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1. Last year, we saw great strides in the legal world in the field of migrant children’s rights. We had the Supreme Court affirming in ZH (Tanzania)  UKSC 4 what practitioners probably always felt was the correct view, that the ‘best interests of the child’ must be a paramount consideration in any decision the Secretary of State for the Home Department (‘SSHD’) makes, whether in relation to the determination of an application for leave to remain, or placement in the Fast-Track, return of children to their home countryand detention of children,to name a few. We saw the courts and practitioners engaging robustly with the construction of the section 55, Borders, Citizenship and Immigration Act 2009 (‘BCIA 2009’) duty which requires the SSHD to act in a manner which safeguards and promotes the welfare of the child and considers his best interests.
2. What about this year?The cynic in me would say the gloss and novelty of the ‘best interest of the child’ principles, as enshrined in s55, BCIA 2009 and as rejoiced by the Supreme Court in ZH (Tanzania) seems to have worn off a bit, and this year has seen a more mixed bag of judgments from the tribunal all the way up. In some areas there has been a real step forward in protecting the rights of migrant children (see for example, KA (Afghanistan) and MA and BT v Secretary of State (Dublin II removal of children cases). In other areas, there have been several steps back, particularly in relation to age disputes and children with families in deport / removal cases.
3. This paper will look at the way the courts have approached migrant children’s rights this year.
6. The artificial bright line of 17 years and 11 months and 29 / 30 days and 18 always seemed a bit arbitrary. The Court of Appeal in AA (Afghanistan)  EWCA Civ 12 first raised concerns (at a higher court level) about the adequacy of reception and care arrangements in Afghanistan and the need for the Secretary of State to take active steps to inquire in respect of adequate reception conditions. The ‘tracing duty’, to use the shorthand, was subject to scrutiny last year following the introduction of the s55, BCIA 2009 duty in the case of DS (Afghanistan)  EWCA Civ 305. The Court of Appeal held there that s55, BCIA 2009 was a positive duty enforceable by an individual child and required the SSHD to take positive steps to promote and safeguard the welfare of a child who is in the UK. Failure to trace family members or enquire about reception arrangements on return is a breach of s55, BCIA 2009: §§45-46 of the judgment. Importantly, the Court of Appeal rejected the SSHD’s argument that the appellant allegedly failed to cooperate with the Red Cross. Lack of cooperation from the child did not relieve the SSHD of her duty.
7. The dicta of DS (Afghanistan) was affirmed in HK (Afghanistan) and Others  EWCA Civ 315 (Pill, Rimer, Elias LLJ).
8. In KA (Afghanistan) v Secretary of State for the Home Department  EWCA Civ 1014 (Vice President of the Court of Appeal, Hooper and Moore-Bick LJ), the Court of Appeal took the scope of the tracing duty a bit further to consider the correct approach to assessing the risk on return in respect of Afghan minors where they have reached the age of majority at the date of their asylum appeal. The appellants were 8 young men from Afghanistan who had arrived in the UK aged 15 / 16 and unsuccessfully claimed asylum. They were granted discretionary leave to remain until 17 ½ years of age, in line with the SSHD’s policy. At age 17, all of them made application for asylum or humanitarian protection which were refused. Their appeals to the FTT were refused before they reached age 18. Their appeals to the Upper Tribunal were heard and dismissed after they had reached 18.
9. The issue for the Court of Appeal was whether in those circumstances they should retain the advantages in immigration terms of their minority when their appeals were heard.
Although the court had no power to grant leave or direct the SSHD to do so, the court could determine that a legally material factor in the SSHD’s exercise of discretion was the correction of injustice.
Although the duty to trace did not endure beyond age 18, it cannot be that the assessment of risk on return was subject to such a bright line rule. The risks of forced recruitment / sexual exploitation of vulnerable young males still existed after age 18.
At one end of the spectrum, you may have an applicant, who is credible, cooperative in the account given of having no surviving family in Afghanistan or having lost touch with surviving family members. Even if he had reached 18 by the time the tribunal considered his appeal, he may still be able to avail himself of the Rashid / s55 principles by reference to the SSHD’s failure to trace.
At the other end of the spectrum is the uncooperative and incredible appellant who frustrated any attempt to trace his family. This might put him outside the remit of the protective and corrective principles, but not because he is to be punished but because he had failed to prove risk on return.
11. Whilst in the arena of tracing the court appears to remain protective of the best interests of minors where there is a potential risk of their returning to a situation of persecution, the approach of the court to those young people’s whose age is in flux is less promising.
12. This year really saw the Upper Tribunal fully taking charge of its new jurisdiction as a judicial review court in the realm of fact-finding age assessment trials. One only needs to look at the Children’s Commissioner’s Report on ‘The Fact of Age’ published in July 2012 of this year to get a sense of how the tide has changed yet again. There was a period post-A v Croydon  UKSC 8 (which determined that the fact of age is an objective and precedent fact which admits only one right answer) where practitioners felt positive about the change in the law on age assessments.
13. There was a general feeling that the local authority age assessment process is underpinned by a culture of disbelief and that maybe the High Court with its experienced judicial review judges, would provide a level of objectivity to the process which was lacking.
14. We were off to a good start last year with the line of cases such as FZ v Croydon  EWCA Civ 59, YA v Hillingdon  EWHC 744 (Admin), AM v Croydon  EWHC 3308 (Admin), KN v Barnet  EWHC 2019 (Admin). Even in cases where the claimant was not wholly successful, the approach of the court was to take a half-way point between the claimant and the local authority’s position and call it even: see A v Camden for example.
15. This year started off rocky with one of the first Upper Tribunal age assessment determinations in AM v Solihull  UKUT 00118 (IAC) where the judges spectacularly concluded that the claimant was not the age claimed, and not the age assessed by the local authority but some other age older than both.
The Tribunal is not bound by either party’s view as to the claimant’s age and is to make its own decision on age on the evidence available before it.
Physical maturity is not determinative of age (a helpful finding) when one has regard to the varying cultural, social and economic history of the claimants.
But two indicators of physical maturity which can assist is evidence of growth in height / weight over time since being in the UK and the eruption of the third molar. (more about dental later).
As to demeanour, there may be some value to be obtained from observations of demeanour and interaction with others over a period of time particularly by those who have had the opportunity to observe an individual going about his ordinary life. But it is difficult to see how the demeanour of someone at a one-off meeting necessarily could provide any indication of age.
Asserted expertise of a social worker conducting an interview is not sufficient to counteract those difficulties, particularly when contrasted with other people involved in the young person’s life, such as a teacher or a family member.
Expert evidence of independent social workers cannot carry much weight in circumstances where they are carrying out a similar exercise to the assessing social workers of a snapshot view of age.
17. Following from AM v Solihull, as far as I know from a search of the databases, there has yet to be a case heard in the Upper Tribunal where the claimant has succeeded in having his age determined in his favour. In ES v Hounslow, the tribunal determined that he was a few months younger than assessed but certainly not his claimed age. In W v Croydon, although not a Tribunal case, Mr. C M G Ockelton presided in his deputy High Court judge capacity and again, very much like in AM v Solihull, held that the claimant was not the age claimed, not the age assessed by the local authority but four years older than the assessed age.
18. In all three of these cases, one of the most worrying implications revealed by the age trials is the risk to the claimant age-disputed minor in respect of their immigration status.
19. In both AM v Solihull and ES v Hounslow, the claimant had obtained refugee status but was age disputed still. In AM v Solihull, the SSHD in fact revoked his refugee status. In ES v Hounslow, this did not happen and interestingly, the tribunal explicitly stated that any credibility findings relating to the claimant’s age should bear no impact on his status as a refugee or his credibility in respect of his asylum claim (he was found wholly credible on his asylum claim by the FTT). In W v Croydon, interestingly, the SSHD did not seek to curtail the claimant’s leave despite the judgment of the High Court. And even more interestingly, the local authority also did not seek to terminate support to the claimant.
20. All of these cases raise a question mark of what practitioners and the claimant children should do when their age is disputed and it is relevant to both their immigration claims and their claims for support in the UK.
21. It has already been established by the High Court in several cases, AS v Croydon  EWHC 2091 (Admin) and PM v Hertfordshire  EWHC 2056 (Admin) that immigration determinations of age, positive or negative, are not binding in rem and thus not binding on the local authority, although the findings are relevant considerations for the local authority to review everything in the round.
22. To stick the boot in, the Court of Appeal handed down the judgment of R (K) v Birmingham City Council and conjoined appeals  EWCA Civ 1432 (Lord Dyson (MR), Sullivan, McFarlane LLJ), rejecting the submission that a local authority undertaking age assessments for the purpose of the Children Act 1989 would be bound by age assessment conducted by the Secretary of State for the purpose of exercising immigration functions. The Court also rejected the submission that age assessments done by the First Tier Immigration Tribunal bind the local authority in rem. There was nothing the Joint IND-ADSS Age Assessment policy that can be read to bind the local authority.
