AM (Afghanistan) v Secretary of State for the Home Department

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeSir Ernest Ryder,Lord Justice Underhill,Lord Justice Gross
Judgment Date27 July 2017
Neutral Citation[2017] EWCA Civ 1123
Date27 July 2017
Docket NumberCase No: C5/2015/0626

[2017] EWCA Civ 1123




Royal Courts of Justice

Strand, London, WC2A 2LL


Lord Justice Gross



Lord Justice Underhill

Case No: C5/2015/0626

AM (Afghanistan)
Secretary of State for the Home Department


Lord Chancellor

Ms Stephanie Harrison QC & Mr Raza Halim (instructed by Brighton Housing Trust, Immigration Legal Service) for the Appellant

Mr David Blundell (instructed by Government Legal Department) for the Respondent and the Intervenor

Hearing date: 17 May 2017

Approved Judgment

Sir Ernest Ryder, Senior President:


In this judgment the court gives guidance on the general approach to be adopted in law and practice by the First-tier Tribunal (Immigration and Asylum Chamber) ['the FtT'] and the Upper Tribunal (Immigration and Asylum Chamber) ['the UT'] to the fair determination of claims for asylum from children, young people and other incapacitated or vulnerable persons whose ability to effectively participate in proceedings may be limited.


This is a second appeal for which permission was given by the Senior President on 2 February 2016, reported at [2016] EWCA Civ 207. An important point of principle or practice was identified concerning the effective right of access to the tribunal by incapacitated and vulnerable individuals including children and young people and how such a person might be heard.


The substantive issues in the appeal have been compromised and it is agreed that the appellant's asylum claim will be remitted to the FtT for a fresh decision to be made. I describe the reasons for that agreement later in this judgment. The procedural facts have also given rise to common ground between the appellant and the Secretary of State for the Home Department ['the Secretary of State']. The Lord Chancellor has been given permission to intervene. I am very grateful to leading and junior counsel for the Lord Chancellor, the Secretary of State and the appellant for the quality of their oral and written submissions on an issue of importance.


I shall ask that this decision be considered by the Tribunal Procedure Committee for them to independently advise whether any further or consequential issues arise.


The appellant is a citizen of Afghanistan. At the date of the hearing before the FtT he was assessed as being 15 years of age i.e. he was apparently born in 1998. He travelled with the help of various agents from Afghanistan across Europe to the United Kingdom, arriving here on 4 July 2012. He claimed asylum on 20 July 2012.


The appellant's evidence describes his history in the following way. He grew up in Afghanistan. His father was a member of the Taliban. As a consequence, he was not normally allowed outside of the compound in which he lived. His family were fed and provided for by the Taliban. When he was about 13 years old, his father was killed by British forces. A few days later the appellant was assaulted by the Afghan police and he was hospitalised. After returning home, Taliban men came and took him away to a training camp with the intention of training him to be a suicide bomber. Eight to ten days later he managed to escape. His maternal uncle handed him over to agents who facilitated his removal from Afghanistan and his journey into Europe.


The appellant says that he has a well founded fear of persecution in Afghanistan both from the Afghan police who consider him to be a member of a Taliban family and from the Taliban who will either want to punish him or use him as a fighter. It is said that he has mental health and psychological difficulties.


The Secretary of State refused the appellant's asylum application on 3 May 2013 but granted him discretionary leave to remain in the UK until he is 17 1/2 years old. The written reasons include the conclusions: a) that his evidence is not credible because of inconsistencies in it; b) that he had not demonstrated that he had fled Afghanistan in fear of his life because of his failure to claim asylum in other safe EU Member States; and c) that he had not demonstrated a risk to his life and could obtain assistance from the Afghan authorities if he returned.


