JS (Former Unaccompanied Child - Durable Solution) Afghanistan; JS v Secretary of State for the Home Department
| Jurisdiction | UK Non-devolved |
| Judge | Latter,The Hon Mr Justice Blake |
| Judgment Date | 25 June 2013 |
| Neutral Citation | [2013] UKUT 568 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 25 June 2013 |
[2013] UKUT 568 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
THE PRESIDENT, The Hon Mr Justice Blake
UPPER TRIBUNAL JUDGE Latter
For the Appellant: Mr G Lee, instructed by Sutovic & Hartigan (14 March 2013)
Ms K Cronin, instructed by Sutovic & Hartigan (25 June 2013)
For the Respondent: Mr P Nath, Home Office Presenting Officer (14 March 2013)
Mr G Saunders, Home Office Presenting Officer (25 June 2013)
JS (Former unaccompanied child — durable solution) Afghanistan
(1) A local authority's obligations to an appellant as an unaccompanied child and asylum seeker and his status as a former relevant child after he becomes 18 do not of themselves determine the outcome of a decision on an appellant's immigration status but may provide evidence relevant to those issues.
(2) The failure of the Home Office to endeavour to trace family members of a child asylum seeker is only relevant to an immigration appeal after the appellant ceases to be a child, where he is able to show a causal link between that failure and issues relevant to the outcome of the appeal.
(3) For an unaccompanied asylum seeking child, the best durable solution is to be reunited with his own family unless there are good reasons to the contrary. Where reunification is not possible and there are no adequate reception facilities in the home country, an appropriate durable solution may be to grant discretionary leave during the remaining years of minority and then arrange a return to the country of origin. Where the child is of a young age on arrival, cannot be reunited with his family and will spend many years in the host state during his minority a durable solution may need to be found in the host state.
(4) Where the appellant is no longer a minor, the duty on the Secretary of State under s.55 of the Borders, Immigration and Citizenship Act 1999 no longer arises but when making the assessment of whether removal would lead to a breach of article 8 all relevant factors must be taken into account including age, background, length of residence in the UK, family and general circumstances including any particular vulnerability and whether an appellant will have family or other adult support on return to his home country appropriate to his particular needs.
(5) In the context of Afghanistan it is also necessary to take into account the guidance in AA (Unattended children) Afghanistan CG [2012] UKUT 00016 (IAC) about the risks to unattached children in the light of the reminder in KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1014 in the judgment of Maurice Kay LJ at [18] that there is no bright line across which the risks to and the needs of a child suddenly disappear.
This is an appeal by the appellant against a determination of the First-tier Tribunal issued on 22 November 2012 dismissing his appeal against the respondent's decision of 25 August 2012 refusing him further leave to remain following the refusal of his claim for asylum. On 14 March 2013 the Upper Tribunal found that the First-tier Tribunal had erred in law for the reasons set out at Annex 1 to this determination. At this stage the appellant was represented by Mr Lee of counsel. There was a re-hearing of the appeal on 25 June 2013 by a panel of the Upper Tribunal, the President presiding. At this stage Ms Cronin represented the appellant. This determination has been prepared by Judge Latter but both members of the panel have contributed to the reasons for re-making the decision and dismissing the appeal.
The appellant is a citizen of Afghanistan whose age is in dispute. He claimed that his mother told him he was 13 in 2009 which would mean that he was born in 1996 but this was not accepted by the respondent. There was an age assessment by Slough Borough Council in April 2009 when he was assessed as being 15 years old and was allocated a date of birth of 1 January 1994.
The appellant made a clandestine entry into the UK on 24 March 2009 and when apprehended he claimed asylum. His application was refused but he was granted discretionary leave until 30 June 2011. He then applied for further leave to remain but his application was refused and a decision was made to remove him.