23. Also see the Court of Appeal’s judgment handed down on the same day as K v Birmingham in KA (Afghanistan)  EWCA Civ 1420 (Longmore LJ, Davis LJ, Lewison LJ). There an appellant asylum seeker appealed against a decision of an Upper Tribunal judge that there was not a reasonable degree of likelihood that K was under the age of 18 at the time a decision to remove him from the United Kingdom was made. He arrived in the UK and applied for asylum on the basis that his father, a member of the Taliban, wanted him to be a suicide bomber and that if he were returned to Afghanistan, his life would be in danger. He claimed to be 15 ½; when he claimed asylum. He was age disputed and an age assessment produced. The Secretary of State refused his asylum claim and refused to accept his age in the light of the age assessment. When he appealed to the Upper Tribunal, whilst the Upper Tribunal found flaws in the age assessment, it also did not accept the expert report and, left only with the appellant’s evidence, found him not credible. The appellant challenged this on the basis that given the finding that the age assessment was flawed, the Secretary of State should not have been entitled to rely on it to refuse his claim. The benefit of doubt principle should be applied in his favour. The Court of Appeal rejected this finding that under the Secretary of State’s policy, ‘Assessing Age’, the principle of the benefit of the doubt is only applicable to an asylum seeking young person claiming to be a child is only to be afforded at an initial stage pending a decision in relation to an asylum seeker’s age. It does not apply once a decision has been made.
24. Quite a serious blow to the concept we have all held dearly – the benefit of the doubt. How this sits with the Supreme Court’s judgment that there is a precedent right answer as to age in A v Croydon is not entirely obviously.
25. There is now a real cross-discipline quandary here. Do you pursue an age dispute in the judicial review jurisdiction given these risks? Or do you just chance it in the immigration tribunals? The short answer is, there is really no right answer and either way you go, there is a risk.
27. If you go down the JR route and the immigration route in conjunction, if the JR succeeds, then the immigration tribunal will be bound by the declaration on age. This will undoubtedly help your client in terms of obtaining the right length of leave and may also help with the credibility side of things with the asylum claim. If you fail in the JR, that can also pose risks credibility-wise in the asylum side of things.
28. If the immigration case goes ahead first with a positive finding on age, it may help in the JR ending up in your favour, although history seems to show this is still a gamble. If the immigration case goes ahead and is negative, it will certainly have a knock-on effect on the JR.
29. But if a JR is not pursued and there is an age assessment which is unchallenged (or perhaps 2 assessments), the immigration tribunal may nevertheless draw adverse inferences against your client. Even if the tribunal does not do that, and you succeed, your client will end up in a bizarre situation of having one date of birth as accepted by the SSHD following a tribunal hearing, and another date of birth as assessed by the local authority. He might be able to get mainstream benefits via his refugee status card, but it will be difficult for him to access age-appropriate services under the Children Act 1989 from the local authority.
30. This is precisely the quagmire which the Children’s Commissioner’s report concluded was unacceptable. But currently as matters stand, things do not look set to change for age-disputed minors.
31. To temper that, one could look at another recent judgment of the Court of Appeal in AE v Croydon  EWCA Civ 547 where the Court of Appeal overturned the first instance high court judge’s finding that the claimant is not the age claimed and accordingly made its own declaration, accepting the claimant’s claimed age. Now for the caveat to this case. It was unique on the facts of the case, At trial, the trial judge had accepted that the claimant was credible but then found that she could not accept his evidence as to his date of birth as remembered from his birth certificate. There was an inherent error in logic in the judge’s analysis and that was why the appeal succeeded on those particular and unique facts.
32. Although allowing the appeal, the Court of Appeal fired a warning shot that this case was not to be taken as opening a door to appeals from age trials. The Court of Appeal explicitly stated that the scope for interference by an appellate court with a judge's findings of primary fact and other evidence was limited: generally, the more the first instance judge's assessment was dependent on oral evidence, or the overall assessment of a number of factors, the less willing the appellate court was likely to be to interfere with the judge's conclusions.
33. The Joint Committee on Human Rights is looking at the treatment of migrant children, including those who are age-disputed at the moment. That is good news, but less so when one notes that neither the Home Office nor the Department for Education bothered to turn up to give evidence before the JCHR.
34. As if there was not already enough doom and gloom, the next area where there have been major developments in law in respect of migrant children is in the arena of detention.
35. In the arena of detention of adults, one has already seen the worrying judgments of Muqtaar and the like and the Court of Appeal’s attempt to withdraw from its role as a court reviewing the facts for itself instead of as a Wednesbury review court.
36. In the arena of detention of age-dispute minors, that is those detained as adults but turned out to be children, the picture continued to be grim, following the cases last year of Hossein v SSHD  EWHC 1924 (Admin) and AA v SSHD  EWHC 2146 (Admin) mixed in with the positive analysis of Coulson J in J v SSHD  EWHC 3073 (Admin).
37. This year, there are two important cases of note, one following the other in quite rapid succession, one in the High Court and one in the Court of Appeal.
38. The essential question in both of these cases is whether the SSHD should be held responsible for detaining a person who they wrongly treated as an adult when in fact he was a child and this was subsequently confirmed.
39. The two cases, AAM v SSHD  EWHC 2567 (Admin) and AA v SSHD  EWCA Civ 1383 approached this question in different ways but both claimants were essentially arguing for the same answer, that is yes, the SSHD should be held liable for falsely imprisoning a person wrongly treated as an adult when in fact he was a child all along.
40. In AAM v SSHD, the main challenge was to the age assessment relied upon by the SSHD to detain the claimant child. The decision-maker for the SSHD admitted at trial (rather worryingly) that (i) she knew of Merton but did not know what the principles were; (ii) she felt the expertise of assessing age should be with the local authority and there was nothing she could do other than to accept it; (iii) it was that age assessment that led her to believe that the claimant was an adult and therefore liable to be detained because he was all appeal rights exhausted. The SSHD’s own policy at paragraph 55.9.3.1 required an immigration officer to evaluate the evidence and form a judgment. The immigration officer had to satisfy herself, in accordance with the EIG that there was reliable evidence that the person was 18 or over and should be treated as an adult. On the evidence, the immigration officer had not asked herself the right questions, acquainted herself with the information needed to make the decision or follow relevant guidance, thus rendering the decision to detain unlawful.
42. Although obiter, what Lang J observed in respect of s55, BCIA 2009 and Article 5 were clearly helpful to any claim in damages for false imprisonment in respect of an age disputed minor.
43. That said, what is important to note that when Lang J considered the nature and scope of s55, BCIA 2009, she was not asked to consider how s55, BCIA 2009 fit in with the SSHD’s wide power to detain under paragraph 16, Schedule 2 to the Immigration Act 1971. The approach of Lang J was very much based on looking at the EIG and not at a statutory construction of the two provisions. That was not the case for the claimant in that case.
44. That was however the point for consideration by the Court of Appeal in R (AA) v Secretary of State for the Home Department  EWCA Civ 1383 (Arden, Davis LLJ, Baron J). There, an unaccompanied minor was arrested on arrival and age disputed by Hampshire social services. He subsequently absconded after his screening interview and his asylum claim was refused in his absence. He was treated as an adult by the SSHD. He resurfaced about 18 months later, was provided with asylum support via NASS and dispersed to Cardiff. With the assistance of a refugee charity organisation, he appealed the asylum refusal to the FTT but was not legally represented, sadly, as does sometimes happen although we would all hope it does not happen. The FTT found him to be an adult. He appealed to the UT but that was refused. In the meantime the Welsh Refugee Council got involved, wrote to Hampshire to complain about the age assessment. He also got solicitors who wrote to Cardiff, where he was living to ask for a re-assessment of his age, his still claiming to be a child, aged 17 at the time. Cardiff agreed to re-assess. UKBA were notified. However on the UT refusing permission to appeal, the appellant was nevertheless detained and removal directions were set. JR proceedings were issued to stop the removal and seek his release, on reliance on the fact that Cardiff had started a re-assessment two days before the detention. The interim order was granted; Cardiff subsequently completed the re-assessment and found him to be a child, age 17. The SSHD accepted the age but said she was not wrong to have detained him when she did because she reasonably believed that he was an adult at the time.
45. The appellant’s argument was that age is a precedent objective fact which admits only one right answer, relying on Baroness Hale’s speech in A v Croydon. The power, albeit wide, must be subject to consideration of s55, BCIA 2009. S55 BCIA 2009 applies to all persons who are objectively children: see s55(6) which defines a child as anyone under 18. The SSHD therefore must apply s55 considerations to all those who are objectively children, not just those who she reasonably believes to be children. In effect, s55, the appellant argues, acts as a statutory restraint to the exercise of the power to detain under paragraph 16, Schedule 2, Immigration Act 1971. This is consistent also with the SSHD’s own EIG which states that it will not detain children save for in exceptional circumstances. The SSHD accepted in this case that had the appellant been a child there would have been no exceptional circumstances for detaining him. The appellant argued that the SSHD’s own EIG also applied, similar to s55, BCIA 2009, to those who are objectively children, not those who the SSHD reasonably believed to be children. Applying Lumba and Kambadzi, the EIG operated as a ‘rule’ / ‘law’ which must be followed. The SSHD, in wrongly treating the appellant as an adult, failed to follow the ‘law’ in the EIG or wrongly discharged her duty under s55, BCIA 2009 on a misunderstanding that it did not apply to the appellant. There were also arguments under Article 5, ECHR and Hardial Singh reasonableness which requires the court to look at everything in the round and not just the material available at the time of the decision to detain.
The s55 BCIA 2009 duty does not restrain paragraph 16(2), Schedule 2, Immigration Act 1971. The first part of paragraph 16 states that if the SSHD ‘reasonably suspects’ that an individual can be detained, the power to detain can be justified. This, the Court of Appeal says, imports a test of ‘reasonable belief’ and essentially it is permissible for the SSHD to simply do her best even if she gets it wrong.
