R (TN (Afghanistan)) v Secretary of State for the Home Department MA (Afghanistan) v Same
| Jurisdiction | England & Wales |
| Judge | Lady Hale,Lord Toulson,Lord Hughes,Lord Neuberger,Lord Wilson |
| Judgment Date | 24 June 2015 |
| Neutral Citation | [2015] UKSC 40 |
| Date | 24 June 2015 |
| Court | Supreme Court |
Lord Neuberger, President
Lady Hale, Deputy President
Lord Wilson
Lord Hughes
Lord Toulson
Appellants (TN & MA)
Becket Bedford Zane Malik
(Instructed by Sultan Lloyd Solicitors)
Appellant (AA)
Stephen Knafler QC Anthony Vaughan
(Instructed by Luqmani Thompson & Partners)
Respondent
Jonathan Hall QC David Blundell
(Instructed by Government Legal Department)
Intervener (The Office of the Children's Commissioner – Written Submissions Only)
Nadine Finch
(Instructed by Freshfields Bruckhaus Deringer LLP)
Heard on 2 and 3 March 2015
(with whom Lord Neuberger, Lady Hale, Lord Wilson and Lord Hughes agree)
The appellants have four things in common. They have Afghan nationality. They came to the UK as unaccompanied minors. They claimed asylum. Their claims were rejected. The present appeals involve two discrete sets of issues. They relate a) to the sufficiency of the appellate process and b) to the respondent's obligations with regard to family tracing.
In 1999 the EU Council of Ministers resolved to work towards a Common European Asylum System. There followed a group of Council Directives which together form a code. They are Directive 2003/9/EC of 27 January 2003 laying down minimum standards for the reception of asylum seekers ("the Reception Directive"), Directive 2004/83/EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted ("the Qualification Directive") and Directive 2005/85/EC of 1 December 2005 on minimum standards on procedures in Member States for granting and withdrawing refugee status ("the Procedures Directive").
Article 39 of the Procedures Directive requires Member States to "ensure that applicants for asylum have the right to an effective remedy before a court or tribunal, against … a decision taken on their application for asylum".
The main provisions of domestic law regarding challenges to asylum decisions are in the Nationality, Immigration and Asylum Act 2002 ("NIAA"). The provisions applicable in these cases are those contained in that Act as it was prior to the Immigration Act 2014. In the form with which we are concerned, section 82 gives a general right of appeal to the First-tier Tribunal (Immigration and Asylum Chamber) from an "immigration decision" as defined in section 82(2). This includes a refusal of leave to enter the UK; a refusal to vary a person's leave to enter or remain if the result is that the person has no leave to enter or remain; or a decision to remove them. Additionally, section 83 (as amended by section 26(3) of the Asylum and Immigration (Treatment of Claimants, etc) Act 2004) provides:
"(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."
(Section 82 was substantially amended and section 83 was repealed by section 15 of the Immigration Act 2014, which came into force, subject to various savings, on 20 October 2014.)
Lindblom J explained in his judgment in TN's case, [2011] EWHC 3296 (Admin) at para 22, the reason given by the government, when introducing section 83, for confining it to cases where an unsuccessful applicant for asylum is given leave to remain for more than a year. The reason was that in circumstances where a person arrives from a country in turmoil, and their claim for asylum is rejected, but it is not immediately safe or practicable to return them, they will be given leave to remain for a short period with a view to reconsidering at the end of that period whether the situation has become sufficiently stable for it to be possible to return them. Kosovo was given as an example. If at the end of the period of leave there is a refusal to extend it, the person concerned will have an immediate right of appeal under section 82 against the refusal and against any removal decision. The likely effect of providing an earlier right of appeal under section 83 would be to clog up the appeal system before it became necessary for their appeals to be heard.
It has long been the policy of the government not to return an unaccompanied asylum seeking child ("UASC") unless the respondent is satisfied that there are proper reception arrangements in the country to which they are to be removed. Under section 55 of the Borders, Citizenship and Immigration Act 2009 the respondent has a duty, in summary, to ensure that any of her functions in relation to immigration, asylum or nationality are discharged having regard to the need to safeguard and promote the welfare of children who are in the UK. Statutory guidance issued under that section, " Every Child Matters" (November 2009), para 2.7, requires the Border Agency to act in accordance with principles which include the following:
"In accordance with the UN Convention on the Rights of the Child the best interests of the child will be a primary consideration (although not necessarily the only consideration) when making decisions affecting children. …
Children should be consulted and the wishes and feelings of children taken into account wherever practicable when decisions affecting them are made, even though it will not always be possible to reach decisions with which the child will agree."
The respondent's published guidance on Processing an Asylum Application from a Child states at para 17.7:
"Discretionary Leave under UASC Policy
The UK Border Agency has a policy commitment that no unaccompanied child will be removed from the United Kingdom unless the Secretary of State is satisfied that safe and adequate reception arrangements are in place in the country to which the child is to be removed.
Where:-
the child does not qualify for asylum or HP [humanitarian protection] or otherwise under the general DL policy, and;
we are not satisfied that the child will be able to access adequate reception arrangements in the country to which they will be removed;
the child should normally be granted DL for three years or, with effect from 1 April 2007, until they are 17.5 years of age, whichever is the shorter period. This applies in all cases except where stated otherwise in country specific operational guidance notes (OGN)."
Paragraph 17.8 states:
"Best interests and duty under section 55 of the Borders, Citizenship and Immigration Act 2009.
The availability of safe and adequate reception arrangements is only one factor to consider in deciding on whether the person should be granted Discretionary Leave under the UASC policy. Full account also needs to be given to the following:
the best interests of the child must be taken into account as a primary consideration in the decision; and
the duty to have regard to the need to safeguard and promote the welfare of the child in accordance with section 55 of the Borders, Citizenship and Immigration Act 2009 and the statutory guidance that accompanies it ("Every Child Matters" …).
…
The best interests of a child, whilst a primary consideration, is not the sole consideration when considering whether a child should be granted leave to remain or return to the country of origin. Other factors, including the need to control immigration, are also relevant.
In some cases, it may be reasonably clear that the child's best interests may be served by returning to the country of origin – for example where the family has been traced and it is clear that the return arrangements can be made direct to parents.
In other cases, the decision on whether to return will be a matter of making a careful assessment of the child's best interests and balancing those interests against the wider public interest of controlling immigration."
In the case of UASCs from Afghanistan whose applications for asylum are rejected, it has been the respondent's settled practice at all relevant times to grant them discretionary leave to remain until they reach the age of 17 years six months. Whether the period of leave exceeds one year will therefore depend on the age of the individual child.
Family tracing is one aspect of concern for an unaccompanied child's welfare. The Reception Directive lays down minimum standards for the reception of asylum seekers in Member States: article 1. Chapter IV (articles 17 to 20) contains provisions for protecting the welfare of persons with special needs. Article 19 is concerned with unaccompanied minors. Article 19.1 requires the host Member State to ensure that the minor is represented by "legal guardianship", or by an organisation which is responsible for the care and well-being of minors, or by another appropriate organisation. Article 19.2 requires the placement of UASCs, from the moment that they are admitted to the territory until they are obliged to leave, with adult relatives, or with a foster-family, or in accommodation centres with special provisions for minors, or in other accommodation suitable for minors. Article 19.3 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...
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