R (TN (Afghanistan)) v Secretary of State for the Home Department MA (Afghanistan) v Same

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Maurice Kay,Lord Justice Beatson,Lord Justice Briggs
Judgment Date12 December 2013
Neutral Citation[2013] EWCA Civ 1609
Docket NumberCase Nos: C5/2012/0537, C4/2012/0176
Date12 December 2013

[2013] EWCA Civ 1609

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM UTIAC and THE HIGH COURT, QUEEN'S BENCH DIVISION,

ADMINISTRATIVE COURT, (LINDBLOM J)

REFS: AA06995/2011; CO1399/2011

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division

Lord Justice Beatson

and

Lord Justice Briggs

Case Nos: C5/2012/0537, C4/2012/0176

Between:
TN (Afghanistan) & MA (Afghanistan)
Appellants
and
Secretary of State for the Home Department
Respondent

Mr Becket Bedford and Mr Zane Malik (instructed by Sultan Lloyd Solicitors) for the Appellants

Mr David Blundell (instructed by Treasury Solicitors) for the Respondent

Lord Justice Maurice Kay
1

The arrival in the United Kingdom of young male Afghans who proceed to make asylum, humanitarian protection or human rights claims has given rise to a number of legal problems, particularly when, on arrival, they are unaccompanied minors. Some of the problems were considered in the cases culminating in KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1014 and its sequel EU (Afghanistan) v Secretary of State for the Home Department [2013] EWCA Civ 32. The cases considered in KA and EU had the common feature that the appellants had been granted discretionary leave to remain (DLR) until they reached the age of 17 1/2, thereby leaving them to make a further application before attaining their majority. The cases also had the common feature that they were manifestations of a systemic breach by the Secretary of State of her duty, pursuant to Article 19(3) of Council Directive 2003/9/EC (the Reception Directive) and Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005, to endeavour to trace the members of a minor's family as soon as possible after he makes a claim for asylum. KA sought to clarify the way in which tribunals should approach such cases, in particular when considering an appeal after the claimant has reached the age of 18 but where he seeks to rely on his having been disadvantaged by the breach of the tracing duty while he was still a minor.

2

The present appellants, TN and MA, represent a specific subset. Their asylum claims were refused by the Secretary of State and they were granted DLR after they had attained the age of 16 1/2. The DLR, which expired when they became 17 1/2, was therefore granted for less than one year. Section 83 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) provides that:

"(1) This section applies where a person has made an asylum claim and –

(a) his claim has been rejected by the Secretary of State, but

(b) he has been granted leave to enter or remain in the United Kingdom for a period exceeding one year (or for periods exceeding one year in aggregate).

(2) The person may appeal to the Tribunal against the rejection of his asylum claim."

Plainly, TN and MA, having been refused asylum and having been granted DLR for less than one year, had no right to appeal against the refusals pursuant to section 83(2). There is a difference in the ways in which they responded to that predicament.

3

TN commenced judicial review proceedings challenging the decision to refuse his asylum claim without a right of appeal. On 16 December 2011, Lindblom J refused the substantive application for judicial review. However, he granted permission to appeal to this Court, which permission was enlarged by Hooper LJ on 10 April, 2012. We are concerned with that appeal. Shortly before he became 17 1/2, TN had also made an application to the Secretary of State for further leave to remain on asylum, humanitarian protection and human rights grounds. It was refused on 8 November 2011. That triggered a statutory right of appeal to the First-tier Tribunal (FTT) pursuant to section 82(1) of the 2002 Act because such a decision is an "immigration decision" as defined by section 82(2)(d). In parallel to the judicial review proceedings with which we are concerned, TN has availed himself of his statutory right of appeal. After initial failure in the FTT, TN partially succeeded before the Upper Tribunal (UT) which remitted his case to the Secretary of State in the light of KA so that the case could be reconsidered by the Secretary of State with the benefit of the result of proper discharge of the tracing obligation.

4

MA did not apply for judicial review. Shortly before the expiration of his DLR, he applied to the Secretary of State for further leave to remain. The Secretary of State refused the application, whereupon MA exercised his statutory right of appeal. His appeals to the FTT and the UT were unsuccessful and it is against the decision of the UT that he now has permission to appeal to this Court.

