanied or separated or former unaccompanied
or separated children. In five cases
unaccompanied or separated children were unrepresented.
Two were from Iraq and the others were from
Algeria, Chad, and India. In three of the cases there
was a potential basis for the child’s asylum appeal
being allowed and in the two others an appeal could
have been allowed on the basis of Article 3 of the
European Convention on Human Rights.
There were also nine former unaccompanied
or separated children who were unrepresented.
Four were from Iraq, three were from Serbia and
Montenegro (Kosovo), and the others were from
Sierra Leone and India. In three cases there was a
possible basis upon which his or her asylum appeal
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