AA (Unattended Children) Afghanistan

JurisdictionUK Non-devolved
JudgeMr Justice Owen,Jarvis
Judgment Date23 May 2011
Neutral Citation[2012] UKUT 16 (IAC)
CourtUpper Tribunal (Immigration and Asylum Chamber)
Date23 May 2011

[2012] UKUT 16 (IAC)

Upper Tribunal

(Immigration and Asylum Chamber)



Mr Justice Owen

Upper Tribunal Judge Jarvis

The Secretary of State for the Home Department
The AIRE Centre
Interested Party
28 October 2011

For the Appellant: Ms S Motz of Counsel, instructed by Braitch RB Solicitors

For the Respondent: Ms Monica Tanner, Home Office Presenting Officer

23 May 2011

For the Appellant: Ms K Cronin of Counsel and Ms S Motz of Counsel, instructed by Braitch Solicitors

For the Respondent: Mr D Blundell of Counsel instructed by Treasury Solicitor

For the Interested Party: Mr Adam Weiss of the AIRE Centre

AA (unattended children) Afghanistan CG

  • (1) The evidence before the Tribunal does not alter the position as described in HK and Others (minors – indiscriminate violence – forced recruitment by Taliban – contact with family members) Afghanistan CG [2010] UKUT 378 (IAC), namely that when considering the question of whether children are disproportionately affected by the consequences of the armed conflict in Afghanistan, a distinction has to be drawn between children who were living with a family and those who are not. That distinction has been reinforced by the additional material before this Tribunal. Whilst it is recognised that there are some risks to which children who will have the protection of the family are nevertheless subject, in particular the risk of landmines and the risks of being trafficked, they are not of such a level as to lead to the conclusion that all children would qualify for international protection. In arriving at this conclusion, account has been taken of the necessity to have regard to the best interests of children.

  • (2) However, the background evidence demonstrates that unattached children returned to Afghanistan, depending upon their individual circumstances and the location to which they are returned, may be exposed to risk of serious harm, inter alia from indiscriminate violence, forced recruitment, sexual violence, trafficking and a lack of adequate arrangements for child protection. Such risks will have to be taken into account when addressing the question of whether a return is in the child's best interests, a primary consideration when determining a claim to humanitarian protection.

Introduction and History of the Case

1. The appellant is a citizen of Afghanistan from Kabul Province, whose date of birth is accepted as being 1 January 1994 and who is therefore now 17 years of age. He arrived in the United Kingdom as an unaccompanied child on 7 May 2009 and sought asylum on the basis that he would be at real risk of being persecuted on return to Kabul as a separated child, and/or by reason of political opinion imputed to him by virtue of his being a son of a man who was an informer for the government, and the brother of a man who was an army commander who had been killed by the Taliban, and that he himself had been among a group who sang an anti-Taliban song at a public gathering on Teacher's Day, at which the deaths of foreign military personnel were mourned. He attended a screening interview on 13 May 2009 and underwent a substantive interview with regard to his application on 5 October 2009.

2. On 21 October 2009 the respondent refused the application for recognition as a refugee and grant of status, but granted the appellant discretionary leave to remain in the United Kingdom outside the rules until 1 July 2011 in accordance with her policy relating to unaccompanied children, the Home Office Asylum Policy Instruction on Discretionary Leave.

3. The appellant appealed against the decision, and on 29 January 2010 his appeal under section 83 of the Nationality Immigration and Asylum Act 2002 (an ‘up-grade appeal’) came before Immigration Judge Napthine, who dismissed the appeal rejecting the appellant's claim as lacking credibility.

4. The appellant's application for permission to appeal against the determination by the immigration judge came before Upper Tribunal Judge Jarvis on 10 March 2010 when she reached the provisional decision that the determination disclosed an error of law; that it should be set aside, and the appeal be referred to the Upper Tribunal for re-decision. On 7 May 2010 Upper Tribunal Judge Jarvis ruled, under rule 34 of the Tribunal Procedure (Upper Tribunal) Rules 2008, without a hearing, that the decision of the immigration judge contained an error of law, namely that that judge failed to take into account evidence relating to unaccompanied or separated children, and failed to assess the evidence on the basis that the appellant was a child, and that it should be set aside and re-made by the Upper Tribunal.