The legal framework that is relevant to the appellant's asylum claim can be summarised under three heads:

a. As a refugee under the 1951 Geneva Convention Relating to the Status of Refugees as applied by the Refugee or Person in Need of International Protection (Qualification) Regulations 2006 which are incorporated into the Immigration Rules by rule 334:

"334. An asylum applicant will be granted refugee status in the United Kingdom if the Secretary of State is satisfied that:

(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;

(ii) they are a refugee, as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;

(iii) there are no reasonable grounds for regarding them as a danger to the security of the United Kingdom;

(iv) having been convicted by a final judgment of a particularly serious crime, they do not constitute a danger to the community of the United Kingdom; and

(v) refusing their application would result in them being required to go (whether immediately or after the time limited by any existing leave to enter or remain) in breach of the Refugee Convention, to a country in which their life or freedom would be threatened on account of their race, religion, nationality, political opinion or membership of a particular social group." (emphasis added)"

b. As a person in respect of whom there is a limited right to protection on humanitarian grounds as described in paragraph 339C of the Immigration Rules:

"339C. A person will be granted humanitarian protection in the United Kingdom if the Secretary of State is satisfied that:

(i) they are in the United Kingdom or have arrived at a port of entry in the United Kingdom;

(ii) they do not qualify as a refugee as defined in regulation 2 of The Refugee or Person in Need of International Protection (Qualification) Regulations 2006;

(iii) substantial grounds have been shown for believing that the person concerned, if returned to the country of return, would face a real risk of suffering serious harm and is unable, or, owing to such risk, unwilling to avail themselves of the protection of that country; (emphasis added) and

(iv) they are not excluded from a grant of humanitarian protection.

339CA. For the purposes of paragraph 339C, serious harm consists of:

(i) the death penalty or execution;

(ii) unlawful killing;

(iii) torture or inhuman or degrading treatment or punishment of a person in the country of return; or

(iv) serious and individual threat to a civilian's life or person by reason of indiscriminate violence in situations of international or internal armed conflict."

Rule 351 adds the following (so far as is relevant to children and young people):

"…account should be taken of the applicant's maturity and in assessing the claim of a child more weight should be given to objective indications of risk than to the child's state of mind and understanding of their situation. … Close attention should be given to the welfare of the child at all times."


c. As a person whose article 3 ECHR rights are under threat.


The appellant appealed the Secretary of State's decision to the FtT. At the FtT:

a. The parties were represented;

b. The proceedings were translated for the appellant by an interpreter; and

c. The documents which the judge records in his determination to have been "fully taken into account" by him "included":

i. The appellant's witness statement;

ii. An expert's country report by Mr Peter Marsden ['the Marsden report']; and

iii. An expert's psychological report by Mr RA Sellwood ['the Sellwood report'].


Aside from his preliminary acknowledgement that the Sellwood report existed, the judge in the FtT made only scant reference to its contents. The reason given by the judge for that is the surprising and unsatisfactory state of affairs referred to by him in his determination:

"I have also seen that there is a psychological report repeated for the appellant…This was not drawn to my attention until after the hearing. I note that the appellant has some learning difficulties but I found him to be a willing witness and able to answer the questions put to him without any apparent difficulty"


In fact, the Sellwood report was before the judge and was referred to. In any event and with respect to the judge, everyone now agrees that that was a wholly inadequate response to the content of the report which included the following opinions about the appellant that were relevant to procedural fairness:

"77. Because [AM] has moderate learning difficulties I would expect him to experience significant difficulties accurately recalling questions and answers during interviews and court hearings. These difficulties were evident when he tried to recall details for me and when trying to complete some of the tests. These tasks were largely visual and aided by demonstration. Interviews and hearings present more difficulties for [AM] because the content is more abstract and verbal.

78. For these reasons, I do not consider [AM] is able to give evidence by answering questions in court although I think he can do so in the form of a witness statement where he has more time for information to be recalled and clarified.

79. Without prejudice to my firm view that [AM] should not give oral evidence I consider that additional arrangements should be made should the court decide that he be required to give oral evidence. [AM] has moderate learning difficulties with some intellectual skills significantly weaker than those of others of his age. In...

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