EU (Afghanistan) and Others v Secretary of State for the Home Department

JurisdictionEngland & Wales
JudgeSir Stanley Burnton,Lord Justice Jackson,Lord Justice Maurice Kay
Judgment Date31 January 2013
Neutral Citation[2013] EWCA Civ 32
Docket NumberCase Nos: C5/2011/1943, 1699, 2439, 2119, 2417, 1215
CourtCourt of Appeal (Civil Division)
Date31 January 2013

[2013] EWCA Civ 32

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAPTER); FIRST TIER

Ref: AA/13345/2010

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Maurice Kay

(Vice President of the Civil Division of the Court of Appeal)

Lord Justice Jackson

Sir Stanley Burnton

Case Nos: C5/2011/1943, 1699, 2439, 2119, 2417, 1215

Between:
EU (Afghanistan)
FU (Afghanistan)
SU (Afghanistan)
AR(Afghanistan)
QA (Afghanistan)
AK (Afghanistan)
Appellants
and
Secretary of State for the Home Department
Respondent

Becket Bedford (instructed by Messrs Sultan Lloyd) for AK, EU, AR, QA and FU

Raza Husain QC and Sonali Naik (instructed by Sutovic & Hartigan) for SU

Jonathan Hall and Nicholas Chapman (instructed by the Treasury Solicitor) for the Secretary of State

Hearing date: 17 December 2012

Sir Stanley Burnton

Introduction

1

In its judgment in KA (Afghanistan) and others v Secretary of State for the Home Department [2012] EWCA Civ 1014, this Court, differently constituted, considered and decided the generic legal issues arising in the present cases, which are lead cases heard together so as to enable the Court to give guidance on the principles applicable in similar cases. The basic generic facts were summarised by Maurice Kay LJ, with whose judgment the other members of the Court agreed, as follows:

The appellants are young men from Afghanistan who arrived in this country as unaccompanied minors, aged 15 or 16, and claimed asylum. In each case the Secretary of State refused the asylum application but, pursuant to her policy on unaccompanied minors, granted discretionary leave to remain (DLR) until the age of 17 1/2. Shortly before reaching that age, each appellant made an application for asylum or humanitarian protection which was refused. Each appealed unsuccessfully to the First-Tier Tribunal (FTT), which, except in the cases of SA and QA, determined the appeal before the appellant had attained the age of 18. Subsequent appeals to the Upper Tribunal (UT) were heard and dismissed after the appellants had attained their majority. In each case, the UT approached the assessment of risk on return on the basis of the facts as at the time of the hearing before it, including the fact of the appellant's recently attained majority.

I shall refer to the judgment of Maurice Kay LJ as "the Judgment".

2

It follows from the dismissal of their appeals to the Upper Tribunal that none of the Appellants established that at the date of the Upper Tribunal's determination of his claim he was in need of international protection, and therefore entitled to asylum, or that any of his Convention rights would be infringed if he returned to Afghanistan. Nonetheless, the Appellants claim to be entitled to indefinite leave to remain by reason of the Secretary of State's breach of her duty to endeavour to trace their respective families, imposed by Article 19.3 of the Reception Directive, transposed into our domestic law by regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. Maurice Kay LJ referred to this duty as "the duty to endeavour to trace", and so shall I. The Appellants contend that the Secretary of State's breaches give rise to their right to benefit from what has been referred to as the corrective principle, or as the protective principle, established by the judgments of this Court in Rashid [2005] EWCA Civ 744, [2005] INLR 550. The Secretary of State disputes all of their claims.

3

The appeal of KA has been allowed by consent, it being agreed that his Article 8 claim should be remitted to be heard by the Upper Tribunal. This is my judgment on the application of the principles established in KA to the facts of the remaining individual cases.

The applicable principles

4

In KA, the Court held:

(1) The analysis of Rashid by Carnwath LJ (as he then was) in R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546 [2007] INLR 450, is correct: paragraph 13 of the Judgment.

(2) The Secretary of State had indeed failed to comply with her duty to endeavour to trace.

(3) In particular, she did not discharge her duty by merely informing a child of the facilities of the Red Cross: paragraph 24(1) of the judgment.