The appellant appealed and on 25 July 2012 the decision was found not to be in accordance with the law and remitted to the respondent for a further decision. A fresh decision was made for the reasons set out in the decision letter of 29 August 2012. The appeal against that decision was listed on 22 October 2012 but adjourned so that the appellant's foster mother who had been summoned for jury service could attend the hearing. However, on 6 November 2012 she did not attend because of unspecified family matters. No application was made for a further adjournment and the hearing proceeded.
The appellant's case was that he would be at risk of serious harm from the Taliban if he had to return to Afghanistan as his father had worked for American intelligence. He had only become aware of this about three weeks before his father was killed. The appellant was at home revising for his exams when the Taliban broke in and attacked his family. His parents and his brothers were together in another room. When he heard shooting he checked what had happened to his family and saw his parents lying on the floor but he did not see where his brothers were. He realised that his life was in danger and quickly left the house and went to hide in the forest.
The next day he started walking on the main road to Kabul to the house where his father's friend lived. When he arrived at the friend's home he told him what had happened to his parents and that he knew nothing about his brothers. The friend told him that for his own safety he must leave Afghanistan and he made arrangements accordingly. The appellant stayed with him for five days, then took a flight to Iran and travelled overland eventually arriving in France where he was able to board a lorry and travel to the UK.
The judge did not find the appellant to be a credible witness. The judge described the whole scenario as unrealistic [31] and found that the whole account had been made up to support his asylum claim. It was argued on the appellant's behalf that the respondent's failure to endeavour to trace his relatives in Afghanistan showed that it could not be demonstrated that it was safe for the appellant to return there, but the judge noted that the appellant had told two social workers during the age assessment interview that he did not know where his siblings were and did not wish them to be traced. The judge commented that in the light of this, it was difficult to see how the respondent could be criticised for not conducting any sort of inquiry to trace the appellant's relatives.
The judge went on to consider the issue of humanitarian protection saying:
“38. In so far as humanitarian protection issues are concerned I find to make a finding is premature at this stage. The respondent has only issued, to date, two relevant decisions, namely to refuse the appellant's application for asylum in the UK but granted him discretionary leave to remain in the UK until 30 June 2011. The second decision [15] to refuse to vary the appellant's leave to remain in the UK. There is no decision to remove the appellant back to Afghanistan. If and when that decision is made then, in my view, issues surrounding humanitarian protection arise. Consequently, I do not deal with humanitarian protection at this juncture.”
The judge then turned to the issue of the appellant's age. He noted that he had asserted at the hearing that he was only 16 years of age on the basis of what his mother had told him before he left Afghanistan but the judge did not accept that he had told the truth in this regard. He said there was no cogent evidence to rebut or challenge the age assessment made by Slough Social Services despite an application made in June 2012 to obtain an independent report. At the hearing it was made clear that the appellant was not relying on any other report and the judge said that, in the light of his negative credibility findings and the total lack of any cogent evidence to challenge the age assessment by Slough Social Services, he gave little if any weight to the appellant's assertions that he was only 16. The appeal was dismissed on asylum and human rights grounds.
The grounds of appeal raised three issues. It was contended that:-
(i) The judge dealt cursorily and incorrectly with the submissions that the age assessment by Slough Social Services was inadequate and not compliant with the Merton [2003] EWHC 1689 (Admin) guidelines.
(ii) The judge failed to deal adequately with the issues arising under KA (Afghanistan) v Secretary of State [2012] EWCA Civ 1014, had wrongly declined to consider humanitarian protection because removal directions had not been set and had not engaged with the argument that the failure to trace was relevant to the proportionality decision under article 8.
(iii) The decision did not display anxious scrutiny in the light of the fact there were a large number of grammatical and syntactical errors such as to leave the appellant in real doubt as to whether his case had been understood and his appeal analysed correctly.
Judge Latter found that there were material errors of law with respect to the second of these grounds (see Annex 1 at [6] to [9]). In summary, the question of humanitarian protection should have been considered as well as asylum and the consequences of the respondent's failure to conduct a tracing inquiry should have been considered both in respect of asylum/humanitarian...
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