S55 BCIA 2009 does not apply to someone believed to be an adult subsequently found to be a child because the SSHD can only determine discharge of the duty by reference to what she knew / reasonably believed at the time.
The same analysis, according to Arden LJ, applied to the EIG.
It followed that neither Article 5, ECHR or Hardial Singh helps the appellant because the court cannot do more than look at the material that was available to the SSHD at the time of the decision to detain, and no more. In any event there is no Strasbourg case law to suggest a different approach.
Arden LJ cites a Strasbourg case which purports to support the Court of Appeal's view that age assessments, even if wrong, can be relied upon by the state to remove or detain minors. This was a case not relied on by either party and on researching the case, it in fact has nothing to do with age assessments and is not on point. Do take note of that.
47. There are obvious problems with the analysis of the Court of Appeal in AA v SSHD, not least because of the way the Court of Appeal dealt with the court’s remit under Article 5 and Hardial Singh, which is worryingly not dissimilar to the approach taken by the Court of Appeal (different composition of judges) in the case of Muqtaar which is on appeal to the Supreme Court.
48. The good news, if one can find comfort in this, is that AA v SSHD is certainly being appealed to the Supreme Court.
49. Where does that leave unlawful detention cases for age-disputed minors?
50. The Court of Appeal in AA v SSHD did preserve the route that in the main led to the claimant’s success in AAM v SSHD and the success in J v SSHD last year. The failure of the immigration officer to ask herself the right questions about the age assessment and apply the policy correctly on detaining age disputed minors still could render the detention unlawful. Cases which rely on this route will still be able to succeed, and I understand several, even post-AA v SSHD have done once this point is pointed out to TSols who had tried to suggest that post-AA v SSHD there was no prospect of an age disputed minor wrongly detained as an adult succeeding in a claim for damages in false imprisonment.
51. The developments in this area are mixed this year at least on the High Court and appellate court level. Practitioners will have their own experiences in the tribunals to report.
53. R (ABC) (A Minor) v Secretary of State for the Home Department EWHC 2937 (Admin) (HHJ Jeremy Richardson Q.C.). This application for judicial review raises important issues about how the SSHD should deal with young persons who arrive in the United Kingdom and claim asylum when it is asserted they have committed a serious crime abroad. The claimant is a citizen of Afghanistan. He is aged 16 and arrived in the United Kingdom on 16thMay 2010 when he was aged 14. He applies for judicial review of the decision of the SSHD to: (1) exclude him from asylum and humanitarian protection, and; (2) refuse to grant him discretionary leave to remain in the United Kingdom. The basis of the decision is that he is alleged to have committed a serious crime whilst in Afghanistan. The Court held that the SSHD had erred in refusing humanitarian protection to the claimant by ignoring the broad tapestry of factors which had to be examined, including the welfare of the child under the Borders, Citizenship and Immigration Act 2009 s.55.
55. R (on the application of OA (Nigeria)) v Secretary of State for the Home Department EWHC 3128 (Admin) (Silber J) Following refusal of leave to remain in the UK, a claimant challenges a decision of the SSHD to certify his human rights claim as ‘clearly unfounded’. The Claimant and his wife came from Nigeria on visitor’s visa with their 4 year old son. They subsequently had two daughters. They overstayed. Removal directions were issued in 2010. The Claimant challenged the removal decision on the basis of his children’s rights under the ECHR Article 8. This was rejected. The SSHD subsequently reviewed the decision to take account of the best interests of the children, applying ZH (Tanzania) but refused his representations, finding that removal of him and his son was appropriate. By then his wife and daughter were returning to Nigeria. The Court held that the SSHD had arrived at the correct decision in the circumstances. S55, BCIA 2009 required the SSHD to carry out detailed investigations where there was insufficient evidence about a factor, such as life-threatening illness, that prevented an informed decision from being made. That was not the case here as the Secretary of State had carried out proper and helpful inquiries relating to the educational system in Nigeria. Absent the suggestion that further information could reasonably have been required, the removal directions were correctly issued.
56. R (on the application of AA) v Secretary of State for the Home DepartmentCA (Civ Div) (Laws, Sullivan, McCombe LLJ) extempore judgment 06/11/2012. This is a case regarding the same appellant, AA in the unlawful detention case, but on a different point. What happened after the SSHD accepted Cardiff’s re-assessment was that she dragged her feet in making a fresh decision on the appellant’s leave. Obviously, applying AA (Afghanistan) because the SSHD originally wrongly treated the appellant as an adult, he was precluded from benefiting, at least, from the ‘DL until 17 ½ years old’ policy for minors whose asylum claim was unsuccessful. A request was made for leave to be granted in line with that and / or in the alternative refugee status. There was also a very interesting argument at the lower court calling into question this ‘17 ½ year’ policy because when the leave expired, the child is still a child and s55, BCIA 2009 would still apply. Because the SSHD dragged her feet in granting any leave to AA, he turned 18 and the SSHD, instead of trying to remedy a past wrong, detained him again and sought to remove him on the basis that he still was all appeal rights exhausted. Needless to say, further JR proceedings were issued.
57. The first instance judge allowed the claim, finding that the SSHD’s policy on dealing with unaccompanied asylum-seeking children contained a lacuna in respect of the duty to have regard to children's welfare under s55, BCIA 2009. He granted AA 3 years’ discretionary leave to remain on the back of that.
58. The appellant appealed, I understand, on the basis that the judge should not have only granted 3 years but refugee status. The SSHD cross-appealed arguing that the judge had no power to grant leave or direct the SSHD to do so. The Court of Appeal agreed with the SSHD and dismissed the appeal, allowing the cross appeal and directed the SSHD to deal with the asylum claim on the basis she would have if the asylum seeker had been correctly assessed as under 18. I understand that AA is taking this case to the Supreme Court as well although not clear on what grounds.
59. To end on a more positive note, in the social welfare realm, there have been some more attention paid to the treatment of migrant children and care leavers who came to the UK unaccompanied and placed in the care of the local authority.
60. In R (Sabiri) v LB of Croydon, an Iranian young adult who arrived in the UK as an unaccompanied child was placed in the care of the LB of Croydon. They supported him as a child until the age of 18. They continued to support and accommodate him post-18 until he turned 21 and then the support stopped. He wanted to remain in education and under s23CA, Children Act 1989, the local authority must consider whether, and how a care leaver post-21 could be supported to do so. LB of Croydon tried to argue that they were precluded from doing so because he did not have an outstanding asylum or human rights claim (his original claims having been unsuccessful). LB of Croydon also said that their policy was not to support those with no recourse to public funds with further full-time education even though this was permitted under the Children Act 1989 provisions and the claimant could have some part-time education but he would have to support himself through work and no accommodation would be provided to him. In the alternative, he could just make his own way back to Iran, an argument which is not unheard of from the local authority. The urgency of the JR claim was because the claimant had become homeless as a result of the local authority washing its hands of him.
61. By the time the case came to the High Court, the claimant had made a further fresh claim.
62. The Court looked at the leaving care provisions and determined that the relevant Children Act provisions under s23C(4)(b) and s24B, Children Act 1989 should be given a wide interpretation and local authorities had the scope to pay expenses connected with education and training and that included monies for the course as well as associated expense such as for accommodation.
63. There were residual arguments about the lawfulness of the LB of Croydon’s policy in respect of migrant care leavers with no recourse to public funds but the substantive case later settled. It will have to be determined on another day, but what this case does importantly establish is the rights and entitlements of care leavers do extend beyond 21 in circumstances where they wish to be in education and the local authority cannot simply evade their duty to consider these wishes by relying on someone’s immigration status. A fundamental cornerstone of the Children Act 1989 is the best interests of the child, and this extends to young adults who have been ‘looked after’ by the local authority as children as it is accepted that the local authority acts, in these circumstances as a corporate parent.
64. Another positive development is the current cross-parliamentary inquiry into asylum support levels and the impact on migrant children. Good questions are being asked about why asylum support is set at a level significantly lower than mainstream benefits (income support and the like) and what does this say about how we see migrant children in the UK.

matches: UKSC EWCA EWCA EWCA EWCA UKSC EWCA EWCA EWCA EWCA EWCA EWCA


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Many readers may already be familiar with Colin Yeo’s brilliant blog post, imagining Paddington Bear’s unpleasant encounter with British immigration law. But could EU law save Paddington Bear, in particular by creating a new form of protection for those who have to flee their country of origin?
EU law has regulated in detail two forms of international protection: refugee status (based on the UN’s Geneva Convention) and subsidiary protection status, for those who don’t qualify for refugee status. (There’s also EU legislation providing for temporary protection, but the EU has never used it). But there are people who don’t qualify for either form of status. When do they have a right to stay?
This question is relevant in a number of cases. For instance, Paddington Bear could argue that he was an ‘environmental refugee’, fleeing catastrophic events in his country of origin that were not caused by humans (or even bears). (I’m converting Paddington into a human for the purpose of this blog post, just as Colin does in his). Others might lack a right to stay, but can’t be removed for practical reasons, for instance because they don’t have documents that prove their nationality, and so the country which they probably come from refuses to accept them back. Or they have a serious illness, but the developing country which they come from lacks the resources to treat it: so sending them back would, in practice, amount to a death sentence.
It’s the last of these scenarios which forms the subject of the CJEU’s two recent rulings in M’Bodj and Abdida. (Note that these judgments should be read in that order, and it would be highly misleading to read one but not the other). However, these judgments might well have implications for other groups of people as well – perhaps including even our marmalade-loving bear.
