DS (Afghanistan) v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Pill,Lord Justice Lloyd,Lord Justice Rimer |
| Judgment Date | 22 March 2011 |
| Neutral Citation | [2011] EWCA Civ 305 |
| Docket Number | Case No: C5/2010/0277 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 March 2011 |
[2011] EWCA Civ 305
Designated Immigration Judge O'Malley
Before: Lord Justice Pill
Lord Justice Lloyd
and
Lord Justice Rimer
Case No: C5/2010/0277
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ASYLUM AND IMMIGRATION TRIBUNAL
Mr Manjit Gill QC and Mr Abid Mahmood (instructed by Blakemores) for the Appellant
Mr John Paul Waite (instructed by the Treasury Solicitor) for the Respondent
Hearing date: 8 February 2011
Lord Justice Pill:
This is an appeal against the decision of the Asylum and Immigration Tribunal ("the Tribunal") (Designated Immigration Judge O'Malley) on 20 November 2009 whereby the appeal of DS ("the appellant") against the rejection of his claim for asylum was dismissed. It was also held that the appellant is not a person in need of humanitarian protection. Reconsideration of an earlier decision of the Tribunal on 24 April 2009 to allow the asylum appeal had been ordered on 27 May 2009. By the decision of 20 November 2009, it was held that the original Tribunal had made an error of law. The Tribunal conducted a full reconsideration and stated that the only issue was "whether the appellant would be at real risk of persecution on return to Afghanistan".
The appellant is a citizen of Afghanistan born on 15 September 1993. He arrived in the United Kingdom on 23 September 2008, aged just 15, and claimed asylum. In view of his age, he was granted leave to remain until 15 March 2011. He is still a minor.
The appellant's claim that he was in fear of the Taliban had been rejected at the earlier hearing and his appeal was based on the principle established in LQ (age: immutable characteristics) Afghanistan [2008] UK AIT 00005 the application of which has not been challenged by the Secretary of State ("the respondent") in this appeal. The finding in that case, at paragraph 4, was that the applicant, aged 15 at the date of the hearing on 6 October 2006, was an orphan and that "there would be no adequate reception facilities in Afghanistan and that, as an orphan, the appellant would be subject to the risks of exploitation and ill-treatment adumbrated in that evidence" [the expert evidence before the Tribunal].
The Tribunal held, at paragraph 5:
"The sole remaining question is, therefore, whether the appellant's ill-treatment would amount to persecution for one of the reasons mentioned in article 1A(2) of the Refugee Convention. The only one proposed is 'membership of a particular social group'."
At paragraph 6, the Tribunal stated:
"We think that for these purposes age is immutable. It is changing all the time but one cannot do anything to change one's own age at any particular time. [Membership of a particular social group depended on his being a child]. At the date when the appellant's status has to be assessed he is a child and although, assuming he survives, he will in due course cease to be a child, he is immutably a child at the time of assessment."
At paragraph 7, the Tribunal held:
"But his [the Adjudicator's] findings do establish that the appellant is an orphan and would be at risk. In the light of the expert evidence, we conclude that the risk of severe harm to the appellant, as found by the Adjudicator, would be as a result of his membership of a group sharing an immutable characteristic and constituting, for the purposes of the Refugee Convention, a particular social group. We therefore substitute a determination allowing his appeal under s83."
For the respondent, Mr Waite, does not challenge the correctness of the decision in LQ, as applied to orphans. Further, he conceded, for present purposes, that even though the appellant is not an orphan, and having regard to the risks for minors in Afghanistan, he should be treated in the same way and as if he were an orphan. It must follow from the acceptance of the finding in LQ, quoted at paragraph 3 above, that as an orphan, in the absence of adequate reception facilities available in Afghanistan, the appellant would be subject to the risk of exploitation and ill-treatment. That narrows the issue considerably. The first issue is as to the role of the Secretary of State when an unaccompanied minor claims asylum. The second issue is whether the Tribunal was entitled to infer, adopting the language of the Tribunal in LQ, that adequate reception facilities were available.