The facts

5

Without going into detail at this stage, it is appropriate to describe some of the factual bases upon which TN and MA have mounted their asylum claims. TN's date of birth is 1 January 1994. He therefore turned 18 on 1 January 2012 and is now approaching 20. He claims that two of his paternal uncles are members of the Taliban; that they approached his father to recruit him into the Taleban; that his father refused; and that his father then arranged for his departure from Afghanistan in October 2009. On 18 November 2009, TN was fingerprinted by UKBA officials in the control zone at Calais. He was issued with a notice of liability to removal. He later travelled to the United Kingdom in the back of a lorry. He claims that he was met by a man who said that he would take him to the Home Office but who in fact took him to a place where he worked as a car washer until he was arrested on 8 September 2010. Two days later he made an asylum claim. He was then aged 16 years and 8 months. By a decision letter dated 12 November 2010, the Secretary of State refused the asylum claim. The account of a Taliban connection and attempted recruitment was rejected. It was also considered that, in any event, there was sufficiency of protection and a prospect of internal relocation. Nevertheless, he was granted DLR until 1 July 2011. On 29 June 2011 he made his application for further leave to remain. It was refused on 8 November 2011. His appeal to the FTT was dismissed with adverse credibility findings on 28 December 2011. The UT later found an error of law in the determination of the FTT and proceeded to rehear the appeal with the outcome to which I referred at paragraph 3, above.

6

MA arrived in the United Kingdom on 27 July 2009 and claimed asylum ten days later. He claimed to be aged 13 but an age assessment carried out a few months later assessed his age as 16. He asserted that his father had been a member of the Taliban who was taken and killed by the authorities and that his brother had been killed in an explosion for which the American Armed Forces were responsible. He claimed fear of persecution as a result of his father's Taliban involvement. The Secretary of State rejected MA's account in a letter dated 23 November 2009 but granted DLR until he became 17 1/2. On 29 June 2010 he applied for further leave to remain but this was refused in a letter dated 31 May 2011. An appeal to the FTT was dismissed on 26 July 2011 but the UT found that the FTT decision contained a legal error. On 12 January 2012 the UT redetermined and dismissed the appeal. It found that MA had been 16 on arrival in this country and that he was therefore 18 at the time of the hearing in the UT. It rejected the alleged Taliban connection and that the brother had been killed in an explosion. The UT did not consider that the Secretary of State's failure to discharge the tracing obligation or the delay or the fact that the first refusal of asylum had been unappealable by reason of section 83(2) rendered the Secretary of State's decision unlawful. MA has been granted permission to appeal to this Court against the decision of the UT.

These appeals

7

The grounds of appeal in these cases were explained in a series of skeleton arguments written by Mr Becket Bedford, the most recent of which is dated 4 October 2013, some six days before the hearing of the appeal. The first and principal ground of appeal is that, by granting them DLR for less than a year, the Secretary of State unlawfully denied the appellants an effective remedy to which they are entitled as a matter of European law. In other words, it was unlawful to create a situation in which, by granting DLR for less than one year, the Secretary of State ensured that there could be no appeal to the FTT while the appellants were still under 18 and protected by the tracing obligation and section 55 of the Borders Citizenship and Immigration Act 2009, as explained by the Supreme Court in ZH (Tanzania) v Secretary of State for the Home Department [2011] 2 WLR 148. Secondly, the appellants were not only denied an effective remedy by way of appeal. They were thereby disadvantaged in relation to the remedy with which they were provided because of the limitations of judicial review. The third issue is whether what is sometimes called "corrective relief", emerging from cases such as R (Rashid) v Secretary of State for the Home Department [2005] EWCA Civ 744 and R (S) v Secretary of State for the Home Department [2007] EWCA Civ 546, is a sufficient remedy. In this context, Mr Bedford invites us to revisit R (R v Secretary of State for the Home Department, ex parte Ravichandran (No.1) [1996] Imm AR 97 and, if necessary, to refer the point to the Court of Justice of the European Union (CJEU). Fourthly, the appellants seek to rely on the Charter of Fundamental Rights of the European Union (the Charter). Finally, he invites us, if...

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