R Adnan Khan Safi v The Secretary of State for the Home Department
| Jurisdiction | England & Wales |
| Judge | D Gill |
| Judgment Date | 10 December 2013 |
| Neutral Citation | [2013] EWHC 4267 (Admin) |
| Docket Number | CO/3495/2012 |
| Date | 10 December 2013 |
| Court | Queen's Bench Division (Administrative Court) |
[2013] EWHC 4267 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Royal Courts of Justice
Strand
London WC2A 2LL
D Gill
(Sitting as a Deputy High Court Judge)
CO/3495/2012
Mr Mark Symes (instructed by Lawrence Lupin) appeared on behalf of the Claimant
Mr Gwion Lewis (instructed by the Treasury Solicitor) appeared on behalf of the Defendant
THE DEPUTY JUDGE:
This is an ex tempore judgment delivered on the day that submissions were heard.
Procedural and immigration history
The claimant is a national of Afghanistan, who arrived in the United Kingdom in about June 2009 and claimed asylum on 29 June 2009. On 4 September 2009, his asylum claim was refused. I shall hereafter refer to this decision as the "first asylum decision". The defendant granted the claimant discretionary leave until 17 December 2010, this being the date on which the claimant would have reached seventeen and a half years of age if his claimed date of birth of 17 June 1993 was correct. In fact, the defendant assessed the claimant's date of birth as being 17 June 1992. The claimant was entitled to appeal the first asylum decision, but he did not do so.
On 10 December 2010, the claimant applied for further leave. The defendant refused the application in a decision dated 5 July 2011. I shall refer to this decision as the "second asylum decision". The claimant exercised his right of appeal against the second asylum decision. His appeal was heard and determined by a judge of the First-tier Tribunal (Immigration and Asylum Chamber) (the "FtT"), Judge Henderson, who, in a determination dated 30 August 2011 and promulgated on 5 September 2011, dismissed his appeal on asylum grounds, humanitarian protection grounds and human rights grounds. The claimant was refused permission to appeal by the FtT and subsequently by the Upper Tribunal (Immigration and Asylum Chamber) (the "UT"). He did not challenge the decision to refuse permission to appeal to the UT by way of judicial review.
On 27 March 2012, the defendant decided to set directions for the claimant's removal to Afghanistan. This was the decision that was originally the subject of the claim for judicial review lodged on 3 April 2012. I shall hereafter refer to this decision as the "removal decision".
About a week or so before the claim for judicial review was lodged in April 2012, the case of KA (Afghanistan) and Others v Secretary of State for the Home Department [2012] EWCA Civ 1014 was heard in the Court of Appeal. Judgment was awaited.
Judgment in KA (Afghanistan) was delivered on 25 July 2012.
On 21 August 2012, HHJ Langan QC acting as Deputy High Court Judge granted the claimant permission to challenge the lawfulness of the removal decision. The Deputy Judge referred to the defendant's breach of the duty to endeavour to trace the claimant's family imposed upon the defendant under regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005. I shall hereafter refer to this duty as the "tracing duty". The Deputy Judge also referred to the duty of the claimant's representatives to review the merits of the case, following delivery of the further judgment referred to in KA (Afghanistan) that was awaited as at the date on which permission was granted.
That further judgment was the judgment in EU (Afghanistan) and Others v Secretary of State for the Home Department [2013] EWCA Civ 32 delivered in January 2013.
Matters were then complicated in this case by the fact that the claimant made further representations on asylum and human rights' grounds under para 353 of Statement of Changes in the Immigration Rules HC 395 (as amended) (the "Immigration Rules"). These were rejected by the defendant in a decision letter dated 12 June 2013, which I will hereafter refer to as the "fresh claim decision".
A consent order was then agreed and filed on 14 June 2013 leading to a hearing on 19 June 2013 being vacated and the claimant being permitted to file amended grounds in the event that he decided to proceed with his case upon consideration of the fresh claim decision.
The claimant's amended grounds were filed on 18 July 2013. They were very brief. I make that point because shortly before today's hearing, two weeks later than the claimant was directed to do so and with little notice to the defendant, a very detailed skeleton argument prepared by Mr Symes was served on the claimant's behalf.