In the M’Bodj case, a non-EU citizen, having failed in his requests for asylum and stay on medical grounds in Belgium, was then the victim of a violent attack there. So he requested a disability allowance that was only available, on the facts of his case, if he could show that he was eligible for subsidiary protection. According to the EU’s qualification Directive, subsidiary protection must be granted if the applicant is facing any one of the following three situations: (a) the ‘death penalty or execution’; (b) ‘torture or other inhuman or degrading treatment or punishment of an applicant in the country of origin’; or (c) ‘serious and individual threat to a civilian’s life or person by reason of indiscriminate violence in situations of international or internal armed conflict’. (The EU has more recently adopted a revised qualification Directive, but it didn’t change this particular definition).
The CJEU has previously interpreted the third of these grounds, in its judgments in Elgafaji and Diakite. But it has not yet interpreted the first two grounds. Mr. M’Bodj argued that the second ground applies, on the basis that the European Court of Human Rights (ECtHR) has interpreted Article 3 ECHR, which equally bans ‘torture or other inhuman or degrading treatment or punishment’, to mean that, in exceptional cases, people who would die if they were sent back to their country of origin, due to the inadequate medical treatment there, cannot be sent back.
However, the CJEU rejected its arguments. In its view, since the qualification Directive listed specific human activities as the source of persecution or serious harm, this form of ‘serious harm’ had to be the result of ‘a form of conduct on behalf of a third party’, so ‘cannot therefore simply be the result of general shortcomings in the health system of the country of origin’. This interpretation was bolstered by the preamble to the Directive, which says in effect that the Directive does not apply to those allowed to stay ‘on a discretionary basis on compassionate or humanitarian grounds’. It did make an exception for cases where the person concerned had been intentionally deprived of health care. Just because the ECtHR interpreted Article 3 ECHR to mean that people in Mr. M’Bodj’s situation could not be removed to their country of origin, that did not mean that they were necessarily entitled to subsidiary protection under the EU Directive.
The Directive does state that Member States can have ‘more favourable standards’ as regards qualifying for refugee or subsidiary protection status than those set out in the Directive. But such higher standards have to be ‘compatible’ with the Directive. In the Court’s view, it would indeed be incompatible with the Directive to give subsidiary protection status to Mr. M’Bodj, since there would be ‘no connection with the rationale of international protection’.
Read in isolation, the M’Bodj case means that those facing awful conditions in their country of origin that were not caused by humans have no right to refugee or subsidiary protection status. Their legal position is governed only by the ban on removal to their country of origin, set out in ECtHR case law, along with whatever limited benefits they may have under purely national law. There are a wide variety of such national law rules, as documented in a study for the European Migration Network. For Paddington Bear, this would mean that he could be sent back to his country of origin, unless the conditions there breached Article 3 ECHR standards. In that case, he could remain in the UK, but probably could not expect a very nice life.
However, the Abdida case, decided on the same day by the CJEU, suggests that in some cases, those who are unable to qualify for subsidiary protection or refugee status can use the EU’s Returns Directive to obtain a different type of protection. Mr. Abdida had similarly claimed that he should receive leave to remain on medical grounds in Belgium, and was appealing against the refusal of this application. While the appeal was pending, he was refused social assistance, on the grounds that it was only available to those whose challenge to their removal had suspensive effect; his challenge did not have that effect under Belgian law.
The national court asked the CJEU to interpret EU asylum legislation, and in light of its judgment in M’Bodj, the CJEU simply said that EU asylum law did not apply. While Member States have an option to apply EU legislation on reception conditions and asylum procedures to other types of applications for protection, Belgium has not chosen to do so.
The CJEU could have left the case there, but it didn’t. Instead, it decided to give the national court a detailed answer to questions it had never asked, on the interpretation of EU legislation that it had never referred to – the Returns Directive, which governs the process of removing irregular migrants from the territory.
First, the Court ruled on Mr. Abdida’s procedural rights. While the Returns Directive does not require legal challenges to removal to have suspensive effect, it was necessary to consider the impact of the EU Charter of Rights, Article 19(2) of which bans removals to States where the person concerned would face a serious risk of inhuman or degrading treatment. This had to be interpreted in light of the ECtHR case law on Article 3 ECHR discussed above, which bans removals on ‘medical grounds’ in exceptional cases.
How does this impact the interpretation of the Returns Directive? Article 5 of that Directive says that when they implement the Directive, ‘Member States shall take due account of: (a) the best interests of the child; (b) family life; (c) the state of health of the [person] concerned, and respect the principle of non-refoulement’. The CJEU ruled that Article 5, ‘taken in conjunction with Article 19(2) of the Charter’, means that Member States ‘may not…proceed with…removal’ where removal ‘would infringe the principle of non-refoulement’ on medical grounds.
This ban on removal had the consequential effect that the remedy against removal had to be suspensive, despite the optional wording of the Directive on this point, because otherwise Mr. Abdida could suffer irreparable harm if sent back to his country of origin before his appeal was decided.
Secondly, the CJEU ruled on his social rights. Article 14 of the Directive says that except where irregular migrants are in detention, where they are given a time for voluntary departure or their removal is postponed, Member States must ‘ensure that the following principles are taken into account as far as possible…: (a) family unity with family members present in their territory is maintained; (b) emergency health care and essential treatment of illness are provided; (c) minors are granted access to the basic education system subject to the length of their stay; and (d) special needs of vulnerable persons are taken into account’.
In the Court’s view, Mr. Abdida qualified for this treatment because his removal had to be postponed under the Directive, which requires postponement where suspensive effect of an appeal has been granted. Oddly, the Court did not mention that the Directive also requires postponement where removal would violate the principle of non-refoulement, although this rule was obviously relevant to Mr. Abdida as well.
It should be noted that the Directive gives an option to Member States to postpone removal in other cases, too. On that point it specifies that ‘Member States shall in particular take into account: (a) the third-country national’s physical state or mental capacity;’ and ‘(b) technical reasons, such as lack of transport capacity, or failure of the removal due to lack of identification’. In these cases, the persons concerned could also invoke the safeguards set out in Article 14, since that clause applies regardless of the reasons for postponement of removal.
Yet on the face of it, Mr. Abdida’s specific claim for social assistance could not be successful, since such assistance is not mentioned in Article 14 at all. Indeed, the preamble to the Directive states that pending return, the ‘basic conditions of subsistence should be defined according to national legislation’. But the CJEU ruled that such legislation still had to be ‘compatible with the requirements laid down in’ the Directive. In this case, the right to the provision of health care would be ‘rendered meaningless if there were not also a concomitant requirement to make provision for the basic needs’ of the person concerned. However, that right only had to be provided ‘as far as possible’, on the condition that the person lacked the means to provide for his own needs; and it was up to Member States to ‘to determine the form’ which the provision of basic needs took.
At the outset, it should be noted that the qualification Directive and the Returns Directive have a different territorial scope. The former applies to all Member States except Denmark, but including the UK and Ireland. The latter doesn’t apply to the UK and Ireland, and it applies to Denmark and the non-EU Schengen associates (Norway, Iceland, Switzerland and Liechtenstein) only in certain cases.
So, in light of this recent CJEU case law, my advice to Paddington Bear would be to take the tube a few stops from Paddington to King’s Cross & St. Pancras station, and stow away again, this time on a Eurostar train to Brussels. (My apologies for facilitating a breach of immigration law, thereby infringing the EU’s Directive on that subject. And even greater apologies for inflicting upon the world the consequential change of name: it will be much harder to love ‘Gare du Midi Bear’.) Or alternatively, he could stow away on a train to Disneyland Paris – and create work for an army of copyright lawyers.
The Court’s judgments raise questions about the scope of international protection as defined by the qualification Directive, and about the new possibilities of protection arising under the Returns Directive. For the sake of brevity, let’s call that latter concept ‘alternative protection’ (technically, we should probably call it ‘Returns Directive protection’, but I can’t bring myself to use that term).
First of all then, the qualification Directive. The central point here is that there is no right to subsidiary protection merely due to the lack of decent health care in the country of origin, unless access to that health care has been blocked. The Court does not expand further on that exception, but presumably a parallel argument could be made for refugee status, where access to essential health care is blocked on one of the grounds (such as race, religion or political opinion) set out in the Geneva Convention, since that would surely constitute a form of persecution.
More broadly, the Court rules out a subsidiary protection claim unless the conditions in the country of origin have been caused by a ‘third party’ as defined in the Directive (namely the State, persons or groups controlling the State, or non-State actors). While the Court didn’t rule on this point as such, the logic of its judgment suggests that ‘non-State actors’ have to be humans. Also, it’s implicit that indirect causation isn’t sufficient. It could certainly be argued that the lack of sufficient health care in developing countries is ultimately the fault of corrupt dictators and elites who hoard those countries’ wealth, and/or the legacy of (neo-)colonialism and slavery. Equally, many believe that environmental displacement results from climate change caused by human activity. But it seems unlikely that the CJEU would accept this line of argument.
Furthermore, the Court has ruled out Member States using their power to apply more favourable rules for international protection in such cases. The CJEU had only ruled once before on this issue, in the case of B and D, when it ruled that States could not grant refugee status to persons who were excluded from that status. It was possible to interpret that judgment as meaning that Member States were only constrained from granting more favourable treatment when international law required them not to do so. But the M’Bodj judgment goes much further than this. So the CJEU hasn’t just refused to raise the floor for international protection – it’s significantly lowered the ceiling.
