AA (Afghanistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Keene,Lord Justice Carnwath,Lord Justice Waller |
| Judgment Date | 29 January 2007 |
| Neutral Citation | [2007] EWCA Civ 12 |
| Court | Court of Appeal (Civil Division) |
| Date | 29 January 2007 |
| Docket Number | Case No: C5/2005/2716 |
[2007] EWCA Civ 12
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND
IMMIGRATION TRIBUNAL
HX/58241/2003
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Waller
Vice President of the Court of Appeal, Civil Division
Lord Justice Keene and
Lord Justice Carnwath
Case No: C5/2005/2716
Manjit Gill QC and Amanda Jones (instructed by Messrs Malik & Malik) for the Appellant
John-Paul Waite (instructed by Treasury Solicitors) for the Respondent
Nadine Finch (instructed by Medical Foundation) for the Intervener
Hearing date: 1 st November 2006
This appeal concerns the law and policy relating to unaccompanied minors who arrive in the United Kingdom and seek asylum, but whose claim under both the Refugee Convention and the European Convention on Human Rights (ECHR) is rejected. The Immigration Rules (HC395) make specific provision about the handling of asylum claims made by unaccompanied children in paragraphs 350 to 352, but for present purposes it is enough to note that paragraph 349 defines a child for these purposes as
“a person who is under 18 years of age or who, in the absence of documentary evidence, appears to be under that age.”
The appellant arrived in the United Kingdom on 22 January 2003. He claimed to be a citizen of Afghanistan and to be under the age of 18. He was not accompanied by any adult responsible for him. He claimed to fear persecution in Afghanistan from the authorities there, because his father had been a military officer working for the Communist Party and had been killed. He himself had been captured by the Taliban in 2000, detained and beaten. His brother had subsequently been kidnapped when the Northern Alliance came to power.
The Secretary of State rejected virtually all of this factual account. He was not satisfied that the appellant was an Afghan. He did not accept the account of events given by the appellant but, even if it had been authentic, the appellant had remained in Kabul for 7 months after allegedly leaving his home in fear. This both indicated that he had no genuine subjective fear and also showed that he was of no significant interest to the authorities. His asylum claim was rejected. In the light of an assessment by social services, the Secretary of State did not accept that the appellant was a minor. He was therefore treated as an adult. His claims under the ECHR were also rejected.
His appeal to an adjudicator was determined by a decision promulgated on 6 January 2004. The adjudicator accepted some parts of the appellant's claim. In particular, he found that the appellant was a citizen of Afghanistan. Despite some conflict in the various statements as to the appellant's date of birth, the adjudicator also found that it was likely that the appellant was born on 25 October 1986, thus making him 17 at the date of determination. In addition, it was accepted that his father had been a colonel working for the Communist Party and had been killed in 1995. His mother and some siblings were alive and lived in Logar, some 45 minutes by bus from Kabul, where he had an uncle.
The adjudicator, however, found that the appellant was not at risk from members of the Northern Alliance or the Communist Party, and that if returned to Afghanistan it would be to Kabul where the authorities would be able and willing to give him effective protection. The adjudicator concluded that there was no real risk to the appellant of persecution for a Refugee Convention reason nor would his return to Afghanistan involve a breach of his human rights under the ECHR. So far as Article 8 of that Convention was concerned, it was noted that he had family in Afghanistan and that his return would not be disproportionate. Consequently both the asylum and the human rights appeals were dismissed.
In the course of the hearing before the adjudicator, the appellant's counsel had relied on a Home Office Operation Guidance Note about Afghanistan, dated February 2003, paragraph 7 of which states:
“Unaccompanied asylum seeking children who have no claim to stay in the UK and who would, had they been adults have been refused outright, should continue to be dealt with under UASC policy and given ELR to age 18 or for four years for those under 14, unless there are adequate reception arrangements in place.”
