KA (Afghanistan) and Others v Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lord Justice Hooper,Lord Justice Moore-Bick |
| Judgment Date | 25 July 2012 |
| Neutral Citation | [2012] EWCA Civ 1014 |
| Docket Number | Case No: C5/2011/1092, 1943, 1699, 1215, 2119, 2411, 2417, 2439 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 July 2012 |
[2012] EWCA Civ 1014
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(IMMIGRATION AND ASYLUM CHAMBER), FIRST TIER
REF: AA/13345/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
Lord Justice Hooper
and
Lord Justice Moore-Bick
Case No: C5/2011/1092, 1943, 1699, 1215, 2119, 2411, 2417, 2439
Mr Raza Husain QC and Mr Becket Bedford (instructed by Sultan Lloyd Solicitors) for KA
Mr Raza Husain QC and Ms Sonali Naik (instructed by Sutovic and Hartigan Solicitors) for SU
Mr Beckett Bedford (instructed by Sultan Lloyd Solicitors) for AK, EU, AR, QA, FU
Ms Joanna Dodson QC and Mr Anas Khan (instructed by Thompson & Co Solicitors) for SA
Mr Jonathan Hall and Mr Nicholas Chapman (instructed by Treasury Solicitor) for the Respondent
Hearing dates : 27, 28 March 2012
These appeals have been heard together because they raise a number of generic legal and factual issues and provide the Court with the opportunity to consider some difficult problems in the round before determining the individual cases. 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. When granting permission to appeal to this Court in some of the cases, Laws LJ said that this gave rise to the question whether an appellant in these circumstances "should retain the advantages (in immigration terms) of his minority".
At least since Ravichandran v Secretary of State for the Home Department [1996] Imm AR 97 the general rule has been that the specialist tribunals dealing with asylum appeals consider them on the basis of the facts and circumstances prevailing at the time of the hearing. If the facts and circumstances have changed between the determination in the FTT and the hearing in the UT, it is the changed facts and circumstances which have to be addressed. The question posed by Laws LJ in the present cases requires consideration of whether there is something about them which takes them outside the Ravichandran principle.
The centrepiece of the case for the appellants is to be found in Council Directive 2003/9/EC of 27 January 2003 (the Reception Directive), Article 19.3 of which 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."
I shall refer to the duty set out in the first sentence as "the duty to endeavour to trace". It was transposed into domestic law by the Asylum Seekers (Reception Conditions) Regulations 2005, regulation 6 of which provides:
"(1) So as to protect an unaccompanied minor's best interests, the Secretary of State shall endeavour to trace the members of a 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 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 her safety."
It is not suggested that this was anything other than a faithful transposition.
The appellants' factual case is that between 2006 and 2010 the Secretary of State failed to discharge, indeed effectively ignored, the duty to endeavour to trace and thereby undermined the appellants' prospects of making good their asylum claims. The omission is described by Mr Raza Husain QC as "an egregious error of law". The submission is that if the duty had been discharged it would or might have confirmed the appellants' assertions of a lack of family support in Afghanistan which can be a powerful indicator of the well-foundedness of an asylum claim.
Although the UT was considering these cases after the eighteenth birthdays of the appellants and, therefore, at a time when the duty to endeavour to trace no longer applied, the next step in the appellants' legal argument is that the historic illegality continues to be relevant because there is a line of authority in which (and I quote Mr Husain's skeleton argument)
"the courts have recognised that it is appropriate to require historic errors of the kind present here to be remedied. The fundamental point is that the Secretary of State has the power to grant a remedy and her historic errors are at least a mandatory relevant consideration in the exercise of that power."
For this purpose, it does not matter that the appellants are now over 18 because "there is no temporal bright line across which the risks to and the needs of the child suddenly disappear". The line of authority which is said to support this analysis includes R (Rashid) v Secretary of State for the Home Department [2005] INLR 550; AA (Afghanistan) v Secretary of State for the Home Department [2007] EWCA Civ 12; R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546; and SL (Vietnam) v Secretary of State for the Home Department [2010] EWCA Civ 225.
Although these submissions, which I have described as the centrepiece of the appellants' case, raise an important issue, it is not the only issue raised on their behalf. In particular, it is also submitted that both the Secretary of State and the FTT failed to have regard to the best interests of the appellants as children pursuant to section 55 of the Borders, Citizenship and Immigration Act 2009. It is appropriate to reach some conclusions about the legal principles relating to the consequences of any breach (none being admitted by the Secretary of State) of the duty to endeavour to trace and the duty under section 55 before addressing the facts of the appellants' cases, to which the Court will return on a future occasion (except in the case of SA).
The Rashid/S line of authority
In Rashid the Secretary of State, in considering an asylum application, had omitted to have regard to a policy which would or might have benefited the applicant. Over a year later, the applicant's solicitors drew the omission to the attention of the Secretary of State but by the time the application was reconsidered by the Secretary of State the policy had ceased to exist because of a change of circumstances. On the applicant's claim for judicial review of the reiterated refusal on reconsideration, Davis J and thereafter the Court of Appeal held that the applicant had been a victim of unfairness such as to amount to an abuse of power. Pill LJ said (at paragraph 36):
"I agree…that the degree of unfairness was such as to amount to an abuse of power requiring the intervention of the court. The persistence of the conduct [viz failure to have regard to the policy], and lack of explanation for it, contribute to that conclusion. This was far from a single error in an obscure field."
May LJ (at paragraph 41) and Dyson LJ (at paragraph 56) agreed. There was no allegation of bad faith on the part of the Secretary of State. As to remedy, the Court of Appeal concluded that, while it should not declare an entitlement to refugee status, which would be inappropriate in the light of changed circumstances in Iraq, it was appropriate to grant a declaration "the effect of which would be expected to be a grant of indefinite leave to remain" (per Pill LJ at paragraph 39). In so doing, the Court rejected a submission on behalf of the Secretary of State that Ravichandran was fatal to the claim because, at the time of the hearing, the prevailing circumstances in Iraq no longer necessitated protection.
AA (Afghanistan) is of interest because an error of an adjudicator and the ensuing passage of time meant that the appellant had lost the potential benefit of the current policy on unaccompanied minors. He had lost "the advantage of an independent judicial consideration of [the merits] as they stood at the time" (per Keene LJ, at paragraph 22). Although the appellant was no longer a minor, "the loss of potential advantages (procedural or substantive) is a factor which should be taken into account by the Secretary of State" (per Waller LJ, at paragraph 60). Notwithstanding judicial scepticism about the strength of the original claim, the Court granted relief in the form of a direction under section 87 of the Nationality, Immigration and Asylum Act 2002...
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