Given that the amended grounds were filed just a little over a month after the fresh claim decision was made, the defendant does not object — properly, in my view — to the claimant being granted permission to amend his grounds to include a challenge to the fresh claim decision. I therefore grant the claimant permission to amend his grounds to include a challenge to the fresh claim decision. I shall consider later on whether he should be granted permission to challenge the lawfulness of the fresh claim decision.
What are the issues — Discussion:
The amended grounds appear to challenge either directly or indirectly the lawfulness of the first asylum decision, the second asylum decision and it may also be said the determination of Judge Henderson. The first asylum decision is said to be flawed due to the defendant's breach of her tracing duty and her duty to give primary consideration to the interests of children under section 55 of the Borders, Citizenship & Immigration Act 2009 (the "2009 Act"). These flaws are said to feed into the second asylum decision and/or the determination of Judge Henderson with the result that they are not only flawed in themselves but also the prejudice to the claimant due to the defendant's breach of her tracing duty is thereby increased.
Mr Symes confirmed at the commencement of the hearing today that he did formally seek permission to challenge the lawfulness of the first asylum decision, the second asylum decision and the determination of Judge Henderson. In the alternative, he informed me that he relied upon the same arguments to persuade the court that the court's discretion should be exercised in the claimant's favour.
At para 28(a) of the claimant's skeleton argument, Mr Symes suggests, in effect, that a causal link between the breach of the defendant's tracing duty and the outcome of an asylum claim is to be assumed to exist and that such a causal link is broken only if the circumstances show that the causal link has been broken. At para 38 of the skeleton argument, it is argued that the flaw in the first asylum decision on account of the defendant's breach of her tracing duty was not remedied in the second asylum decision. To the contrary, the second asylum decision perpetrated a further flaw of its own in that it ran foul of the "bright-line" rule to risk assessment (para 39 of the skeleton refers) by assuming that the mere fact that the claimant had reached the age of eighteen meant that he would not be at real risk of persecution.
Para 40 of the skeleton argument then argues that the appeal proceedings did not "operate to break the causal link" between the breach of the tracing duty and the outcome of the asylum claim.
I should make the following points straightaway.
The first is that the principles to be applied in deciding whether the claimant's removal is unlawful due to a historic breach of the tracing duty have been established by the Court of Appeal in KA (Afghanistan) and EU (Afghanistan). I will summarise these principles later, to the extent necessary.
However, what is clear is that these cases do not suggest that a causal link between the breach of the tracing duty and the outcome of the asylum claim is to be assumed. To the contrary, it is clear that a causal link must be established in order to show that the defendant's breach of her tracing duty has led to such prejudice that, notwithstanding the fact that he is not at real risk of persecution in Afghanistan, it will now be so unfair to remove the claimant that no reasonable Secretary of State would do so.
It is thus misconceived to focus attention on whether such a causal link "has been broken".
It is convenient at this point to mention the other cases to which my attention has been drawn and which I have found useful. They are:
(1) R (on the application of Shinwari) v Secretary of State for the Home Department [2013] EWHC 2148 (Admin);
(2) R (on the application of Jabarkhail) v Secretary of State for the Home Department [2013] EWHC 1798 (Admin);
(3) R (on the application of Hashemi) v. The Upper Tribunal (Immigration and Asylum Chamber) and the Secretary of State for the Home Department [2013] EWHC 2316 (Admin); and
(4) R (on the application of AA (Iran)) v Upper Tribunal (Immigration and Asylum Chamber) & Another [2013] EWCA Civ 1523.
The second point concerns the fact that, in relying upon a flaw in one decision affecting another decision or the determination of Judge Henderson, Mr Symes seeks to persuade the court to exercise the discretion of the court in the claimant's favour. However, when pressed, Mr Symes accepted that the essential question for the court is whether any such prejudice to the claimant on account of the defendant's breach of the tracing duty is such that it would be so unfair to remove him that no reasonable Secretary of State would do so. If the answer is no, it must follow that the claimant's removal is not unlawful, in which case there can be no question of exercising any discretion in the...
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