SHL (Tracing obligation/Trafficking)
| Jurisdiction | UK Non-devolved |
| Judge | Mr Justice McCloskey |
| Judgment Date | 16 June 2013 |
| Neutral Citation | [2013] UKUT 312 (IAC) |
| Court | Upper Tribunal (Immigration and Asylum Chamber) |
| Date | 16 June 2013 |
[2013] UKUT 312 (IAC)
Upper Tribunal
(Immigration and Asylum Chamber)
THE IMMIGRATION ACTS
The Honourable Mr. Justice McCloskey
Upper Tribunal Judge Goldstein
For the Appellant: Mr O'Ceallaigh, instructed by Hammersmith and Fulham Community Law Centre
For the Respondent: Mr Jarvis, Home Office Presenting Officer.
SHL (Tracing obligation/Trafficking) Afghanistan
[1] Regulation 6(1) of the Asylum Seekers (Reception Conditions) Regulations 2005 imposes on the Secretary of State a duty to endeavour to trace the members of a minor asylum applicant's family as soon as possible following submission of the asylum claim. A failure to discharge this duty may, depending on the facts found, give rise to a breach of the Secretary of State's duty under section 55 of the Borders, Citizenship and Immigration Act 2009, as it may render the decision maker unable to assess the best interests of the child claimant. Where a Tribunal finds a breach of a duty owed under Regulation 6, it is necessary to address the consequences thereof. Such a breach does not per se vitiate the ensuing asylum decision. Rather, it is incumbent on the Tribunal to evaluate its effect and consequences in the fact sensitive context under consideration. The onus remains on the Appellant to establish a proper foundation for the grant of relief.
[2] In the instant case, the Secretary of State failed to discharge its duty under Regulation 6. However the lack of evidence from the Secretary of State concerning the availability of otherwise of familial support to the Appellant in the event of returning to his country of origin neither established nor reinforced any of the grounds upon which the Appellant put forward his case for protection.
[3] There is no right of appeal to the Tribunal under the European Convention on Action Against Trafficking In Human Beings. This Convention, as an unincorporated international treaty, cannot be invoked as a freestanding source of rights, obligations and legal effects and consequences in domestic law.
[4] In any event, in so far as the Secretary of State was subject to a public duty to take the Convention into account, this was clearly done in the present case in making the separate trafficking decision.
[1] This appeal has its origins in the Respondent's decision of 5th April 2011 rejecting the Appellant's application for asylum. By the same decision the Respondent determined that the Appellant did not qualify for any form of relief by virtue of Articles 2, 3 or 8 ECHR or for the grant of humanitarian protection pursuant to paragraph 339C of the Immigration Rules.
[2] The Appellant challenged this decision and the history of the ensuing proceedings may be charted thus:
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(a) On 6th July 2011, the First-tier Tribunal dismissed his appeal.
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(b) On 3rd January 2012, the Upper Tribunal set aside the aforementioned decision and determined to re-make it.
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(c) On 1st April 2012, a hearing scheduled to proceed in the Upper Tribunal was adjourned, to await the decision of the Court of Appeal in KA (Afghanistan) v Secretary of State for the Home Department [2012] EWCA Civ 1014.
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(d) On 18th July 2012, there was another adjournment of the same species.
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(e) On 25th July 2012, the decision in KA was promulgated.
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(f) On 18th October 2012, the appeal was rescheduled for hearing in the Upper Tribunal. On this occasion, an adjournment materialised as a result of the Respondent belatedly introducing certain fresh evidence. This consisted of information emanating from Kent County Council Social Services Department, a “Eurodoc” fingerprint record originating in Greece and a Home Office record of interview of the Appellant. This new evidence was admitted by the Tribunal under rule 15 of the Tribunals Procedure (Upper Tribunal) Rules 2008. The adjournment was designed to enable the Appellant to consider the fresh evidence and take any further steps deemed appropriate.
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(g) Initially, it was proposed that the appeal hearing would be rescheduled on 10th December 2012. In the event, this was revised to 28th January 2013. On this occasion, the Appellant did not appear. The Tribunal granted an adjournment and a new hearing date of 1st May 2013 was allocated.
