The Queen (on the application) of AA (Iran) v Upper Tribunal (Immigration and Asylum Chamber) and Another
| Jurisdiction | England & Wales |
| Judge | Lord Justice Maurice Kay,Lady Justice Sharp,The Master of the Rolls |
| Judgment Date | 26 November 2013 |
| Neutral Citation | [2013] EWCA Civ 1523 |
| Docket Number | Case No: C4/2012/2229 + 2229 (B) |
| Court | Court of Appeal (Civil Division) |
| Date | 26 November 2013 |
[2013] EWCA Civ 1523
THE MASTER OF THE ROLLS
Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division
and
Lady Justice Sharp
Case No: C4/2012/2229 + 2229 (B)
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE,
QUEEN'S BENCH DIVISION, ADMINISTRATIVE COURT
(HHJ GILBART)
REF: CO9540/2011
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Richard Drabble QC and Mr Paul Draycott (instructed by Paragon Law) for the Appellant
Mr Neil Sheldon (instructed by Treasury Solicitors) for the Respondent
This is the latest of a series of cases in which the failure of the Secretary of State to comply with her duty under Article 19(3) of the Reception Directive (2003/9/EC) and its domestic progeny, Regulation 6 of the Asylum Seekers (Reception Conditions) Regulations 2005, has given rise to a claim that the refusal of an application for asylum or humanitarian protection and the dismissal of subsequent statutory appeals are legally flawed. In each case, the claimant arrived in the United Kingdom as an unaccompanied minor and applied for asylum. Regulation 6(1) provides:
"So as to protect an unaccompanied minor's best interests, the Secretary of State shall endeavour to trace the minor's family as soon as possible after the minor makes his claim for asylum."
I shall refer to this as "the tracing duty". In KA (Afghanistan) v Secretary of State for the Home Department [2013] 1 WLR 615 I described the Secretary of State's failure to comply with this as "systemic". I added (at paragraph 16):
"The inference … is that the Secretary of State failed to discharge the duty to unaccompanied minors … because she adopted the policy of granting them leave to remain until they reached the age of 17 1/2 whereafter any further application would be considered on its merits. By that time, of course, the duty to endeavour to trace would be close to expiration because of the imminence of majority."
The other significant cases in this Court were DS (Afghanistan) v SSHD [2011] INLR 389; HK (Afghanistan) v SSHD [2012] EWCA Civ 315; and EU (Afghanistan) v SSHD [2013] Imm AR 496 CA.
In the present case, the appellant, a citizen of Iran, arrived in the United Kingdom as an unaccompanied minor on 21 January 2009 and claimed asylum. He was then a month short of his sixteenth birthday. His date of birth is 27 February 1993. He is therefore now aged twenty.
The procedural history
On 29 June 2009, the Secretary of State refused the appellant's application for asylum but granted him discretionary leave to remain (DLR) until 27 August 2010. An appeal to the First-tier Tribunal (FTT) was dismissed on 19 August 2009. On 25 August 2010, he made an application for further leave to remain on asylum, humanitarian protection and human rights grounds. It was refused by the Secretary of State on 22 November 2010. The appellant again appealed to the FTT but his appeal was dismissed on 27 January 2011. On 22 February 2011 the FTT refused his application for permission to appeal to the Upper Tribunal (UT). He applied to the UT for permission to appeal but on 7 July 2011 permission was refused. By then he was eighteen.
The decision of the UT dated 7 July 2011 was then sought to be challenged by an application for permission to apply for judicial review in accordance with R (Cart) v Upper Tribunal [2012] 1 AC 663 SC. Langstaff J refused permission to apply on the papers on 18 November 2011 but on 16 March 2012 Judge Gore QC, sitting as a Deputy High Court Judge, granted permission following an oral hearing. The substantive hearing took place before Judge Gilbart QC but, on 19 July 2012, he refused the application; [2012] EWHC 1784 (Admin). However, Judge Gilbart QC granted the appellant permission to appeal to this Court and Sir Richard Buxton later granted permission in relation to further grounds. We heard the appeal on 12 October 2013, by which time the appellant was aged 20. This was the ninth occasion on which the appellant's case received judicial consideration.
It is important to keep two things in mind. The first is that the decision which is being challenged in the present proceedings is the refusal by the UT on 7 July 2011 to grant permission to appeal against the decision of the FTT dated 22 February 2011. The question is whether that was an unlawful refusal of permission. The second point is that from the moment Judge Gore granted permission to apply for judicial review on 16 March 2012, this has been a substantive judicial review case, freed from the shackles of the second-appeals test which Cart requires to be satisfied when consideration is being given to an application for permission to apply for judicial review in these unusual circumstances. Unfortunately, this was not fully appreciated in the submissions before or the judgment of Judge Gilbart or in the initial skeleton arguments in this Court.
The appellant's case
As I have said, the foundation of the appellant's case is the Secretary of State's failure to comply with the tracing duty when he was still a minor. His complaint is that his factual case that he would be at risk of persecution and mistreatment on return to Iran because of the involvement of his father and his uncle in KDPI activities prior to his departure was disbelieved (twice) by the FTT in circumstances where he might have had a better chance of being believed if he had had the fruits of the proper discharge by the Secretary of State of the tracing duty. In other words, tracing might have produced material which would have supported his account. In order to evaluate this case, it is necessary to see what the two FTT decisions found.
The FTT decision of 19 August 2009
The appellant's case before the first FTT (Immigration Judge Stott) was that his father had been killed by the Iranian authorities for his KDPI activities some ten years previously. The appellant had left Iran some years later after he had been reluctantly involved in distributing leaflets for the KDPI at the behest of his uncle. Fearing that this would lead to his persecution, his mother arranged his clandestine departure from Iran. He had arrived in the United Kingdom in the back of a lorry shortly before his sixteenth...
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