That paragraph is set out in full at paragraph 72 of the adjudicator's summary of the submissions on behalf of the appellant. ELR stands for Exceptional Leave to Remain and UASC stands for Unaccompanied Asylum-Seeking Children. Reliance was also placed on a passage from the Home Office CIPU Report on Afghanistan dated October 2003, which recited UNHCR advice that “persons in particularly vulnerable circumstances should not be required to return to Afghanistan” and these persons included unaccompanied minors.
Despite these references, the adjudicator in his determination did not deal with the policy position, now that he had found the appellant to be a minor. This apparent failure formed the basis of a grant of permission to appeal to the appellate tribunal, that grant being contained in a decision dated 3 April 2004 which made it clear that permission in relation to the dismissal of the asylum appeal was being refused. The Asylum and Immigration Tribunal (“the AIT”) in a determination dated 17 October 2005 held that there had been no error of law in respect of Articles 3 and 8 of the ECHR. As for the failure of the adjudicator to address the unaccompanied minor policy points, the AIT while accepting that the adjudicator could be criticised for this concluded that there was no material error of law. This was because, looking at all the circumstances,
“on return it was reasonably likely that his family members in Afghanistan would be in communication and would ensure that the appellant would be looked after by members of his extended family.” (paragraph 11)
This conclusion was based upon such facts as his mother and siblings being in Logar, with her having written to him only 1 1/2 months before the hearing; the presence of his uncle in Kabul, with whom the appellant had spent 7 months; and the fact that in the past the appellant's extended family had taken active steps to ensure his care in Kabul. Consequently the AIT dismissed the appeal.
The grounds of appeal to this court draw attention to the way in which the AIT expressed itself when dealing with the Secretary of State's policy on unaccompanied minors. At paragraph 9 of its decision the AIT said this:
“As can be seen from the wording to that policy as recorded by the Adjudicator at paragraph 72, the policy does not apply where there are adequate reception arrangements in place. The policy is plainly confined to 'unaccompanied minors, not to minors who can reasonably be expected to be met and received by family members on return. (We note that this is made even clearer by the wording of at least some other Home Office policy statements on UASCs (Unaccompanied Asylum Seeking Children): which, as we understand it, more expressly confine their scope to minors who have no family to return to and where adequate reception arrangements cannot be established).”
The AIT likewise said in respect of the UNHCR advice, referred to earlier in this judgment, that the words “unaccompanied minor” could not sensibly mean someone who had adequate reception or family support arrangements on return.
It is submitted on behalf of the appellant that this misunderstood the term “unaccompanied minor”, which does not reflect whether or not adequate reception arrangements exist in his or her home country. A child is still an unaccompanied minor, irrespective of such arrangements, if he or she arrives in the United Kingdom under the age of 18 unaccompanied by a responsible adult.
As matter of definition I agree. That is borne out by the detailed definition provided by Regulation 6(3)(a) of the Asylum Seekers (Reception Conditions) Regulations 2005 (“the 2005 Regulations), which makes no reference to conditions in the country of origin. Nor is it contended on behalf of the Secretary of State that the definition of an unaccompanied minor in his asylum policy documents brings in such conditions. Mr Waite on behalf of the Secretary of State accepts that for policy purposes an unaccompanied minor is someone who is
“? under eighteen years of age, or who in the absence of documentary evidence appears to be under that age, and who is
? applying for asylum in his own right; and is
? without adult family members or guardians to turn to in this country”. (see Asylum Policy Instructions, March 2001, paragraph 3.1)
He or she is not deprived of that status by virtue of the fact that there are adequate arrangements in their country of origin for their reception and care upon return. But this does, in my judgment, not avail the appellant. First of all, although the AIT's phraseology is open to criticism, it seems to me that at paragraph 9, which I have quoted earlier, the AIT was really seeking to deal with the circumstances where the policy of non-return applied, namely where adequate arrangements were not in place, rather than with the definition of unaccompanied minors. Secondly, and in any event, being placed in the category of unaccompanied minor does not by itself lead to the non-return of the individual. Under the policy, that does turn on whether adequate reception arrangements are available in the country of origin. So, as Mr Waite...
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