The Hearing of 28 October 2010

5. The appeal came before us on 28 October 2010, when the appellant was represented by Ms S Motz of counsel, the respondent by Ms Monica Tanner, a Home Officer presenting officer. It was common ground that the issues before us were the appellant's claim to recognition as a refugee, and, in the light of the decision of the Court of Appeal in FA (Iraq) v SSHD [2010] EWCA Civ 696 handed down on 18 June 2010, his claim to humanitarian protection (the parties in FA having reached a settlement following the judgment of the UKSC (FA (Iraq) (FC) (Respondent) v SSHD (Appellant) [2011] UKSC 22). We heard evidence from the appellant and submissions on behalf of the parties. But Ms Tanner had indicated at the outset of the hearing that the respondent had not appreciated that the appellant was raising challenges to GS (Article 15(c): Indiscriminate Violence) Afghanistan CG [2009] UKAIT 0044, and was not therefore in a position to respond as to the construction and application of Article 15(c) of the Qualification Directive.

6. We therefore reserved our decision and gave directions as to the service of further submissions by the respondent, and in response on behalf of the appellant.

7. On 23 November 2010 and 3 December 2010 Upper Tribunal Judge Jarvis gave further directions identifying the issues to be addressed at a restored hearing to take account, inter alia, of the country guidance given by the Upper Tribunal (“UT”) in HK and Others (minors-indiscriminate violence-forced recruitment by Taliban-contact with family members) Afghanistan CG [2010] UKUT 378 (IAC).

The Hearing of 18 March 2011

8. In January 2011 the restored hearing was fixed for 18 March with the agreement of the parties. But on 1 February 2011 the Supreme Court handed down its judgment in ZH (Tanzania) v SSHD [2011] UKSC 4, in which it addressed, inter alia, the construction and application of s.55 of the Borders, Citizenship and Immigration Act 2009 (the ‘2009 Act’), the assessment of the best interests of a child in the context of an application for asylum.

9. On 1 March 2011 a letter was sent to the parties notifying them that the UT Country Guidance Convener had decided that the appellant's case was likely to be used as country guidance. As a result the parties sought further time in which to prepare their respective cases; and the hearing on 18 March was treated as an oral case management hearing at which both parties were represented.

10. On 18 March an order for anonymity was made; and it was further ordered that the AIRE Centre be joined as an interested party subject to any further submission from the appellant or respondent by no later than 1 April 2011. The order joining the AIRE Centre was confirmed on 14 April, and on 6 May further directions were given by Upper Tribunal Judge Jarvis as to the issues to be addressed at the restored hearing.

The Hearing of 23 May 2011

11. It is appropriate to express our appreciation of the considerable efforts made by all parties to ensure that the hearing of 23 May would be effective, and in particular of their co-operation in the preparation of agreed bundles of relevant documentary material and case law, which reflected the onus on the parties to co-operate in cases involving children articulated by the Court of Appeal in DS (Afghanistan) [2011] EWCA Civ 305 handed down on 22 March 2011. The documentary material before the Tribunal is listed in Appendix A and relevant extracts are found at Appendix B. The index to the bundle of authorities is at Appendix C and to the appellant's personal evidence at Appendix D. Following oral submissions we reserved our decision, subject to receipt of written submissions. We subsequently received the appellant's Reply to submissions dated 31 May 2011; the respondent's Rejoinder dated 1 June 2011, and the appellant's Reply dated 9 June 2011, to new points raised in the respondent's Rejoinder.

The Issues

12. The appeal gives rise to the following issues:

  • 1. the proper approach to an application for asylum and/ or humanitarian protection by a child,

  • 2. the application of s55 of the Borders, Citizenship and Immigration Act 2009,

  • 3. whether in relation to children cases the country guidance contained in GS and HK remains valid in the light of the up-to-date background material and expert evidence,

  • 4. whether the appellant is entitled to recognition as a refugee,

  • 5. whether the appellant is entitled to humanitarian protection,

  • Two further issues were addressed by the parties, namely,

  • 6. whether the appellant is a victim of trafficking and/or debt bondage,

  • 7. whether there has been failure to conduct family tracing enquiries.

The Legal Framework

13. A person is a refugee and, therefore, entitled to asylum pursuant to Directive 2004/83/EC, (the Qualification Directive) if, (in the words of Article 1A of the Geneva Convention relating to the Status of Refugees) owing to well-founded fear of being persecuted for reasons of race, religion, nationality or membership of a particular social group or political opinion, he is outside the country of his nationality and is unable or, owing to such fear,...

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