(4) This was a systemic breach. The Secretary of State "failed to discharge the duty in relation to unaccompanied minors from Afghanistan because she adopted the policy of granting them leave to remain until they reached the age of seventeen and a half, whereafter any further application would be considered on its merits. By that time, of course, the duty to endeavour to trace would be close to expiration because of the imminence of majority": paragraph 16 of the judgment.

(5) A failure to discharge the duty may be relevant to judicial consideration of an asylum or humanitarian protection claim: paragraph 24(2).

(6) Such a failure may also be relevant to a consideration of the section 55 duty: paragraph 24(3).

(7) Furthermore, the assessment of risk of return is not subject to a bright line rule, under which risk may be considered to be necessarily reduced or to have ceased on a claimant's actual or assessed eighteenth birthday: paragraph 18 of the judgment.

5

At paragraph 25 of the judgment, Maurice Kay LJ stated:

There is a hypothetical spectrum. At one end is an applicant who gives a credible and cooperative account of having no surviving family in Afghanistan or of having lost touch with surviving family members and having failed, notwithstanding his best endeavours, to re-establish contact. It seems to me that, even if he has reached the age of 18 by the time his appeal is considered by the tribunal, he may, depending on the totality of the established facts, have the basis of a successful appeal by availing himself of the Rashid/ S principle and/or section 55 by reference to the failure of the Secretary of State to discharge the duty to endeavour to trace. In such a case Ravichandran would not be an insurmountable obstacle. At the other end of the spectrum is an applicant whose claim to have no surviving family in Afghanistan is disbelieved and in respect of whom it is found that he has been uncooperative so as to frustrate any attempt to trace his family. In such a case, again depending on the totality of established facts, he may have put himself beyond the bite of the protective and corrective principle. This would not be because the law seeks to punish him for his mendacity but because he has failed to prove the risk on return and because there would be no causative link between the Secretary of State's breach of duty and his claim to protection. Whereas, in the first case, the applicant may have lost the opportunity of corroborating his evidence about the absence of support in Afghanistan by reference to a negative result from the properly discharged duty to endeavour to trace, in the second case he can establish no such disadvantage.

6

I have to say that, like the Court of Appeal in S, I have great difficulties with the judgments in Rashid. In cases that are concerned with claims for asylum, the purpose of the grant of leave to remain is to grant protection to someone who would be at risk, or whose Convention rights would be infringed, if he or she was returned to the country of nationality. Of course, breaches of the duty of the Secretary of State in addressing a claim may lead to an independent justification for leave to remain, of which the paradigm is the Article 8 claim of an asylum seeker whose claim has not been expeditiously determined, with the result that he has been in this country so long as to have established private and family life here. But to grant leave to remain to someone who has no risk on return, whose Convention rights will not be infringed by his return, and who has no other independent claim to remain here (such as a claim to be a skilled migrant), is to use the power to grant leave to remain for a purpose other than that for which it is conferred. In effect, it is to accede to a claim to remain here as an economic migrant. The principle in Rashid has been referred to as "the protective principle", but this is a misnomer: the person seeking to rely on this principle needs to do so only because he has been found not to be in need of protection. I do not think that the Court should require or encourage the Secretary of State to grant leave in such circumstances either in order to mark the Court's displeasure at her conduct, or as a sanction for her misconduct. I agree with the short judgment of Lightman J in S. He said:

… I have the gravest difficulty seeing how the fact that the challenged administrative act or decision falls within one category of unlawfulness as distinguished from another, and in particular the fact that it constitutes an abuse of power giving rise to conspicuous unfairness, can extend to the remedies available to the courts.

7

Nonetheless, the Secretary of State's breach of duty may be relevant to her or the Tribunal's decisions. Her failure may be relevant to the assessment of risk on return. The lack of evidence from the Secretary of State as to the availability or otherwise of familial support should be taken into account. In addition, there are cases in which the consequences of her breach of duty are relevant. SL (Vietnam) [2010] EWCA Civ 225 [2010] INLR 651 was such a case. The appellant should have been granted leave to remain under the then minors policy. If he had been, he would have been able to work lawfully. Because of his precarious immigration status, he could not work lawfully, and he resorted to the large-scale cultivation of cannabis. The...

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