Mr Manjit Gill QC, for the appellant, submitted that when an unaccompanied minor arrives from Afghanistan, the respondent is under a duty to enquire whether adequate reception facilities are available if he is returned and to take the results of the enquiry into account when considering the asylum claim. Mr Waite submitted, that there is no such duty and that, even if there is such a duty, it does not bear upon consideration of an asylum application but only on the policy on discretionary leave, to be mentioned later. On the evidence, the Tribunal was entitled to conclude, he submitted, that the risks in Afghanistan, found in LQ to exist in the absence of adequate reception facilities, did not, on the evidence, arise. The Tribunal was entitled to infer the availability of the appellant's mother and uncle.
The appellant gave evidence that his father was dead and that his mother lived in Taghab, in Afghanistan. He is an only child. His maternal uncle, who arranged for his departure, also lives in Taghab. The appellant claimed to have had no contact with either his mother or his uncle since he left Afghanistan. He had approached the Red Cross to find his mother and uncle. He had no family in Kabul and could not live there because there is no one to protect him. An issue of fact arose as to the appellant's dealings with the Red Cross and I will consider that later. The Tribunal resolved it against the appellant.
The Tribunal held:
"25. I consequently find there is no evidence upon which I can find that the Appellant's mother and Younus [the uncle] have disappeared. The case is to be distinguished from LQ where the Tribunal was concerned with an orphan who, it was submitted, would be subject to risks of exploitation and ill treatment.
26. I consequently find that the Appellant is not a member of a particular social group as claimed. In Afghanistan he has a mother and his uncle to return to and live with without fear of either exploitation or ill treatment. There is no other issue because it has already been found the Appellant is not at risk from any other claimed source."
Submissions and Authorities
Mr Gill's submission was that, in the circumstances, and even if the appellant had made insufficient attempt to contact his family, the Secretary of State should have made enquiries of her own about facilities on return. No such enquiries were made and the need for them was not brought to the attention of the Tribunal.
Mr Gill relied on Council Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers. It makes provision, at article 19, for unaccompanied minors at 19.1 and 19.2. 19.1 imposes on Member States a requirement as soon as possible to take measures to ensure the necessary representation of unaccompanied minors by legal guardianship or, where necessary, in other ways. 19.2 provides that unaccompanied minors who make an application for asylum shall be placed with a foster-family or in other ways. That obligation was met; the appellant was placed with Mr and Mrs Cooper under section 20 of the Children Act 1989.
Article 19.3 provides:
"Member States, protecting the unaccompanied minor's best interests, shall endeavour to trace the members of his or her family as soon as possible. In cases where there may be a threat to the life or integrity of the minor or his or her close relatives, particularly if they have remained in the country of origin, care must be taken to ensure that the collection, processing and circulation of information concerning those persons is undertaken on a confidential basis, so as to avoid jeopardising their safety."
Effect is given to the Directive in The Asylum Seekers (Reception Conditions) Regulations 2005 (SI 2005/7). Regulation 6 provides:
"(1) So as to protect an unaccompanied minor's best interests, the Secretary of State shall endeavour to trace the members of the minor's family as soon as possible after the minor makes his claim for asylum.
(2) In cases where there may be a threat to the life or integrity of the minor or the minor's close family, the Secretary of State shall take care to ensure that the collection, processing and circulation of information concerning the minor or his close family is undertaken on a confidential basis so as not to jeopardise his or their safety.
(3) For the purposes of this regulation —
(a) an unaccompanied minor means a person below the age of eighteen who arrives in the United Kingdom unaccompanied by an adult responsible for him whether by law or custom and makes a claim for asylum;
(b) a person shall be an unaccompanied minor until he is taken into the care of such an adult or until he reaches the age of 18 whichever is the earlier;
(c) an unaccompanied minor also includes a minor who is left unaccompanied after he arrives in or enters the United Kingdom but before he makes his claim for asylum."
Mr Gill also sought to rely on international documents which post-date the Tribunal's decision but which, he submitted, demonstrate the duties imposed on a Government when a child claims asylum. Guidelines on International Protection issued by...
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