It should be noted that the requirement that more favourable standards be compatible with EU law applies in all other EU asylum laws, as well as in some EU migration legislation, such as the Returns Directive. The M’Bodj judgment might therefore have implications for these laws too. But the rule doesn’t apply to all EU immigration laws, and there’s no good reason to assume that a ‘compatibility’ requirement ought to apply in those cases where the EU legislature has deliberately decided not to insert one.
So what more favourable standards can Member States apply? In the case of the qualification Directive, the Court says that they must fall within the scope of international protection. It doesn’t elaborate further, but this presumably refers back to the key concept of persecution or serious harm caused by a ‘third party’. Higher standards can therefore apply only in relation to the Directive’s definition of ‘refugee’ and ‘subsidiary protection’. For instance, it should surely be open to Member States to grant subsidiary protection to persons fleeing indiscriminate violence even where the threat is not ‘individual’, or where the applicants are not civilians.
Secondly, what are the implications of the Abdida judgment for the new possibility of ‘alternative protection’? To understand this concept better, it should be compared to the elements of EU law governing international protection: the allocation of responsibility for an application (ie, the ‘Dublin rules’); the substantive grounds for protection; the procedures for determining whether there is a protection need; and the benefits which an individual receives during the determination process (and afterward, if his or her claim is successful).
Beforehand, though, some general points about the Court’s approach to the Returns Directive in Abdida. When it was initially adopted back in 2008, that Directive was castigated by NGOs as the Devil incarnate, spurring on Member States to all sorts of inhumane treatment of irregular migrants. Over the years, the CJEU’s interpretation of the Directive has (generally speaking) ensured that irregular migrants are better treated than the Directive’s initial critics thought that they would be. The judgment in Abdida goes even beyond this, and transforms an instrument of repression into (in some cases) an instrument for protection. It’s like going into a vegetarian restaurant, and being served a bacon sandwich.
For meat-eaters – with the obvious exception of Ed Miliband – that would be a pleasant surprise. So what’s the problem? The problem is that it’s difficult to take a law that was drafted to expedite the removal of migrants, and using it to help them instead. The CJEU tried to overcome this in the Abdida judgment by performing a series of feats of legal alchemy: redrafting the national court’s questions from scratch; turning an obligation to ‘take due account’ of non-refoulement into a ban on removal; making an option to grant the suspensive effect of appeals into an obligation; transforming the ‘principle’ of obtaining health care into a rule; and adding social assistance to the list of benefits which Mr. Abdida has to receive. Yet despite all this, a lot of effort will still be required to make the Returns Directive function as an instrument to grant individual protection.
To see why, let’s look at those elements of the protection process, starting with the allocation of responsibility for an application. There are no ‘Dublin rules’ applicable to alternative protection cases. So if Paddington Bear managed to make his way to Brussels or Paris, Belgium or France could not invoke formal rules requiring the UK to take him back. The position would be different though, if he had applied for asylum in the UK first, before making his way to another Member State. In that case, the Dublin rules would apply, so in principle the UK would have responsibility for him, since he crossed the UK borders without authorisation before he set foot in any other Member State. But this normal rule would have to be disapplied in his case, since unaccompanied minors can usually change the country which is responsible for their application (see the discussion here).
In fact, in real life, most of those using the ‘alternative protection’ route would likely have applied for asylum first (as is evident from the facts of the Abdida and M’Bodj cases), so the Dublin rules as such would apply to them. According to the CJEU, they could therefore only resist being sent back to the responsible Member State if there is a complete breakdown of the asylum system there. For Paddington, the demented attentions of Nicole Kidman’s character, or the grim reality of British immigration law as described in Colin Yeo’s blog post, would not meet that threshold.
Next, what are the substantive grounds for alternative protection? We know from the Abdida case that they include at least non-refoulement, and crucially also that the concept of non-refoulement in the Returns Directive and the Charter is wider than the concept of international protection. It covers at least ‘medical cases’, and arguably also other cases that fall outside the scope of refugee and subsidiary protection status but within the scope of Article 3 ECHR (for instance, persons excluded from refugee status or subsidiary protection status). It could also be argued that it covers environmental cases, such as the fictional destruction of talking bears’ habitat, or the very real scenario of sinking islands. Article 5 of the Returns Directive also refers to the best interests of the child, the state of health of the person concerned and family life, so logically these could also potentially be grounds for alternative protection. But it’s not possible to claim alternative protection on the basis only that it’s impossible to carry out a return decision in practice: se the Mahdi decision earlier this year (discussed here).
Moving on to the procedures for determining whether there is an alternative protection need, there are three elements here: access to the process; administrative procedure; and judicial protection. There’s an obvious problem with access to the process, for the Returns Directive cannot be ‘accessed’ unless there is a pending returns decision. So we have the odd scenario where people facing expulsion (Mr. Abdida) are better off in terms of health care than those with residence permits (Mr. M’Bodj). The Returns Directive requires Member States to issue return decisions to those whose stay is not authorised, but it leaves them an option to allow people to stay if they wish; in that case, the return decisions must be rescinded. Otherwise, the Directive is silent on whether return decisions expire or can be renewed or rescinded. There’s no provision for an individual to ask for a return decision to be issued, even where it’s possible that it might make the person concerned better off.
Next, the administrative procedure during the returns process has been addressed in the CJEU recent judgments on the right to be heard in Returns Directive cases, discussed here. It’s notable that the judgment in Boudjlida specifically requires national authorities, before issuing a returns decision, to consider any issues related to Article 5 of the Returns Directive. However, on the whole the concept of the right to be heard in Returns Directive cases, as developed by the Court is significantly weaker than the rules on interviews, et al, set out in the asylum procedures directive.
Conversely, as for judicial protection, the suspensive effect of removals set out in the Abdida case is stronger than the equivalent provisions of the asylum procedures Directive. It’s not clear if this would apply to other cases where an ‘alternative protection’ argument might be made though. Article 13 of the Returns Directive also contains other rules, on: the independence and impartiality of the appeals body (which actually need not be a judicial body); requirement for a merits review; access to legal advice; and legal aid. It might be arguable by analogy with the suspensive effect point in Abdida, that at least in some cases, Article 47 of the Charter confers stronger rights than the Directive requires.
Finally, the benefits which an individual receives during the determination process, if his or her removal is postponed, are (as noted above) family unity, essential health care, education for minors, protection for vulnerable persons, and written confirmation of their status. We know from the Abdida judgment that this list of entitlements is not exhaustive, and can be extended to protection of basic needs in individual cases. In that case, the CJEU implicitly accepted that there would be no point providing health care for Mr. Abdida if, while he received it, he was being left to starve to death in the streets. This is surely not the only type of case where basic needs have to be provided for: should an unaccompanied minor be left without food and shelter also?
What about the two provisos mentioned by the Court: a means test, and Member States’ power to ‘determine the form’ which provision of basic needs take? On the first point, it should be noted that the employer sanctions Directive (discussed here) gives Member States an option – but not an obligation – to permit irregular migrants to take up employment. Possibly Member States could take into account other income being provided by families, friends or charities. On the second point, Member States’ discretion does not extend to an absolute power to detain the people concerned, since the grounds for detention and conditions for detention set out in the Returns Directive would apply. But as regards other aspects of basic needs, Member States would surely be free to decide on the details of housing and financial support. So sadly, Paddington Bear could not insist on staying with Hugh Bonneville’s family – and would have to settle for marmalade from Aldi, not Marks & Spencer’s.
Brilliant post, very informative, thanks so much.
Fascinating take on Paddington. Should be made into a case study.

matches: CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU


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Certiorari dismissed. Reported below: 572 F.2d 1010.
MR. JUSTICE. MARSHALL took no part in the consideration or decision of these cases.
MR. JUSTICE POWELL, with whom MR. JUSTICE STEWART and MR JUSTICE REHNQUIST join, dissenting.
The Court today dismisses the writs previously granted in this litigation, and thereby reinstates the ruling of the Court of Appeals. The suit now will be returned to the District Court for elaboration of that court's conclusions on the feasibility of extensive busing to achieve racial balance in the Dallas public schools. The Court of Appeals directed the trial court to supplement the record with formal studies of the anticipated times and distances of likely bus routes, and to make additional findings on desegregation in the city's high schools.
Although the remand is narrow, aimed solely at the sufficiency of the record on which the District Court based its desegregation order, I do not think it is justified. After studying the schools of the Dallas Independent School District through the many years of this litigation, the trial judge drew on his familiarity with Dallas and its schools, and on the advice of many community groups, to fashion an effective and fair desegregation order. The Court of Appeals failed to accord proper deference to the District Court's conscientious execution of this delicate task.
thinks it should, recent history suggests that the Dallas school district will be well on the road to the "separate but equal" conditions mistakenly approved in Plessy v. Ferguson, 163 U. S. 537 (1896). Such an outcome is no less real or less regrettable when caused by courts with benign motives. The promise of Brown v. Board of Education, 347 U. S. 483 (1954), cannot be fulfilled by continued imposition of self-defeating remedies.
The Dallas Independent School District (School District) has been in desegregation litigation since 1955, although the present case is not part of the original suit. During this quarter of a century, the School District has grown into the eighth largest school district in the country, covering 351 square miles and spanning 35 miles at its widest point. Since the present action first was tried in 1971, the student population of the district has changed dramatically. Total enrollment has dropped from 163,000 to 133,000, while the racial distribution of students has shifted from 69% Anglo in 1971 to 33.5% Anglo, 49.1% black, and 16.3% Mexican-American in 1979. There were 112,000 Anglo students in the School District in 1970; there are now fewer than 45,000.