In deciding, on 3rd January 2012, to set aside the decision of the First-Tier Tribunal, this Tribunal (constituted only by Upper Tribunal Judge Goldstein) concluded that this decision was vitiated by errors of law in relation to the Secretary of State's duty under Regulation 6 under the Asylum Seekers (Reception of Conditions) Regulations 2005 and the duty owed under section 55 of the Borders, Citizenship and Immigration Act 2009, a further error of law on the issue of burden of proof and the making of certain findings which had no evidential foundation.
[3] Prior to 28th January 2013, the Appellant had attended all four previous listings of his case in the Upper Tribunal. His first non-appearance occurred on 28th January 2013. At the rescheduled appeal hearing on 1st May 2013 he failed to appear again. His counsel informed the Tribunal that there had been contact between the Appellant and his solicitors some days before the adjourned hearing in January and again by telephone in advance of the most recent hearing. Counsel further represented to the Tribunal that, in the circumstances, he and his instructing solicitors considered themselves to be without instructions from their client, with the result that they would no longer be representing him. In essence, this was a declaration that they were coming off the record on behalf of their client.
[4] As a result, a conventional hearing was not conducted on 1st May 2013. In its ruling, the Tribunal stated that, notwithstanding his non-attendance, the Appellant was entitled to a determination of his appeal and that this would be undertaken as a paper exercise. The Tribunal noted that personal attendance is not required of any Appellant and that by non-attendance an Appellant does not forfeit his right to have the appeal determined. There is nothing in the legislation suggesting otherwise. Nor does non-attendance by an Appellant automatically qualify for an inference adverse to him. The Tribunal further ruled that as this was the Appellant's second successive failure to appear, there would be no further adjournment and no fresh hearing date would be allocated.
[5] This determination is prepared in the circumstances outlined immediately above. It has two particular features, each of them regrettable. The first is that the Tribunal has not had the opportunity to hear the Appellant's evidence at first hand. The second is that the Tribunal has been deprived of adversarial argument from the parties' respective representatives.
[6] The Appellant arrived in the United Kingdom on 30th August 2009, an unaccompanied teenager, aged almost 15 years. Having claimed asylum, he was registered by Kent County Council as an unaccompanied asylum seeking child and was treated accordingly. It was recorded that he went missing on 9th October 2009 and remained so until 26th November 2010.
[7] On 7th March 2011 [then aged 16 years – [10], infra], the Appellant was interviewed by the Respondent in the presence of his solicitor, a social worker acting as responsible adult and an interpreter. Afghanistan was noted as his country of origin. His village, district and province were recorded. He asserted that the only remaining members of his family in Afghanistan were his sister, maternal uncle and grandfather. He had maintained contact with his family and had spoken by telephone with his sister just three or four weeks previously. As regards his most recent history, he claimed to have been kidnapped by “the agent” who escorted him to Birmingham, where the Appellant worked for him in building operations. There he resided with the agent and other male Afghanis. The Appellant was forced to repay an alleged debt to his captor and when this was achieved he was released. He suffered no ill treatment during his captivity.
[8] With regard to his alleged vulnerability to persecution if repatriated in Afghanistan, he claimed that he would be killed by the Taliban, who were active in his area. He believed that –
“….. they would give me explosive material or bomb to be on myself …. I would be killed …. They wanted me as well because they took my maternal uncle's son and wanted to use him as suicide bomber. He did not come home. My maternal uncle told me I would be taken also so he sent me here.”
His cousin, he claimed, had been taken away by Taliban members two days before the Appellant's departure from Afghanistan. They told his uncle that they wanted him also. The Appellant was elsewhere at this time. Upon returning home, this was recounted to him by his maternal uncle, who also told him that he would send the Appellant to a place where he would be safe. The Appellant left the following morning. His uncle told him that his cousin was exposed to deployment as a suicide bomber. The Appellant detailed the route and duration of his journey from Afghanistan to the United Kingdom. The countries in transit included Greece, where he spent about one month. He claimed that his father had been killed by the Taliban in an explosion when working with the police, when the Appellant was very young. He alleged that his mother had died from illness shortly after his departure from Afghanistan. He had been living with his maternal uncle previously. The Taliban had visited this house on two occasions. His cousin's removal had been reported by his uncle to the police. The Appellant had had no direct contact with Taliban members.
[9] Chronologically, the next material development was the Respondent's decision on whether the Appellant was a...
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