15,000 students. The original plaintiffs appealed to the Court of Appeals for the Fifth Circuit for more extensive reassignment and transportation of pupils. That court declared that "nothing less than the elimination of predominantly one-race schools is constitutionally required. . . ." Tasby v. Estes, 517 F.2d 92, 103, cert. denied, 423 U.S. 939 (1975). Finding that the District Court's decree failed to satisfy this standard, the Court of Appeals remanded for the formulation of a new desegregation plan.
In a month-long trial on remand, the District Court considered in detail six plans submitted by the various parties and a court-appointed expert. It heard nearly 50 witnesses, including numerous experts, and produced a trial transcript of some 4,000 pages. The court also conferred with concerned community groups, the most prominent of which was the Educational Task Force of the Dallas Alliance (Alliance), a multiracial, nonpartisan organization. [Footnote 2] In a thorough opinion, Tasby v. Estes, 412 F.Supp. 1192 (ND Tex.1976), the District Court found that the decline in Anglo enrollment between 1971 and 1976 was not the result of actions taken by the Board. In fact, the court noted the Board's continuing "good faith" efforts to establish a unitary school system. Id. at 1207. See Pasadena City Bd. of Education v. Spangler, 427 U. S. 424, 427 U. S. 435-436 (1976). The court's duty, it asserted, was to adopt a plan that would "realistically and effectively"
achieve desegregation in light of demographic changes in the School District. 412 F.Supp. at 1207.
Each of the six plans considered by the District Court provided for substantial busing. [Footnote 7] Although the court did not estimate the number of pupils to be bused under its decree, the Alliance proposal which paralleled the court's plan anticipated the busing of some 20,000 students. The court concluded that the racial composition of the student population in each subdistrict "will approximate the racial makeup of the [district] as a whole, with the exception of [East] Oak Cliff," a black neighborhood. Id. at 1204.
"of approximately 1,000 Anglos ordered to be transported to formerly all-black high schools under this Court's 1971 student assignment plan, fewer than 50 Anglo students attend those schools today."
also concluded that the establishment of magnet high schools was the "most realistic, feasible, and effective method for eliminating the remaining vestiges of a dual [school] system on the 9-12 level. . . ." Ibid.
Viewed on a geographic basis, the order left 28 "predominantly black" schools in East Oak Cliff, which is bounded by the Trinity River bottom on one side and by Interstate 35 on the other. The court found that the "practicalities of time and distance" prevent the effective integration of the schools in this neighborhood through busing. Id. at 1204. In contrast, the Seagoville subdistrict remains predominantly white. Seagoville, however, is "geographically isolated" from the rest of the city, Tasby v. Estes, 572 F.2d 1010, 1013 (CA5 1978), and its school population represents less than 2% of the School District's student body.
The Court of Appeals was not impressed by the District Court's carefully structured plan. It concentrated almost exclusively on the "large number of one-race schools" remaining in Dallas. Id. at 1012.
"We cannot properly review any student assignment plan that leaves many schools in a system one race without specific findings by the district court as to the feasibility of [student assignment] techniques. . . . There are no adequate time-and-distance studies in the record in this case. Consequently, we have no means of determining whether the natural boundaries and traffic considerations preclude either the pairing and clustering of schools or the use of transportation to eliminate the large number of one-race schools still existing."
"for the formulation of a new student assignment plan and for findings to justify the maintenance of any one-race schools that may be part of that plan."
Id. at 1018 (emphasis added).
The duration and complexity of this litigation demonstrate the difficulty of providing effective relief in a school desegregation case. The school board and the court must consider many economic, social, and educational factors, and those factors vary widely from community to community. Courts frequently are caught between the constitutional prohibition against segregation and the severe limitations on their ability to implement an effective plan with public support. See Columbus Bd. of Education v. Penick, 443 U. S. 449, 443 U. S. 486-488 (1979) (POWELL, J., dissenting). Consequently, this Court has been reluctant to give more than general instructions for desegregation orders, and those instructions have not always been completely consistent. [Footnote 10] The result in too many instances has been confusion in the lower courts. See infra at 444 U. S. 449-450.
I believe that two rules provide the basic outline for responsible exercise of the courts' equitable powers in school desegregation cases. First, "the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation." Milliken v. Bradley, 433 U. S. 267, 433 U. S. 280 (1977) (Milliken II). The constitutional deprivation must be identified accurately, and the remedy must be related closely to that deprivation. Otherwise, a desegregation order may exceed both the power and the competence of courts. Second, "[t]he measure of any desegregation plan is its effectiveness." Davis v. School Comm'rs of Mobile County, 402 U. S. 33, 402 U. S. 37 (1971). A court must act decisively to remove purposeful segregation, but it also must avoid the danger of inciting resegregation by unduly disrupting the public schools.
that the existence of "predominantly white or predominantly black [schools,] without more, . . . does not offend the Constitution." Dayton Bd. of Education v. Brinkman, 433 U. S. 406, 433 U. S. 417 (1977); Milliken II, supra at 433 U. S. 280, n. 14; Swann v Charlotte-Mecklenburg Bd. of Education, 402 U.S. at 402 U. S. 26. [Footnote 13] It is puzzling that many trial and appellate courts continue to misapply Green and largely to ignore more recent statements on this issue.
pupil of a racial minority from any school, directly or indirectly, on account of race; it does not and cannot embrace all the problems of racial prejudice, even when those problems contribute to disproportionate racial concentrations in some schools."
402 U.S. at 402 U. S. 23.
"must be designed as nearly as possible 'to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.'"
that were ordered. For the purpose of deciding the cases in this Court, we may assume that such violations were duly found. In any event, since the 1975 ruling of the District Court, this litigation has concentrated solely on the need to eliminate one-race schools through further busing. The petition for certiorari raised only that issue, see Pet. for Cert. in No. 78-253, pp. 2-3, and both the Board, the principal petitioner here, and the Dallas Alliance have asked only that the District Court's order be reinstated. See Brief for Petitioners in No. 78-253, pp. 71-72; Brief for Dallas Alliance as Amicus Curiae 28. Consequently, I believe this Court should reach the merits of the remedial question and review the decision of the Court of Appeals that the District Court must explain why "any" one-race schools remain in Dallas. 572 F.2d at 1018.
Court orders to remedy constitutional deprivations in formerly segregated school systems must be drawn "in light of the circumstances present and the options available," Green v. County School Board, 391 U.S. at 391 U. S. 439, "taking into account the practicalities of the situation." Davis v. School Comm'rs of Mobile County, 402 U.S. at 402 U. S. 37. Although this Court's guidance in desegregation cases necessarily has been general, its emphasis on effectiveness and practicalities reflects an appreciation that perfect solutions may be unattainable in the context of the demographic, geographic, and sociological complexities of modern urban communities. The imperfect nature of court action in school cases is evident in the phenomenon of self-defeating "remedies," desegregation plans and continuing court oversight so unacceptable that many parents seek to avoid the reach of the court's decree. The impact of such remedies may be seen in higher enrollment in private schools in further migration to the suburbs, or in refusals to move into the school district.
This Court has not considered seriously the relationship between the resegregation problem and desegregation decrees.
The most helpful precedent is Pasadena City Bd. of Education v. Spangler, which arose several years after a local desegregation plan had been implemented. [Footnote 15] We held in that case that the Constitution does not require that a desegregation decree be modified periodically as migration patterns shift the distribution of the races within the school district. The Court recognized that, absent further segregation by the State, there is no constitutional obligation to remedy resegregation after an approved plan is implemented. That holding accents the need for courts to consider with care the impact a remedy is likely to have on resegregation. As Pasadena establishes, once resegregation occurs without state action, courts have no power to impose an additional remedy.
"'that will probably result in an all-black student body, where nothing in the way of desegregation is accomplished and where neither the white students nor black students are benefited.'"
The pursuit of racial balance at any cost -- the unintended legacy of Green -- is without constitutional or social justification. Out of zeal to remedy one evil, courts may encourage or set the stage for other evils. By acting against one-race schools, courts may produce one-race school systems. Parents with school-age children are highly motivated to seek access to schools perceived to afford quality education. A desegregation plan without community support, typically one with objectionable transportation requirements and continuing judicial oversight, accelerates the exodus to the suburbs of families able to move. The children of families remaining in the area affected by the court's decree are denied the opportunity to be part of an ethnically diverse student body. See Parents Assn.
of Andrew Jackson High School v. Ambach, 598 F.2d 705, 717 (CA2 1979). The general quality of the schools also tends to decline when substantial elements of the community abandon them.
In view of these far-reaching demographic changes, the futility of administering larger doses of a remedy that has failed is self-evident. In this situation, I can see no justification for reverting now to "time and distance studies" with the goal of attaining increased racial balance through additional busing.
A desegregation remedy that does not take account of the social and educational consequences of extensive student transportation can be neither fair nor effective. The District Court's plan is properly sensitive both to existing demographic realities and to the likely consequences of increased busing. The Court of Appeals seriously erred when it remanded this case with a mandate that seems certain to accelerate the destructive trend toward resegregation.
As this Court should not tolerate this error, even by silence that might give rise to an inference of approval, I dissent from the Court's failure to decide the case and reinstate the District Court's plan -- a plan that does have promise for success.
* Together with No. 78-282, Curry et al. v. Metropolitan Branches of the Dallas NAACP et al.; and No. 78-283, Brinegar et al. v. Metropolitan Branches of the Dallas NAACP et al., also on certiorari to the same court.
The original plaintiffs, respondents here, represent a class of black and Mexican-American students. The Curry petitioners represent a group of North Dallas pupils, and the Brinegar petitioners represent a class of persons living in an integrated area of East Dallas.
The Task Force consisted of seven Mexican-Americans, seven Anglos, six blacks, and one American Indian. The Dallas Alliance comprises 77 cooperating organizations, including local branches of the AFL-CIO and the Chamber of Commerce, religious groups, civic organizations, and several local chapters of the NAACP. The Alliance Task Force proposed a comprehensive desegregation plan that largely was adopted by the District Court. Of course, a group's participation in the Alliance need not signify approval of the desegregation plan proposed by the Educational Task Force, but the Alliance clearly has many ties to the entire Dallas community.
In a brief amicus curiae to the Court, the Alliance stated that the plan submitted by its Educational Task Force "reflects compromise" and was reached by consensus. Brief for Dallas Alliance as Amicus Curiae 21.
The District Court ordered the School District to establish seven new magnet high schools by 1979. Each must offer special career training, and the racial makeup of each school must be within 10% of the racial distribution of the School District's high school population. Tasby v. Estes, 412 F.Supp. 1192, 1215-1216 (ND Tex.1976). Free transportation is available for students at magnet schools.
The Court of Appeals correctly determined that the District Court's plan is deficient in not explicitly providing transportation at public expense to children who exercise this option. Tasby v. Estes, 572 F.2d 1010, 1015 (CA5 1978).
The initial District Court ruling also dealt, apparently to the satisfaction of the plaintiffs, with staff desegregation, school construction, bilingual education for Mexican-Americans, and other programs designed to supplement the opportunities of minority students. Tasby v. Estes, 342 F.Supp. 945, 953 (ND Tex.1971). These matters are no longer issues in this litigation.
The estimates of the number of students to be bused ranged from 14,000 under the plan originally proposed by the Board to 69,000 under the NAACP plaintiffs' Plan A.
Tr. of Oral Arg. 46.
In their brief to this Court, the NAACP respondents concede that more than half of the one-race schools are in the elementary grade, K-3 category. Brief for Respondents NAACP et al. 9.
See Yudof, School Desegregation: Legal Realism, Reasoned Elaboration, and Social Science Research in the Supreme Court, 42 Law & Contemp.Prob. 57, 87-102 (Autumn 1978).
The language quoted comes from MR. JUSTICE STEWART's dissenting opinion in Stump v. Sparkman, 435 U. S. 349, 435 U. S. 367 (1978).
See Coleman, New Incentives for Desegregation, 7 Human Rights 10, 11 (Fall 1978); Farley, Residential Segregation and Its Implications for School Integration, 39 Law & Contemp.Prob. 164 (Winter 1975).
Some federal courts continue to read Swann v. Charlotte-Mecklenburg Bd. of Education as requiring extensive transportation because of its language endorsing the need "to achieve the greatest possible degree of actual desegregation." 402 U.S. at 402 U. S. 26. Swann, however, simply laid down a broad rule of reason under which desegregation remedies must remain flexible and due consideration must be given to other values and interests. In Swann, we recognized that special difficulties arise when extensive busing is used in metropolitan areas "with dense and shifting population[s], numerous schools, [and] congested and complex traffic patterns." Id. at 402 U. S. 14. Although Swann approved pupil transportation as a remedial device, the Court said that transportation orders would be suspect "when the time or distance of travel is so great as to either risk the health of the children or significantly impinge on the educational process." Id. at 402 U. S. 30-31. The Court's more recent decisions have dispelled any doubt that may have existed as to whether Swann mandates busing to establish racial balance. In this regard, one should note that the Court of Appeals in this case failed to mention Milliken v. Bradley, 418 U. S. 717 (1974) (Milliken I), Dayton Bd. of Education v. Brinkman, or Milliken II, while it relied heavily, and mistakenly, upon Green. Tasby v. Estes, 517 F.2d 92, 103 (1975).
Last Term, the Court decided school desegregation cases from Columbus and Dayton, Ohio. Columbus Bd. of Education v. Penick, 443 U. S. 449 (1979); Dayton Bd. of Education v. Brinkman, 443 U. S. 526 (1979) (Dayton II). As the dissent by MR. JUSTICE REHNQUIST argued, the opinions in those cases appeared to depart from prior precedents of this Court. But instead of criticizing either the reasoning or the holdings of any of those cases, the Court simply avoided their force by accepting uncritically the findings made by the courts below. In Columbus, it emphasized that the District Court had found "purposefully segregative practices with current, systemwide impact." 443 U.S. at 443 U. S. 466, citing 429 F.Supp. 229, 252, 259-260, 264, 266 (SD Ohio 1977). Although the District Court had made no such findings in Dayton II, the Court of Appeals for the Sixth Circuit tailored its own factual findings to accord with those in Columbus, and these again were adopted by this Court. 443 U.S. at 443 U. S. 538-540.
In the instant case, neither the District Court nor the Court of Appeals made comparable findings.
"may be cause for deep concern to the respondents, it cannot . . . be accepted as a reason for achieving anything less than complete uprooting of the dual public school system."
The Court concluded that the new school district would "interfer[e] with the desegregation of the . . . [c]ounty [s]chool system." Id. at 407 U. S. 489. Given the context of the Court's passing reference to resegregation, Scotland Neck affords no guidance for the more usual desegregation case.
See Mapp v. Chattanooga Bd. of Education, 525 F.2d 169 (CA6 1975), cert. denied, 427 U.S. 911 (1976). The California Supreme Court has expressly authorized the consideration of resegregation patterns in designing decrees for school litigation under the State Constitution. Crawford v. Los Angeles Bd. of Education, 17 Cal.3d 280, 308-309, 551 P.2d 28, 47 (1976).
"would result in these black children next year or the year afterwards . . . going to an all-black school because there wouldn't be any whites or any people of any other color to go to school with [in the District]."
Counsel replied that his clients' position would be no different in that situation. Tr. of Oral Arg. 49.
As I noted in dissent in the Columbus case, courts are the branch of government least competent to provide long-range solutions to the resegregation problem. Because the causes of segregation in residential housing are usually beyond judicial correction, wider solutions that will be acceptable to concerned parents must be sought by legislators and executive officials. See 443 U.S. at 443 U. S. 480-481 (POWELL, J., dissenting). See also Coleman, supra, n 12, at 48-49; Willie, Racial Balance or Quality Education?, in School Desegregation, Shadow and Substance 7 (Levinsohn & Wright eds.1976).
The District Court appears to have succeeded in enlisting active support from much of the Dallas community for the desegregation plan. The voters have approved an $80 million school bond issue that will assist in implementing the court's decree. In addition, business and civic organizations have "adopted" 144 schools in a community-wide effort to channel volunteers, equipment, and private money to those schools, and to provide part-time and full-time job opportunities for students in those schools. See Brief for Dallas Alliance as Amicus Curiae 25.
The Anglo population in the School District is likely to fall off even more, since current Anglo enrollment is highest in the high schools and declines steadily through the lower grades.

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text:
The Complainant is Otkrytoe aktsionernoe obschestvo “Pervy Moskovsky Tchassovoi Zavod”, of Moskva, Russian�Federation, represented by Gorodissky and Partners, Russian�Federation.
The Respondent is 3Ci, Phoenix, Arizona, United�States�of�America, represented by Mag.�Thomas�Fraiss, Austria.
The disputed domain name <poljot.com> is registered with Network�Solutions,�LLC.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the�“Center”) on August�18,�2004. On August�19,�2004, the Center transmitted by email to Network Solutions, LLC a request for registrar verification in connection with the domain name at issue. On August�19,�2004, Network Solutions, LLC transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. The Center verified that the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the�“Policy”), the Rules for Uniform Domain Name Dispute Resolution Policy (the�“Rules”), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the�“Supplemental�Rules”).
In accordance with the Rules, paragraphs�2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on August�25,�2004. In accordance with the Rules, paragraph�5(a), the due date for Response was September�14,�2004. The Response was filed with the Center on September�14,�2004.
The Center appointed Peter G. Nitter as the Sole Panelist in this matter on September�24,�2004. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph�7.
Complainant manufactures and trades in watches and chronometric instruments, and has registered the trademark POLJOT for such goods in twenty six countries around the world, firstly in Canada on July�26,�1978, and in Russia on November�15,�1979. Complainant filed a trademark application for POLJOT in the United�States on February�27,�2003.
Respondent registered the contested domain name <poljot.com> on July�26,�1997.
The domain name at issue is identical to a trademark in which Complainant has rights.
Complainant has never authorized Respondent to use the trademark POLJOT. The Respondent has no corresponding trademark for POLJOT in Russia, USA or any other countries of the world, nor has the Respondent a trade name or company name similar to the disputed domain name. The Respondent uses the disputed domain name commercially. On the Internet web page corresponding to the disputed domain name, Respondent is operating the Internet shop “Russian Watches Online”. The way the Respondent uses the domain name cannot be treated as a bona fide offering of goods or services. The Respondent exploits the trademark POLJOT for promotion and sale of other brands of watches by other manufactures.
Complainant has been manufacturing watches since 1930, and the trademark POLJOT is a world famous trademark first used in 1959. In the year 1961 the Complainant’s watch accompanied the First Man In Space, Yuri Gagarin, as well as other Soviet (Russian) cosmonauts. Since then the brand POLJOT (means “flight”) has been widely used by the Complainant and known around the world. The POLJOT watches have been official state presents from the Soviet Union and then from the Russian Federation to the heads of other states, world famous scientists, artists etc. The Respondent must therefore have been well aware of the fame of the POLJOT trademark and its owner, and has registered the disputed domain name exclusively because of the fame of the trademark and with the intention to gain additional commercial benefit caused by the fame of the POLJOT trademark.
The Respondent’s registration of the disputed domain name prevents the Complainant from reflecting trademark in a corresponding domain name.
On the bottom of the starting page of the website “www.poljot.com” there is a reference to Subwave Internet, the developer of the content of the website. The Complainant has checked the WHOIS-database for the domain names <poljot-usa.com>, <poljot.biz>, <poljot.info>, <poljot.org>, <poljot.net> and <poljot.ch> and found that all these domain names are registered in the name of (or�with technical help of) the company Subwave Internet, and with the same name servers as the disputed domain name. The websites under the domain names <poljot.biz>, <poljot.info>, <poljot.org>, <poljot.ch> show the same content as the website “www.poljot.com”.
The above facts lead Complainant to the conclusion that the Respondent has engaged in a pattern of cybersquatting conduct by acquiring numerous “poljot” domain names through related persons.
The Complainant has several US customers who regularly buy watches directly from the Complainant. Among them are FULCRUM Investment Inc. and PACIFIC�IBM Employees. The Respondent’s statement about sale of “genuine, first quality Poljot watches direct from the factory in Moscow”, which can be found on “www.poljot.com” “General Info” “Customer Info” “Prices” (see page�25 of Annex�7), is not confirmed by the records of the Complainant.
Not being an authorized distributor of the Complainant, the Respondent does not follow the Complainant’s sale requirements. The activity of the Respondent is disrupting international business of the Complainant.
POLJOT is a major trademark of the Complainant. This mark is often used to designate the Complainant itself, especially on the international market, as Complainant’s Russian company name is difficult to pronounce for non-Russian speakers. The trademark POLJOT is present on the letterheads, official stamps and website of the Complainant as a company logo. In view of this, Respondent’s unauthorized use of the trademark POLJOT through the contested domain name, creates a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of the Respondent’s website.
Respondent has not registered and used the disputed domain name in bad faith.
The Respondent registered the domain name on July�26,�1997, in order to establish an online shop for watches that are linked to aviation. At the time of registration, POLJOT was neither registered validly as a trademark in the United States nor was the trademark POLJOT known in the United States or internationally. Complainant has not offered any evidence that the trademark POLJOT was well known or even used in the United States at the time of registration. The only two trademark registrations that could be found in the database of the US Patent and Trademark Office have been cancelled before registration of the domain name because of inactivity. Moreover, these trademark registrations have not even been filed by the Complainant, the first registrant was the Poljot Watch Co in New York, the second registrant was the an Italian Corporation.
Even though the Complainant claims that POLJOT is a “world famous trademark” he does not claim that this was the case at the time of registration of the contested domain, and Complainant does not offer any evidence that this was actually the case. The Complainant just states that POLJOT watches were given to “heads of states, world famous scientists, artists etc” and could also mention only two US customers (FULCRUM Investment Inc. and PACIFIC IBM Employees), thus admitting that the trademark POLJOT was (and still is) known only to a very limited number of persons and not to the broad public. The Complainant even states that the Respondent “should�have been well aware of the famousness of the POLJOT trademark” but does not claim that the Respondent actually knew the trademark POLJOT at the time of registration which in fact was not the case at the time of registration. This per se excludes a bad faith registration of the domain (see WIPO Case No. D2003-0029, Weissenberger AG v. Imagelinc).
Because the trademark POLJOT was not known in the United�States at the time of registration of the domain name the Respondent did not create a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of watches on the website of the Respondent (see , Telecom House Inc. v. Chin-Fu Lo, WIPO Case No. D2003-0032). Also, the content of the website corresponding to the disputed domain name does not create a likelihood of confusion as already the homepage (first�page) indicates clearly that the website is designed as “The First Online Shop for Russian Watches” specifying the watches sold with “AVIATOR”, “BURAN”, “STURMANSKIE” and “STRELA” but not as “POLJOT”; “AVIATOR” and “BURAN” being trademarks of the company VOLMAX in Moscow.
The domain name was neither registered nor acquired primarily for the purpose of selling, renting, or otherwise transferring the domain name registration to the Complainant, as the alleged owner of the trademark or service mark, or to a competitor of the Complainant, for valuable consideration in excess of the Respondent’s out-of-pocket costs directly related to the domain name. Nor has the Complainant claimed that this is actually the case; the domain name was registered with the sole purpose of establishing an online shop for watches that are linked to aviation.
Therefore, the Respondent did not register the domain name primarily to disrupt the Complainants business, but rather to set up and develop the sale of Russian watches linked to aviation in the United States.
The domain name was neither registered in order to prevent the Complainant from reflecting the mark in a corresponding domain name and, in connection therewith, the Respondent has not engaged in a pattern of such conduct. The Complainant argues that the Zurich company Subwave Internet has registered several domain names that contain the trademark POLJOT. There is however no evidence that the Respondent is responsible for these registrations; there is no shareholding or other participation relationship between the Respondent and the Zurich company which at the time of registration of the domain name was also not known to the Respondent. Therefore, the Complainant did not prove that the Respondent did engage in any pattern of cybersquatting conduct.
It follows from the above stated, that the Respondent has legitimate interests in the domain name. For more than seven years the Respondent has undisputedly been selling Russian watches linked to aviation on the website “www.poljot.com”. This activity has required a considerable investment from the Respondent in order to set up the website “www.poljot.com” and to market this website together with the goods offered on it, and therefore the Respondent is conducting a bona fide offering of goods.
The domain name at issue is to be considered identical with Complainant’s trademark, as the suffix “.com” is inherent in all domain names under the “.com” gTLD, and, according to previous panel decisions under the UDRP, shall therefore not be taken into account when assessing the identity of a domain name and a trademark.
The Complainant has not authorized the Respondent to use its trademark nor to register the disputed domain name, and the name of the Respondent is not, and does not include any part of any of the disputed domain name.
Respondent has asserted that he has legitimate interests in the domain name, as he, for more than seven years, has been conducting a bona fide offering of watches through the website corresponding to the domain name at issue.
In the opinion of the Panel, the use of the expression bona fide in Paragraph�4c(i) is sufficient to prevent a respondent who knowingly adopted another’s well known mark as a domain name from claiming the benefit of mere use of or demonstrable preparations to use the domain name in connection with the offering of goods or services prior to notice of a dispute. Previous panel decisions have also found that rights or legitimate interests cannot be created where the user of the domain name at issue would not choose a name unless he was seeking to create an impression of association with the Complainant, see inter alia Drexel University v. David Brouda WIPO Case No. D2001-0067.
For the above reasons, the Panel concludes that Respondent has no right or legitimate interest in the domain name at issue.
According to previous panel decisions under the UDRP, it has been established as a principle that when someone registers a domain name under gTLD domain, he represents and warrants to the registrar that, to the best of his knowledge, the registration of the domain name will not infringe the rights of any third party, see inter�alia BolognaFiere S.p.A. v. Bonopera Daniele, WIPO Case No. D2003-0295, Six�Continents Hotels, Inc. v. Seweryn Nowak, WIPO Case No. D2003-0022 and Nokia, Inc. v. B. B. de Boer, WIPO Case No. D2000-1397. Actual knowledge of Complainant’s trademark is a factor supporting bad faith see, inter alia, RRI Financial, Inc. v. Ray Chen, WIPO Case No. D2001-1242; Infospace, Inc. v. Siavash Jimmy Behain, et al., WIPO Case No. D2000-1631 and Expedia, Inc. v. European Travel Network, WIPO Case No. D2000-0137.
Respondent has asserted that he was not aware of Complainant’s trademark at the time of the registration of the domain name at issue. Respondent has furthermore argued that at the time of registration, Complainant’s trademark was neither registered validly as a trademark in the United�States nor was it known in the United�States or internationally, and furthermore that Complainant has not offered any evidence that the trademark was well known or even used in the United States at the time of registration.
It is however not a requirement under the Policy that Complainant’s trademark has been registered in Respondent’s country, nor that the trademark has obtained international recognition. Complainant has offered evidence that he had obtained registered rights in his trademark in several countries before Respondent’s use or registration of the domain name at issue.
In the view of the Panel it is furthermore highly probable that Respondent had Complainant’s trademark in mind when registering the Domain Name at issue.
Against this background, it is quite inconceivable to the Panel that Respondent would have chosen the domain name at issue, which is identical to Complainant’s well-reputed trademark, without having knowledge of that trademark.
Respondent is selling watches with the POLJOT trademark through his website corresponding to the domain name at issue. Respondent is having a special focus on the fame, long history and quality of the Poljot watches and trademark in the marketing of the watches sold on the website, and under the heading “History / Links” Respondent is also providing a link to Complainant’s official website at “www.poljot.ru”.
These facts are, in the opinion of the Panel, indications that Respondent seeks to attract, for commercial gain, Internet users to his website by creating a likelihood of confusion with Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of his website.
Complainant has thus established that the disputed domain name <poljot.com> has been registered and is being used in bad faith.
For all the foregoing reasons, in accordance with Paragraphs�4(i) of the Policy and 15�of the Rules, the Panel orders that the domain name <poljot.com> be transferred to the Complainant.

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